Date: 04-04-2002

Case Style: Maxine Nicholas v. Wal-Mart Stores, Inc.

Case Number: 01-1441

Judge: Per Curiam

Court: United States Court of Appeals for the Fourth Circuit

Plaintiff's Attorney: Paul Lee Reeves, Columbia, South Carolina, for Appellee.

Defendant's Attorney: Kyle Leslie Holifield, Corporate Appellate Counsel, WAL-MART IN-HOUSE LITIGATION TEAM, Bentonville, Arkansas, for Appellant.

Description: Plaintiff/appellee Maxine Nicholas, a former cashier for defendant/appellant Wal-Mart Stores, Inc. ("Wal-Mart"), was arrested on complaint of Wal-Mart management, and charged with a breach of trust for allowing a customer to leave the store without paying for merchandise. Wal-Mart claims that the conduct upon which the charge was founded had been captured on videotape, which was later viewed by four Wal-Mart employees. However, no witness observed Nicholas' conduct at the time it was happening.

Based solely on the contents of the videotape, Wal-Mart summoned the police, lodged a complaint against Nicholas, and swore out an affidavit in support of her arrest. The criminal case against Nicholas was called on the docket several times, but the matter never reached trial. Rather, the criminal case was eventually dismissed by nolle prosequi, although the reasons for this dismissal remain unclear.

Thereafter, Nicholas initiated this action against Wal-Mart, alleging claims of malicious prosecution, false imprisonment, defamation, abuse of process and invasion of privacy. During discovery for the civil trial, Wal-Mart claims that it realized for the first time that the videotape portraying Nicholas' conduct giving rise to the criminal case had been lost. Nicholas filed a motion in limine to prevent Wal-Mart's witnesses from testifying as to what they saw on the videotape, which the district court granted on the morning of trial. Thus, while the Wal-Mart employees who claimed they had viewed the videotape were permitted to state that Nicholas did "slide the merchandise,"* these witnesses were forced to admit that they had not seen her slide the merchandise contemporaneously to the act, and were not permitted to say how they knew she had done it.

The case proceeded to trial. After the district court dismissed Nich- olas' abuse of process and invasion of privacy claims at the close of evidence, the case was submitted to the jury on the claims of mali- cious prosecution, false imprisonment, and defamation. The jury returned a verdict of $35,000 in compensatory damages and $65,000 in punitive damages in favor of Nicholas. Wal-Mart subsequently filed motions for judgment as a matter of law and for a new trial. The district court denied these motions, and Wal-Mart appeals.

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In order to maintain an action for malicious prosecution, Nicholas must show: (1) institution or continuation of original judicial proceed- ings, either civil or criminal; (2) by, or at the instance of, Wal-Mart; (3) termination of such proceedings in her favor; (4) malice in insti- tuting the proceedings; (5) lack of probable cause; and (6) resulting injury or damage. Jordan v. Deese, 452 S.E.2d 838, 839 (S.C. 1995). Wal-Mart challenges the sufficiency of Nicholas' evidence as to her contention that the criminal proceedings terminated in her favor.

In McKenney v. Jack Eckerd Co., 402 S.E.2d 887 (S.C. 1991), the South Carolina Supreme Court held that "where an accused estab- lishes that charges were nolle prossed for reasons which imply or are consistent with innocence, an action for malicious prosecution may be maintained." 402 S.E.2d at 888. The South Carolina Supreme Court stated that the rule it announced "accords with" the Restatement (Sec- ond) of Torts, S 660 (1977). Id. We predict that the South Carolina Supreme Court would agree with other courts that have also relied on the Restatement's formulation of the rule insofar as they have imposed upon malicious prosecution plaintiffs the affirmative burden of proving that the nolle prosequi was entered under circumstances which imply or are consistent with innocence of the accused. See, e.g., Swick v. Liautaud, 662 N.E.2d 1238, 1243 (Ill. 1996).

Nicholas did not meet this burden. Her evidence that the criminal case was terminated in her favor consists only of the following testi- mony offered by her at trial:

A. . . . I went to trial three times and you didn't show up. Q. Ok, there was no jury? A. No. Q. There was [sic] no witnesses? A. You didn't show up. Q. I personally didn't show up? A. Well, you represent Wal-Mart. Q. I think my question was, no jury, no witnesses, no judge, no court reporter. A. I am not going to say there was no judge. When I went in the courtroom there were people in there. I think there was a judge there. Q. But your case was never called, it was dropped because no one was there to prosecute it? A. Okay. Yes, that's what happened.

This testimony is insufficient to allow a juror to reasonably infer that the case had been dismissed for reasons consistent with Nicholas' innocence. The circumstances surrounding the abandonment of the criminal proceedings must compel an inference that there existed a lack of reasonable grounds to pursue the criminal prosecution. Other- wise, every time criminal charges are dismissed by nolle prosequi, a civil malicious prosecution action could result. As Nicholas did not adduce sufficient evidence from which it could be inferred that the reason for the nolle prosse was her innocence, the district court erred in denying Wal-Mart's motion for judgment as a matter of law as to Nicholas' malicious prosecution claim.

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Click the case caption above for the full text of the Court's opinion.

Outcome: For the foregoing reasons, the district court's denial of Nicholas' motion for judgment of a matter of law is affirmed in part and reversed in part. The district court's denial of Nicholas' motion for a new trial is reversed and remanded to the district court for further pro- ceedings to determine whether the proffered testimony regarding the contents of the videotape is admissible. If the district court determines that this evidence is admissible, it should order a new trial on Nicho- las' false imprisonment and defamation claims.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None