Byron J. Bishop v. ACKR, Inc.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION I

BYRON J. BISHOP

APPELLANT

V.

ACKR, INC.

APPELLEE

CA02-565

February 26, 2003

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT

[NO. CIV-99-815-2]

HONORABLE H.A. TAYLOR, JR.,

CIRCUIT JUDGE

AFFIRMED IN PART; REVERSED IN PART AND REMANDED

Appellant, Byron J. Bishop, appeals from the circuit court's order granting summary judgment in favor of appellee, ACKR, Inc., dismissing appellant's causes of action for false arrest, battery, defamation, outrage, and negligent infliction of emotional distress. Appellant argues that there remain genuine issues of material fact regarding each of his claims. We affirm in part and reverse in part and remand.

According to appellant's amended complaint, his causes of action against appellee stem from an inaccurate report by appellee's employee, Donna Threlkeld, to the police that appellant was forging checks at the two Kahn's Jewelry stores in Pine Bluff. Appellee answered appellant's amended complaint and then moved for summary judgment, attaching to the motion the depositions of Threlkeld, Pquieta Wilkins, Robert Vilches, Robert Toney, Addison Evans, and Tracy Love. Attached to appellant's response to appellee's motion for

summary judgment was appellant's deposition and the deposition of Evans.

In its order, the trial court granted appellee's motion for summary judgment. On the false arrest claim, the court concluded that there was no evidence that appellee's employees acted recklessly or maliciously. The battery claim, the court opined, was not supported by evidence that appellee's employees participated in, encouraged, or incited the battery. On the defamation claim, the court concluded that appellant had not presented any evidence of the publication of a falsity and that appellee's employee had a qualified privilege to report the activity to the police if the report was made in good faith and on reasonable grounds for believing them to be true. As for the outrage claim, the court held that there was no evidence that appellee's employees engaged in outrageous conduct. The court further stated that absent a battery, there could not be liability for negligent infliction of emotional distress.

Our standard of review of summary-judgment cases is as follows:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.

Forrest City Mach. Works, Inc. v. Mosbacher, 312 Ark. 578, 583, 851 S.W.2d 443, 446 (1993).

Officer Robert Vilches of the Pine Bluff Police Department testified that about 3:30p.m. on December 19, 1998, he received a call from his dispatcher that there was a possible forgery in progress at Kahn's Jewelry on Main Street and was given a description of a black man wearing a purple and yellow wind suit. When he arrived there, he spoke to the manager, who was named Donna, who told him that a man had been in the store, had picked out a necklace, had written a $100 check to put it on layaway, and had left. She was concerned that the man had forged the check on appellant's account. She explained that she did not think it was appellant because she had compared the signature on the check with paperwork containing appellant's signature. Donna told him she did not ask for the man's identification when he wrote the check because he had not removed any merchandise from the store. He told Donna that because it was Saturday, she needed to wait until Monday and call the bank to see if the check had been reported stolen.

At 3:45 p.m., Vilches received another call from dispatch advising him that the Kahn's Jewelry in the mall had the same subject there "doing the same thing." Vilches asked dispatch to contact mall security and stand by with the subject or keep him in sight until he arrived. When he arrived at 3:50 p.m., he walked up to appellant, who was at the front counter of Kahn's. He asked appellant for his identification, telling him that Kahn's was not sure he was appellant. Appellant loudly asked if he was under arrest and stated that he had not done anything wrong. Vilches told appellant to stop yelling, and appellant became louder. Appellant pulled out his wallet, and when Vilches, for his safety, attempted to see what he was looking for, appellant turned away from Vilches. Vilches then grabbed appellant's wallet, set it up on the counter, and advised him that he was not under arrest, buttold him that he was being detained because he felt as though the situation was getting out of control. Vilches placed appellant in handcuffs and took him to another area of the mall to continue talking to appellant.

When they arrived, Vilches removed the handcuffs and gave appellant his wallet. He asked appellant for identification, and appellant gave him a photographic identification. At this point, Vilches was persuaded that appellant was in fact appellant and explained to him that if he had given him the identification initially, that would have ended the matter.

