Legal question.....
Roger
Wholesale Club. I purchased two small items. After paying for the items I
started towards the front door which was located approximately 20' from the
check out lanes. There were two or three people with full shopping carts
ahead of me. Rather than wait for the person at the front door to check the
people ahead, I walked past them. The person at the front door went
ballistic, acting like I was stealing the store. I realize this person was
just doing their job and my complaint was not with her. What I want to know
is ....FROM A LEGAL STANDPOINT...once I pay for my merchandise am I REQUIRED
to show the receipt again at the door?? Do I HAVE to stop for these front
door inspections?? I contend that I do not since they have no probable cause
or even reasonable suspicion to believe I have committed a crime.
Now, before you start calling me names and saying what a jerk I was to just
walk out, let me say this...For the most part I have no problem with showing
my receipt at the door, but what annoys me is to have to wait for a long
checkout line and then wait again at the front door, especially if I only
have one or two small items. What do you think??
Ignatz Mouse
Go right ahead and walk out. Do what you want in life. They may not let
you back in again, but who cares? Or else, you could act sick, stick
your finger down your throat and throw up all over the place. That'd
teach 'em.
Sent via Deja.com http://www.deja.com/
Before you buy.
anon
think they are within the law.
anon
Go back to school and learn how to read.
toddh wrote:
> x-no-archive: yes
> >Roger, I'm no lawyer or wannabe. Altho I agree with you that it's annoying I
> >think they are within the law.
>
> The store may be within the law to ASK that you stop and show the
> receipt, but that is not what he asked. Is he REQUIRED by law to stop?
> Could he be arrested or ticketed for failure to do so? I don't think
> so. Exactly what would be the charge? The store may detain him for
> suspected shoplifting, but they would be liable for damages if they
> are wrong.
>
> If he simply ignores them and continues walking, their only two
> options are to let him go, or physically restrain him. If the latter
> option is chosen, it may be the door attendant going to jail.
>
> ToddH
> Copyright(c) 2000
Mark
any criminal laws just by refusing to show your receipt. (At least I can't
think of any.) OTOH, "A person who reasonably believes that another has
stolen or is attempting to steal property is privileged to detain that
person in a reasonable manner and for a reasonable time to investigate
ownership of the property." Texas Civil Practice & Remedies Code § 124.001.
This is commonly referred to as a "shopkeeper's privilege" and is often used
as a defense to false imprisonment for detaining shoppers. I don't know if
it's ever been applied to just routinely checking for receipts but it could
conceivably (though not likely) apply to your situation.
Yeah, it's a pain in the ass to show your receipt when you've just paid for
something two feet away. But it's just one of those minor annoyances I've
learned to put up with by living in the big city.
Roger <RLK...@hotmail.com> wrote in message
news:fbma5.48010$NP5.1...@newsread2.prod.itd.earthlink.net...
Speaker to Animals
If there was no suspicion of theft, I thinks considered kid napping -
that is illegal forced detention..but its easy to say "well, we
thought he was stealing.."
But here is a challenge.. Lets say you are driving drunk and a cop
yanks you over... your blood alcohol is high level... and you will not
refuse to take the test...
How do you get out of being convicted ?
This is a real legal question. Assume you will go to court and that
you have a lawyer who isn't friends with the judge etc...
Two hints.
1) you'd need to plan ahead and
2) you do everything the officer asks and more..
>Ok here's one last question...Should I continue to walk out and be forcibly
>detained, would I have cause for a civil action? (assuming, of course, that
>I had not stolen anything)
>
>By the way...Thanks to all of you that responded.
>Rog
>
>
"Gödel showed that provability is a weaker notion than truth, no matter what axiomatic system is involved."
anon
argument is illogical.
toddh wrote:
> x-no-archive: yes
> > I didn't say what he asked, I just answered his question based on my beliefs.
> >Go back to school and learn how to read.
>
> Your (ridiculously vague) answer was that the store was within the
> law. He didn't ask whether the *store* was within the law to ask him
> to stop, but whether *HE* would be within the law to not stop. The two
> are not the same, and not even necessarily in conflict, if the law
> takes no stance on the situation. Which is probably the case - it's a
> civil matter, unless one crosses the line and commits assault. So you
> didn't answer *his* question, regardless of your beliefs. Go back to
> school and learn how to read.
> ToddH
> Copyright(c) 2000
Larry Kessler
>OK here's one for lawyers and wanna-be lawyers.... I was recently at Sams
>Wholesale Club.
In Texas, they cannot legally use the word "Wholesale" because they
sell to end users.
>I purchased two small items. After paying for the items I
>started towards the front door which was located approximately 20' from the
>check out lanes. There were two or three people with full shopping carts
>ahead of me. Rather than wait for the person at the front door to check the
>people ahead, I walked past them. The person at the front door went
>ballistic, acting like I was stealing the store. I realize this person was
>just doing their job and my complaint was not with her. What I want to know
>is ....FROM A LEGAL STANDPOINT...once I pay for my merchandise am I REQUIRED
>to show the receipt again at the door?? Do I HAVE to stop for these front
>door inspections?? I contend that I do not since they have no probable cause
>or even reasonable suspicion to believe I have committed a crime.
No, walking out without having your receipt checked against your
merchandise is not against the law, but it's an implicit (or explicit,
not sure) part of the contract which accompanies membership. That's
why they let you walk through and look around before you join up.
They cannot prosecute you for not following their procedures, but they
are within their rights to terminate your membership for it.
Roger
Larry Kessler
>>No, walking out without having your receipt checked against your
>>merchandise is not against the law, but it's an implicit (or explicit,
>>not sure) part of the contract which accompanies membership. That's
>>why they let you walk through and look around before you join up.
>>They cannot prosecute you for not following their procedures, but they
>>are within their rights to terminate your membership for it.
>
>It may be a condition of membership at Sam's, but other stores do this
>also -- Best Buy, for instance. I don't mind showing my receipt if it's
>no inconvenience to do so, but like the original poster, I'm not about
>to stand and wait to show my receipt. I don't understand the logic of
>such checks; do they not trust their cashiers, or do they think there's
>a possibility that we can manage to steal something between the
>registers and the front doors?
Yes, it's quite possible. There is a lot of foot traffic all around
the store, and a theft-minded person could easily steal lots of stuff
if they didn't check receipts.
Suppose a customer checks out, then has to go to the bathroom before
leaving and parks his cart near the restrooms. An accomplice could
drop an expensive item or two into the cart, appearing for all the
world to be the "owner" of that cart who hasn't yet paid for his stuff
yet, and walks off, ostensibly in search of some other item. The
customer exits the bathroom, retrieves his cart full of stuff he's
paid for (except the items dropped in by the accomplice) and leaves.
Sam's doesn't have enough staff to watch every customer like a hawk,
even with security cameras.
Speaker to Animals
>On Tue, 11 Jul 2000 01:12:48 GMT, l_k_e_s_s_l_e_r@w_t_._n_e_t (Larry
>Kessler) wrote:
>
>>>I purchased two small items. After paying for the items I
>>>started towards the front door which was located approximately 20' from the
>>>check out lanes. There were two or three people with full shopping carts
>>>ahead of me. Rather than wait for the person at the front door to check the
>>>people ahead, I walked past them. The person at the front door went
>>>ballistic, acting like I was stealing the store. I realize this person was
>>>just doing their job and my complaint was not with her. What I want to know
>>>is ....FROM A LEGAL STANDPOINT...once I pay for my merchandise am I REQUIRED
>>>to show the receipt again at the door?? Do I HAVE to stop for these front
>>>door inspections?? I contend that I do not since they have no probable cause
>>>or even reasonable suspicion to believe I have committed a crime.
