One of our legal assistants/foreign correspondents, Jean Daniels, recently visited Scandinavia and made a special trip to a local museum to view Edvard Munch’s seminal expressionist painting, THE SCREAM! Regarded by many as Munch’s most important work, this famous painting is said by some to symbolize modern man under attack by existential angst. Hmm…that sounds like a typical day around the Tx/Up! pressroom.
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WERE THE FROSTED FLAKES FILCHED? TEXAS SUPREME COURT REVERSES LOWER COURTS IN MALICIOUS PROSECUTION CASE: Last Friday, the Texas Supreme Court overruled a lower court’s ruling that a Dallas area grocery store had maliciously prosecuted a long time customer. Theresa Suberu sued Kroger Grocery Store for malicious prosecution after she was acquitted of misdemeanor theft charges arising from an alleged shoplifting incident. The jury and the lower courts found in her favor, awarding her $500 in actual damages for expenses in defending the prosecution, $28,000 for past and future mental anguish, and $50,500 in exemplary damages. Kroger appealed to the Texas Supreme Court claiming that that the evidence was legally insufficient to support the claim. The Supremes reversed the lower courts and ruled for Kroger.
Back in 1999, Suberu went to Kroger purchase medication. The Kroger pharmacist recognized Suberu as a prior customer and placed the medicine on the counter. Suberu used cash for all transactions and when she realized she did not have enough in her purse, she told the pharmacist that she would go to her car in the parking lot and get some more money and return momentarily.
Suberu was leaving the store when Weir, the front-end manager, yelled “Stop!” According to Wier, Suberu was pushing a grocery cart full of unsacked goods. Suberu, however, testified that she has never used a cart to shop for groceries and did not have one that evening. Wier reached Suberu in the foyer, where the two had a brief quarrel. Suberu testified that Wier said, “Those two people who just left, you are with them,” and “You are going to jail for a long time.” Wier, however, denied making those statements. She claimed Suberu became hostile when Wier asked to see a receipt, and that Suberu kept shouting, “You’re crazy!” Suberu testified that she was annoyed because Wier would not listen to her explanation for leaving the store. Wier called the police who arrested Suberu and walked her out in handcuffs. Suberu subsequently won acquittal in the criminal jury trial. Once exonerated, she filed this civil suit.
The Supreme Court said that Texas law has long recognized a cause of action for those subjected unjustifiably to criminal proceedings, but the cause of action must sometimes yield to society’s greater interest in encouraging citizens to report crimes, real or perceived. The elements necessary to prevail on a malicious prosecution claim reflect this balance. The plaintiff must prove not only that the defendant commenced criminal proceedings against her and she is innocent of the crime charged, but also that the defendant lacked probable cause and harbored malice toward her. These latter elements guard against a jury’s natural inclination to punish those who, through error but not malevolence, commence criminal proceedings against a person who is ultimately exonerated.
Suberu argued that her trial testimony that she did not have a shopping cart had persuaded the jury and constituted more than sufficient evidence to support a finding that she had been unjustifiably prosecuted. The Supreme Court disregarded that argument, stating that, in contrast to a criminal case, the question is not whether Suberu did or did not have a cart full of pilfered prunes and peaches, but whether Kroger reasonably believed she did. Wier and a couple of other Kroger employees testified that they observed Suberu leaving the store with a cart containing kidnapped kraut and purloined sirloin. The court reasoned that the law presumes that Kroger honestly and reasonably acted on the basis of these observations, and Suberu simply did not rebut the presumption. The law requires more than showing Kroger made a bad mistake. The plaintiff is required to go further and show malice on the part of Kroger to do her harm.
Said the Court: “The criminal law presumes Suberu’s innocence and presents the State with a heavy burden of proof for a conviction, because it is more important that the guilty occasionally go free than for the innocent to be jailed.†On the other hand, “The civil law presumes Kroger’s good faith and requires Suberu to rebut this presumption, because it is more important that a private citizen report an apparent subversion of our laws than for the wrongly accused to attain monetary redress from the accuser.†Our advice? Carry a credit card. Kroger v. Suberu (Tex. 2006).
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Tx/Up! OIL UPDATE: Gasoline-$3.00 a gallon…DEAL or NO DEAL?
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Our lawyer Frank King has been elected to the Board of Directors of the Austin Bar Association. Our third year law clerk Michael Cruz has been elected to the Order of the Barristers at the University of Texas School of Law in recognition of his superior advocacy skills. Michael is one of only ten students in his class to achieve this distinction. This summer and fall, David Chamberlain will participate in a three city seminar for the State Bar of Texas and will speak on civil justice issues that are likely to be addressed by the Texas Legislature in 2007.
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Tx/Up! VACATION UPDATE: As Tx/Up! prepares for our annual staff reporters’ campout, we were wondering why it takes only one match to start a forest fire but a whole box to start a campfire.