Richey v. Brookshire Grocery Co.

peer tions made a medical review commit-

tee. health

Construing the TMPA to insulate providers patient runs direct

care from suits contrary Legislature’s

ly desire quality

improve the of health care. Patients not have information

do access same hospitals through have National may

Practitioner Data Bank. Patients they Bank after filed a

access Data malpractice evi

medical suit there is hospital query failed to

dence physician Bank in the

Data about named M.D., Ryzen,

suit. Elisabeth The National Pro

Practitioner Data Bank: Problems and Legal

posed Reforms, 13 J. Med. (1992). Thus, part, patients for the most rely hospitals verify compe

must

tency physicians. hospitals make vir To

tually immune patient noth suits does

ing hospitals diligently to ensure that will Instead, physician competency.

monitor hospitals negli construction allows

Court’s

gently entirely credential doctors remain

immune from This suit. defeats the entire

purpose of the Act. reasons,

For these I would that the hold 4495b,

malice standard set forth article (m) apply to

sections does not 5.06©

patient negligent credentialing. claims for judgment

would affirm the of the court of

appeals and this ease remand for trial.

Kelley RICHEY, Petitioner, GROCERY

BROOKSHIRE CO. d/b/a Store,

Super Respondent. 1 Food

No. 95-0692.

Supreme Court Texas.

Argued Oct. 1996. July 1997.

Decided

Rehearing Oct. Overruled

Gregory Gleason, Grajczyk, P. K. William Longview, for Petitioner. Hatehell, Hatehell,

Molly H. A. Ty- Mike ler, Respondent.

SPECTOR, Justice, opinion delivered the Court, PHILLIPS, in which Chief Justice, HECHT, OWEN, ENOCH and Justices, join. prosecution

The issue in this malicious Grocery is whether Brookshire Store lacked cause to initiate criminal proceedings against Kelley Richey. found, along with the other of mali- elements prosecution, cious that Brookshire lacked cause to file against Richey damages. him awarded reversed, The court of there was no on the cause issue. 899 agree We with the court of appeals and therefore affirm.

