DILLARD DEPARTMENT STORES, INC.,FROM A COUNTY COURT APPELLANT, v. SIMONE A. DORRIES, APPELLEE

 
 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01141-CV
 
DILLARD DEPARTMENT STORES, INC.,FROM A COUNTY COURT
 
        APPELLANT,
 
v.
 
SIMONE A. DORRIES,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES HOWELL, THOMAS AND OVARD
OPINION BY JUSTICE HOWELL
AUGUST 10, 1989
 
 
        Dillard Department Stores, Inc. (Dillard's) appeals a judgment rendered in favor of Simone A. Dorries (Customer) for false imprisonment and slander resulting from an in-store detention for suspected shoplifting. The jury awarded Customer $800 in actual damages and $50,000 in exemplary damages. Following a remittitur of $20,000 in exemplary damages, the court entered judgment for $30,800. Dillard's brings seven points of error challenging the various jury findings. Initially, Dillard's asserts that the trial court erred in rendering judgment without an express jury finding of false imprisonment. Dillard's also maintains that its liability for false imprisonment is supported by no evidence or, alternatively, by insufficient evidence. In addition, Dillard's claims that the jury's finding of slander was supported by no evidence. Dillard's further contests the jury's finding of exemplary damages because the evidence was insufficient to prove wanton, willful, and malicious conduct. Lastly, Dillard's complains that the trial court erred in failing to suggest a remittitur of the exemplary damages to an amount reasonably related to the actual damages. In one cross-point, Customer avers that the trial court erred in denying her motion for trial amendment and in ordering a remittitur of exemplary damages. We affirm the trial court's judgment.
I. STANDARDS OF REVIEW
        In analyzing Dillard's legal and factual claims, we apply familiar standards of review. With a "no evidence" or legal sufficiency challenge, we must consider only the evidence and inferences which, viewed in their most favorable light, support the jury's verdict; we must disregard all contrary evidence. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987); Alm v. Aluminum Co. of America, 717 S.W.2d 588, 593 (Tex. 1986). If we find more than a scintilla of evidence to support the jury's finding, Dillard's "no evidence" challenge fails. Stafford, 726 S.W.2d at 16. When the evidence offered to prove a vital fact is so weak as to create only a surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). If the evidence, however, furnishes some reasonable basis for differing conclusions by reasonable minds as to the existence of a vital fact, then it amounts to more than a scintilla. Id.
        In reviewing Dillard's "insufficient evidence" or factual insufficiency claims, we will consider all evidence in the record relevant to the fact being challenged. We may set aside the verdict on sufficiency grounds only if it is so contrary to the weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We are not fact finders, and, therefore, we may not pass on the credibility of witnesses or substitute our judgment for that of the jury, even if we might reach a different conclusion on the same facts. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988); Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.--Dallas 1986, writ ref'd n.r.e.).
II. FACTUAL BACKGROUND
        A. Customer's Testimony
        Customer purchased three ladies' designer garments from Joske's Department Store. These same items went on sale a few days later. Seeking a price adjustment, she placed the three items, still on coathangers, and her receipt in a Joske's shopping bag. At the time of the incident in this case, Joske's had been sold to Dillard's, and the stores were in transition. Consequently, although the garments were purchased at Joske's, the printed receipt was from Dillard's.
        Customer wanted to take advantage of the reduced price on these items, so she returned to Dillard's to get an adjustment on her account. She entered Dillard's women's department at Town East Mall in Mesquite. She browsed through the racks of clothing for several minutes. Then she asked the sales clerk if she could leave her Joske's bag behind the counter while she shopped because it was heavy. Customer said that the sales clerk agreed.
        As Customer was browsing, the sales clerk looked into the Joske's bag and saw the garments with the hangers still attached. Knowing that Dillard's store policy was to remove the hangers after a sale, the sales clerk became suspicious and telephoned security. The assistant store manager and a security guard reported to the women's clothing area and watched as Customer browsed. Customer then picked up the Joske's bag and exited the store. The manager and the security guard followed her out into the mall and stopped her.