According to Donna Threlkeld, she was working at Kahn Jewelry in Pine Bluff at its Main Street location and was asked to come to the sales floor by another employee, who was concerned because appellant was "going around the store and pulling merchandise out." Appellant wrote a check to place a necklace on layaway. They did not ask appellant for any identification because no merchandise was leaving the store. Upon completing the transaction, however, Threlkeld was concerned that the check was not actually written by Byron Bishop because appellant did not look like the man she had worked with on a problem with a charge account. She testified that she had seen appellant two years earlier. She pulled a credit application signed by appellant, compared the signature thereon with the signature on the check, and concluded that they "did not look right."

Threlkeld called the police and told them that they were uneasy with appellant and that she could not verify his signature. She testified that she probably told the police that other employees in the store thought appellant had been in the store to determine whether to commit a robbery. According to Threlkeld, a police officer told her that she would haveto call the bank on Monday to determine whether the check was stolen.

She testified that an employee from Kahn's Jewelry in the Pines Mall called and told her that appellant was there and asking about a layaway item. She testified that she could only assume that she told the mall employee that she thought appellant had been at the Main Street location to determine whether to commit a robbery and that it was more than likely that she mentioned that appellant had forged a check. She verified that it was the same person by describing his clothing, a purple and yellow wind suit. She called the police to tell them that he was at the mall location. The police then called her back to tell her that they had verified appellant's identity.

An employee from the mall store, Tracy Love, testified that appellant had entered the store and wanted to put a necklace on layaway to replace the necklace he had on layaway at the Main Street store. She recognized appellant as a customer who had been in the store the week before and who had been in the store three or four times. Appellant was to write a check to place the necklace on layaway, and Love called the Main Street store to have them void the earlier transaction and tear up the check appellant had written. Love stated that an employee from the Main Street store named Marsha told her that they thought he was not appellant. According to Love, Threlkeld had told Marsha that they were comparing the signature on the check with a signature on an old credit application and that the signatures did not match. She told Marsha that appellant had been in the previous week and had written a check and that she thought he was the same person. Love was then told that maybe the check had just not had time to go through the bank. She testified that there was no questionin her mind that appellant was appellant.

Love then stated that there were two telephone conversations with Marsha. Love first called about the layaway and hung up before Donna realized that appellant was the same person she had seen earlier that day. She testified that while she did not believe she was on the telephone when the police officer arrived, she thought she was on the telephone when mall security arrived. She said that maybe ten to fifteen minutes elapsed between the two conversations.

Appellant's description of his encounter with Vilches varied from Vilche's own account. He stated that while waiting for an employee to swap layaways, two mall security employees ran up and stood next to him. One of the security employees told him that he was being detained and the other told him that he was being arrested and that he could not go anywhere. Four or five minutes later, a police officer ran up and asked him his name. Appellant testified that the officer asked the question four or five times, and every time he told the officer his name, the officer would get louder. The officer asked him for identification, and as appellant pulled out the wallet, the officer took the wallet and said that the wallet was not his.

The officer then put him in handcuffs and told appellant he would remain in the handcuffs until he completed his investigation. As the officer escorted him away, the officer was yelling that appellant should not have been forging checks. When they arrived at a room in the mall, the officer looked at appellant's identification, left for ten or fifteen minutes and then returned and apologized. The officer told him that employees from Kahn's had calledand said that appellant was "casing" the store and had forged a check. The officer removed the handcuffs, gave him back the wallet, and apologized.

"False arrest" or "false imprisonment" has been defined as the unlawful violation of the personal liberty of another, consisting of detention without sufficient legal authority. Limited Stores, Inc. v. Wilson-Robinson, 317 Ark. 80, 83, 876 S.W.2d 248, 250 (1994). If a person does no more than give information by affidavit to an officer relative to a matter over which he has jurisdiction, the person is not liable for false imprisonment for the acts done under a warrant which the officer issues on the charge. Headrick v. Wal-Mart Stores, Inc., 293 Ark. 433, 436, 738 S.W.2d 418, 420 (1987). Further, the arrest by a police officer must be so induced or instigated by the defendant that the act of arrest is made by the officer, not of his own volition, but to carry out the request of the defendant, and merely summoning an officer for protection or to keep the peace, or to deal with a person accused of a crime, is not sufficient participation to impose liability. Moon v. Sperry & Hutchinson Co., 250 Ark. 453, 456, 465 S.W.2d 330, 331 (1971).