>>
>>No, walking out without having your receipt checked against your
>>merchandise is not against the law, but it's an implicit (or explicit,
>>not sure) part of the contract which accompanies membership. That's
>>why they let you walk through and look around before you join up.
>>They cannot prosecute you for not following their procedures, but they
>>are within their rights to terminate your membership for it.
>
>It may be a condition of membership at Sam's, but other stores do this
>also -- Best Buy, for instance. I don't mind showing my receipt if it's
>no inconvenience to do so, but like the original poster, I'm not about
>to stand and wait to show my receipt. I don't understand the logic of
>such checks; do they not trust their cashiers, or do they think there's
>a possibility that we can manage to steal something between the
>registers and the front doors?
Its a kind of two fold thing. The reason this was started, I believe
based on a previous discussion about 3 years ago , is that the
cashiers were doing favors (not entering in items) for some and or
many people (friends, who knows..)
Also it tends to cut down on the theft aspect.
I believe, as I did before, this is a travesty of personal freedom.
Best buy you don't have a membership. Nor does one have a membership
at MARS music - which acts in identical form as SAMS does. I argued
with management - I was in that mood . The reply was "we can ban you
from the store." So I could 've gotten away with it...
Professor Vonroach
Kessler) wrote:
>In Texas, they cannot legally use the word "Wholesale" because they
>sell to end users.
Even if they also sell to those with proper State Retail Permits for
resale? I've done business at times with `wholesale' places that don't
use that term in their name and discourage retail sales, but will on
occasion make a sale for resale and a taxed sale for personal use to
the same buyer. I suspect if one keeps the tax and permit situation
straight, the State of Texas is not going to complain.
Larry Kessler
>>It may be a condition of membership at Sam's, but other stores do this
>>also -- Best Buy, for instance. I don't mind showing my receipt if it's
>>no inconvenience to do so, but like the original poster, I'm not about
>>to stand and wait to show my receipt. I don't understand the logic of
>>such checks; do they not trust their cashiers, or do they think there's
>>a possibility that we can manage to steal something between the
>>registers and the front doors?
>
>Its a kind of two fold thing. The reason this was started, I believe
>based on a previous discussion about 3 years ago , is that the
>cashiers were doing favors (not entering in items) for some and or
>many people (friends, who knows..)
>Also it tends to cut down on the theft aspect.
>
>I believe, as I did before, this is a travesty of personal freedom.
If you don't like their store policies, you have the personal freedom
to shop elsewhere. Where's the travesty?
>Best buy you don't have a membership. Nor does one have a membership
>at MARS music - which acts in identical form as SAMS does. I argued
>with management - I was in that mood.
They have the right to control theft losses by any means short of a
full-body pat-down search. If you don't like it, shop elsewhere.
>The reply was "we can ban you from the store."
Yes, they can. It's their store and their inventory. Even when
you've paid for your purchase, management have the right -- and the
duty to the store owners -- to ensure you aren't leaving with items
you haven't paid for.
>So I could 've gotten away with it...
"Getting away with" thumbing your nose at a retailer's loss control
policy -- for the last time, since it's likely to get you banned from
their store -- isn't much of an accomplishment.
Larry Kessler
>>In Texas, they cannot legally use the word "Wholesale" because they
>>sell to end users.
>
>Even if they also sell to those with proper State Retail Permits for
>resale? I've done business at times with `wholesale' places that don't
>use that term in their name and discourage retail sales, but will on
>occasion make a sale for resale and a taxed sale for personal use to
>the same buyer. I suspect if one keeps the tax and permit situation
>straight, the State of Texas is not going to complain.
Yes, they did. And they DO keep the tax and permit situation
straight; they carefully distinguish between true wholesale purchases,
which are exempt from sales tax, and personal purchases which are
taxable.
Sam's Club _routinely_ sells items to end users, comprising a large
portion of their total sales. Only if their sales were strictly for
resale (like the places you described above) could they use the term
"wholesale."
Now that they're selling gasoline too, it's hard to argue that anyone
filling up his car's gas tank intends to resell the fuel to others.
Mark
toddh <webm...@cableid.com> wrote in message
news:659655354F8B7DC9.42064131...@lp.airnews.net...
> x-no-archive: yes
> >As long as you're not stealing anything, you're unlikely to have violated
> >any criminal laws just by refusing to show your receipt. (At least I
can't
> >think of any.) OTOH, "A person who reasonably believes that another has
> >stolen or is attempting to steal property is privileged to detain that
> >person in a reasonable manner and for a reasonable time to investigate
> >ownership of the property." Texas Civil Practice & Remedies Code §
124.001.
>
> single paying customer is attempting to steal, especially when they
> don't stop customers walking out who didn't buy anything.
>
> >This is commonly referred to as a "shopkeeper's privilege" and is often
used
> >as a defense to false imprisonment for detaining shoppers.
>
> suspicion. If not, they can be found liable for damages.
>
An argument that might be advanced by a merchant under this statute is that
if they see a customer about to take merchandise out the door, ask the
customer for a receipt, and the customer refuses to show it, they then have
a reasonable belief that the person may be stealing. As such, they can
detain them long enough to determine ownership of the property.
>
> >Yeah, it's a pain in the ass to show your receipt when you've just paid
for
> >something two feet away. But it's just one of those minor annoyances
I've
> >learned to put up with by living in the big city.
>
> Some people believe that rights not exercised are rights forfeited.
> Customers can get stores to eliminate this annoyance by expressing
> their displeasure and not allowing it to be effective.
>
This just isn't a that big deal for me. I'd rather fight my battles
elsewhere.
> ToddH
> Copyright(c) 2000
>
Dusty Rhodes
> x-no-archive: yes
> >An argument that might be advanced by a merchant under this statute is
that
> >if they see a customer about to take merchandise out the door, ask the
> >customer for a receipt, and the customer refuses to show it, they then
have
> >a reasonable belief that the person may be stealing. As such, they can
> >detain them long enough to determine ownership of the property.
>
> like a cop asking to search your car, then getting a warrant from the
> judge that your refusal constitues reason to search.
Pree-skieskally. You guys may want to do a Deja search for austin.general.
This subject has been covered there several times and in great detail.
Cheers,
Dusty
anon
took up engineering you'd understand but ofcourse you have to be able to read. No
need to reply as I already read enough of this thread but if it makes you feel better,
go for it.
toddh wrote:
> x-no-archive: yes
> >You're talking semantics. In theory only, you make a point but in practice, your
> >argument is illogical.
>
> Semantics? You know, when somebody posts a message, the words matter.
> It determines what the message means. If you just substitute your own
> words and see what you want to see, not what is actually there, you
> will surely misunderstand the message. Comprende?