        According to Customer, the guard showed his police badge, FN:1 and the manager "grabbed" the Joske's bag and "ripped" her purse from her hand. The manager told her that they suspected certain merchandise in her bag belonged to Dillard's. She said that more than twenty people were standing around when she was stopped. The guard grasped her left arm and led her back into the store. He took her toward the escalator leading down to the security office. Customer said she told the two men that she had a receipt for the merchandise before they reached the escalator. The men continued to restrain her and move toward the security office.
        Customer asked the two men repeatedly what was happening and why she was being stopped. While on the escalator, she said the guard told her to "shut up," so she responded by saying she "had receipts for this merchandise" and that when she got downstairs his "ass was mine."
        In the office, the guard made some telephone calls while the manager compared the receipt to the clothing items. She showed the men several pieces of identification. She asked if she could leave the office, and the men told her no. The guard read Customer her Miranda FN:2 rights and, according to Customer, placed her under arrest. She became "very upset" and began to cry. After more than thirty minutes, Customer was allowed to leave the office and the store. The manager escorted her out an entrance different from the one where she had been stopped.
        B. Other Testimony
        Both the manager and the security guard testified differently from Customer about the stop and detention. The manager said that he watched Customer "mill around" the store for two to five minutes after he was alerted by the sales clerk. He said that he followed her out into the mall where the guard "tapped her on the arm" and identified himself as a police officer. The manager said that he did not take Customer's Joske's bag or purse away. He said that Customer began "ranting and raving," speaking loudly, and using profanity as she was being led inside. Manager admitted that Customer told them she had a receipt but they did not stop to look at it before they took her to the office. Manager maintained that Customer was not restrained or told that she could not leave the office.
        The security guard said that he watched Customer in the store for five to ten minutes. He said he never saw Customer take or conceal any merchandise. However, based on information from the sales clerk, the manager, and his own personal observation, the guard said that he believed he had probable cause to stop Customer. He said he identified himself, "touched her elbow," and said he needed to speak to her about the ownership of the merchandise in her Joske's bag. The guard testified that she became "extremely upset and raised her voice and said, 'you just made a big fucking mistake.'" He said she continued to be "loud and profane" and to "attract attention." He asked her if he could look in her Joske's bag and said that she agreed. He took her to the security office and compared the receipt to the merchandise. He said he did not arrest her but conceded that he had read Customer her Miranda rights. On cross-examination, the guard admitted that Customer was not "free to leave" from the initial point of detention until she was dismissed from the security office.
III. FALSE IMPRISONMENT
        Initially, Dillard's complains that the trial court erred in rendering judgment on the false imprisonment claim without any express jury finding of false imprisonment. Liability for false imprisonment requires proof of willful detention, lack of consent, and absence of authority of law. Sears, Roebuck and Co. v. Castillo, 693 S.W.2d 374, 375 (Tex. 1985); Montgomery Ward & Co. v. Hernandez, 661 S.W.2d 159, 161 (Tex. App.--Corpus Christi 1983, no writ). In this case, the trial court submitted these elements with the following instruction:
            You are instructed that the term "false imprisonment" as used in this charge means the willful detention by another without legal justification, against her consent, whether such detention be effected by violence, by threats or by other means, which restrains a person from moving from one place to another.
In addition, the trial court submitted the statutory FN:3 defense known as "shopkeeper's privilege" with the following instruction: FN:4
            Further you are instructed that under the law of this State a person reasonably believing another has stolen or is attempting to steal property is privileged to detain the person in a reasonable manner and for a reasonable period of time for the purpose of investigating ownership of the property.
Finally, the trial court submitted the following jury question in connection with these instructions:
    QUESTION NO. 1
 
            Do you find from a preponderance of the evidence that on July 5, 1987 Dillard Department Stores, Inc. by its employees unreasonably detained Simone Angela Dorries?
 
