Perkins v. Wal-Mart Stores, Inc.
| Docket Number: | 2008-CA-01406-COA Linked Case(s): 2008-CA-01406-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-23-2010 Opinion Author: Barnes, J. Holding: Affirmed in part, reversed and remanded in part. |
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| Additional Case Information: |
Topic: Malicious prosecution - Tortious interference with employment - Civil conspiracy - Intentional infliction of emotional distress Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Ishee and Roberts, JJ. Non Participating Judge(s): Maxwell, J. Concur in Part, Dissent in Part 1: Carlton, J., with separate written opinion Concur in Part, Dissent in Part Joined By 1: Myers, P.J., and Griffis, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - TORTS - OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 07-11-2008 Appealed from: MARSHALL COUNTY CIRCUIT COURT Judge: Robert Elliott Disposition: SUMMARY JUDGMENT GRANTED Case Number: M2006-523 |
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| Note: | On a motion for rehearing on 10/26/2010, the Court of Appeals granted the motion for rehearing in part, affirmed the trial court's disposition in part and remanded the disposition in part. See the full opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO66193.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | MICHAEL PERKINS |
RICHARD SHANE MCLAUGHLIN, JIM WAIDE |
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| Appellee: | WAL-MART STORES, INC. AND ELIJAH WILSON | SCOTT BURNHAM HOLLIS, WILTON V. BYARS III, ROBERT TUBB JOLLY, AMANDA MCMILLAN URBANEK | ||
| Appellee #2: | ||||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Malicious prosecution - Tortious interference with employment - Civil conspiracy - Intentional infliction of emotional distress |
| Summary of the Facts: | Michael Perkins filed an action against Wal-Mart Stores, Inc. and Elijah Wilson for malicious prosecution, tortious interference with his employment, civil conspiracy, and intentional infliction of emotional distress. Wilson filed a motion for summary judgment. Wal-Mart also filed a motion for summary judgment. The court granted both motions. Perkins appeals. |
| Summary of Opinion Analysis: | Issue 1: Malicious prosecution Perkins argues that the record contained sufficient evidence to find that Wal-Mart and Wilson acted with malice in his prosecution. The elements of malicious prosecution are: the institution of a proceeding; by, or at the insistence of the defendant; the termination of such proceeding in the plaintiff’s favor; malice in instituting the proceedings; want of probable cause for the proceeding; and the suffering of the injury or damage as a result of the prosecution. A citizen may file a criminal complaint as long as he acts either in good faith, i.e., for a legitimate purpose or with reasonable grounds to believe that the person against whom proceedings are initiated may be guilty of the offense of which he is charged. For liability to be imposed, there must be an affirmative action that would advise, encourage, or pressure the institution of criminal proceedings. Here, there is no evidence that Wal-Mart instituted the prosecution of Perkins based upon any malicious intent. After Wal-Mart became aware of an “under-ringing” scheme by employees, its agents interviewed three employees regarding their participation in the scheme. Wal-Mart admitted that, while it did not prosecute any other customers involved in the scheme, this was because those persons were not identifiable. Only Perkins was specifically named by one of the employees and identified in the surveillance video. The evidence shows that Wal-Mart believed that it had probable cause to institute the proceedings. One of the employees had given a recorded statement that Perkins was aware that he had received a printer cartridge without paying for it. Perkins also argues that Wilson’s actions constituted malicious prosecution as Wilson used this incident to see that Perkins was “baselessly prosecuted and harassed by Wal-Mart.” Perkins and Wilson were both police officers with the Holly Springs Police Department and had a strained relationship based on some past incidents. Although Wilson did not directly bring charges against Perkins, a person may indirectly institute criminal proceedings by knowingly providing information with the expectation that it will serve as a catalyst for a criminal proceeding. Taking all evidence in favor of Perkins, the record shows that Wilson and Perkins had a strained working relationship immediately preceding the Wal-Mart incident. The Wal-Mart employee testified that she thought Wilson wanted her to implicate Perkins and turned the tape recorder off and on until he obtained her statement implicating Perkins. While Wilson refuted this evidence, the evidence to the contrary is sufficient to create a genuine issue of material fact as to malice, making summary judgment inappropriate. Issue 2: Civil conspiracy Perkins argues that Wilson maliciously conspired with Wal-Mart in charging him with petit larceny and that the actions of Wilson and Wal-Mart imply that an agreement existed. A conspiracy exists when two or more persons agree to accomplish an unlawful purpose or a lawful purpose unlawfully. The facts do not imply an agreement between Wal-Mart and Wilson existed; Perkins confessed as much in his deposition. Issue 3: Malicious interference with employment Perkins argues that Wilson intentionally set out to interfere with Perkins’s employment after Perkins implied Wilson had stolen items from the evidence locker. This type of claim requires that the plaintiff prove that the acts were intentional and willful; were calculated to cause damage to the plaintiff engaged in a lawful business; were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant; and resulted in actual damage and loss. Perkins was notified just days after the incident at Wal-Mart, that his supervisory duties on the night shift would no longer be needed. Therefore, Perkins argues that the petit larceny charge resulted in his losing his supervisory position. There is no evidence that Wilson was responsible for Perkins losing his supervisory position. As to his reassignment to a different car, Perkins admitted in his deposition that Wilson may not have had anything to with the reassignment. Issue 4: Intentional infliction of emotional distress Perkins argues that he suffered mental anguish and emotional distress as a result of the actions of Wal-Mart and Wilson. In order to prevail on this type of claim, the plaintiff must establish that the defendant’s conduct was wanton and willful and evoked outrage or revulsion. There is no evidence that Wal-Mart’s actions were intentionally done to harm Perkins. Perkins even admitted in his deposition that Wal-Mart’s actions were merely negligent. With regard to Wilson, the Wal-Mart employee asserted that Wilson threatened her in order to evoke a statement against Perkins that Wilson knew was false. Perkins further claims that Wilson, motivated by bias against Perkins, encouraged Wal-Mart to prosecute Perkins based upon this knowingly false statement. This type of behavior, if proven, might be considered revolting and outrageous by a jury. Thus, there is a genuine issue of material fact as to whether Wilson’s actions give rise to a claim on intentional infliction of emotional distress. |
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