>
> How is my point illogical? He was asking if *he* would be within the
> law to not stop, not whether the store was within the law to ask him
> to stop. My point was that the two are not bound to each other, and
> answering one of the them doesn't answer the other. The store may be
> within the law to ask, but the customer may also be within the law to
> refuse. The store may also be within the law to ask that you fill out
> a customer survey card, or submit a urine sample, but you certainly
> would be within the law to refuse. Do you truly not understand the
> difference? Here is exactly what he said:
>
> "What I want to know is ....FROM A LEGAL STANDPOINT...once I pay for
> my merchandise am I REQUIRED to show the receipt again at the door??
> Do I HAVE to stop for these front door inspections??"
>
> Note the repeated use of the word "I". He wants to know *his*
> obligations and rights under the law.
>
> You still didn't clarify your original answer that the store is
> "within the law". Do you mean within the law to ASK that one stop? Or
> do you mean within the law to use FORCE and physically detain one who
> ignores them and walks on by? Are you saying that one would be in
> violation of the law for refusing to stop and show their receipt at
> the door? Could one be arrested or ticketed? If so, please tell us
> what would be the charge.
>
> ToddH
> Copyright(c) 2000
Dusty Rhodes
> Ok here's one last question...Should I continue to walk out and be
forcibly
> detained, would I have cause for a civil action? (assuming, of course,
that
> I had not stolen anything)
Only if there were damages.
Cheers,
Dusty
Dusty Rhodes
news:396a73cd.73357441@news-server...
> On Mon, 10 Jul 2000 15:44:11 GMT, "Roger" <RLK...@hotmail.com> wrote:
>
> >OK here's one for lawyers and wanna-be lawyers.... I was recently at Sams
> >Wholesale Club.
>
> sell to end users.
>
> >started towards the front door which was located approximately 20' from
the
> >check out lanes. There were two or three people with full shopping carts
> >ahead of me. Rather than wait for the person at the front door to check
the
> >people ahead, I walked past them. The person at the front door went
> >ballistic, acting like I was stealing the store. I realize this person
was
know
> >is ....FROM A LEGAL STANDPOINT...once I pay for my merchandise am I
REQUIRED
> >to show the receipt again at the door?? Do I HAVE to stop for these
front
cause
> >or even reasonable suspicion to believe I have committed a crime.
>
> No, walking out without having your receipt checked against your
> merchandise is not against the law, but it's an implicit (or explicit,
> not sure) part of the contract which accompanies membership. That's
> why they let you walk through and look around before you join up.
> They cannot prosecute you for not following their procedures, but they
> are within their rights to terminate your membership for it.
OK, but how about CompUSA? No membership there. I've walked by the guard
there many times with a pleasant, "No, thanks." Never had a problem, though
I know others have.
Cheers,
Dusty
Dusty Rhodes
news:776lms8grrdkmjvkpidlqa8s9qpaian79n@localhost...
> It may be a condition of membership at Sam's, but other stores do this
> also -- Best Buy, for instance. I don't mind showing my receipt if it's
> no inconvenience to do so, but like the original poster, I'm not about
> to stand and wait to show my receipt. I don't understand the logic of
> such checks; do they not trust their cashiers, or do they think there's
> a possibility that we can manage to steal something between the
> registers and the front doors?
By far the largest percentage of inventory shrinkage in such stores is due
to employee theft, though it often involves an accomplice posing as a
customer.
Cheers,
Dusty
Jordan M
> >This is commonly referred to as a "shopkeeper's privilege" and is often
used
> >as a defense to false imprisonment for detaining shoppers.
>
> It's only a defense if they can demonstrate reasonable basis for
> suspicion. If not, they can be found liable for damages.
IANAL, but . . .
I know for a fact that Best Buy was sued for detaining and requesting search
of a customer that wasn't stealing anything. There's civil legal precedent
supporting the right of a customer to expect privacy and swift passage so
long as they're not in violation of the law, even if they act in a manner to
refuse search. Best Buy got the living hell sued out of them for not
respecting the customer's rights. Now they only stop you at the door if
they have you on camera (eg recorded) in the act.
--
-- Jordan
(that's not my real email address, you must edit it by hand)
*** Star ***
wave my receipt in their face and be like i paid i gotta go i got things to
do, and usually he/she would see me and wave me past them.
that way, you wouldnt have to wait so long.
:)
Roger wrote in message ...
>OK here's one for lawyers and wanna-be lawyers.... I was recently at Sams
>Wholesale Club. I purchased two small items. After paying for the items I
>started towards the front door which was located approximately 20' from the
>check out lanes. There were two or three people with full shopping carts
>ahead of me. Rather than wait for the person at the front door to check the
>people ahead, I walked past them. The person at the front door went
>ballistic, acting like I was stealing the store. I realize this person was
>just doing their job and my complaint was not with her. What I want to know
>is ....FROM A LEGAL STANDPOINT...once I pay for my merchandise am I
REQUIRED
>to show the receipt again at the door?? Do I HAVE to stop for these front
>door inspections?? I contend that I do not since they have no probable
cause
>or even reasonable suspicion to believe I have committed a crime.
>
Mark
the courts, with all due respect, you only show ignorance of the law to
baldly state a court wouldn't accept this argument, especially under the
warrant analogy you give.
Here's some Texas caselaw that probably provides a good general rule to
frame the issue: "Reasonable cause for an investigative detention is
something less than probable cause. The test of liability is not based on
the store patron's actual guilt or innocence, but rather on the
reasonableness of the store employee's action under the circumstances. And
whether reasonable belief is established, is usually an issue of fact to be
determined by the trier of facts [usually a jury] from a full and thorough
consideration of all of the evidence bearing on the question." Under this
analysis, then, it may be reasonable to detain a shopper in one situation
for refusing to show a receipt while it isn't in another. In many
situations, a person walking out of a store with merchandise from that store
arguably provides a reasonable basis for the store to merely request he
produce a receipt. In turn, that person's refusal to show a receipt
arguably provides a reasonable basis for the store to detain the person to
establish ownership.
Your warrant analogy -- where the officer has no basis on which to search
other than the person's refusal to consent to one -- isn't really applicable
to this situation. For one thing, the fourth amendment generally only deals
with governmental searches. Also, the merchant situation usually applies to
tort/civil law and the warrant situation usually to criminal law. The
analogy might apply a little better to a situation in which an officer sees
a person acting in a manner in which he has a "reasonable suspicion" that
"criminal activity is at hand." The reasonable suspicion standard is a less
cumbersome standard than probable cause and gives the officer a right to
detain someone long enough to dispel his concerns (e.g., a pat-down for
weapons), but cannot do a full search unless something else pops up (e.g., a
gun).
Sorry for the long-windedness but the question seems to come up a lot and
the answer is usually not so cut-and-dried as most armchair legal experts
apparently think it is.
BTW, here are a couple recent cases that analyze the shopkeeper's privilege
in different fact situations:
Court of Appeals of Texas, Houston (1st Dist.).
Jimmy HENRY, Appellant,
v.
J.C. PENNEY COMPANY, INC., Appellee.
No. 01-99-00739-CV.
April 13, 2000.
On Appeal from the 165th District Court, Harris County, Texas, Trial Court
Cause No. 97-53934.
Panel consists of Chief Justice SCHNEIDER and Justices WILSON and SMITH.
[FN5]
))
OPINION
WILSON, Justice.
Appellant Jimmy Henry appeals from a take-nothing summary judgment in favor
of appellee J.C. Penney, Inc. and Todd Herring. [FN1] We affirm.
