Affirmed and Memorandum Opinion filed October 12, 2004.
In The
Fourteenth Court of Appeals
____________
NO. 14-03-00436-CV
____________
MICHELLE BACKMAN, Appellant
V.
J.C. PENNEY CO., INC. AND DENISE GENTRY, Appellees
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Cause No. 9939*RM99
M E M O R A N D U M O P I N I O N
This is a dispute between a customer and a department store and store manager concerning the customer=s detention and subsequent arrest and prosecution for allegedly assaulting the store manager when the customer attempted to exchange items at the store. We conclude the trial court did not err in granting summary judgment in favor of the department store and its manager. Accordingly, we affirm the trial court=s judgment.
I. Factual and Procedural Background
Appellant/plaintiff Michelle Backman, a former employee of appellee/defendant J.C. Penney, Co., Inc., entered the J.C. Penney store in Lake Jackson, Texas, to exchange four items of clothing, two of which had the store=s ink tags on them. Appellee/defendant Denise Gentry, a store manager, approached Backman about the items and requested to see a receipt. According to Backman=s deposition, Backman had the receipt for the two items not marked with the ink tags, but she did not show the receipt to Gentry even though Gentry inquired into the whereabouts of the receipt three times. When Backman did not show Gentry the receipt, Gentry took the clothing and walked away. Backman admits to grabbing around Gentry=s body in an attempt to retrieve the clothing. According to Gentry=s deposition, Gentry then fell into a rack of clothes and her glasses fell off. Gentry stated that she felt an arm on her neck area; Backman agreed in her deposition that she may have had her arm around Gentry=s neck, but did not touch her neck. Jonathan Burger, a loss prevention officer at the store, observed the altercation between Backman and Gentry, and he separated the two women. Burger handcuffed Backman and took her to a back room. The Lake Jackson police arrived and took Backman to the police station. She was charged with Class C misdemeanor assault and was eventually found not guilty.
Backman filed suit against J.C. Penney and Gentry alleging false imprisonment, false arrest, malicious prosecution, and intentional infliction of emotional distress. Backman further alleged that she was entitled to exemplary damages as a result of their conduct. J.C. Penney and Gentry filed a motion for summary judgment, contending that, as a matter of law, (1) J.C. Penney and Gentry acted with authority of law; (2) J.C. Penney and Gentry possessed probable cause when charges were filed against Backman for allegedly assaulting Gentry; (3) J.C. Penney and Gentry did not act with malice; (4) J.C. Penney and Gentry did not act intentionally or recklessly, engage in extreme and outrageous conduct, or cause Backman severe emotional distress; and (5) Backman is not entitled to exemplary damages. The trial court granted summary judgment without specifying the grounds.
II. Standard of Review
In reviewing a traditional motion for summary judgment, we take as true all evidence favorable to the non-movant, and we make all reasonable inferences in the non-movant=s favor. Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). If the movant=s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the non-movant to raise a genuine, material fact issue sufficient to defeat summary judgment. Id. Because the trial court did not specify the grounds for its ruling, we will affirm if any of the grounds advanced in the motion has merit. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
III. Issues Presented
Backman presents the following issues for review:
(1) Did the trial court err in granting summary judgment because J.C. Penney and Gentry did not show as a matter of law that they had authority of law to detain Backman?
(2) Did the trial court err in granting summary judgment because there is a genuine issue of material fact as to whether J.C. Penney and Gentry had probable cause to criminally prosecute Backman?
(3) Did the trial court err in granting summary judgment in favor of J.C. Penney and Gentry on Backman=s claim for intentional infliction of emotional distress?
(4) Did the trial court err in granting summary judgment in favor of J.C. Penney and Gentry on Backman=s claim for exemplary damages?
IV. Analysis and Discussion
A. Malicious Prosecution
In her second issue, Backman claims a genuine issue of material fact exists as to whether J.C. Penney and Gentry had probable cause to criminally prosecute Backman and whether they acted with malice when they did so.
In a malicious criminal prosecution claim, a plaintiff must establish the following elements:
(1) the commencement of a criminal prosecution against the plaintiff;
(2) causation (initiation or procurement) of the action by the defendant;
(3) termination of the prosecution in the plaintiff's favor;
(4) the plaintiff=s innocence;
(5) the absence of probable cause for the proceedings;
(6) malice in filing the charge; and
(7) damage to the plaintiff.
Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). At issue in this case are the fifth and sixth elements.