I. 11, 1989, On December approximately a.m., Richey 2:30 Super entered Brookshire night Food Store. manager Brookshire Kelley Richey Russell Farris saw enter the place pack cigarettes store and shopping cart. Farris then observed “twiddle” the in his hand and later put pocket. night them his coat As man- ager, required Farris was to be alert potential shoplifting, topping the list of commonly items taken. As (1) prose- out, of a criminal wrote the commencement checked a check plaintiff; against the bag He cution began them. some pocket. (initiation (2) did procurement) causation store, Richey walking out Before defendant; by the the action bags from one of the pulled food carton (3) in the prosecution of the termination to- Richey proceeded the Then read label. favor; plaintiff’s door, in which stopping ward the near bin (4) innocence; plaintiff’s the place customers could items to donated (5) cause for the the absence sack, charity. got He went back to proceedings; food, baby food aisles and filled the sack with (6) filing charge; malice in and in cash. He still not and did (7) plaintiff. damage Richey placed then cigarettes. 743, Coniglio Snyder, 744 756 S.W.2d See baby charity in the bin and left food 1988, writ de- (Tex.App.—Corpus Christi store. nied); County Bank v. see also Ellis State lot, parking In the Farris and another (Tex.1994); Keever, 888 793-94 S.W.2d Richey forgotten to employee asked if he had Indus., Lieck, Browning-Ferris Inc. v. 881 anything. Richey said that he had (Tex.1994). At in issue S.W.2d 292-93 not. When Farris mentioned proba- appeal Brookshire had is whether Richey’s pocket, Richey in stated that he had proceedings initiate ble cause to criminal inadvertently put and them there offered Richey. Following company policy, for them. long We defined accept payment Farris refused of such facts and “the existence arrived, cigarettes. Richey the police in a as would excite belief circumstances in his asked the officer to mention mind, acting on the facts within report had contributed prosecutor [complain knowledge charity interrogated, given bin. was ant], guilty person charged was citation, way his and released. On out prosecuted.” which the crime for store, Richey baby removed the food (Tex.1983), Dahl, 917, 921 Akin v. 661 S.W.2d charity from the bin took it to his car. and denied, 938, 104 80 cert. 466 U.S. S.Ct. complaint charg- signed Farris later sworn Arrott, Ramsey L.Ed.2d ing Richey with theft of the (Tex.1885) (quoting Wheeler v. trial, At the criminal found Nesbitt, 544, 551-52, 544, 16 24 How. U.S. guilty deliberating not after min- a few (1860)). The probable-cause de L.Ed. utes. this suit for false filed per asks whether a reasonable termination imprisonment prosecution. and malicious that a crime had been son would believe jury in civil The trial returned a verdict given as the committed imprisonment against Richey on false reasonably them be honestly believed claim but found favor on the malicious proceedings were insti before the criminal claim, $18,400 in prosecution awarding him 920-21; Akin, Conig 661 S.W.2d at tuted. $18,400 exemplary damages actual lio, 744. 756 S.W.2d at damages. appeals, court one prosecution actions involve Malicious justice dissenting, reversed rendered society’s between interest a delicate balance Brookshire, judgment favor in the efficient enforcement criminal there interest freedom law individual’s that Brookshire lacked unjustifiable oppressive criminal Richey. prosecute cause to S.W.2d Lieck, at 290-91. prosecution. Accordingly, presumption initial there an that the de prosecution actions II. good faith reasonably and fendant acted pro probable cause to initiate the criminal and had plaintiff a malicious A Keever, ceedings. prosecution claim must establish presumption 661 S.W.2d at 920. disap- That In a malicious pears plaintiff produces complaint, once a based on a complain evidence that motives, beliefs, ant’s grounds, investigation failure to a further make other evi- into upon suspect’s state of dence mind which the defendant does acted did objec constitute lack of cause if all not constitute cause. Id. The bur- tive reasonably appear elements of a crime den then shifts to the defendant to offer completed. have been Cisne Thomas v. proof Id. ros, (Tex.Civ.App.— 317-18 n.r.e.); Austin writ ref'd Carswell v. ques Whether cause is a Co., Southwestern Bell Tel. tion of law or a mixed law and 817 (Tex.Civ.App.—Houston [1st Dist.] depends parties fact dispute whether writ). no In this which the store underlying facts. facts under manager Richey observed leave the store lying the prosecute defendant’s to decision paying without for an item in his concealed disputed, are of weigh the trier fact must possession, employees duty the store and resolve conflicts to determine if inquire Richey’s to into state of before mind probable exists, cause question as mixed of prosecuting. Delchamps, See Inc. v. Mor and fact. law 661 at S.W.2d 920. It 442, (Ala.1992) (“Because gan, 601 445 So.2d long true, however, has been that “[w]hen Morgan undisputedly pack had a visible contested, facts are not and there is no cigarettes in pocket, employee] her store [the issue, conflict the evidence to directed that strong could have ‘an honest entertained question question cause is a suspicion’ prop that she had concealed store by of law which is to be decided the court.” erty. Therefore, the malicious Arrott, Ramsey 320, v. 64 Tex. 323 count should not have been submitted Obert, 539, also Landa v. 45 Tex. 543 Cos., Inc., jury.”); Melia Dillon 18 Kan. v. (1876) (“[w]hat facts and circumstances 257, (1993) (“Here, App.2d 5, 846 P.2d 261 it pure amount to question cause is uncontested that Melia concealed law”). case, Probable this cause to belonging failed for merchandise to which the leading up facts and events to Consequently, store. existence Richey’s undisputed, arrest are is therefore a this a jury cause in case is not question law for not the court and the trier question.”). one court appeals As has also, e.g., of fact. See v. Finney, Daniels 262 noted, “A private duty citizen has no to in (Tex.Civ.App.