    Answer "Yes" or "No"
 
        Answer: YES
Dillard's maintains that Texas does not recognize a cause of action for "unreasonable detention," and that the jury question thus failed to create liability for false imprisonment. We disagree.
        The record reflects that the first two elements of false imprisonment--willful detention and lack of consent--were conclusively established by Dillard's answers to Customer's interrogatories. FN:5 Indeed, Dillard's concedes this in its appellate brief. Consequently, the only contested element of the false imprisonment claim was Dillard's legal authority to detain Customer.
        In this regard, Customer had the burden of proof to show absence of lawful authority. See Sears, 693 S.W.2d at 376. Dillard's proof of its statutory defense of privilege to investigate theft, however, is unavoidably intertwined with Customer's proof. For example, if Dillard's had lawfully invoked its shopkeeper's privilege, then it would have had authority to "detain [a] person in a reasonable manner and for a reasonable time to investigate ownership of the property." See TEX. CIV. PRAC. & REM. CODE ANN. § 124.001 (Vernon 1986). In that situation, the jury would have had to find against Customer. Conversely, if Dillard's had failed to lawfully invoke its privilege for some reason, it would have lacked legal authority to detain Customer; in that case, Customer would have prevailed. As we have detailed previously, Customer presented extensive evidence to show that Dillard's personnel lacked authority to detain Customer, primarily through her receipt for the merchandise in question.
        We conclude that the trial court's use of the terms "unreasonably detained" in jury question one was intended to secure a jury finding of Dillard's authority to detain, as well as the reasonableness of that detention. Although not artfully worded, the question sought a jury finding on the only contested element of the false imprisonment claim by incorporating language from both the third element of the tort and the defense to the tort. Finding no error in the court's submission of such a broad-form question, see TEX. R. CIV. P. 277, we overrule point one. FN:6
IV. SUFFICIENCY--FALSE IMPRISONMENT
        By its points two and three, Dillard's claims that its liability for false imprisonment is supported by no evidence or, alternatively, by insufficient evidence. In reviewing these contentions, we incorporate and apply the standards we have delineated previously.
        As we have noted and as Dillard's concedes, the first two elements of the tort were conclusively established by Dillard's answers to Customer's interrogatories. In proving the third element--absence of lawful authority to detain-- Customer introduced evidence, inter alia, that she had a receipt for the merchandise, that she offered the receipt before she was taken to the security office, that neither the manager nor the security guard saw Customer steal or conceal any merchandise, that she was detained even after the manager had compared the receipt and garment tags, and that she was detained primarily because her purchases from Joske's were still on hangers. We point out that, according to the manager's testimony, Joske's store policy at that time was to leave garments on hangers after a sale. Therefore, viewing the evidence in the light most favorable to the jury's verdict, we conclude that the finding of unreasonable detention and, thus, false imprisonment, was supported by more than a scintilla of evidence. Dillard's "no evidence" challenge fails. We overrule point two.
        Even viewing all of the evidence pertaining to the jury's finding of unreasonable detention, as we are required to do for a factual insufficiency claim, we conclude that the evidence was sufficient to support Dillard's liability for false imprisonment. Although the jury heard conflicting accounts of the stop and detention, its province was to determine the credibility of the witnesses and weigh the evidence accordingly. See First City Bank v. Guex, 659 S.W.2d 734, 739 (Tex. App.--Dallas 1983), aff'd, 677 S.W.2d 25 (Tex. 1984). In addition to the evidence we have discussed, the jury heard testimony that Customer requested to be taken to a private place to be searched, that the Dillard's personnel became more suspicious because of Customer's loud, profane language and boisterous conduct, and that Customer fit the store's "shoplifter" profile. Despite this controverting evidence, we cannot agree with Dillard's that the evidence was so contrary to the verdict as to be manifestly unjust. Therefore, we overrule its third point of error.
 
