Harris et al v. Wal-Mart Stores, Inc.

Filing 79

OPINION and ORDER granting nunc pro tunc 70 Motion to Exceed Page Limit, 72 Motion for Leave to File Excess Pages and 74 Motion for Leave to File Excess Pages. Granting in part and denying in part 71 Motion for Summary Judgment. Court als o DENIES Defendant's request for spoliation sanctions. Further, the Court INSTRUCTS the parties to submit a proposed joint consolidated pretrial order in accordance with Local Rule 16.4 within 30 days of the date of this Order. Signed by Judge Clarence Cooper on 12/23/2013. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DANA HARRIS and
DARREN HARRIS,
Plaintiffs,
vs.
WAL-MART STORES EAST, LP,
Defendant.

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CIVIL ACTION NO.
1:11-CV-03406-CC

OPINION AND ORDER
This matter is before the Court on Defendant’s Motion for Summary Judgment
[Doc. No. 71].1 The Court heard oral argument on Defendant’s Motion on December
9, 2013. After carefully reviewing the parties’ submissions, the record in this case,
and the applicable law, the Court DENIES in part and GRANTS in part
Defendant’s Motion.
I.

BACKGROUND
A.

Facts

On July 31, 2007, Plaintiff Dana Harris (“Ms. Harris”) was arrested for theft
by taking at Wal-Mart store number 5275 (the “Store”) in Woodstock, Georgia.
(Def.’s Statement of Material Facts as to Which There Exists No Genuine Issue to Be
Tried & Theories of Recovery “DSUMF” ¶ 1.) Defendant Wal-Mart Stores East, LP
(“Wal-Mart”) accused Ms. Harris of making fraudulent returns with Wal-Mart
associate, Katum Williams, who was also arrested that day. (DSUMF ¶¶ 1, 10, 11.)
When she was arrested, Ms. Harris was an hourly supervisor in the Store’s
electronics department. (DSUMF ¶ 2.) Ms. Harris’s son, Darren Harris (“Mr.

The parties have also filed three perfunctory motions to exceed the page
limitation. (Docs. No. 70, 72, 74.) Having read and considered the motions, the Court
GRANTS the motions nunc pro tunc.
1

Harris”) was an hourly part-time associate in the Store’s tire and lube express
department. (DSUMF ¶ 3; Compl.¶ 7.) Williams also worked in the tire and lube
express department. (DSUMF ¶ 6.) He was a department manager and hourly
supervisor, but was never a salaried Wal-Mart manager. (DSUMF ¶ 6.)
Kristina Collins is a Wal-Mart asset protection manager, but on the day of the
arrest, she was an asset protection coordinator and was post certified.2 (PSMF ¶¶
1, 2.) Before working for Wal-Mart, Collins was a police officer for eight years, and
she had worked as an officer with the Cherokee County Sheriff’s Department.
(PSMF ¶¶ 2, 4; DSUMF ¶ 39.) Collins graduated from North Central Georgia Law
Enforcement Academy (the “Academy”), took a course in probable cause at the
Academy, and was familiar with the concept of probable cause. (PSMF ¶¶ 2, 3;
DSUMF ¶ 39.) Before July 31, 2007, Collins had arrested suspects for theft by taking
and had applied for warrants for this crime. (PSMF ¶ 5.) In fact, she had taken out
more than ten warrants. (PSMF ¶ 5.) At the time of the arrest, Natasha Sutton was
also a Wal-Mart asset protection employee. (DSUMF ¶ 15.)
While working at Wal-Mart, Williams allegedly made several fraudulent
refunds, which were recorded in an electronic journal. (Pls.’ Statement of Additional
Facts “PSMF” ¶ 13.) On May 20, 2007, he used Rosetta’s employee number to make
a fraudulent refund for $317.85. (PSMF ¶ 18.) On July 6, 2007, he used salaried
assistant manager Wesley’s employee number to make a fraudulent refund for
$367.82. (PSMF ¶ 19.) On July 13, 2007, he again used salaried manager Wesley’s
employee number to make a fraudulent refund for $1,676.52. (PSMF ¶ 13.) On July
14, 2007, he made fraudulent refunds for $379.48 and for $402.29, again by using

During oral argument, Ms. Harris’s counsel stated that, under Georgia law,
a post certified officer can obtain a warrant without the other party appearing before the
magistrate.
2