—Galveston S.W.2d 433 quire of suspect whether he has some n.r.e.); writ Montgomery ref'd Ward & explanation charges.” alibi filing before Kirkland, (Tex. v.Co. 908 Salazar, v. Marathon Oil Co. Civ.App.—San Antonio writ ref'd (Tex.App.—Houston [1st Dist.] n.r.e.); (Second) Restatement of Torts n.r.e.); writ ref'd see also 52 Mali Am.Jur.2d 673(1)(e). § (1970). § cious Prosecution shoplift Even if Richey’s intent could III. circumstances, presumed not be under these undisputed that this case dictate Because lack of cause it was not em- law, unreasonable Brookshire’s is a the issue for the ployees Richey that believe intended undisputed Court whether the facts under cigarettes. Richey steal the he admitted that lying the prosecute decision placed pocket his and did reasonable belief that was guilty of trial, not At that for them. he testified theft. Because concealed merchan his behavior could lead someone to believe dise, posses retained the merchandise in his shoplifting: that he was sion, passed through the check-out line merchandise, for the Q I you yet know had no intent but probable-cause somebody issue is the your reasonableness of it actions looks like Richey’s actually by Brookshire’s belief as to state of those shoplifting picking up them, appropriation. mind the time of isn’t concealing § right? 31.03. that Penal Tex. Code The notion right. cause. A That’s A That’s Q based on what And the reason and think your conduct. because ^[*] right. ^[*] somebody could look at that you ^[*] were in fact why they ^[*] it was a mistake is observed ^[*] shoplifting about ^[*] ' derived S.W. 970 appeals’ opinion in Sebastian consults full S.W. 691 can held that mistakenly from the court with counsel before (Tex.Civ.App.), fair negated disclosure the fact that a In seems rev’d, failure make making complainant the court of Cheney, of civil been full public officials does and fair disclosure Richey thus that it was reason- admitted always from a later insulate the had committed theft. able believe prosecution suit. 24 S.W. at 972. Richey’s charity nor Neither contribution wrongly, cited Sebastian Later courts have passing through offer to after check- think, a failure to proposition we line negates out Farris’s in itself make a full and fair disclosure consti reasonable belief that intended See, e.g., tutes lack of deprive It Brookshire of the Eans, Ada Oil Co. em- therefore reasonable Brookshire’s (Tex.Civ. Dillaberry, ployees believe that intended to App.—Houston writ [14th Dist.] cigarettes.1 steal the dism’d). Richey argues that Brookshire’s fail probable inquiry cause asks fully fairly ure to all disclose relevant reasonably complainant believed whether proba to a constitutes lack of a had been com that the elements of crime ble It has stated the mali been that to based the information available mitted cious-prosecution defendant lacks proceedings complainant before criminal if misrepre cause or she makes a material reasonably began. be sentation does known or not disclose all ma occurred, the reasonable lieves a crime has good terial facts in faith to law enforcement negated by is not ness of that belief See, e.g., officials. Ellis Bank County State fully all failure to relevant facts disclose Keever, 794-95; Compton 888 S.W.2d at v. Thus, the the officer. extent disclo Calabria, (Tex.App.— prosecutor probative is sure not Co., 1991, writ); Dallas no Marathon Oil cause, lack of but rather indicates Co., Supply S.W.2d at Eans v. Grocer complainant may have acted whether Inc., (Tex.Civ.App.—Hous have, by knowingly pro may or malice writ). Browning- ton no In [1st Dist.] information, prosecu viding false caused the Industries, however, Lieck, Ferris Inc. v. we (failure Sebastian, tion. at 693 S.W. knowingly that providing held false informa probative full to officer is to make disclosure public to a tion official satisfies the causation malice); Lieck, 293-94 element, lack-of-probable- rather than making proba false is (knowingly disclosure element, of prosecution cause a malicious causation). Brookshire’s tive of Whether claim. 881 S.W.2d at 293-94. fully failed all relevant employee disclose today officer therefore imma similarly conclude information is We probable-cause currently failing fully fairly inquiry terial disclose all material Biering v. knowingly providing us. See First Nat’l Bank information and false before Galveston, 7 S.W. prosecutor relevant to 69 Tex. information to are (1888) (“want can never be of a mali cause the malice and causation elements malice”). proof of As matter prosecution bearing inferred from cious claim but have rhetoric, at 337. Our Contrary we do not dissent’s cause.” Kelly Richey As had cause believe conclude that "thief.” Brookshire noted, appears had committed theft is unrelated to Rich "It from the court of ey's guilt. acquitted by See McManus actual innocence record that munici- Wallis, Cham pal shop- 52 Tex. 534 Haldeman v. he did not intend to court because bers, lift, 19 Tex. because there was lack of law, then, we hold that Brookshire No other circumstances matter. Even probable cause proceed- though may to initiate criminal eventually innocent customer ings against Richey. acquitted, Richey, Kelley be as was under