V. SUFFICIENCY--SLANDER
        In its fourth and fifth points of error, Dillard's asserts that its liability for slander was supported by no evidence or, alternatively, by insufficient evidence. Applying our previously stated standards, we disagree.
        Slander is a defamatory statement orally communicated or published to a third person without legal excuse. Ramos v. Henry C. Beck Co., 711 S.W.2d 331, 333 (Tex. App.--Dallas 1986, no writ); Diesel Injection Sales & Serv., Inc. v. Renfro, 656 S.W.2d 568, 573 (Tex. App.--Corpus Christi 1983, writ ref'd n.r.e.). A statement that unambiguously and falsely imputes criminal conduct to the plaintiff constitutes slander per se and does not require proof of special damage. Ramos, 711 S.W.2d at 334; see also Glenn v. Gidel, 496 S.W.2d 692, 697 (Tex. Civ. App.--Amarillo 1973, no writ). However, when an ambiguity exists in the allegedly defamatory statements, a fact issue is created; the jury must decide whether the statements were fairly susceptible to the construction placed upon them by the plaintiff. Frank B. Hall & Co. v. Buck, 678 S.W.2d 612, 619 (Tex. App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.), cert. denied, 472 U.S. 1009 (1985). The test is what effect the publication would have on the mind of the ordinary reader or listener. See Houston Belt & Terminal Ry. v. Wherry, 548 S.W.2d 743, 748 (Tex. Civ. App.--Houston [1st Dist.] 1976, writ ref'd n.r.e.), cert. denied, 432 U.S. 962 (1977).
        "Publication" of defamatory words means to communicate them orally, in writing, or in print to some third person capable of understanding their defamatory import and in a way that the third person did so understand. Ramos, 711 S.W.2d at 335; Houston Belt, 548 S.W.2d at 751. The statement must be shown to have been overheard by or communicated to the third party, or the slander is not actionable. Glenn, 496 S.W.2d at 698.
        In Glenn, the defendant allegedly accused the plaintiff of "stealing merchandise from the store." Id. at 697. The court of appeals found that this accusation imputed the crime of theft and was, thus, slanderous per se. Id., citing Whalen v. Weaver, 464 S.W.2d 176 (Tex. Civ. App.--Houston [1st Dist.] 1970, writ ref'd n.r.e.). In the case at bar, however, the statements by the security guard and store manager did not so clearly impute a crime. Neither used the word "steal"; in fact, according to Customer, they both said that they had reason to believe that the items in her Joske's bag "belonged to the store" or "[were] the store's merchandise." Consequently, because the import of the allegedly defamatory statements was ambiguous, it was the jury's province to determine whether they were slanderous. See Frank B. Hall & Co., 678 S.W.2d at 619. Cf. Smith v. McMullen, 589 F. Supp. 642, 644 (S.D. Tex. 1984) (if statement unambiguously imputes criminal conduct, is error to allow jury to determine whether statements are defamatory).
        The parties do not dispute that these statements were orally communicated; however, Dillard's asserts that Customer failed to prove publication. Specifically, Dillard's cites Glenn as precedent for the proposition that a plaintiff's slander claim is not actionable if he fails to introduce proof that the defamatory statements were overheard or communicated to a third person. In Glenn, the court pointed out that the plaintiff could have called any of several persons, who had received a false report about plaintiff's honesty, to testify that they read the defamatory statements. The court expressly noted that "[p]laintiff did not utilize these sources of evidence, and no reason is shown for the failure to do so." Glenn, 496 S.W.2d at 698. The court also said that had such evidence been presented to the jury, the jury would have been entitled to judge the credibility of the witnesses and the weight to be given their testimony. Id.