We hold that summary judgment was inappropriate on the false arrest claim because material questions of fact remain unanswered. At issue is the sequence of events which led to appellant's detention by Vilches during his investigation of appellant to determine whether appellant was forging checks. The parties do not agree on when Threlkeld, who reported to the police that appellant was possibly forging checks, and Love, who was present during appellant's detention, may have been aware that appellant, rather than forging checks, was in fact writing checks in his own name. From reading the deposition testimony ofThrelkeld and Love, we cannot resolve this question. Arguably, based on the deposition testimony presented, either interpretation is possible. Because Vilches may have been induced to make the arrest based on information that the Kahn's employees knew was erroneous, we cannot say there are no genuine issues of material fact.

As for the battery claim, the Arkansas Supreme Court has noted that liability for an assault or assault and battery is not necessarily restricted to the actual participants; any person who is present, encouraging, or inciting an assault and battery by words, gestures, looks, or signs, or who by any means approves the same, is in law deemed to be an aider and abettor and liable as a principal, and such person assumes the consequences of the act to its full extent as much as the party who does the deed. Hargis v. Horrine, 230 Ark. 502, 505, 323 S.W.2d 917, 919 (1959). Again, because of the inconsistencies present in the depositions regarding the sequence of events, which may have resulted in Kahn's inciting the battery by providing false information, we conclude that a genuine issue of material fact remains. Further, because the altercation between Vilches and appellant took place in the presence of a Kahn's employee who may have had knowledge of the falsity of the forgery charge, there is a genuine issue of material fact regarding whether her failure to act incited the battery or approved the same.

Appellant argues that a genuine issue of fact remains on the defamation claim. A viable action for defamation turns on whether the communication or publication tends or is reasonably calculated to cause harm to another's reputation, and the following elements must be proved to support a claim of defamation: (1) the defamatory nature of the statement offact; (2) the statement's identification of or reference to plaintiff; (3) publication of the statement by the defendant; (4) the defendant's fault in the publication; (5) the statement's falsity; and (6) damages. Faulkner v. Arkansas Children's Hosp., 347 Ark. 941, 955-56, 69 S.W.3d 393,402 (2002). A plaintiff must establish actual damage to his reputation, but the showing of harm is slight, and though a plaintiff does not have to prove actual out-of-pocket expenses, he must prove that the defamatory statements have been communicated to others and that the statements have detrimentally affected those relations. Ellis v. Price, 337 Ark. 542, 543-44, 990 S.W.2d 543, 547(1999). Upon examining the evidence presented, we conclude that there was no evidence of damages. Summary judgment was appropriate on this claim.

Next, appellant argues that there remains a genuine issue of material fact regarding his claim of the tort of outrage. There are four elements that are necessary to establish liability for the tort of outrage: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous, and was beyond all possible bounds of decency, and was utterly intolerable in a civilized community; (3) the actions of the defendant were the cause of the plaintiff's distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Faulkner, 347 Ark. at 957, 69 S.W.3d at 403-04. We conclude that there was no genuine issue of material fact regarding whether the conduct of appellee's employees was utterly intolerable in a civilized community. First, we note that the only conduct that appellee committed was reportingcircumstances to the police. That conduct alone does not constitute extreme and outrageous conduct. See Dillard Dep't Stores v. Adams, 315 Ark. 303, 305-06, 867 S.W.2d 442, 443-44 (1993) (concluding that accusation of shoplifting by store employees did not constitute extreme and outrageous conduct).

Finally, while appellant argues that there was evidence of negligent infliction of mental distress, appellant also properly notes that Arkansas does not recognize the tort of negligent infliction of emotional distress and for our benefit cites Mechanics Lumber Co. v. Smith, 296 Ark. 285, 752 S.W.2d 763 (1988). We must necessarily conclude that summary judgment was proper on that count.

Thus, we conclude that summary judgment was inappropriate on the false arrest and battery claims, and we remand for trial on those claims.

Affirmed in part; reversed in part and remanded.

Pittman and Gladwin, JJ., agree.