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salaried manager Wesley’s employee number. (PSMF ¶¶ 14-15.) On July 15, 2007,
he made a fraudulent refund for $104.69. (PSMF ¶ 16.) And on July 20, 2007, he
again used salaried manager Wesley’s employee number to make a fraudulent
refund for $1,477.64. (PSMF ¶17.) Many of these refunds were made at register 90
in the customer service area. (PSMF ¶¶13-16, 19.)
Williams also made a fraudulent refund to Ms. Harris’s debit card. (DSUMF
¶¶ 20-23.) Ms. Harris did not observe Williams perform the refund, but about an
hour after she had given him her card, he returned it. (DSUMF ¶¶ 22, 23.) Ms.
Harris admitted that Williams owed her $100 for bonding him out of jail about a
month or two before her arrest. (DSUMF ¶¶ 13, 18.) She agreed to allow him to
repay her by returning merchandise she did not purchase onto her debit card.
(DSUMF ¶¶ 17, 21.) She also admitted giving him her debit card for him to do the
returns in the automotive department. (DSUMF ¶¶ 17, 21.) According to Ms.
Harris, Williams told her that he could not do the return on his account because his
account was overdrawn. (PSMF ¶ 20.)
Although Williams owed her only $100, he returned about $400 worth of
merchandise and placed the entire amount on Ms. Harris’s card. (DSUMF ¶ 24.) A
few days after the returns, Williams went to Ms. Harris and asked her to check her
account balance, which she did. (DSUMF ¶¶ 25, 26.) She then withdrew the $400
at the Store, gave the entire amount to Williams, and then he gave her $100; the
entire transaction occurred on the job. (DSUMF ¶ 26.) But no one was present
during this exchange. (DSUMF ¶ 27.) This transaction occurred at least a couple of
weeks before July 31, 2007. (DSUMF ¶ 28.) After the transaction, but before July 31,
2007, Williams again asked Ms. Harris to let him use her debit card to return
merchandise because he needed cash. (DSUMF ¶ 29.) But she refused. (DSUMF ¶
29.)
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On the day of the arrest, but before Williams was arrested, Collins and Sutton
interviewed him. Before the interview, Collins did not speak with any Wal-Mart
associates. (PSMF ¶ 10.) During the interview, she did not take any notes or ask
Williams any questions. (PSMF ¶¶ 11-12.) Sutton, however, had asked Williams to
make a written statement. (PSMF ¶ 58.) After Williams wrote the statement, he,
Collins, and Sutton signed it. (PSMF ¶ 20.) According to Collins, Williams told
Sutton that Ms. Harris was involved in the refunds, knew they were fraudulent, and
that Ms. Toundred Bond had picked up money for Ms. Harris. (PSMF ¶¶ 21, 22.)
Collins signed a citizen’s arrest form for Williams, and he was arrested. (PSMF ¶ 6.)
Ms. Harris was working in the electronics department when she learned from
a co-worker that Williams had been arrested at the Store. (DSUMF ¶ 10.) After his
arrest, Wal-Mart management paged Ms. Harris to its office, where she met with
Collins, Sutton, and store manager Melanie Radocesky for less than an hour.
(DSUMF ¶¶11, 15.) During that time, Radocesky advised Ms. Harris that she was
being terminated for an integrity issue and theft because Ms. Harris had given her
debit card to Williams so that he could return goods and place the value on her card.
(DSUMF ¶ 16.) Sutton did not take any notes during Ms. Harris’s interview and did
not write any notes afterwards. (PSMF ¶¶ 52, 53.) Wal-Mart contends that no one
from Wal-Mart harassed or intimidated Ms. Harris. (DSUMF ¶ 55.)
Ms. Harris provided a voluntary statement to Wal-Mart’s management; Ms.
Harris, Collins, and Sutton signed the statement. (DSUMF ¶¶ 14; PSMF ¶ 33.) The
statement reads: “I bonded Katum Williams out of jail. Katum Williams who owe
[sic] me money for money. In return, he said he will pay me back by returning items
to TLE and he would refund them to my account.” (DSUMF ¶¶ 14, 18-20.) Collins
said the statement is a confession to theft by taking and that Ms. Harris confessed
to knowing the refunds were fraudulent, but did not care. (PSMF ¶¶ 34, 35, 41.)
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Collins completed a civil arrest form and a hold for a warrant for Ms. Harris. (PSMF
¶ 9.) Collins spoke to police officer Jason Nash, and at some point, Ms. Harris was
arrested. (PSMF ¶ 6; DSUMF ¶ 1.) Before the arrest, Ms. Harris did not believe or
think that any of her co-workers or superiors had any ill will or bad feelings toward
her or wanted to harm her in any way. (DSUMF ¶ 50.)
In connection with the fraudulent refunds, Sutton allegedly interviewed
Wesley because Williams made refunds in Wesley’s name. (PSMF ¶ 54.) Collins
and Sutton also interviewed Bond. (PSMF ¶ 23.) During Bond’s interview, Collins
did not talk with Bond or take notes, and Sutton did not ask Bond to make a written
statement. (PSMF ¶¶ 23, 57.) Collins witnessed Sutton speaking with Bond, but
does not remember what Bond told Sutton and nothing can be used to refresh her
memory. (PSMF ¶¶ 23, 24.)
On August 20, 2007, the Magistrate Judge for Cherokee County signed an
application for a warrant of Ms. Harris’s arrest for theft by taking. (DSUMF ¶ 44.)
At some point, Collins spoke with the District Attorney’s Office. (PSMF ¶ 42.) On
September 22, 2007, Sutton started an APIS investigation file on Ms. Harris. (PSMF
¶¶ 61, 64.) An APIS file, which is Wal-Mart’s criminal file, is created when Sutton
starts an incident that elevates to an investigation and then goes to a case. (PSMF
¶ 62.) Although Sutton started the APIS file in September 2007, she did not put any
notes into the case file until December 3, 2007, which was the day the file was closed.
(PSMF ¶¶ 65, 69.) The file does not contain any of comments that Bond, Wesley, or
Williams allegedly made on July 31, 2007. (PSMF ¶¶ 66-68.)
On or about September 21, 2012, Ms. Harris’s counsel deposed Collins and
Sutton. During Sutton’s deposition, she said Ms. Harris knew the credit card refund
was fraudulent and that Ms. Harris used the word fraudulent in her statement,
when Ms. Harris wrote, “he would refund them to my account,” even though Sutton
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did not take any notes during or after Ms. Harris’s interview. (PSMF ¶¶ 45, 46, 50.)
Sutton stated, “To me, she knew that he actually didn’t purchase those items to do
a refund.” (PSMF ¶ 45.) Later, Sutton admitted that Ms. Harris did not use the
word fraudulent, or a word synonymous with fraudulent, in her statement. (PSMF
¶¶ 47, 48.) Sutton then admitted Ms. Harris never told her she knew Williams was
refunding items that he never purchased. (PSMF ¶ 49.) Sutton had not seen any
documents showing Ms. Harris signed for any refunds. (PSMF ¶ 51.) Sutton stated
there was never a transaction analysis sheet that involved Ms. Harris, and that the
only transaction analysis sheet involves Williams. (PSMF ¶¶ 55, 56.) Also, Sutton
said that Williams’s statement mentions Ms. Harris’s involvement in the fraudulent
refunds, and she referred to the sentence that states: “I helped a couple of other
people Dana is one.” (PSMF ¶ 59.) In addition to that sentence, Sutton also referred
to the sentence, which states: “I did Dana without her knowing it. She told me that
it was off or wrong (amount).” (PSMF ¶ 60.)
During Collins’s deposition, Collins said there were three video recordings
of Ms. Harris receiving money or credit card refunds: a July 14, 2007 refund for
$379.48 in cash; a July 15, 2007 refund for $402 to Ms. Harris’s visa card; and a July
15, 2007 refund for $104.69 in cash. (PSMF ¶¶ 25-28.) Collins also said that Bond
was recorded in one of those transactions. (PSMF ¶ 29.) But Sutton admitted that
Ms. Harris is not on the July 15, 2007 video. (PSMF ¶ 44.) Additionally, Wal-Mart
denies the security cameras recorded Williams refunding money to Ms. Harris’s
credit or debit card and does not know if the security cameras were working in the
area where Williams made refunds to Ms. Harris’s card. (PSMF ¶¶ 70, 71.) WalMart also denies that the security cameras throughout the store were working
properly. (PSMF ¶ 72.)