        In the present case, Customer testified that, at the time she was stopped, more than twenty people were in the immediate vicinity. She said she did not know any of the people. She said additional people were in the vicinity as she was being taken back into the store and some were "very close" to her. Customer testified that overall she spoke quietly, with the possible exception that she spoke loudly when her bag and purse were first taken from her. She said the store manager spoke "louder than normal conversation" and spoke angrily.
        The store manager testified that at the point of initial detention, Customer spoke "loudly, ranting and raving." The security guard corroborated this, saying she was "loud and profane." Notably, the guard also testified that "[w]e were starting to attract attention because of the profanity and noise." He denied making any verbal statements regarding suspicion of theft.
        As Customer notes in her appellate brief and as she testified at trial, she was being restrained by the security guard and led through the store by the guard without freedom to stop or leave. She could not pause and ask anyone present whether they heard the statements made by the manager and the guard, nor could she get names and addresses of these potential witnesses. Customer cites us to Reicheneder v. Skaggs Drug Center, 421 F.2d 307 (5th Cir. 1970), where the court found adequate publication in the plaintiff's being taken from the store by police officers in view of store employees and customers. Id. at 312. The court said "there is no doubt that the employees, by using only the slightest of reasoning, concluded that [plaintiff] had been apprehended for shoplifting." Id.
        In reviewing defamatory statements, we must consider them in light of all the facts and circumstances in which they were uttered. See Fitzjarrald v. Panhandle Publishing Co., 149 Tex. 87, 228 S.W.2d 499, 504 (1950); Moore v. Leverett, 52 S.W.2d 252, 255 (Tex. Comm'n App. 1932, holding approved). Further, because the defamatory nature of the statements was a fact question for the jury, its province was to determine the credibility of witnesses and the weight to be given their testimony. See First City Bank v. Guex, 659 S.W.2d at 739. If, in the mind of the ordinary listener, the reasonable implication was that Customer was being charged with a crime, then the jury could reasonably have found slander. See generally Express Publishing Co. v. Isensee, 286 S.W. 926, 927 (Tex. Civ. App.--Austin 1926, no writ).
        In the case at bar, we conclude that the testimony of Customer, the manager, and the guard showed that (1) Customer was stopped in a busy mall amid at least twenty people on a Sunday afternoon; (2) she was told by both of these men that they believed the items in her bag belonged to Dillard's; (3) she was forcefully led by the arm through a main entrance of the store in view of several people and taken down the escalator; (4) the tone of the voices of the parties was, at least part of the time, elevated such that bystanders could overhear; and (5) that Customer offered the men her receipt for the merchandise only moments after she was initially detained. In view of all the circumstances, we hold that the statements of the two men were sufficiently published to third parties who overheard and could understand the import of their words and actions. Although no bystanders were called to testify, the testimony reflected that many people witnessed the incident and that the trio was "attracting attention." The conflicts in the testimony were to be resolved by the jury; we cannot now substitute our judgment even if we would have reached a different conclusion. Clancy v. Zale Corp., 705 S.W.2d at 826. We hold that the jury's finding of slander was supported by more than a scintilla of evidence. Dillard's "no evidence" challenge fails, and, therefore, we overrule point four. Moreover, in view of the jury's function and the conflicting evidence, we cannot conclude that the finding was so against the great weight of the evidence as to be manifestly unjust. Thus, we also overrule Dillard's fifth point.