today’s decision, the customer has no re- humiliation, public IV. damage course reputation, potentially to one’s devas- Actions create a tating consequences financial of having to pun- tension between the societal interest justice system defend oneself in the criminal ishing crimes and the individual interest charges. false protection unjustifiable prose- from Lieck, cution. 881 S.W.2d at 290-91. We object to the Court’s actions on two upon today are pass not called on the grounds. My objection first is to the Court’s policy prosecuting wisdom Brookshire’s transformation of cause this case reasonably who appear customers to have question legal question. from fact to a taken merchandise from the store without Simply “facts leading because the and events paying—regardless of the value of the mer- up Richey’s are undisputed,” supra, arrest taken. chandise In this Brookshire 952 S.W.2d at does not mean punished prose- should not and cannot of law court. cuting Richey employees when Brookshire’s underlying happened While the facts of what merchandise, saw conceal retain the night undisputed, give are those facts possession, pass merchandise to conflicting rise inferences. This Court has through the line check-out long conflicting held that resolution infer Accordingly, the merchandise. we affirm the ences, including arising undisput those take-nothing judgment ap- of the court of facts, “If ed lies with the reason factfinder: peals. able minds can different inferences or draw facts, undisputed conclusions a fact from is CORNYN, Justice, GONZALEZ, joined by presented.” sue is Commercial Standard ABBOTT, Justices, BAKER and dissenting. Davis, 487, 137 1, Co. v. 134 Ins. Tex. S.W.2d (1940); Ramo, English, 2 Inc. v. 500 he also acquitted shoplifting by After was of 461, (Tex.1973); Bartlett, v. a S.W.2d 467 Mills jury, jury one second from concluded the 636, (Tex.1964); S.W.2d Cavanaugh in 377 638 per- evidence this case that reasonable Davis, v. 149 Tex. 977 son would Kelley Richey, have believed that Co., first, Le v. Fort Transit Master Worth groceries, paid for $51 and then (1942). Tex. 226 138 more almost that $9 he donated appeals the charity, That court of or this Court would intentionally stole a drawn from have a different conclusion the pack of when he had the judi facts does not authorize substitution of money pocket Both for it. factfinding jury’s cial the verdict. See juries concluded from the Rich- evidence that Co., Pool Ford 715 634- ey cigarettes by mistake, Motor S.W.2d took the (Tex.1986). Moreover, if Nevertheless, even any them. intention steal law, is a of the this case only five members this Court hold that the all the facts Court is still bound consider that may reasonably conclusion drawn be circumstances, including evidence rele Kelley Richey from the evidence is that is a motives, vant to grounds, Brookshire’s juries thief. Like the who all two heard the beliefs, applying before the law. See Akin v. ease, evidence this three other members Dahl, (Tex.1983). Court, But justice S.W.2d this one the on court of analysis unjustifiably Court’s the excludes far panel, judge, disagree. and the trial more evidence than it includes. practical The effect the Court’s Second, person conclusion, is breathtaking: anytime contrary leaves a to the Court’s by paying proper store without for merchandise mis- the standard of under no-evidenee is, it, take, review, Richey produced legally that with no intention to steal ev- sufficient always legally justified pur- support store owner is Probable idence verdict. suing charges against and cir- criminal the customer. cause is the existence such facts item; belief, company policy did not paying for an cumstances as would cause the mind, noncrimi- acting within criminal and reasonable on differentiate between Santone, knowledge Similarly, complainant, takings. of the that the nal Kevin person charged guilty of the crime rather than Manager, was for District testified that prosecuted. she determining taking may which he or have been whether a objective inadvertent, simply 921. Material policy S.W.2d at Brookshire’s inquiry taking is evidence beliefs and motives was intentional conclude that pro- at the time criminal taking itself. Once a customer ceedings began; guilt the ultimate or inno- thief, said, the suspected being he cus- Id. cence of the accused immaterial. such, re- always regarded tomer will Thus, prevail, Richey needed offer gardless of the circumstances of case. a jury finding evidence and secure that facts policy Finally, in contrast to Brookshire’s did exist the time customers, and circumstances dealing jury when heard proceedings sup- were instituted to left without employees that store who port a reasonable belief that he had commit- forgiven er- goods would be for “honest This, ted a crime. he did. support This rors.” evidence lends further jury’s apparent conclusion that while reviewing point of er no-evidence person reasonable would concluded ror, we consider the evidence and rea inadvertently pack ciga- took the sonable inferences the verdict rettes, pressed Brookshire nevertheless disregard all evidence and inferences to as a matter of course. charges contrary. County Bank Ellis State (Tex.1994). Keener, If jury disregarded The could also have any supports finding, the find alleged grounds Brookshire’s Estate, ing upheld. King’s In must be re in the of inconsistencies testi- cause because 662, 244 Farris, mony night manager Russell duty during the incident. He testified facts, basic the Court’s detailed in- accuracy that Brookshire stressed opinion, support inference and reports managers, filed told ternal person in Brook- jury that he had filled