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Also in her deposition, Collins explained what gave her probable cause. She
said that before she talked with Ms. Harris she had probable cause simply because
the videos show Ms. Harris with Williams. (PSMF ¶ 36.) She also said the video
and Ms. Harris’s statement gave her probable cause, but admitted that by itself the
statement did not give her probable cause. (PSMF ¶¶ 37, 39.) Further, she said the
electronic journal and Ms. Harris’s statement alone gave her probable cause to
arrest. (PSMF ¶ 38.) Collins then said the video, electronic journal, and Ms. Harris’s
statement gave her probable cause. (PSMF ¶ 40.)
Apparently, the video recordings are no longer available. Collins had the
videos in her office, but does not know what happened to them. (PSMF ¶ 30.) She
has never lost videos in other cases while working for Wal-Mart. (PSMF ¶ 31.) And
Wal-Mart’s policy is to keep videos until a case is closed. (PSMF ¶ 32.)
B.

Relevant Procedural History

On or about August 30, 2011, Dana Harris and Darren Harris (“Plaintiffs”)
filed suit against Wal-Mart in the Superior Court of Gwinnett County, Georgia. (See
generally Compl.) In the Complaint, Plaintiffs allege claims for false arrest and
imprisonment, assault and battery, defamation/slander and libel, malicious
prosecution, discrimination and wrongful termination, and intentional infliction of
emotional distress. Also in the Complaint, Plaintiffs seek special, general, statutory,
consequential, and punitive damages, as well as attorney’s fees and litigation costs.
In October 2011, Wal-Mart removed the case from the state court to this Court.
After the parties engaged in extensive discovery, Wal-Mart moved for summary
judgment on all of Plaintiffs’ claims. However, during oral argument, Plaintiffs’
counsel stated that the only claims Plaintiffs are pursuing are for malicious arrest,