1. Probable Cause
Probable cause is Athe existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the . . . [complainant], that the person charged was guilty of the crime for which he was prosecuted.@ Id. In other words, the inquiry in this case is, AWould a reasonable person believe that an assault had been committed given the facts as Gentry reasonably believed them to be before the criminal proceedings were instituted?@ See id. In a malicious-prosecution case, a defendant is given the initial presumption that she acted reasonably and in good faith in initiating a criminal complaint. Id. However, this presumption is rebutted when the plaintiff Aproduces evidence that the motives, grounds, beliefs and other evidence upon which the defendant acted did not constitute probable cause.@ Id. at 518. Once the presumption is rebutted, the burden shifts back to the defendant to prove she acted with probable cause. Id.
The statute under which Backman was charged defines assault as intentionally or knowingly causing physical contact with another when the accused knows or should reasonably believe that the other person will regard the contact as offensive or provocative. See Tex. Pen. Code Ann. ' 22.01(a)(3) (Vernon 2003). A person acts intentionally with respect to a result of his conduct when it is his conscious objective or desire to cause the result. See id. ' 6.03(a). A person acts knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. See id. ' 6.03(b). In her own deposition testimony, Backman indicates that Gentry took the clothing from the store counter after inquiring three times in a raised voice whether Backman had a receipt for the items. Backman admitted to cursing at Gentry and about Gentry to customers. Backman also acknowledged in her deposition that she approached Gentry from behind and reached around her in an attempt to retrieve the clothes. Though she claims in her appellate brief not to have touched Gentry in any way, Backman testified that her arm was around Gentry=s neck. She also stated that Aif [Gentry] hooked my arm on her own, that was her fault, but I reached around her. I didn=t touch her neck or nothing like that.@ In addition, Backman testified that she did not know whether she knocked Gentry=s glasses off, but said that she would not disagree if Gentry said her glasses were knocked off. Finally, Backman testified that Burger, the loss prevention officer, told her to calm down after the incident. In support of her contention, Backman relies on the investigation report from the Lake Jackson Police Department, which states that Burger advised the reporting officer that Backman Anever did hit or choke or hurt Gentry.@[1] However, Gentry=s statement to the police does not indicate an allegation that Backman hit or choked or hurt Gentry,[2] nor does the Texas Penal Code require such a finding for the offense of assault. Applying the summary-judgment standard of review, even if Gentry believed the facts concerning the altercation to be those stated by Backman, such facts would still cause a reasonable person to believe that Backman had committed an assault on Gentry. Accordingly, we overrule Backman=s second issue with regard to probable cause.
2. Malice
Backman also claims summary judgment should not have been granted because she raised a genuine issue of fact on the element of malice. Malice is defined as ill will, evil motive, gross indifference, or reckless disregard for the rights of others. Digby v. Texas Bank, 943 S.W.2d 914, 922 (Tex. App.CEl Paso 1997, writ denied). The existence of malice may be inferred from the lack of probable cause. Biering v. First Nat=l Bank, 7 S.W. 90, 92 (Tex. 1888). Backman contends J.C. Penney and Gentry fabricated the assault charge against her, which demonstrates ill will and evil motives. However, Backman does not cite to any summary-judgment evidence to support this claim, nor has this court found any. As a result, we overrule Backman=s second issue with regard to malice.
Accordingly, we affirm the trial court=s summary judgment as to Backman=s malicious prosecution claim.
B. False Imprisonment
In her first issue, Backman asserts that the trial court erred in granting summary judgment in favor of J.C. Penney and Gentry on her false imprisonment claim because J.C. Penney and Gentry did not show as a matter of law that they had authority of law to detain Backman. Backman contends she was falsely imprisoned when she was detained by the loss prevention officer at the store, and then falsely arrested by the Lake Jackson authorities based on alleged misinformation provided to them by Gentry.
The essential elements of false imprisonment or false arrest are (1) willful detention, (2) without consent, and (3) without authority of law. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). The parties agree that the only issue in contention in this case is the third element. In their motion for summary judgment, J.C. Penney and Gentry claim they acted under authority of law. They cite as authority (1) the shopkeeper=s privilege created by Texas Civil Practice and Remedies Code section 124.001,[3] (2) the provisions in article 18.16 of the Texas Code of Criminal Procedure,[4] and (3) the reasonable belief that Backman had committed a crime, namely the alleged assault against Gentry.
Because Backman was detained and arrested for an alleged assault, Texas Code of Criminal Procedure article 18.16 and Texas Civil Practice & Remedies Code section 124.001 do not apply in this case. For these provisions to apply, a person must be seized or detained because she is suspected of committing a theft.[5] Here, although the summary-judgment evidence shows that Gentry took the clothing from Backman in an attempt to investigate the purchase, Backman was not detained at that time. It was not until Backman reached for the clothing in Gentry=s hands and the two women were separated by the loss prevention officer that Backman was handcuffed and taken to a back room. In addition, the summary-judgment evidence does not indicate the loss prevention officer who detained Backman was investigating a theft by Backman. Therefore, we conclude that article 18.16 of the Texas Code of Criminal Procedure and the shopkeeper=s privilege do not apply in this case.