VI. PROOF OF MALICE & EXEMPLARY DAMAGES
        Dillard's next claims that the trial court erred in allowing exemplary damages because the evidence was insufficient to support the finding of wanton, willful, and malicious conduct. In a defamation suit, malice may be established by proving knowledge of the falsity of the statement or by proving reckless disregard amounting to willful conduct; a finding under either standard supported by the requisite proof is sufficient. Outlet Co. v. International Sec. Group, Inc., 693 S.W.2d 621, 627 (Tex. App.--San Antonio 1985, writ ref'd n.r.e.); see also Clark v. Lewis, 684 S.W.2d 161, 164 (Tex. App.--Corpus Christi 1984, no writ) (malice includes ill will, evil motive, gross indifference to rights, or reckless disregard of rights).
        To prove Dillard's reckless disregard or gross indifference to the rights of its patrons, Customer introduced evidence that Dillard's had no store policy about detention of suspected shoplifters and no defined "shoplifter profile." The store manager testified that he was "not aware of any" store policy, rules, or guidance regarding detention of suspected shoplifters in the store. He said he heard nothing about any such store policy despite his participation in Dillard's management trainee program. The manager further testified that the "shoplifter profile," which customer supposedly fell within, was based on past experience. At that time, the manager said that "someone milling around in an area with property in their bag that appeared to be taken and not paid for" would fit the profile. He also said anyone "[g]enerally looking suspicious," "[a]voiding eye contract," and "[s]taying in an area for a long period of time" would fit the profile. He also said "one major factor" in stopping Customer was that the clothing in her bag was still on coathangers. However, he admitted that the policy at Joske's, where Customer bought the clothes and from which she obtained the shopping bag, was to "[sell] clothes with the hangars [sic]."
        The security guard testified that he never saw Customer take anything nor did anyone tell him they saw Customer take or conceal any merchandise. The guard also admitted on cross-examination that just because a woman is browsing in Dillard's and carrying a bag from another store that possibly contained clothing on hangers does not mean she is a thief.
        The jury also heard the guard's testimony that, based on information from the sales clerk and his own observation, he had probable cause to stop Customer. He also stated that given the same set of circumstances, he would stop Customer again. The manager testified that he had a reasonable suspicion that Customer was shoplifting and, thus, he had a right to stop her.
        In addition to this line of testimony, Customer introduced evidence of her receipt for the merchandise. She testified that she told the two men she had a receipt before they reached the escalators. The testimony of the two men regarding the precise time when they learned of the receipt, however, was somewhat vague and wavering. Neither man could recall when Customer first told them about the receipt.
        Viewing all of the evidence relevant to the challenged finding of malice, we conclude that the jury's finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The jury's task was to determine credibility and weigh the testimony of each witness; it could believe or disbelieve all or part of the testimony. See Centroplex Ford, Inc. v. Kirby, 736 S.W.2d 261, 264 (Tex. App.--Austin 1987, no writ). Based on the evidence before it, the jury reasonably could have found that the Dillard's employees acted with gross indifference to or reckless disregard of Customer's rights. As the finding of malice is supported by the evidence, the trial court did not err in awarding exemplary damages based on that finding. We overrule point six.
 
