Lawson v. Kroger Co.

BOGGS, Circuit Judge. Kroger appeals from a jury decision awarding Terrence Delaney Lawson $40,000 in a suit for malicious prosecution. Because we hold that there exists no cause of action for negligent malicious prosecution under Tennessee law, as Lawson pled, we reverse. I A woman calling herself Terry L. Lawson went to the Johnson City, Tennessee, Kroger food store on two occasions on January 29, 1990, and wrote a personal check for the amount of her purchase on both occasions. The first check was approved by a cashier, who wrote down the numbers of a Citibank credit card and a Tennessee photo driver’s license. The street address portion that was preprinted on the check was crossed out and Terrence Delaney Lawson’s address was written in by hand. The city, state, and zip code were preprinted on the check. In addition, Terrence D. Lawson’s telephone number was handwritten on the check. The second time the woman came through the checkout line, the cashier sent the woman to the manager for check approval. The manager wrote down a social security number, and approved the cheek. Both of the checks were returned by the bank on which they were drawn, marked “no such account” (NSA). Kroger has an internal policy to follow particular procedures when a check is returned from a bank marked “not sufficient funds” (NSF). Those procedures include trying to contact the drawer of the check by telephone, and sometimes by letter as well. However, those procedures do not apply to checks returned NSA. Furthermore, there is no legal responsibility to try to collect on an NSA check or to provide notice of impending legal action, and fraudulent intent or knowledge of insufficient funds is inferred from an NSA check. See T.C.A. § 39-14-121. Kroger chose to seek criminal sanctions. The manager of the Johnson City Kroger store, Curtis Turner, sought a warrant against the woman. Turner provided the police with the information he had, which included the name the woman used, Terry L. Lawson, the driver’s license number, and the date of birth she presented. The address on the check, which was actually Terrence D. Lawson’s address, was also listed. No gender was included in the information that Kroger gave to the officers, nor was there gender information on the face of the warrant. [216] When the warrant first arrived at the Sullivan County sheriffs office, the deputy on duty knew Terrence D. Lawson, and spoke to him regarding the warrant. The deputy, Sergeant Damon Gordon, compared Lawson’s identifying information, including driver’s license and date of birth, with the information in the warrant and concluded that Terrence D. Lawson was not the person wanted. Sgt. Gordon advised him to take care of the matter. Lawson called the Washington County sheriffs department, the originating authority. He also spoke with the attorney general’s office. However, he did not speak to anyone at Kroger nor did he get the warrant quashed. Nine days later, on April 2, 1990, George Ann Pratt, another Sullivan County deputy, went out to Lawson’s house to arrest him. Lawson protested that he was not the right person, and explained he had tried to have the warrant quashed, but to no avail. He was arrested, handcuffed, transported to the county line, turned over to a Washington County deputy and transported to their lockup. He was processed and held for bond court. He bonded out on his own recognizance, was transported back to the jail, given his personal possessions, and released. He was in police custody for approximately 8¡é hours. On April 17, 1990, Lawson’s first court date, Turner appeared as the complaining witness for Kroger. When Turner checked with his cashier, he discovered that the offender was female. Lawson was released. Lawson filed suit against Kroger and others on October 17, 1990, seeking $150,000 in damages for false prosecution.1 The complaint states that Kroger “was guilty of gross, wanton and willful negligence in causing [Lawson] to be maliciously prosecuted-” Kroger answered that no such cause of action exists. Notwithstanding Kroger’s procedural efforts to have the case dismissed, or to receive a directed verdict, the case was submitted to the jury on instructions to return a verdict for Lawson if they found that Kroger was “guilty of negligence in causing the Plaintiff to be maliciously and falsely prosecuted....” The jury found for Lawson and awarded him $40,000. On appeal, Kroger presents several assignments of error, including that there is no such action as negligent malicious prosecution, that jury instructions were misleading, and that remittitur was appropriate. Because we hold that the cause of action on which the award was based does not exist, we