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malicious prosecution, and negligence pursuant to O.C.G.A. § 34-2-10.3 Also during
oral argument, Wal-Mart’s counsel, on behalf of Wal-Mart, moved for summary
judgment as to Darren Harris because he has no specific claims. Plaintiffs’ counsel
did not contest removing Darren Harris from the lawsuit. Therefore, the Court will
grant Wal-Mart summary judgment as to Darren Harris. See Imaging Bus. Machs.,
LLC v. BancTec, Inc., 459 F.3d 1186, 1191 (11th Cir. 2006) (A district court may enter
summary judgment sua sponte if the parties are given adequate notice that they
must present all of their evidence.)
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 56 authorizes the entry of summary judgment

when there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). In seeking summary judgment,
the movant bears the initial responsibility of demonstrating that there is no genuine
dispute as to any material fact and that summary judgment is appropriate. Allen v.
Bd. of Pub. Educ., 495 F.3d 1306, 1313 (11th Cir. 2007) (citation omitted). “Only
when that burden has been met does the burden shift to the non-moving party to
demonstrate that there is indeed a material issue of fact that precludes summary
judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). When
evaluating the merits of a motion for summary judgment, the court should view all
evidence and factual inferences raised by the evidence in the light most favorable to
the non-moving party and resolve all reasonable doubts concerning the facts in favor
of the non-moving party. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th
Cir. 1999) (citation omitted). However, courts are not permitted to make credibility
Because Plaintiffs did not address the false arrest and imprisonment, assault
and battery, defamation/slander and libel, discrimination and wrongful termination claims
in their response to Wal-Mart’s Motion, they are deemed abandoned. See Wilkerson v.
Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001).
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determinations, weigh conflicting evidence to resolve disputed facts, or assess the
quality of the evidence. Reese v. Herbert, 527 F.3d 1253, 1271 (11th Cir. 2008) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d
202 (1986)).
A fact is material if proof of its existence or nonexistence would affect the
outcome of the case under controlling substantive law. Anderson, 477 U.S. at 248,
106 S. Ct. at 2510. Additionally, a factual dispute is genuine when the evidence is
such that a reasonable jury could return a verdict in favor of the non-moving party.
Id. But a factual dispute is not genuine if it is unsupported by evidence or if it is
created by evidence that is “merely colorable” or “not significantly probative.” 477
U.S. at 249-50, 106 S. Ct. at 2511 (citations omitted). “[T]he mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” 477 U.S. at 247-48, 106 S. Ct. at 2510.
III.

DISCUSSION
A.

Malicious Prosecution

A plaintiff has a particularly heavy burden on malicious prosecution claims
because the public is encouraged to bring to justice those who are apparently guilty.
Wal-Mart Stores, Inc. v. Blackford, 264 Ga. 612, 613, 449 S.E.2d 293, 295 (1994).
However, “where a reasonable man would investigate before beginning a criminal
prosecution, he may be liable for his failure to do so.” K-Mart Corp. v. Coker, 261
Ga. 745, 750, 410 S.E.2d 425, 429 (1991) (Smith, P.J., dissenting) (citation omitted).
To prevail on a claim for malicious prosecution, the plaintiff must show: (1)
prosecution for a criminal offense instigated by defendant; (2) issuance of a valid
warrant, accusation, indictment, or summons; (3) termination of the prosecution in
favor of plaintiff; (4) malice; (5) want of probable cause; and (6) damage to plaintiff.
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Kaiser v. Tara Ford, Inc., 248 Ga. App. 481, 486, 546 S.E.2d 861, 867 (2001) (citing
O.C.G.A. § 51-7-40).
In its summary judgment motion, Wal-Mart contends that (1) Ms. Harris
cannot prove that the criminal proceeding terminated in her favor, (2) it did not
arrest or prosecute Ms. Harris, (3) probable cause existed for her arrest and
prosecution, and (4) there is no evidence that Wal-Mart acted with malice. The
Court will address each of Wal-Mart’s contentions in the order they are presented.
1.