VII. RELATION OF EXEMPLARY DAMAGES TO ACTUAL DAMAGES
        By its final point of error, Dillard's argues that the trial court erred in failing to suggest a remittitur of exemplary damages in an amount reasonably related to the actual damages awarded. As we have noted, the jury found actual damages of $800 and exemplary damages of $50,000. The court suggested a remittitur of $20,000 of the exemplary damages, which was accepted by Customer. Dillard's claims that the ratio between actual and exemplary damages is 37.5 to 1, a ratio which is not supported by the evidence.
        Damages resulting from libel or slander are purely personal and cannot be measured by any fixed standard or rule; thus, the amount to be awarded rests largely within the discretion of the jury. Town of South Padre Island v. Jacobs, 736 S.W.2d 134, 142 (Tex. App.--Corpus Christi 1986, writ denied); Bolling v. Baker, 671 S.W.2d 559, 571 (Tex. App.--San Antonio 1984, writ dism'd), cert. denied, 474 U.S. 824 (1985). An appellate court will not disturb the award unless it appears from the record to be excessive or the result of passion, prejudice, or other improper influences. Frank B. Hall & Co., 678 S.W.2d at 630; Bolling, 671 S.W.2d at 571. FN:7 The factors we consider in reviewing such an award include the nature of the wrong, the character of defendant's conduct, the degree of defendant's culpability, the situation and sensibilities of the parties, and the extent to which the conduct offends the public sense of justice and propriety. Wright v. Gifford-Hill & Co., 725 S.W.2d 712, 714 (Tex. 1987), citing Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981).
        In the present case, the testimony of Customer showed that she suffered "fear" and "apprehension," felt "scared and embarrassed," and "hot and humiliated." After she returned home, she said she felt "exhausted, . . . depressed . . . angry." Customer said she continued to feel this way for at least three days. She has not returned to Dillard's.
        In addition, the jury heard testimony that even after the guard and manager had compared the receipt to the merchandise, they read Customer her rights, continued to detain her while they made telephone calls, and questioned her for up to forty-five minutes. Customer thought she had been placed under arrest and was going to be taken to jail, even though she was innocent.
        Customer's original petition sought $20,000 in actual damages and $30,000 in exemplary damages. The court's suggested remittitur reduced the exemplary damage award to the amount originally pleaded. In our view, the evidence is factually sufficient to support the award of exemplary damages. Any passion or prejudice that may have influenced the jury was cured by the remittitur. Viewing the award in light of the factors recited in Wright and Alamo National Bank, we conclude that the exemplary damage award of $30,000 is not excessive. We overrule Dillard's seventh point.
VIII. CUSTOMER'S CROSS-POINT OF ERROR
        By a cross-point, Customer asserts that the trial court erred in refusing (1) to grant her a trial amendment and (2) to grant her judgment for the full $50,000 in exemplary damages. As we have stated, Customer's original petition sought only $30,000 in exemplary damages. Following the jury's verdict of $50,000 on that issue, Customer moved for a trial amendment so that her pleadings would comport with the amount found by the jury. She also requested an exemplary damage judgment of $50,000. The trial court refused the amendment and entered judgment for $30,000, the amount pleaded in Customer's original petition.
        Rule 66 of the Texas Rules of Civil Procedure vests the trial court with broad discretion to grant or deny trial amendments; its decision will be overturned only upon a showing of abuse. Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 634 (Tex. 1986); Dayton Hudson Corp. v. Altus, 715 S.W.2d 670, 675 (Tex. App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.), cert. denied, 481 U.S. 1073 (1987); Delaporte v. Preston Square, Inc., 680 S.W.2d 561, 564-65 (Tex. App.--Dallas 1984, writ ref'd n.r.e.). We conclude that the trial court did not abuse its discretion in rejecting the trial amendment. The judgment rendered was for the full amount pleaded by Customer. Finding no error, we overrule the cross-point.
        We AFFIRM the trial court's judgment.
                                                  
                                                  CHARLES BEN HOWELL
                                                  JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01141.F
 
FN:1 The security guard worked full-time as a Mesquite police officer and part-time at Dillard's.
FN:2 Miranda v. Arizona, 384 U.S. 436 (1966).
FN:3 TEX. CIV. PRAC. & REM. CODE ANN. § 124.001 (Vernon 1986).
FN:4 The trial court properly included the tort elements and the statutory defense in jury instructions, rather than in jury questions. See Sears, 693 S.W.2d at 376.
FN:5 Willful detention was proved by Dillard's interrogatory answer that it had probable cause to stop Customer. Lack of consent was proved by Dillard's answer that Customer did not remain voluntarily in the security office after being detained.
FN:6 We note that by submitting one element of the false imprisonment claim, the trial court is "deemed" to have found the omitted elements in support of the judgment. See TEX. R. CIV. P. 279.
FN:7 Dillard's asserts that exemplary damages must be reasonably proportioned to actual damages sustained. But the reasonable relation requirement is merely a tool to aid the courts in determining when an exemplary damage award is the product of "passion rather than reason." Wright v. Gifford-Hill & Co., 725 S.W.2d 712, 714 (Tex. 1987).
File Date[01-02-89]
File Name[881141F]