PROCEDURAL BACKGROUND
Henry sued J.C. Penney, Herring, The Herring Group, Inc., Danny Anders, and
Tommy Sims for false imprisonment and defamation. [FN2] Henry alleged that
he and two friends entered the J.C. Penney store to browse and shop. After
he and his friends left and entered another store in the mall, five men,
including a J.C. Penney manager and a J.C. Penney security guard, confronted
Henry, and accused him of stealing the jacket he was wearing. They demanded
Henry return to the J.C. Penney store with them, where the security guard
then questioned Henry. Henry further alleged that, after he produced a sales
receipt for the jacket, the defendants accused him of creating a bogus
receipt and continued to question him for at least an hour, refusing to
release him until they could verify his claims.
Approximately 17 months after Henry filed his original petition, J.C.
Penney filed a "no evidence" motion for summary judgment under Texas Rule of
Civil Procedure 166a(i). In response, Henry produced excerpts from his own
deposition and that of Jacob Denman, J.C. Penney's loss-prevention officer
who had
))
apprehended Henry. In addition to producing evidence purportedly supporting
each of the elements of false imprisonment, Henry also claimed that the
evidence raised a question of fact regarding whether, in light of the
shopkeeper's privilege, the detention was without authority of law. In its
reply, J.C. Penney asserted that, as a matter of law, the evidence
established that J.C. Penney had the authority of law to detain Henry.
The trial court rendered a take-nothing summary judgment in favor of J.C.
Penney and Herring. Henry appealed.
The summary judgment contained the provision, "All relief not expressly
granted herein is DENIED." The provision was lined out, but not initialed.
On June 16, 1999, the court issued a "Notice of Intent to Dismiss--No
Answer Filed." The notice announced that the case would be dismissed for
want of prosecution unless by August 2, 1999, one of the following actions
was taken: signing of a default judgment, filing of an answer, or filing of
a verified motion to retain. On August 31, 1999, the trial court rendered an
"Order of Dismissal," stating, "For failure to comply with THE NOTICE DATED
06-16- 1999/TRCP165A, this cause is ordered DISMISSED FOR WANT OF
PROSECUTION."
DISCUSSION
Henry raises a single point of error, contending that the trial court erred
in granting the motion for summary judgment. In a reply point, J.C. Penney
contends that this court is without jurisdiction because the summary
judgment
))
did not dispose of all of the parties and claims. We address the
jurisdictional issue first. See Osborne v. St. Luke's Episcopal Hosp., 915
S.W.2d 906, 907 (Tex.App.--Houston [1st Dist.] 1996, writ denied) (before
reaching merits of appeal, appellate court must determine whether it has
jurisdiction).
Jurisdiction
In order to be a final, appealable summary judgment, the order granting the
motion must dispose of all parties and all issues before the court. Mafrige
v. Ross, 866 S.W.2d 590, 591 (Tex.1993). If the order does not dispose of
all issues and all parties, it is interlocutory and, absent a severance, the
order is not appealable. Id. An interlocutory summary judgment may become
final when a subsequent order disposes of the remaining defendants. See H.B.
Zachry Co. v. Thibodeaux, 364 S.W.2d 192, 193 (Tex.1963); Ramones v.
Bratteng, 768 S.W.2d 343, 344 (Tex.App.--Houston [1st Dist.] 1989, writ
denied).
The summary judgment in the present case contained a Mother Hubbard clause,
but the clause was lined out. Therefore, the order did not dispose of all
parties and all issues. The subsequent order of dismissal may have been
intended to accomplish that result, but the style of the order contains only
Henry and J.C. Penney as parties, and the text of the order dismisses the
"cause."
The order, however, also states that the dismissal was for failure to
comply
))
with a "notice dated 06-16-1999." The June 16 notice advised the parties
that the court would dismiss for want of prosecution unless certain actions
were taken. The order of dismissal was "generated" on August 31, 1999, and
cited Texas Rule of Civil Procedure 165a. [FN3] That rule provides in part:
Failure to Appear. A case may be dismissed for want of prosecution on
failure of any party seeking affirmative relief to appear for any hearing or
trial of which the party had notice. Notice of the court's intention to
dismiss and the date and place of the dismissal hearing shall be sent by the
clerk to each attorney of record, and to each party not represented by an
attorney and whose address is shown on the docket or in the papers on file,
by posting same in the United States Postal Service. At the dismissal
hearing, the court shall dismiss for want of prosecution unless there is
good cause for the case to be maintained on the docket.
Tex.R.Civ.P. 165a.
The order of dismissal dated August 31, 1999, came after the court's
interlocutory summary judgment dated May 27, 1999. It appears that the
dismissal order was intended to dismiss the action against all parties that
were not disposed of in the court's May 27 interlocutory judgment. The
court's dismissal of all remaining parties changed the status of the court's
May 27, 1999, interlocutory order to that of a final judgment. See Newco
Drilling Co. v. Weyand, 960 S.W.2d 654, 656 (Tex.1998) (final order
dismissing case for
))
want of prosecution and not vacating summary judgment makes partial summary
judgment final and appealable). Under these facts, we hold that we have
jurisdiction to decide this appeal.
Summary Judgment
Standard of Review
J.C. Penney structured its motion as a "no evidence" motion for summary
judgment. Tex.R.Civ.P. 166a(i). [FN4] After an adequate time for discovery,
the party without the burden of proof may, without presenting evidence, move
for summary judgment on the ground there is no evidence to support an
essential element of the nonmovant's claim or defense. Tex.R.Civ.P. 166a(i).
The trial court must grant the motion unless the respondent produces summary
judgment evidence raising a genuine issue of material fact. Id. The comment
to the rule suggests that the respondent is not required to "marshal its
proof." Instead, the response need only "point out evidence" that raises a
fact issue on the challenged elements. See Tex.R.Civ.P. 166a cmt. to 1997
change.
The traditional rules continue to govern the general requirements of summary
judgment practice. Id. We therefore review the evidence in the light most
favorable to the nonmovant, disregarding all contrary evidence and
inferences. Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex.App.--
Houston [1st Dist.] 1999, no pet.). A no-evidence summary judgment is
improper
))
if the nonmovant brings forth "more than a scintilla of evidence" to raise a
genuine issue of material fact. Id.; see Tex.R.Civ.P. 166a(i). More than a
scintilla of evidence exists when the evidence " 'rises to a level that
would enable reasonable and fair-minded people to differ in their
conclusions.' " Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499
(Tex.1995) (quoting Transportation Insurance Co. v. Moriel, 879 S.W.2d 10,
25 (Tex.1994)). Conversely, less than a scintilla exists when the evidence
is "so weak as to do no more than create a mere surmise or suspicion."
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).
Application of the law to the facts
The elements of a false imprisonment cause of action are: (1) willful
detention, (2) without consent, and (3) without authority of law. Randall's
Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). J.C. Penney
contends the evidence was insufficient on the first and third elements.
Willful detention and absence of consent. Testimony from both Denman (J.C.
Penney's loss-prevention officer) and Henry raises a genuine issue of
material fact on both willful detention and lack of consent. Denman
testified that he personally went after Henry. As he was walking down the
mall to apprehend Henry, he passed Anders, a sheriff's officer who was
working mall security. Denman testified he asked Anders to accompany him "to
help [him] out with it because we have had individuals run from us and with
there being three of them,
))
I'd wished that there be three of us." Henry was just inside Beall's
Department Store when they approached him. Denman testified that when Anders
confronted Henry, Anders told Henry that Denman worked for J.C. Penney and
that they had some questions for Henry--that "there's a problem with some
merchandise and he needs you to come back to his store to talk to you and
Mr. Henry just kind of shrugged and he said, okay."