In their motion for summary judgment, J.C. Penney and Gentry asserted a general authority of law Ato detain a person who has committed a crime, to call the police, and allow them to handle the matter.@ Under article 14.01 of the Texas Code of Criminal Procedure, any person may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is a felony or an offense against the public peace. Tex. Code Crim. Proc. Ann. art. 14.01 (Vernon 1977). To be an offense against the public peace, the act complained of must be one which disturbs or threatens to disturb the tranquility enjoyed by the citizens. Andrade v. State, 6 S.W.3d 584, 590 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). Assault has been found to constitute an offense against the public peace. See Woods v. State, 213 S.W.2d 685, 688 (Tex. Crim. App. 1948) (finding breach of peace when one person assaulted another in a public place in the presence of others). In this case, the summary-judgment evidence shows the alleged assault took place in the department store with other customers and employees present. Therefore, the alleged assault in this case qualified as an offense against the public peace.
The summary-judgment evidence shows the following regarding Burger, the J.C. Penney loss prevention officer who detained Backman:
! On the date of the incident in question, after Gentry learned that Backman was on her way to the store to return some merchandise, Gentry called Burger and asked him to meet Gentry in the ladies clothing department.
! The report from the Lake Jackson Police Department lists Burger as a witness to Backman=s alleged assault of Gentry. According to that report, Burger stated that Backman did not hit, choke, or hurt Gentry Other than this statement, the summary-judgment evidence contains no statement from Burger regarding what he observed.
! Backman testified that, during her altercation with Gentry, Burger was present and watching from a distance.
! Backman testified that after the altercation in question, Gentry screamed out for assistance from Burger, who was approaching from a distance and who was Aright there.@
! Backman testified that Burger grabbed her hand out from around Gentry, that Burger grabbed Backman=s left arm, and that Burger told Backman, AMichelle, calm down. This is not you.@
! After the altercation between Gentry and Backman, Burger separated the two women.
Direct observation of the commission of a crime has been interpreted as requiring the private citizen to observe enough of the situation to establish probable cause a crime is being committed. McGuire v. State, 847 S.W.2d 684, 686 (Tex. App.CHouston [1st Dist.] 1993, no pet.). Under the undisputed summary-judgment evidence, Burger observed the altercation between Backman and Gentry. As stated above, even taking as true all evidence favorable to Backman and making all reasonable inferences therefrom in her favor as to the facts of the altercation, the record still shows that a reasonable person observing these events would have believed that Backman had assaulted Gentry. Therefore, the summary-judgment evidence shows the loss prevention officer observed the altercation and had probable cause to believe that Backman committed the offense of assault by intentionally or knowingly causing physical contact with Gentry when Backman knew or reasonably should have believed that Gentry would regard the contact as offensive or provocative. Accordingly, J.C. Penney had authority of law to detain Backman until the Lake Jackson police arrived at the scene. Under the applicable standard of review, J.C. Penney and Gentry established as a matter of law that they acted under authority of law. Therefore, the trial court did not err in granting summary judgment on Backman=s false imprisonment claim.[6] Accordingly, we overrule Backman=s first issue.
C. Intentional Infliction of Emotional Distress
In her third issue, Backman contends the trial court erred in granting summary judgment on her claim for intentional infliction of emotional distress. To recover damages for intentional infliction of emotional distress, a plaintiff must prove (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the defendant=s actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998). To be extreme and outrageous, a defendant=s conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. See Tex. Farm Bureau Mut. Ins. Co. v. Sears, 84 S.W.3d 604, 610 (Tex. 2002). Conduct that is merely insensitive or rude is not extreme and outrageous. Id. Likewise, Amere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous conduct.@ Id. (quotations omitted). In deciding whether a defendant=s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, we consider both the conduct=s context and the parties= relationship. Id. at 610B11. Although a defendant=s motive or intent is relevant to an intentional-infliction-of-emotional-distress claim, it is not enough to support liability. Id. at 612. Rather, the conduct itself must be extreme and outrageous. Id.