out the position shire’s would not have believed that arrive, report waiting while had intended to steal so be “fresh” on his details would required While the was not to believe But, report neither the internal nor mind. it, Richey’s story rejected and could have it report Richey paid police mention that $5 certainly jury’s power within the to ac- groceries, 1.00 for his re-entered store cept Richey paid groceries it. for for $51.75 groceries charity, for paid and more for family, his purchase re-entered the store to pay had on hand to cash charity, paid items for an additional $8.89 And, litany report neither included other items, cash for those had cash on to hand impor- factors that Farris told the were the cigarettes, for and offered to $1.49 press charges: his to Rich- tant to decision them for when he was reminded of his over- tactics,” looks,” ey’s “shifty “stalling “ner- essence, sight. jury, The found that a demeanor, and smell of alcohol on vous” person would not have believed here, When, conflicting his breath. as evi- just paid customer who had for $51.00 issue, an verdict is dence exists on groceries groceries his own and $9.00 generally conclusive on such matters as the charity intentionally steal would weight given to evidence and credibil- pocket worth when he Wilson, ity Benoit v. of witnesses. money pay for to them. 239 S.W.2d 796-97 Millican, Jack Brookshire’s Director of Moreover, report Safety Control, inaccurate to the and Loss testified that com- Farris’s support a investigate police by itself to pany policy required managers to was sufficient But, not exist to suspected shoplifting incident. cause did each said, prosecute Richey. policy determining “[Lack cause] was limited may by proof that the de- left the be demonstrated whether the customer store misrepresentations Likewise, fendant made material report police Farris’s prosecuting incomplete County misleading. officer.” Ellis and State The relevant Keever, portions police report Bank v. of the at 794-95. read as follows: Tex requires a complainant law to make a “full Richey Farris stated that came into the and fair got disclosure of and circum store a shopping Richey and cart. time_ got stances known to him then cigarettes] at the the above item [Un [the placed it in shopping less he cart. good acts faith in Farris disclosing to the Richey stated that to shop continued prosecuting attorney all material facts known about 15 minutes. him, Farris advised that cause does exist.” Mar Richey while was shopping, took Salazar, athon Oil Co. v. shopping above listed item out of the (Tex.App.—Houston [1st Dist.] writ placed pocket. cart and it inside a coat n.r.e.). only person ref 'd It is “a fairly after went through the check-out possession discloses facts in his prose to the line and for some items other and left cuting duty officer no [that] he has to make Farris store. then detained investigation....” further Id. at parking lot and escorted back Snyder, also Coniglio inside the store. (Tex.App.—Corpus denied) Christi writ Obviously, there no mention Farris of (“Unless person fairly discloses information Richey re-entering purchase the store faith, to prosecuting attorney, good prob charity more no and mention of exist.”); able cause does not Diamond Richey’s offer cash for Ortiz, Corp. Shamrock upon being oversight. reminded of his Far- denied) (Tex.App.—Corpus Christi writ ris tending to omitted evidence show (“[Complainants] generally duty have a taking pre- was accidental. This is make a full and fair of all disclosure cisely type of material omission that this police failure to make material ex Court has held be evidence there was culpatory information police known to the press charges. cause to could be evidence of a hostile motive or insuf Keever, 888 S.W.2d at 794-95. ficient grounds.”). importance complete police report of a report Farris’s internal on the incident cannot be wishing overstated. Retailers read as follows: notify every authorities of of sus- pected shoplifting and to avoid the role of Subject 1 pack removed police may discharge amateur officers their placed rack at front of store and them in duty by providing report thorough buggy. Subject went down aisle # 8 prosecuting authorities. This food) (dog placed eigs pocket allows all weigh the authorities to Subject coat. shopped approx. exonerating incriminating evidence and mins, Subject left store. was stopped regarding to make an informed decision parking lot. merits the particular of a case. While Court of to the causa- Farris failed to restricts this kind evidence mention that went prosecu- tion or elements of through once, malice the check-out paid stand tion, I view evidence relevant to a such as groceries, dollars for saw charity $51.00 the beliefs, complaining party’s motives and store, display, re-entered the almost probative on probable thus the issue of groceries bin, for more charity again, left the store and then offered to Finally, while did admit Farris for the outside the store. If one probable stop had cause to him and ask only report, read internal one would be- about cigarettes, he never admitted that aisle, put lieve that one walked down person would inferred pocket, and then left the taking taking from the itself all, any store without for intentional. He never that Farris said food much re-entering less for more ignored food groceries should have that he himself, charity. for bought buy re-entry more charity, and his offer WILLIAMS, JR., cigarettes. He characterized his cash INC. and CLAYTON W. taking and an- Graham, Petitioners, “mistake” E. Odis affirmatively question to a that as- swered no intent to steal. The sumed that OLIVO, Respondents.