In contrast, Henry testified that the J.C. Penney manager requested him to
return to the store, but he did not go voluntarily because he wanted to know
why he was going. Henry testified he was not told the reason until he was
escorted back to the J.C. Penney store. Henry characterized the persons who
apprehended him as making him return to the J.C. Penney store. Although the
J.C. Penney man never made physical contact with Henry on the way back to
the J.C. Penney store, Henry testified that one of the sheriff's officers
held him by his collar and his arm, and the other grabbed him by his other
arm. According to Henry, when the sheriff "snatched" him, he heard the J.C.
Penney manager accuse Henry of stealing the jacket.
To defeat the motion for summary judgment, (considering the elements of
false imprisonment alone) Henry needed to bring forth more than a scintilla
of evidence to raise a fact question on a material element. Macias, 988
S.W.2d at 317; see Tex.R.Civ.P. 166a(i). More than a scintilla of evidence
exists when the evidence "rises to a level that would enable reasonable and
fair-
))
minded people to differ in their conclusions." Burroughs Wellcome Co., 907
S.W.2d at 499. Viewing the evidence in the light most favorable to Henry, we
believe that reasonable and fair-minded people could differ in their
conclusions about the willful detention and the lack of consent.
Notwithstanding evidence that creates a fact issue on willful detention and
lack of consent, J.C. Penny is not liable if the detention is excused by
law.
Without authority of law. J.C. Penney argues that summary judgment was
proper on the third element of false imprisonment because the willful
detention, if any, was authorized by law. See Sears, Roebuck & Co. v.
Castillo, 693 S.W.2d 374, 375 (Tex.1985). Under the "shopkeeper's
privilege," an employee who reasonably believes that a customer has stolen
or is attempting to steal property is privileged to detain that customer in
a reasonable manner and for a reasonable time to investigate ownership of
the property. Tex.Civ.Prac. & Rem.Code Ann. § 124.001 (Vernon 1997);
Wal-Mart Stores, Inc. v. Resendez, 962 S.W.2d 539, 540 (Tex.1998). There are
therefore three components to the shopkeeper's privilege: (1) a reasonable
belief a person has stolen or is attempting to steal; (2) detention for a
reasonable time; and (3) detention in a reasonable manner. Grant v.
Stop-N-Go Market, Inc., 994 S.W.2d 867, 873 (Tex.App.--Houston [1st Dist.]
1999, no pet.); see Resendez, 962 S.W.2d at 540.
The shopkeeper's privilege is limited to false imprisonment claims arising
))
from investigative detentions. Grant, 994 S.W.2d at 873. The test of
liability does not rest on the store patron's guilt or innocence, but on the
reasonableness of the store's action under the circumstances. Id.
Reasonable belief a person has stolen. Henry testified that he saw a
sweater he liked, took his jacket off to try the sweater on, and put his
jacket on the sweater rack. When he went to look at the sweater in the
mirror, he put his jacket "on the cash register [sic] or the counter." After
he decided he did not like the sweater, he took it off and put his jacket
back on. Henry admitted to approaching a rack that had jackets similar to
the one he was wearing.
Denman testified that a sales associate, Ms. White, called Denman and
pointed out a rack of jackets and pointed to Henry. White told Denman she
had seen Henry walk up to the rack, pick up a jacket that was lying over the
top of the rack, and put the jacket on. Denman could see Henry walking out
the mall entrance wearing the same jacket that had been on the rack. White
had not seen Henry enter the store, and when White first noticed Henry, he
was not wearing a jacket.
Reasonable cause for an investigative detention is something less than
probable cause. Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 520
(Tex.App.--San Antonio 1996, writ denied). We hold that, as a matter of law,
Denman had reasonable cause for detaining Henry.
Detention in a reasonable manner. In approaching Henry, Denman was
accompanied
))
by two sheriff's officers who were working mall security. Denman enlisted
the aid of the first officer, Anders, because he was concerned that the
three men might split up and run. Anders, in turn, called the second
officer.
According to Henry, the two officers held Henry's arms during the return to
the J.C. Penney store. Denman testified that no one was holding Henry on the
way back to the store, but that Anders reached up and placed his hand on
Henry's arm when Henry turned around to ask what was going on.
Henry testified that, although none of the J.C. Penney people made physical
contact with him on the way back, one of the sheriffs held him by his collar
and the other held him by the arm. Henry also testified that, when he tried
to leave, one of the officers grabbed his arm and put it behind the small of
his back. He agreed that the officers restrained him to keep him from
leaving. Henry testified that he did not sustain any bodily injuries,
although the muscles in his arm were "kind of sore."
Denman and the officers took Henry back to an office area in the back of
the store. When they were in the office area, Anders, one of the sheriff's
officers, informed Henry that a sales associate claimed Henry had taken the
jacket and asked whether Henry had any proof the jacket was his. Henry
produced a receipt from his wallet, and Denman checked the receipt and
determined it matched the coat Henry was wearing. Herring, Anders, and
Denman apologized, and Henry left.
))
The only physical contact was for the purpose of directing Henry back to the
store and keeping him from leaving the officers' custody. We hold, as a
matter of law, that the manner of detention was reasonable.
Detention for a reasonable time. According to Denman, the entire incident
from the time they left Beall's until Henry left the J.C. Penney store
lasted no longer than seven to 10 minutes. Henry testified that about five
minutes elapsed from the time he was approached in Beall's until he was back
in the stockroom.
In the trial court, Henry cited parts of his deposition as support for his
claim that he was detained for 45 minutes after producing the receipt. He
did not, however, attach those pages of his deposition to his response to
the motion for summary judgment. In this Court, he claims he was detained
for 15 to 30 minutes after producing the receipt, but provides no support
from the record. Denman's estimate of the time they detained Henry is
unrefuted on the record before this Court.
We hold that, as a matter of law, the period of detention was reasonable.
See Resendez, 962 S.W.2d at 540 (Tex.1998) (rendering judgment for store in
case involving 10-to-15 minute detention).
We overrule Henry's sole point of error.
We affirm the judgment.
))
Jackson B. SMITH, Jr., [FN1] Justice, dissenting.
Although I join with the majority opinion in its holding that this court
has jurisdiction to hear this appeal, I respectfully dissent from the
judgment which affirms a final summary judgment rendered by the trial court.
I believe appellant presented the trial court with sufficient evidence to
raise genuine material fact issues. This precludes the rendition of a
summary judgment. Tex.R. Civ. P. 166a(i).
Appellant's suit alleged that he was falsely detained and imprisoned by a
Penney's employee who was accompanied by two sheriff's officers. The
elements of false imprisonment are: (1) a willful detention; (2) without
consent; and (3) without authority of law. Randall's Food Mkt., Inc. v.
Johnson, 891 S.W.2d 640, 644 (Tex.1995).
