Dianna Larsen v. Family Dollar Stores of Arkansas, Inc.

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ca05-157

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

DIANNA LARSEN

APPELLANT

V.

FAMILY DOLLAR STORES OF

ARKANSAS, INC.

APPELLEE

CA 05-157

October 26, 2005

APPEAL FROM THE CRITTENDEN

COUNTY CIRCUIT COURT

[CIV1997-359]

HONORABLE JOHN N. FOGLEMAN,

CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

Dianna Larsen appeals from a summary judgment that was granted in favor of appellee, Family Dollar Stores of Arkansas, Inc., on Larsen's allegations of malicious prosecution and defamation. We affirm.

Appellant was employed as a general manager by Family Dollar Stores. Tammy Green was an assistant manager, who served as manager on duty on May 19, 1996; Audrey Betts was a district supervisor; and Stephen Phillips was the regional supervisor. On May 19, 1996, a late-night fire destroyed the store, and some store deposits were found to be missing. A police investigation ensued, and appellant was eventually charged with theft. The charge was later nolle prossed after appellant passed several polygraphexaminations. Larsen then brought a cause of action against appellee for malicious prosecution, abuse of

process, and defamation. Appellee moved for summary judgment, which was granted by the trial court, and this appeal followed. Appellant challenges the summary judgment only with respect to the malicious-prosecution and defamation claims.

Standard of Review

Summary judgment is a remedy that should be granted only when there are no genuine issues of fact to litigate and when the case can be decided as a matter of law. Vogelgesang v. United States Bank, N.A., ____ Ark. App. ____, ____ S.W.3d ____ (June 29, 2005). Our review is limited to a determination as to whether the trial court was correct in finding that no material facts were disputed. Id. In making this determination, we view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. However, the parties resisting a motion for summary judgment may not rest upon the mere allegations of their pleadings because Rule 56 of the Arkansas Rules of Civil Procedure requires that they respond, by affidavits or other evidence, to specifically show that there is a genuinely disputed issue of material fact. O'Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997). Once a movant makes a prima facie case for summary judgment, the respondent must then meet proof with proof by showing that there remains a genuine issue of material fact. Id. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Collins v. Morgan, ____ Ark. App.____, ____ S.W.3d ____ (June 22, 2005). We no longer refer to summary judgment as a

"drastic" remedy and now simply regard it as one of the tools in a trial court's efficiency arsenal. Id.

Appellant contends on appeal that the trial court erred in entering summary judgment against her because, taken in the light most favorable to her, there were multiple material issues of fact relating to the essential elements of her claims. We disagree.

Malicious Prosecution

Appellant first addresses the malicious-prosecution claim. In order to establish a claim for malicious prosecution, a plaintiff must prove the following five elements: (1) a proceeding instituted or continued by the defendant against the plaintiff; (2) termination of the proceeding in favor of the plaintiff; (3) absence of probable cause for the proceeding; (4) malice on the part of the defendant; and (5) damages. Sundeen v. Kroger, 355 Ark. 138, 133 S.W.3d 393 (2003). Appellant takes each of these elements and argues that there were disputed issues of material fact, making the grant of summary judgment erroneous.

With respect to the first element, that the proceeding was instituted or continued by the defendant against the plaintiff, appellant contends that the theft charges against her were instituted and continued by appellee through its regional manager, district manager, and the store manager on duty. We disagree.

In South Arkansas Petroleum Co. v. Schiesser, 343 Ark. 492, 496, 36 S.W.3d 317, 319 (2001), our supreme court explained that comment g to the Restatement (Second) of Torts, § 653 (1977), provides in relevant part:

[A] private person who gives to a public official information of another's supposed criminal misconduct . . . obviously causes the institution of suchsubsequent proceedings as the official may begin on his own initiative, but giving the information or even making an accusation of criminal misconduct does not constitute a procurement of the proceedings initiated by the officer if it is entirely to his discretion to initiate the proceedings or not.

The court went on to explain that comment g

further provides that, when a private person makes an accusation of criminal misconduct about another to an official, the person must believe the accusation or information is true. "If, however, the information is known by the giver to be false, an intelligent exercise of the officer's discretion becomes impossible, and a prosecution based upon it is procured by the person giving the false information."

(Emphasis in original.) Furthermore, comment g to the Restatement (Second) of Torts, § 653 (1977), provides:

When a private person gives to a prosecuting officer information that he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable under the rule stated in this Section even though the information proves to be false and his belief was one that a reasonable man would not entertain.

. . . .

In order to charge a private person with responsibility for the initiation of proceedings by a public official, it must therefore appear that his desire to have the proceedings initiated, expressed by direction, request or pressure of any kind, was the determining factor in the official's decision to commence the prosecution, or that the information furnished by him upon which the official acted was known to be false.

In support of its motion for summary judgment, appellee submitted the affidavit of Lt. Lawrence Vaughn of the West Memphis Police Department, along with the depositions of Ms. Betts and Ms. Green. In his affidavit, Lt. Vaughn stated that he was involved in the investigation of the fire at the Family Dollar Store in West Memphis; that he interviewed employees; that the fire inspector investigated the fire to determine its cause and origin; that he (Lt. Vaughn) made the determination during the investigation that there was reason to present his findings to the prosecuting attorney to determinewhether there was probable cause to charge Dianna Larsen with theft of property; and that the matter was then presented to the West Memphis municipal judge, who issued the warrant of arrest. In addition, Lt. Vaughn stated that "[t]he only role that Family Dollar Stores and its employees had in the investigation and prosecution of Dianna Larsen was to respond to our request made to the employees that they answer our questions regarding the events preceding the fire and the handling of the deposits, which we determined were missing following the fire."