Court thus confuses the cause rele- David & Rosielinda imprisonment claim—probable vant a false No. 96-0044. stop—with cause cause rele- claim—proba- vant to a malicious Supreme of Texas. Court taking ble cause to believe Argued Dec. 1996. If to show intentional. Brookshire had cause to that it had detain July 1997. Decided liability prosecution, for malicious avoid Rehearing Oct. 1997. Overruled Richey’s testimony dispose would However, is issue. whether existed, stop Richey, not to complaint. evaluating

but file a Instead of supporting finding

all of the evidence cause, the Court focuses suggest Richey took

one event would piece

pack intentionally. This fixation on one event, regard one evidence, nearly

exclusion of all other vio- proper

lates the standard review. parties opposing

“Once these have entered

into a factual contest on issue of

cause, fact issue created resolution of fact. This is a our trier cornerstone

judicial system.” principle, I

Applying this conclude that Rich-

ey produced legally sufficient evidence to pur- that Brookshire charges

sued criminal him without Court, unfortunately, cause. The acknowledging

while for balance need vigilant

between law enforcement accused,

liberty unjustly interest those

creates what in effect rule strict

nonliability for owners—if a customer store something pay-

takes out of a store without circumstances, it,

ing regardless is a

the customer thief the store owner prosecu- held for malicious

cannot be liable turning ques- By disputed

tion. into a simply in this has

tion of law the Court jury. opinion its

substituted that of part illegitimate of such an exer-

cannot Accordingly, I power.

cise of dissent.

Case Details

Case Name: Richey v. Brookshire Grocery Co.

Court Name: Texas Supreme Court

Date Published: Oct 30, 1997

Citation: 952 S.W.2d 515

Docket Number: 95-0692

Court Abbreviation: Tex.