Penney's asserts that appellant's claim fails because appellant produced
insufficient evidence of willful detention and that under the "shopkeeper's
privilege" law it had authority to detain appellant. Civil Practice and
Remedies Code section 124.001 is the so-called "shopkeeper's privilege" law,
which states:
A person who reasonably believes that another has stolen or is attempting
to steal property is privileged to detain that person in a reasonable manner
and
))
for a reasonable time to investigate ownership of the property.
Tex. Civ. Prac. & Rem.Code Ann. § 124.001 (Vernon 1997).
The uncontested facts are that appellant purchased a jacket from Penney's.
Two weeks later, accompanied by two friends, he returned to Penney's to do
further shopping. In the same department where he had purchased his jacket,
he saw a sweater he liked, took off his jacket, and tried on the sweater. He
decided against purchasing the sweater, removed it, put on his jacket, and
he and his friends left Penney's.
An employee, who had not seen appellant enter the store wearing the jacket,
observed appellant when appellant put his jacket back on and left. The
employee saw racks containing jackets like appellant's jacket underneath the
place where appellant had laid his jacket while trying on the sweater. When
the employee saw appellant put on the jacket and leave, she reported her
observations to a store loss-prevention officer.
Relying on the employee's observations, the loss-prevention officer
followed appellant, got two sheriff's officers to accompany him, and
detained appellant in another store in the mall, Beall's. With an officer on
each side holding his arms, appellant was returned through the mall to
Penney's. At Penney's, appellant was placed in a small space in a back room
where one of the officers proceeded to question him.
))
To defeat Penney's motion for summary judgment, appellant needed to bring
forth more than a scintilla of evidence to raise a fact question on the
material elements of his false imprisonment claim. Macias v. Fiesta Mart,
Inc., 988 S.W.2d 316, 317 (Tex.App.--Houston [1st Dist.] 1999, no pet.); see
Tex.R. Civ. P. 166a(i). More than a scintilla of evidence exists when the
evidence "rises to a level that would enable reasonable and fair-minded
people to differ in their conclusions." Burroughs Wellcome Co. v. Crye, 907
S.W.2d 497, 499 (Tex.1995) (quoting Transportation Ins. Co. v. Moriel, 879
S.W.2d 10, 25 (Tex.1994)); Macias, 988 S.W.2d 316 at 317.
Appellant's evidence concerning his detention was that he did not
voluntarily return to Penney's because he wanted to know why they were
taking him. He testified he was "snatched"; one officer took him by the
collar and the other by an arm, and the officers held him by his arms as
they returned him to Penney's store from Beall's. Several times he also
tried to no avail to ascertain why he was being detained. At Penney's, he
was questioned by the officer until he was given an opportunity to produce
his purchase sales slip.
From these facts it appears to be undisputed that appellant was detained.
However, whether he was originally detained in a reasonable manner at
Beall's, whether he voluntarily returned to Penney's, whether he was treated
in a reasonable manner while being taken from Beall's through the mall to
Penney's,
))
and whether his detention at Penney's was conducted in a reasonable manner
and for a reasonable time, all are disputed.
The third element of false imprisonment is whether Penney's detained
appellant without authority of law. Penney's asserts that the "shopkeeper's
privilege" law gave it authority to detain appellant.
The last part of the "shopkeeper's privilege" law is worded in the
conjunctive. Therefore, for that law to apply, Penney's had to prove two
things: (1) that appellant's detention was done in a reasonable manner and
(2) that the detention was for a reasonable time to determine the ownership
of the jacket. Proof of only one of these elements is insufficient to invoke
the "shopkeeper's privilege" law as a defense. The question of why Penney's
loss- prevention officer did not discreetly ascertain the ownership of the
jacket when appellant was originally detained goes to both the
reasonableness of the manner of detention and the time involved. These are
questions for a fact finder.
The majority has held as a matter of law that appellant's evidence is
insufficient to raise a genuine material fact issue. Because in reviewing a
motion for summary judgment, we assume all evidence favorable to the
nonmovant is true, and because we indulge every reasonable inference and
reasonable doubt in favor of the nonmovant, I disagree. See Science
Spectrum, Inc. v.
))
Martinez, 941 S.W.2d 910, 911 (Tex.1997). I would hold that fact issues were
raised by appellant's evidence.
I respectfully dissent and would reverse the judgment and remand this cause
to the trial court for further proceedings.
FN1. Although the style of Henry's notice of appeal lists, "J.C. Penneys
[sic], Inc., et. al." as defendants, Henry does not appear to be pursuing
his appeal against Herring. Except where necessary to refer to Herring
separately, we will refer only to J.C. Penney.
FN2. The Herring Group, Inc., was the mall management company. Danny Anders
and Tommy Sims were off-duty sheriff's officers and employees of The Herring
Group. In addition to the false imprisonment and defamation claims, Henry
sued Anders and Sims for assault and battery. The disposition of the suit
against The Herring Group, Anders, and Sims is discussed below. Henry is not
appealing from the disposition of his defamation claim.
FN3. The order is "signed" by the judge who heard the summary judgment
motion, but not the judge who heard the motion for new trial.
))
FN4. In its reply to Henry's response, J.C. Penney agreed "that when an
arrest or imprisonment is made without the benefit of a warrant or subpoena,
the burden is on the defendant to show that some other authority for the
detention existed." J.C. Penney also attached exhibits to its reply and
argued, "As a matter of law, the undisputed facts establish that Defendants
had the authority of law to detain Plaintiff." This argument is more
appropriate in support of a traditional motion for summary judgment. See
Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985)
(movant has burden of establishing as matter of law that no genuine issue of
material fact exits as to one or more essential elements of plaintiff's
cause of action, or affirmative defense is established as matter of law).
FN5. The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals,
First District of Texas at Houston, participating by assignment.
FN1. The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals,
First District of Texas at Houston, participating by assignment.
Tex.App.--Hous. (1 Dist.),2000.
Henry v. J.C. Penney Company, Inc.
END OF DOCUMENT
----
Supreme Court of Texas.
WAL-MART STORES, INC., Petitioner,
v.
Lucia Ochoa RESENDEZ, Respondent.
No. 97-0558.
Feb. 13, 1998.
Rehearing Overruled April 14, 1998.
OPINION
PER CURIAM.
This case involves the proper scope of authority of law in a false
imprisonment case. The court of appeals affirmed the trial court's judgment
against Wal-Mart Stores, Inc. ("Wal-Mart") on a jury finding of false
imprisonment. We hold that, on the facts in this case, Wal-Mart established
as a matter of law that it detained Lucia Resendez for a reasonable period
of time, in a reasonable manner, and upon a reasonable belief that she had
stolen store merchandise. Accordingly, we reverse the court of appeals'
judgment and render judgment for Wal-Mart.
On January 20, 1986, Resendez went shopping at Wal-Mart during her lunch
break. While browsing through the store, she began to eat from a bag of
peanuts marked with a Wal-Mart price sticker. Raul Salinas, a security guard
for Wal-Mart, followed Resendez and observed her place the empty bag under a
rose bush. He then watched her purchase some items and leave the store.
After determining that Resendez had not paid for a bag of peanuts, Salinas
followed her into the parking lot. He accused her of taking the bag of
peanuts without paying and asked her to accompany him back into the store.
Resendez objected that she bought the peanuts the day before at another Wal-
Mart store and could provide the receipt to prove it. She then accompanied
Salinas to the back of the store. Within about ten to fifteen minutes a
police officer arrived and arrested Resendez. Resendez posted bail and was
released about one hour later.