Termination in favor of plaintiff

Wal-Mart argues that Ms. Harris cannot show that the criminal proceedings
terminated in her favor because there is no evidence that the proceedings terminated
because she was innocent of the charges. Ms. Harris asserts that the assistant district
attorney’s dismissal of the warrants against her shows that the prosecution
terminated in her favor.
Wal-Mart cites Uboh v. Reno, 141 F.3d 1000, 1004 (11th Cir. 1998), for the
proposition that “[o]nly terminations that indicate that the accused is innocent ought
to be considered favorable for purposes of a malicious prosecution case.” (Doc. No.
71-2 at 9.) In Uboh, the Eleventh Circuit, in dictum, noted, “[c]ourts have . . .
reasoned that only terminations that indicate that the accused is innocent ought to
be considered favorable.” 141 F.3d at 1004. But the Eleventh Circuit also noted that
“courts have found favorable termination to exist by virtue of an . . . order of
dismissal reflecting an affirmative decision not to prosecute.” Id. at 1005 (citations
omitted). Nonetheless, the dictum that Wal-Mart relies on does not change the
established law that the issue in a malicious prosecution case is not the plaintiff’s
guilt or innocence. Gibson’s Prods. Co. of Albany v. McDaniel, 122 Ga. App. 264,
264, 176 S.E.2d 548, 549 (1970) (citations omitted). Moreover, the final ruling in
Uboh is consistent with what Georgia courts consider favorable terminations. Uboh,
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141 F.3d at 1005 (“the prosecutor’s decision to dismiss the drug counts constituted
favorable termination[]”); see also Ayala v. Sherrer, 234 Ga. 112, 114-15, 214 S.E.2d
548, 549, 551 (1975) (citing cases) (where a valid warrant is dismissed, with or
without the prosecutor’s consent, the dismissal is prima facie evidence that the
termination was in favor of the person arrested); Page v. Citizens’ Banking Co., 111
Ga. 73, 73, 36 S.E. 418, 419 (1900) (if the prosecutor dismisses an arrest warrant after
“stating that it was impossible to make out a case,” a plaintiff can state a claim for
malicious prosecution assuming they can show the other elements of the claim);
Laster v. Star Rental, Inc., 181 Ga. App. 609, 609, 353 S.E.2d 37, 38 (1987) (It is also
sufficient to show “the voluntary abandonment of the case by the party who
instituted the prosecution”). Unfavorable terminations include those where a
criminal defendant settles with the prosecutor, where a defendant consents to the
termination of the criminal action, and where the prosecutor dismisses without
prejudice on jurisdictional grounds but then diligently reinstates prosecution in a
court with proper jurisdiction. See Gray v. Dental One Assocs., Inc., 269 Ga. App.
888, 889, 605 S.E.2d 366, 367 (2004); Sherrill v. Stockel, 252 Ga. App. 276, 279, 557
S.E.2d 8, 11 (2001); Vadner v. Dickerson, 212 Ga. App. 255, 256, 441 S.E.2d 527, 528
(1994). Similarly, when the state dismisses a case because of an agreement and
compromise between the parties, the prosecution has not terminated in favor of the
party pursuing a malicious prosecution claim. Commercial Plastics & Supply Corp.
of Ga. v. Molen, 182 Ga. App. 202, 203-04, 355 S.E.2d 86, 87 (1987).
Here, Ms. Harris provides a certified copy of assistant district attorney Holly
Varner’s Request to Dismiss Warrants [Doc. No. 73-7 at 2], which was approved by
assistant district attorney Lawton W. Scott. (Doc. No. 73-7 at 2.) The Request states:
Wal-Mart has been contacted numerous times by our office requesting
necessary evidence, Wal-Mart loss prevention officials have finally
responded, stating that all video and computer transactions have been
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lost. Without any evidence other than the defendant’s statement, the
State does not believe it can prove this case beyond a reasonable doubt.
(Id.) Wal-Mart contends that this dismissal more closely resembles a dismissal “in
the interest of justice,” which is not a favorable termination. (Doc. No. 75 at 7-8)
(internal quotation marks omitted). Where the stated basis for dismissal is “in the
interests of justice,” courts have refused to permit a finding of favorable termination.
Uboh, 141 F.3d at 1005. But here, there is no indication that the assistant district
attorney’s stated basis for dismissal was “in the interest of justice.” Thus, WalMart’s argument on this point is unpersuasive.
Because Ms. Harris presents evidence that the assistant district attorney
dismissed the warrant because the State could not make out a case, a jury could find
that the prosecution was favorably terminated.
2.

Prosecution instigated by defendant

Wal-Mart argues that it did not instigate the prosecution of Ms. Harris
because it did not arrest or prosecute her. Instead, Wal-Mart contends its employees
merely relayed facts to the police. Ms. Harris argues that when Collins signed a
citizen’s arrest form and went to a judge to take out an affidavit for arrest, Wal-Mart
instituted prosecution.
There is a fine line between cases where a party directly or indirectly urges a
law enforcement official to begin criminal proceedings and cases where a party
merely relays facts to an official who then makes an independent decision to arrest
or prosecute. In the former case there is potential liability for malicious prosecution,
but in the latter case there is not. Tench v. Turner, 201 Ga. App. 156, 157, 410 S.E.2d
357, 358 (1991) (citations omitted). A party need not expressly directly initiate the
criminal action to be held liable. Id. Indeed, “[a] person may be held liable for
unduly influencing the decision to prosecute by providing information that is
known to be false, misleading[,] or materially incomplete.” Holmes v. Achor Ctr.,
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Inc., 249 Ga. App. 184, 191, 547 S.E.2d 332, 337 (2001). The central question is
whether the officials involved made an independent decision to arrest or prosecute.
Jackson v. Kmart Corp., 851 F. Supp. 469, 472 (M.D. Ga. 1994) (internal quotation
marks omitted) (citing Baggett v. Nat’l Bank & Trust Co., 174 Ga. App. 346, 347, 330
S.E.2d 108, 109 (1985)).
Here, Ms. Harris points to the civil arrest and hold for warrant form that
Collins completed. The form, which is dated July 31, 2007, states:
I acknowledge and represent that I have on this date, made a citizen’s
arrest of Dana Harris, and that rather than transporting said
suspect/subject myself, I have requested the Cherokee County Sheriff’s
Office transport said suspect/subject to the appropriate court or
facility. I will immediately proceed to said court to seek the issuance
of an appropriate warrant or petition. I acknowledge that no officer or
employee of the Cherokee County Sheriff’s Office has advised or
encouraged me to make this arrest or to prosecute this case.
(Pls.’ Mot. in Opp’n for Summ. J. Ex. A [Doc. No. 73-7] at 3.) This form is enough to
show that Wal-Mart did more than relay facts to the Cherokee County police.
Compare Duchess Chenilles, Inc. v. Masters, 84 Ga. App. 822, 827, 67 S.E.2d 600, 60405 (1951) (telling officers that the plaintiff had been stealing goods and summoning
the officers to apprehend the plaintiff for the alleged theft is enough to show that the
defendant procured the plaintiff’s arrest), with Webb v. Prince, 62 Ga. App. 749, 749,
9 S.E.2d 675, 677 (1940) (a defendant who simply states to an officer what he or she
knows about a supposed offense, even though he expresses the opinion that there
is ground for arrest, but without making any charge or requesting an arrest is not
liable). Additionally, during oral argument, Wal-Mart’s counsel stated that the
police did not ask Ms. Harris anything substantive about the alleged crime. This
also shows that the police did not make an independent decision to arrest. On these
facts, a reasonable jury could find that Wal-Mart instigated the arrest and
prosecution against Ms. Harris.
3.