In light of Lt. Vaughn's affidavit, it was incumbent upon appellant to offer proof that appellee's employees knowingly gave false information during the course of the investigation. This she did not do. However, in an attempt to demonstrate that she did, appellant argues that Ms. Betts and Ms. Green "appeared before the authorities together and signed the affidavit [for warrant of arrest] together on May 29, 1996 after having made written false and/or misleading and incriminating statements together days earlier on May 23, 1996." (Emphasis added.) The problem with this assertion, however, is that appellant offered no proof that the statements given by Ms. Betts and Ms. Green on May 23, 1996, were knowingly false. There is nothing in Ms. Betts's deposition to that effect, and in Ms. Green's deposition, she specifically addressed each of her three handwritten statements and testified that they were accurate. The handwritten statements given by Ms. Betts and Ms. Green merely recited their accounts of the events surrounding the missing deposits and fire.

The only affidavit that Ms. Green stated she did "not stand by" and that she should not have signed is typewritten and provides in pertinent part:

AFFIDAVIT FOR WARRANT OF ARREST

FOR THE FOLLOWING REASON:

DIANNA L. LARSEN

. . . .

Pursuant to Rule 7.1 of the Arkansas Rules of Criminal Procedures, the undersigned affiant(s) being duly sworn, deposes and says that he has reason to believe that the above-named person committed the offense of: 5-36-103 THEFT OF PROPERTY CLASS B FELONY on or about the 19th day of MAY, 1996, committed by unlawfully and Feloniously did knowingly take or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof, said property being valued at two thousand five hundred dollars or more; in Crittenden County, Arkansas, against the peace and dignity of the State of Arkansas.

FACTS CONSTITUTING REASONABLE CAUSE

See exhibit marked "A" attached to and incorporated herein this said affidavit consisting of ( ) pages.

I swear that the allegations contained herein are the truth, the whole truth and nothing but the truth.

This affidavit was dated May 29, 1996, and it was signed by both Ms. Betts and Ms. Green. When asked during her deposition why she signed it if she does not stand by it, Ms. Green stated that it was passed to her after she had written out her statement and that she was told to sign it, which she did. In addition, she stated that it was Detective Vaughn who told her that she needed to sign the document and that she did not talk to Ms. Betts about it.

In short, even though Ms. Green now asserts her belief that appellant had nothing to do with the theft of any property from appellee, appellant did not bring forth any proof that Ms. Green, or anyone else connected with Family Dollar Stores, knowingly gave false information to the police during the investigation. Ms. Green herself reaffirmed the accuracy of her handwritten statements, upon which the May 29 affidavit for arrest was based in part. Additionally, she stated that she signed the affidavit for warrant of arrestwithout even reading the paragraph that appellant relies upon. Finally, appellant offered no proof contradicting either Lt. Vaughn's affidavit or appellee's employees' statements that they only responded to the police requests to give statements.

Accordingly, despite what appellant might speculate, there was no proof offered that the theft investigation was initiated by Family Dollar Stores. On the other hand, there was abundant evidence that the police/fire investigation was prompted by the fire itself, rather than by Family Dollar Stores, and that the employees were simply responding to police requests for information.

Because all of the elements of malicious prosecution would have to be proven in order to establish a claim on that basis, appellant's failure to establish this first element makes it unnecessary to address the remaining elements.

Defamation

The following elements must be proved to support a claim of defamation: (1) the defamatory nature of the statement of fact; (2) the statement's identification of or reference to the 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. Superior Federal Bank v. Mackey, 84 Ark. App. 1, 129 S.W.3d 324 (2003). A viable action for defamation turns on whether the communication or publication tends or is reasonably calculated to cause harm to another's reputation. Id.

At the trial level, there were two hearings on summary-judgment motions. Appellant acknowledged at the first hearing that the statements made by the employees during the course of the police investigation were privileged, e.g., the statements made to police officers and/or contained in the affidavits. However, the statements that appellant contended were defamatory related to conversations that she speculated occurred amongthe employees themselves. Appellant's counsel informed the trial court at the initial hearing that he had not been able "to ferret out" those facts and that "the cause of action for defamation should stay alive until we can complete our discovery." As noted by appellee in its brief, "No new evidence was presented of any statements made by anyone associated with appellee other than in the course of the investigation, and no such statements are set out in appellant's brief." We agree. Appellant has simply provided us with no basis for reversing the summary judgment on the defamation cause of action.

In her reply affidavit, appellant stated, "Returning to the scene of the fire, Audrey Betts, Tammy Green, and the investigators huddled up. They made it clear that I was not to be included in the conversation, and I walked away." The next morning, "Steve Phillips, Audrey Betts, and Tammy Green were huddled with the fire investigator. When I approached, Mr. Phillips indicated that he would `talk to me later' and waved me away with the motion of his hand."

In short, appellant never described the defamatory statements upon which she was supposedly relying in order to prove her cause of action for defamation. Without the production of more proof in response to the motion for summary judgment, we find no error in the trial court's grant of summary judgment on the defamation cause of action.

Affirmed.

Hart and Crabtree, JJ., agree.