need not reach the other issues. II Although there is no Tennessee case specifically on point, in general, the only cause of action for improperly swearing out a warrant is the common law action for malicious prosecution. See, e.g., Wilson v. O’Neal; 118 So.2d 101,104 (Ct.App.Fla.1960), T.E. Hill Co. v. Contractors’ Supply & Equipment Co., 249 Ill. 304, 94 N.E. 544, 546 (1911). The tort of malicious prosecution has four elements. The plaintiff must ... prove that the defendants brought an action against the plaintiff, that the action was terminated in favor of the plaintiff, and that the defendants acted with malice and without probable cause to believe the facts upon which the claim was based. Evans v. Perkey, 647 S.W.2d 636 (Tenn.Ct.App.1982); Buda v. Cassel Bros., Inc., 568 S.W.2d 628 (Tenn.Ct.App.1978) Dowell v. McKinnon, 769 S.W.2d 225, 226 (Tenn.Ct.App.1988). In this case, there was clearly an action against Lawson that was resolved in his favor. The critical issue is whether there was malice. Malice may be inferred from a lack of probable cause (though lack of probable cause may not be inferred from malice). Carter v. Baker’s Food Rite Store, 787 S.W.2d 4, 8 (Tenn.Ct.App.1989) (remanded on other grounds). See also Sullivan v. Young, 678 S.W.2d 906, 911 (Tenn.Ct.App.1984). Criminal prosecution started for some improper reason, such as to enforce a debt or to harass, triggers an inference of [217] malice. Dunn v. Alabama Oil & Gas Co., 42 Tenn.App. 108, 299 S.W.2d 25, 28 (1956). Lawson claims that Kroger was. trying only to collect its money. Furthermore, Lawson insists that no reasonable person could find that probable cause existed because the offender was female and Lawson, was male. He concludes that the only reasonable assumption is that there was malice. Regrettably, Lawson is wrong. First, there is no evidence that Kroger had any improper motive. That Kroger might have collected on the cheeks as a corollary to criminal prosecution is not relevant. Kroger did not misrepresent the facts or lie about the event in an effort to harass either Terry L. Lawson or Terrence Delaney Lawson. Lawson made no showing that Kroger’s primary purpose was other than that of bringing the offender to justice. Carter, 787 S.W.2d at 6; Thompson v. Schulz, 34 Tenn.App. 488, 240 S.W.2d 252 (1949). More important, however, is that Lawson’s complaint did not state a cause of action against Kroger, nor was one proven at trial. He.alleged, and tried to prove, that Kroger maliciously prosecuted him through negligence. A malicious prosecution cannot be negligent. For a tortfeasor to be negligent, the tortfeasor must have had a duty to the victim, which was breached. Lawson showed no breach of a duty Kroger owed to him, if only because Kroger had no duty to him. Kroger may not provide false information with an improper motive, but it is not required to investigate offenses against it, nor must it volunteer all information within its knowledge when it swears out a warrant, though it may not withhold information for an improper purpose. Aiken v. Shell Oil Co., 219 Or. 523, 348 P.2d 51 (1959). Negligence in seeking a warrant does not give rise to a cause of action. See, e.g., Pokorny v. First Federal Sav. & Loan Ass’n of Largo, 382 So.2d 678, 683 (Fla.1980); Lundberg v. Scoggins, 335 N.W.2d 235 (Minn.1983); Reaves v. Westinghouse Elec. Corp., 683 F.Supp. 521, 525 (D.Md.1988); Fletcher v. High’s Dairy Products Div. of Capital Milk Producers Coop., 22 Md.App. 71, 321 A.2d 821 (1974). Nor did Lawson prove malice. Kroger did not focus on Terrence Delaney Lawson and initiate an unfounded criminal prosecution against him out of ill will. Turner provided the police with relevant information concerning someone who. had written two bad checks to his store. Deputy Pratt unthinkingly served the warrant despite the fact that the identifiers did not match, and one of her colleagues had reasonably concluded as much. The warrant did not lack for probable cause, it was simply not properly or competently served. Kroger’s failure to specify the ■gender of the offender was correctly described as not being malice, and that was Kroger’s only improper action. Thus, Kroger was not shown to have acted with malice, and a cause of action for malicious prosecution cannot lie. Because Lawson’s complaint against Kroger did not state a claim on which relief could be granted, we REVERSE the jury award and REMAND with instructions to dismiss the complaint'. Footnotes [1] The non-Kroger defendants, the sheriffs of Washington and Sullivan counties and the two relevant deputy sheriffs of Sullivan County, were removed from the case before trial either by stipulation or by the court on jurisdictional grounds.