Want of probable cause
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Lack of probable cause is the gravamen of all malicious prosecution claims.
If there is any probable cause for prosecution, even if the prosecutor actually had an
improper motive, a plaintiff cannot recover. Seamans v. Hoge, 105 Ga. 159, 159, 31
S.E. 156, 156 (1898); Barnette v. Coastal Hematology & Oncology, P.C., 294 Ga. App.
733, 736, 670 S.E.2d 217, 220 (2008). Determining probable cause is a mixed question
of law and fact. McKissick v. S.O.A., Inc., 299 Ga. App. 772, 774, 684 S.E.2d 24, 27
(2009) (citations omitted). A jury must decide whether the circumstances alleged to
show probable cause existed, and a court determines whether these circumstances
amount to probable cause. Id.
While absolute certainty as to the facts is not required for probable cause,
more than mere conjecture or unfounded suspicion is required.

Melton v.

LaCalamito, 158 Ga. App. 820, 824, 282 S.E.2d 393, 398 (1981). Probable cause is the
existence of such facts and circumstances that would excite the belief in a reasonable
mind that the person charged was guilty of the crime for which he is prosecuted.
That belief must be supported by appearances known to the defendant at the time
he initiates the prosecution, and the appearances must be such as to lead a
reasonable man to set the criminal proceeding in motion. McKissick, 299 Ga. App.
at 774, 684 S.E.2d at 28 (citations omitted). On the other hand, probable cause is
lacking when the circumstances are such as to satisfy a reasonable man that the
accuser had no ground for proceeding but his desire to injure the accused. 299 Ga.
App. at 774-75, 684 S.E.2d at 28 (citations omitted); Horne v. J.H. Harvey Co., 274 Ga.
App. 444, 448, 617 S.E.2d 648, 652 (2005) (“No probable cause exists if a defendant
‘knew that the facts stated to the law enforcement official were false or if he failed
to make a fair, full, and complete statement of the facts as they existed, or if he
concealed facts.’”).

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Wal-Mart contends that the State Warrant for Ms. Harris’s arrest provides
prima facie evidence of probable cause for prosecution. Wal-Mart’s assertion is
correct, but it is not a complete statement of the law because as with any prima facie
showing it may be rebutted by evidence showing the opposite.4 See McKissick, 299
Ga. App. at 776, 684 S.E.2d at 29. Ms. Harris denies knowing that the refunds were
fraudulent and she denies knowing that Williams was refunding items that he had
not purchased. During oral argument, Ms. Harris’s counsel also argued that
probable cause was lacking because Williams confessed to making the fraudulent
returns and stated that she was not involved. This evidence is enough to rebut the
prima facie evidence of probable cause. See Condon v. Vickery, 272 Ga. App. 381,
382, 612 S.E.2d 574, 575 (2005). Similarly, the fact that the assistant district attorney
dismissed the charges against Ms. Harris is evidence that probable cause was
lacking. See Gooch v. Tudor, 296 Ga. App. 414, 419, 674 S.E.2d 331, 336 (2009).
Wal-Mart also argues that there was probable cause because it undertook a
reasonable investigation into the fraudulent returns by reviewing video, an
electronic journal, a transaction analysis, and a refund report, among other things.
Ms. Harris contends that none of these things amount to probable cause because: (1)
the investigation was unreasonable and improper; (2) Collins’s statement that Ms.
Harris took part in the fraudulent refunds was false; (3) the electronic journal shows
A person commits the offense of theft by taking when he unlawfully takes or,
being in lawful possession thereof, unlawfully appropriates any property of another with
the intention of depriving him of the property, regardless of the manner in which the
property is taken or appropriated. O.C.G.A. § 16-8-2; Tate v. Holloway, 231 Ga. App. 831,
834, 499 S.E.2d 72, 74 (1998). Theft by taking requires evidence that the requisite intent to
deprive the owner of the property was present at the time of the taking. Brown v. State,
302 Ga. App. 641, 643, 692 S.E.2d 9, 11 (2010) (citations omitted); Spray v. State, 223 Ga.
App. 154, 156, 476 S.E.2d 878, 881 (1996). Indeed, there can be no theft if the alleged suspect
took under a fair claim of right to the property. Cincinnati Ins. Co. v. Tire Master of
Thomaston, Inc., 183 Ga. App. 64, 65, 357 S.E.2d 812, 814 (1987).
4