A jury convicted Resendez of misdemeanor theft. Later, the court of appeals
overturned her conviction because of a defect in the charging instrument.
[FN1] She then sued Wal-Mart for malicious prosecution, false imprisonment,
intentional infliction of emotional distress and negligence. The jury
awarded Resendez $100,000 for the false imprisonment claim and $25,000 for
the negligence claim. The court of appeals modified the judgment,
eliminating the $25,000 recovery because it was a double recovery, and
affirmed the judgment as modified.
FN1. Before trial in the civil case, the trial court granted Resendez's
motion in limine on the outcome of the criminal trial. Wal- Mart did not
contest this holding on appeal.
In a false imprisonment case, if the alleged detention was performed with
the authority of law, then no false imprisonment occurred.
See Sears, Roebuck & Co. v. Castillo, 693 S.W.2d 374, 375 (Tex.1985)
(listing the elements of false imprisonment as a willful detention performed
without consent and without the authority of law). The "shopkeeper's
privilege" expressly grants an employee the authority of law to detain a
customer to investigate the ownership of property in a reasonable manner and
for a reasonable period of time if the employee has a reasonable belief that
the customer has stolen or is attempting to steal store merchandise. Tex.
Civ. Prac. & Rem.Code Ann. § 124.001.
There was no evidence to support the contention that the detention occurred
for an unreasonable period of time. Without deciding the outer parameters of
a permissible period of time under section 124.001, the ten to fifteen
minute detention in this case was not unreasonable as a matter of law. See
Dominguez v. Globe Discount City, Inc., 470 S.W.2d 919, 920
(Tex.Civ.App.--El Paso 1971, no writ) (finding a five to six minute
detention reasonable even where the plaintiff was ultimately released by the
security guard who detained her); Meadows v. F.W. Woolworth Co., 254 F.Supp.
907, 909 (N.D.Fla.1966) (finding a ten minute detention reasonable under a
similar statute). Also, no evidence exists that the detention occurred in an
unreasonable manner. The only question is whether it was reasonable for
Salinas to believe that Resendez had stolen the peanuts. It was.
Once the facts are established, the existence of probable cause is a
question of law for the court. Richey v. Brookshire Grocery Co., 952 S.W.2d
515, 518 (Tex.1997). Based upon the undisputed facts--Resendez looked for
peanuts immediately upon entering the Wal-Mart store, [FN2] she was later
seen eating from a bag of peanuts marked with a Wal-Mart price sticker, and
she did not pay for the peanuts on leaving the store--probable cause existed
to believe that the peanuts were stolen property. In fact, in response to
the question on Resendez's malicious prosecution claim, the jury found that
Salinas had probable cause to commence criminal proceedings against
Resendez. If Salinas had probable cause to initiate criminal proceedings,
his belief that Resendez stole the peanuts was necessarily reasonable. See
Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 520 (Tex.App.--San Antonio
1996, writ denied) (finding that reasonable belief for an investigative
detention is something less than that required to establish probable cause);
Berly v. D & L Security Servs. & Investigations, Inc., 876 S.W.2d 179, 183
(Tex.App.--Dallas 1994, writ denied) (noting that the "shopkeeper's
privilege" under section 124.001 embodies the law of probable cause for the
purpose of detaining a suspected shoplifter); Montgomery Ward & Co. v.
Garza, 660 S.W.2d 619, 621 (Tex.App.--Corpus Christi 1983, no writ)
(equating authority of law with the existence of probable cause). As a
matter of law, the undisputed facts of this case establish that Salinas had
the authority of law to detain Resendez and therefore she was not falsely
imprisoned.
FN2. Resendez testified at trial through her deposition that upon entering
the store, she first went to the snack aisle "to see what kind of peanuts
they have."
The court of appeals' discussion of the proper scope of the authority of law
to detain fails to recognize the full extent of the privilege granted to
persons who suspect shoplifting. First, the court of appeals reasoned that
the jury implicitly found that Wal-Mart exceeded the scope of its privilege
to detain Resendez. To support this theory, the court of appeals cited one
of its own opinions for the principle that compliance with a store's
internal policies is informative in the jury's determination of whether
there was a detention without authority of law. --- S.W.2d at ---- (citing
Montgomery Ward, 660 S.W.2d at 621). We disagree that the internal policies
of a private business define the permissible scope of a detention authorized
under the law.
[7] Second, the court of appeals erred in its interpretation of the
shopkeeper's privilege. The privilege does not require the detainer to
confirm or refute the detainee's claims, nor does it prevent the detainer
from holding the suspected shoplifter for a reasonable time in order to
deliver her to the police. See Tex. Civ. Prac. & Rem.Code Ann. § 124.001;
see also
Tex.Crim. Proc.Code Ann. Art. 18.16 (granting to any person the privilege to
seize and detain a person suspected of theft and deliver them to a peace
officer).
Therefore, pursuant to Texas Rule of Appellate Procedure 59.1, the court
grants Wal-Mart's application for writ of error and, without hearing oral
argument, reverses the court of appeals' judgment and renders judgment for
Wal- Mart. [FN3]
FN3. Our disposition on the false imprisonment claim does not revive the
$25,000 award for negligence. Resendez's negligence claim is predicated on
exactly the same facts as her false imprisonment claim. Salinas' actions
were reasonable, and thereby authorized by law. Consequently, his actions
comported with those of a reasonably prudent shopkeeper and a claim of
negligence can not stand.
toddh <webm...@cableid.com> wrote in message
news:9BD2FEE860E7EB44.BF106613...@lp.airnews.net...
> x-no-archive: yes
> >An argument that might be advanced by a merchant under this statute is
that
> >if they see a customer about to take merchandise out the door, ask the
> >customer for a receipt, and the customer refuses to show it, they then
have
> >a reasonable belief that the person may be stealing. As such, they can
> >detain them long enough to determine ownership of the property.
>
> That self-justifying argument wouldn't be accepted by a court. That's
> like a cop asking to search your car, then getting a warrant from the
> judge that your refusal constitues reason to search.
>
> ToddH
> Copyright(c) 2000
>
Larry Kessler
>>If you don't like their store policies, you have the personal freedom
>>to shop elsewhere. Where's the travesty?
>
>The travesty is that if enough sheep allow themselves to be herded
>through a checkpoint, all the stores will adopt the practice. They are
>pushing to see what they can get away with.
Member/shoppers at Sam's Club agree to their checkout procedure as a
part of the membership agreement. I choose to let the employee at the
exit door examine my receipt and the contents of my cart because there
is perceived value to me in doing so, i.e. the money I may save by
shopping there. If I don't like the policy, there are plenty of
stores which will be happy to sell me the same products at some other
price.
>>They have the right to control theft losses by any means short of a
>>full-body pat-down search. If you don't like it, shop elsewhere.
>
>If you simply don't stop, even to argue, anything short of a
>full-blown tackle will be ineffective. Are you saying they can go that
>far?
I suppose I regard a tackle as a more serious assault than a pat-down
search. Neither is permissible unless the store has good reason to
believe you've stolen something.
>If the store doesn't like the way customers act, let them do business
>elsewhere.
And if the customer doesn't like the way the stores do business, (s)he
can shop elsewhere too.
