Maxine Nicholas v. Wal-Mart Stores, Inc.

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.

* * *

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.

* * *

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

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.

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