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Williams making fraudulent refunds under other employees’ names and does not
show Ms. Harris making fraudulent refunds; (4) the transaction analysis does not
involve Ms. Harris; (5) the refund review report shows less information than the
electronic journal; (6) the testimony regarding the video is so unreasonable that no
jury would believe Wal-Mart; and (7) Collins admitted that she did not speak with
any associate before assisting Sutton with the alleged interview of Wesley, Williams,
Bond, and Ms. Harris. Because the facts underlying Wal-Mart’s investigation are in
dispute, this issue should be submitted to a jury. Tate v. Holloway, 231 Ga. App.
831, 833, 499 S.E.2d 72, 74 (1998) (citing O.C.G.A. § 51-7-43) (unless the facts
regarding probable cause are undisputed, it is a question for the jury); Gauck v.
Meleski, 346 F.2d 433, 435 (5th Cir. 1965) (the court’s task is limited to determining
whether factual disputes exists and not determining the issues themselves).
4.

Malice

Wal-Mart argues that there is no evidence of malice because it did not act to
achieve some personal goal nor have spite toward Ms. Harris. Wal-Mart also
contends that Ms. Harris is not entitled to an inference of malice because there is
some evidence of probable cause for her arrest and prosecution. In response, Ms.
Harris states that Collins’s false statements to the police and the judge, Wal-Mart’s
continuation of the case knowing that Ms. Harris was not guilty, the total lack of
probable cause, and Wal-Mart’s attempt to achieve a personal goal by arresting Ms.
Harris show that Wal-Mart acted with malice.
Malice is defined as personal spite or a general disregard of the right
consideration of mankind, directed by chance against the individual injured.
McClelland v. Courson’s 441 S. Station, Inc., 248 Ga. App. 170, 171, 546 S.E.2d 300,
301 (2001) (citing O.C.G.A. § 51-7-2). Malice may be inferred if probable cause is
lacking, Auld v. Colonial Stores, Inc., 76 Ga. App. 329, 337, 45 S.E.2d 827, 835 (1947),
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or if the “defendant’s acts were wanton or were done with a reckless disregard for
or conscious indifference to the rights of the plaintiff.” Willis v. Brassell, 220 Ga.
App. 348, 352, 469 S.E.2d 733, 738 (1996) (citations omitted). Because the Court has
determined that the issue of probable cause should be submitted to a jury, a jury
must decide the issue of malice. See Medoc Corp. v. Keel, 166 Ga. App. 615, 616, 305
S.E.2d 134, 136 (1983) (when the question of probable cause is submitted to a jury,
a jury should also resolve the issue of malice); see also Kviten v. Nash, 150 Ga. App.
589, 591, 258 S.E.2d 271, 274 (1979) (where there is evidence that the defendant
lacked probable cause, a jury must decide whether to infer malice).
Even if there was some evidence of probable cause, a jury should determine
the issue of malice because Ms. Harris offers evidence that Collins told the police
and the magistrate judge that Ms. Harris committed a theft even though Collins
knew that Ms. Harris denied the charges and that Williams denied that Ms. Harris
was involved. K-Mart Corp. v. Lovett, 241 Ga. App. 26, 28, 525 S.E.2d 751, 754 (1999)
abrogated on other grounds by Golden Peanut Co. v. Bass, 249 Ga. App. 224, 547
S.E.2d 637 (2001); Fleming v. U-Haul Co. of Ga., 246 Ga. App. 681, 683-84, 541 S.E.2d
75, 78 (2000) (genuine issue of material fact regarding defendant’s malice where
defendant reported a crime despite plaintiff’s explanation regarding alleged crime).
Therefore, the Court denies summary judgment on the malicious prosecution
claim.
B.

Failure to Provide a Safe Environment Under O.C.G.A. § 34-2-10

Although Wal-Mart and Ms. Harris address this claim in their briefs, this
claim is not mentioned in Ms. Harris’s Complaint. Therefore, it is not properly
before the Court. See Free v. Bland, 369 U.S. 663, 671, 82 S. Ct. 1089, 1094, 8 L. Ed.
2d 180 (1962) (where there is no direct allegation of a claim in a pleading, that claim
cannot be decided on summary judgment); see also Gilmour v. Gates, McDonald &
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Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (claims cannot be raised for the first time at
the summary judgment stage).
C.

