Ashanti Davis and Ashley Davis v. Dillard's Department Store, Inc.--Appeal from 358th District Court of Ector County

Opinion filed May 1, 2008

In The

Eleventh Court of Appeals

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 No. 11-06-00027-CV

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ASHANTI DAVIS AND ASHLEY DAVIS, Appellants

v.

DILLARD=S DEPARTMENT STORE, INC., Appellee

On Appeal from the 358th District Court

Ector County, Texas

Trial Court Cause No. D-118,269

M E M O R A N D U M O P I N I O N

Asserting various theories of recovery, Ashanti Davis and Ashley Davis sued Dillard=s Department Store, Inc. for damages allegedly sustained by them as a result of an incident that occurred while they were in a Dillard=s store. Ashanti and Ashley appeal from the trial court=s summary judgment entered in favor of Dillard=s. We affirm.

Ashanti and Ashley claim that, while they were shopping in Dillard=s in Odessa, a Dillard=s manager and a security guard came up to them and asked them to go with them to the rear of the store; they were suspected of shoplifting. Ashanti and Ashley went with them. They were asked to fill out a Ano-trespassing@ form, their pictures were taken, and they were escorted out of the store.

Ashanti and Ashley sued Dillard=s, alleging causes of action for false imprisonment, assault and battery, intentional or reckless infliction of emotional distress, negligence, and gross negligence. Dillard=s filed a motion for summary judgment that contained both Atraditional@ allegations as well as Ano-evidence@ allegations. The trial court granted the motion, but it did not state the grounds upon which it granted it.

On appeal, Ashanti and Ashley do not complain of the trial court=s ruling on any of its causes of action other than their claim for false imprisonment. They assert, in one issue, that the trial court erred in granting the summary judgment because there was a fact issue Aas to Plaintiffs= claims of false imprisonment.@

When faced with a no-evidence motion for summary judgment, the nonmovant must produce evidence that raises a genuine issue of material fact on each challenged element of its cause of action in order to avoid an adverse ruling. Tex. R. Civ. P. 166a(i). We must review a no-evidence summary judgment under the same standard as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Accordingly, we examine the record in the light most favorable to the nonmovant and disregard all contrary evidence and inferences. Id.; Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). A trial court must grant a proper no-evidence motion for summary judgment unless the nonmovant produces more than a scintilla of probative evidence to raise a genuine issue of material fact. Rule 166a(i); Wal-Mart, 92 S.W.3d at 506. We may not consider any evidence presented by the movant unless it creates a fact question. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004). A trial court errs if it grants a no-evidence motion for summary judgment when the nonmovant has presented more that a scintilla of evidence on the disputed element. King Ranch, 118 S.W.3d at 751. If the trial court does not state the grounds upon which summary judgment is granted, an appellate court will affirm the judgment if any of the grounds set forth by the movant are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); F.W. Indus., Inc. v. McKeehan, 198 S.W.3d 217, 220 (Tex. App.CEastland 2005, no pet.).

One who sues for false imprisonment must prove: (1) willful detention (2) without consent and (3) without authority of law. Wal-Mart, 92 S.W.3d at 506.

The only summary judgment evidence offered by Ashanti and Ashley were their own affidavits. The two affidavits were identical with the exception of the names and ages of the affiants. The affidavits read, excluding the formal parts, in their entirety as follows:

I am the Plaintiff in a lawsuit against Dillard=s Department store inc. [sic] I was detained by a security guard and the manager of the Dillard=s department store in Odessa, Ector County, Texas. This is the subject of this suit. The security guard and the manager approached me in a threatening manner and informed me that I was to follow them to the back of the store. I did not feel free to leave at any time and I felt that my compliance with their request was mandatory. I did not consent to go to the back or stay in the room where they placed me, rather, I felt that I had to go there and stay in the room. The physical actions and gestures of the manager and security guard made me feel as if I had to comply or force would be used against me. I was placed in fear of immediate physical force if I did not go to the back of the store and stay there until they told me I could leave. I was [fifteen/sixteen] years old at the time of the detention.

First of all, the affidavits are conclusory. Conclusory statements are those that do not provide the facts in support of the conclusion. Price v. Am. Nat=l Ins. Co., 113 S.W.3d 424, 429. (Tex. App.CHouston [1st Dist.] 2003, no pet.). For instance, the affiants claim that they were approached in a threatening manner, but no facts are stated that underlie that conclusion. The affiants state how they felt, but there are no facts in the affidavits, just other conclusions, to support that conclusion. The affiants refer to A[t]he physical actions and gestures of the manager and security guard,@ but they state no facts upon which the conclusion is based. The same is true of the statement, AI was placed in fear of immediate physical force,@ as well as most of the other statements in the affidavits. Conclusory statements are insufficient to defeat summary judgment. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Price, 113 S.W.3d at 429. Being conclusory, the affidavits are no evidence that Ashanti and Ashley were willfully detained without consent and without authority of law. See Wal-Mart, 92 S.W.3d at 506. There was no other summary judgment evidence presented by Ashanti and Ashley. The trial court did not err when it granted Dillard=s motion for summary judgment.

Additionally, the only damages sought by Ashanti and Ashley in connection with their false imprisonment claim were mental anguish damages. They have presented no evidence in response to Dillard=s no-evidence motion for summary judgment that raises a fact issue regarding damages for mental anguish. Ashanti and Ashley, in the face of Dillard=s motion, were required to bring some evidence, more than a scintilla, of the nature, duration, or severity of their claim, Athus establishing a substantial disruption in the plaintiffs= daily routine.@ Gunn Infiniti, Inc. v. O=Byrne, 996 S.W.2d 854, 860 (Tex. 1999). This evidence must be such to show that there is a high degree of mental pain and distress. Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex. 1995). It must show more than mere worry, anxiety, vexation, embarrassment, or anger. Id. Again, because we are reviewing a no-evidence motion for summary judgment, we consider only the evidence offered by the nonmovant unless the evidence presented by the movant creates a fact question. Here, Ashanti and Ashley have come forward with no evidence to meet Dillard=s no-evidence challenge regarding damages. The only issue raised by Ashanti and Ashley in this appeal is overruled.

Because we have found that the trial court properly granted Dillard=s no-evidence motion for summary judgment, we need not address the traditional motion for summary judgment.

We affirm the judgment of the trial court.

JIM R. WRIGHT

CHIEF JUSTICE

May 1, 2008

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.