In their motion for summary judgment, J.C. Penney and Gentry asserted that, as a matter of law, they did not (1) act intentionally or recklessly, (2) engage in extreme and outrageous conduct, or (3) cause Backman severe emotional distress. In her brief, Backman contends, among other things, that J.C. Penney=s and Gentry=s conduct was extreme and outrageous because it went Abeyond all possible bounds of decency . . . .@ However, Backman does not point to any specific conduct as being extreme and outrageous, and she does not cite a case in which the type of conduct she alleges has been found to be extreme and outrageous in this context. See Sudan v. Sudan, No. 14-01-00854-CV, __ S.W.3d __, __, 2004 WL 1351517, at *5 (Tex. App.CHouston [14th Dist.] June 17, 2004, no pet. h.) (op. on reh=g). The summary-judgment evidence indicates that Backman did not show Gentry a receipt for clothing that contained the store=s ink tags. Backman admitted to grabbing around Gentry=s body in an attempt to retrieve the clothing after Gentry took the clothing from the counter. A loss prevention officer separated the two women, handcuffed Backman, and took her to a back room. Gentry called the Lake Jackson police, who took Backman to the police station and charged her with assault. In this context, as a matter of law, J.C. Penney=s and Gentry=s conduct does not rise to the level of conduct so extreme and outrageous as to permit recovery for intentional infliction of emotional distress. Under these circumstances, the trial court did not err in granting summary judgment on Backman=s intentional-infliction-of-emotional-distress claim and, therefore, we overrule her third issue.
D. Exemplary Damages
In her fourth issue, Backman asserts that she raised a fact issue as to her claim for exemplary damages. Under section 41.003 of the Texas Civil Practice & Remedies Code, as it applies in this case, a claimant must show by clear and convincing evidence that the harm for which the claimant seeks recovery of exemplary damages results from malice. See Tex. Civ. Prac. & Rem. Code Ann. ' 41.003(a)(2) (Vernon Supp. 2004). Backman maintains that exemplary damages are appropriate in this case because Gentry acted with malice when she deliberately fabricated the assault charge, leading to the false imprisonment, false arrest, malicious prosecution, and intentional-infliction-of-emotional-distress claims. J.C. Penney and Gentry established as a matter of law that they were entitled to summary judgment on these claims. We conclude that summary judgment was also proper as to Backman=s claim for exemplary damages. Accordingly, we overrule Backman=s fourth issue.
Having overruled all of Backman=s issues, we affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed October 12, 2004.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
[1] In their appellate brief, J.C. Penney and Gentry claim the investigative report is improper summary- judgment evidence. However, they do not explain why they believe this to be the case, nor does the record contain an objection to this evidence.
[2] Gentry=s witness statement to the Lake Jackson Police Department, in pertinent part, reads: AAs I was walking off Michele [sic] Backman jumped on my back and put her arm around my neck. Burger then came and removed Backman from my back.@
[3] See Tex. Civ. Prac. & Rem. Code Ann. ' 124.001 (Vernon 1997).
[4] See Tex. Code Crim. Proc. Ann. art. 18.16 (Vernon Supp. 2004).
[5] Under article 18.16 of the Texas Code of Criminal Procedure, A[a]ny person has a right to prevent the consequences of theft by seizing any personal property that has been stolen and bringing it, with the person suspected of committing the theft, if that person can be taken, before a magistrate for examination, or delivering the property and the person suspected of committing the theft to a peace officer for that purpose. To justify a seizure under this article, there must be reasonable ground to believe the property is stolen, and the seizure must be openly made and the proceedings had without delay.@ Tex. Code Crim. Proc. Ann. art. 18.16 (Vernon Supp. 2004). Likewise, the Ashopkeeper=s privilege@ grants an employee the authority of law to detain a customer to investigate the ownership of property in a reasonable manner and for a reasonable time if the employee had a reasonable belief that the customer has stolen or is attempting to steal store merchandise. See Tex. Civ. Prac. & Rem. Code Ann. ' 124.001 (Vernon 1997).
[6] Backman also asserts Gentry deliberately and intentionally misrepresented the facts regarding the alleged assault incident to the police, which led to Backman=s arrest. In support of her contention, Backman cites Wal-Mart Stores, Inc. v. Rodriguez, a 2002 Texas Supreme Court case. However, both Rodriguez and Backman=s argument in this regard deal with the first element of false imprisonmentCwillful detention. See Rodriguez, 92 S.W.3d at 506B11 (holding plaintiff failed to raise a genuine fact issue as to the willful-detention element of false imprisonment). Backman concedes that the first element of false imprisonment is not in dispute in this case; J.C. Penney and Gentry moved for summary judgment based on the third elementCno authority of lawCrather than the first element. Therefore, Backman=s argument that Gentry deliberately and intentionally misrepresented the facts to the police is not material to the grounds asserted by J.C. Penney and Gentry in their motion for summary judgment.