Punitive Damages

Wal-Mart contends that there is no record evidence to establish that its alleged
conduct rose to a level that might authorize a jury to award punitive damages. Ms.
Harris asserts that the threat of criminal prosecution is sufficient for punitive
damages and that a rational jury could conclude Wal-Mart acted maliciously. In
Georgia, a claim for punitive damages is effective only if there is a valid claim for
actual damages to which it could attach; thus punitive damages may not be
recovered if there is no entitlement to compensatory damages. Wood v. Archbold
Med. Ctr., Inc., 738 F. Supp. 2d 1298, 1371 (M.D. Ga. 2010). In a malicious
prosecution case, punitive damages are allowed where a defendant’s act was
influenced by malicious motives and was without probable cause. Willis v. Brassell,
220 Ga. App. 348, 354, 469 S.E.2d 733, 740 (1996). Because the issues of malice and
probable cause will be submitted to a jury, summary judgment on Ms. Harris’s
request for punitive damages is improper. See U.S. Liab. Ins. Co. v. PC Gen.
Agency, Inc., No. 1:07-CV-1476-JOF, 2009 WL 812047, at *6 (N.D. Ga. Mar. 27, 2009);
Meyer v. Trux Transp., Inc., No. CIV A 105CV-02686-GE, 2006 WL 3246685, at *4-5
(N.D. Ga. Nov. 8, 2006).
D.

Attorney’s Fees and Costs of Litigation

Wal-Mart argues that it is entitled to summary judgment on this claim because
Ms. Harris has not specially pleaded this claim in the Complaint and because the
record is absolutely devoid of any facts to support a claim that Wal-Mart acted in
bad faith and was stubbornly litigious under O.C.G.A. § 13-6-11. Ms. Harris
contends that summary judgment should not be granted on her claim for attorney’s
fees under O.C.G.A. § 13-6-11 because Wal-Mart acted in bad faith by falsely
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accusing Ms. Harris of theft by taking. In her Complaint, Ms. Harris seeks attorney’s
fees and costs of litigation pursuant to O.C.G.A. § 9-15-14. Therefore, a claim for fees
under O.C.G.A. § 13-6-11 is not properly before the Court.

See Trotter v.

Summerour, 273 Ga. App. 263, 267, 614 S.E.2d 887, 890 (2005) (Attorney’s fees under
these two statutes are based on different categories of sanctionable conduct.); see
also Williams v. Binion, 227 Ga. App. 893, 894, 490 S.E.2d 217, 218 (1997) (these
statutes cannot be used interchangeably).
E.

Spoliation Sanctions

Wal-Mart also seeks spoliation sanctions against Ms. Harris arguing that Ms.
Harris admittedly destroyed Wal-Mart receipts after litigation commenced but
before her deposition in this case. Specifically, Wal-Mart asserts that Ms. Harris
admittedly destroyed other Wal-Mart receipts. (Doc. No. 71-2 at 28) (emphasis
added). Ms. Harris states that she has not destroyed any evidence and never
testified that she had receipts for the transactions that Wal-Mart claims were
fraudulent.
Spoliation is the destruction or significant alteration of evidence, or the failure
to preserve property for another’s use as evidence in pending or reasonably
foreseeable litigation. Graff v. Baja Marine Corp., 310 F. App’x 298, 301 (11th Cir.
2009). Federal law governs the imposition of sanctions for spoliation of evidence in
a diversity action. Martinez v. Brink’s, Inc., 171 F. App’x 263, 268 n.7 (11th Cir.
2006). The party seeking spoliation sanctions must prove that (1) the missing
evidence existed at one time, (2) the alleged spoliator had a duty to preserve the
evidence, and (3) the evidence was crucial to the movant being able to prove its
prima facie case or defense.
Based on the Court’s review of the record, it is unclear whether Ms. Harris
had these other Wal-Mart receipts. According to Ms. Harris’s deposition testimony,
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she found two receipts in a box belonging to Bond, and she gave these receipts to
Wal-Mart. (Doc. No. 65 at 16 ¶¶ 2-23.) Ms. Harris then stated that she threw out
the rest of the papers in the box. (Doc. No. 65 at 19 ¶¶ 16-19.) Ms. Harris also stated
that the rest of the papers were bills belonging to Bond. (Id.) Without more, the
Court cannot conclude that these other receipts existed at one time. Therefore, the
Court denies Wal-Mart’s request for spoliation sanctions.
IV.

CONCLUSION
For the reasons stated above, the Court DENIES in part and GRANTS in part

Defendant’s Motion for Summary Judgment [Doc. No. 71]. The Court also DENIES
Defendant’s request for spoliation sanctions. Further, the Court INSTRUCTS the
parties to submit a proposed joint consolidated pretrial order in accordance with
Local Rule 16.4 within thirty (30) days of the date of this Order.

SO ORDERED this 23rd day of December, 2013.
s/ CLARENCE COOPER
CLARENCE COOPER
SENIOR UNITED STATES DISTRICT JUDGE

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