>>Yes, they can. It's their store and their inventory. Even when
>>you've paid for your purchase, management have the right -- and the
>>duty to the store owners -- to ensure you aren't leaving with items
>>you haven't paid for.
>
>Yes they can. What was originally asked is if one is legally required
>to stop and submit. They are not. It's a civil matter, not criminal.
I believe I said that.
>>>So I could 've gotten away with it...
>>
>>"Getting away with" thumbing your nose at a retailer's loss control
>>policy -- for the last time, since it's likely to get you banned from
>>their store -- isn't much of an accomplishment.
>
>First, they have no practical means to enforce such ban. If you
>don't stop, they don't even know your name.
At Sam's Club they do. If they decide you've broken their rules, they
can cancel your membership, revoke your membership card, and refuse to
admit you to the store, to check out your merchandise, or to accept
your money..
It would be simple enough to find out from the checkout clerks and/or
cash register tape which purchases were made by which member number,
since your Sam's card is scanned before your items are checked out.
If the exit clerk says that the guy who just bought the bale of toilet
paper, the box of Tide and the bag of Alpo left without showing his
receipt, it would be a simple matter to figure out which member bought
those items in the last five minutes and flag his membership record.
>Does the door drone keep a list
>of names or photo sheet to compare with faces as they walk in the
>door? Will Best Buy remember you a month from now (especially if you
>just walk by and say nothing, don't argue or fight). Probably won't
>even be the same employees.
They might well post your picture (captured from their security videos
perhaps) near the door and refuse to admit you
>Even if they could enforce it, why would
>they? It is *they* who want *your* money, which they cannot get if
>they don't let you in the store.
It would be bad business to start banning customers willy-nilly, but
if the store has a nationwide policy on this, it might be worth a few
lost customers to enforce it.
>I routinely walk by them, and simply ignore them if they say anything.
>Usually they don't even say anything, only a few times have they taken
>so much as a few steps behind me repeating their request, never have
>they touched me or followed me to my car.
If you make a habit of it at Sam's Club, you can pretty much count on
your membership being cancelled. I go to the same two or three Sam's
Club stores often enough that I recognize many of the employees by
sight and vice versa. Many of the exit checkers do that job and only
that job, often because they're older people who can't manage the
physical demands of stocking shelves or running the registers.
>If a significant number of people stood up for themselves, what is the
>store going to do? Ban everyone? That would be quite an accomplishment
>- the store will have put itself out of business.
Yes, if enough customers object to the policy the store might well
change it. As it is, most people agree with the stores that the
policy reduces theft losses and keeps prices steady.
If you don't like it, shop elsewhere. Is there anything hard to
understand about that?
Larry Kessler
>>Now that they're selling gasoline too, it's hard to argue that anyone
>>filling up his car's gas tank intends to resell the fuel to others.
>
>Do they actually own Murphy USA (the gasoline vendor) or are they
>simply a contract affiliate, like the McDonalds in some of the
>Walmarts?
I really don't know. The filling station is totally automated; you
basically are buying gasoline from a vending machine. You run your
Sam's card under a scanner on the pump, which validates your
membership, then insert a major credit card into a separate slot on
the pump. The Sam's card is validated by a computer in a shack near
the pumps, but the credit card must be validated through the store's
network. I found this out one day when the pump accepted my Sam's
card but timed out when trying to validate my credit card. It turned
out that the whole store had lost power, but the pumps and the
computer shack nearby still had power.
One might infer from the level of integration between the pumps and
the store's network that they have a closer relationship than a kiosk
vendor and major store would have.
Lou Minatti™
>
> OK here's one for lawyers and wanna-be lawyers.... I was recently at Sams
> Wholesale Club. I purchased two small items. After paying for the items I
> started towards the front door which was located approximately 20' from the
> check out lanes. There were two or three people with full shopping carts
> ahead of me. Rather than wait for the person at the front door to check the
> people ahead, I walked past them. The person at the front door went
> ballistic, acting like I was stealing the store. I realize this person was
> just doing their job and my complaint was not with her. What I want to know
> is ....FROM A LEGAL STANDPOINT...once I pay for my merchandise am I REQUIRED
> to show the receipt again at the door?? Do I HAVE to stop for these front
> door inspections?? I contend that I do not since they have no probable cause
> or even reasonable suspicion to believe I have committed a crime.
Hell no. You paid for your merchandise. You have a receipt for that
merchandise. The transaction was completed honestly and fairly. If they
wanted to make a big deal about it and get all WALMART, I'd laugh in
their face.
I realize they're trying to cut down on theft, but that's one thing I
have never liked about Sam's/Walmart - the "checker" at the front of the
store who's responsibility it is to make sure you're not a thief. F**k
Walmart.
--
People who think I'm Bryant Gumbel! Seriously!
http://www.watchingyou.com/hatebryant.html
Mark
Unfortunately, though, the more you write, the more you reveal you just
don't have a clue. It may amaze you, but admitting that you don't know
something is OK. I am unable to cite a case on this fact scenario because
it doesn't appear one's been published in Texas. But as "real" lawyers
know, if there is not a case on point, you try to find similar or analogous
cases and applicable legal principles and make your case from there.
Anyway, notwithstanding your expert opinion, there is a valid legal argument
for shopkeepers to detain customers long enough to confirm that they have a
receipt for the merchandise they are leaving the store with. If you took
time to understand the first snippet of caselaw I cited, you would have
figured out that there probably is not going to be a bright-line rule one
way or another that makes it OK or not OK in all situations. Rather, if
somebody sued a merchant for being detained for refusing to show a receipt,
the outcome may depend on the specific facts of the case and be left to a
jury. If so, there might even be inconsistent outcomes from one case to the
next. Keep in mind we are in the era of tort reform and the attitude of
judges and juries can be pretty pro-business. (Of course, we're also in an
era in which judges and juries value the rights of people to go about their
business without these unnecessary hassles.)
BTW, I posted the cases because they provide a little insight into how
appellate courts analyze these type issues. Didn't realize they were 36k,
though.
toddh <webm...@cableid.com> wrote in message
news:B9815E2B0B7D9296.1DE94EAC...@lp.airnews.net...
> x-no-archive: yes
> >Beg to differ. Though I don't know if this fact situation has been tested
in
> >the courts, with all due respect, you only show ignorance of the law to
> >baldly state a court wouldn't accept this argument, especially under the
> >warrant analogy you give.
>
> With all due respect, it is you who have admitted ignorance ot ht law
> with "I don't know if this fact situation has been tested in the
> courts".
>
> >situations, a person walking out of a store with merchandise from that
store
> >arguably provides a reasonable basis for the store to merely request he
> >produce a receipt. In turn, that person's refusal to show a receipt
> >arguably provides a reasonable basis for the store to detain the person
to
> >establish ownership.
>
> You haven't demonstrated at all that the first event can lead to the
> second. You've hypothesized that it could, but it is apparently not
> happening that way in real life, given your inability to cite a case.
>
>
> >analogy might apply a little better to a situation in which an officer
sees
> >a person acting in a manner in which he has a "reasonable suspicion" that
> >"criminal activity is at hand."
>
> And driving down the road in a normal manner (as it is normal for a
> customer to pay the cashier and exit the store) does not give
> "reasonable suspicion". Note the word "reasonable". Do you think it
> "reasonable" to suspect *every* paying customer of stealing?
>
> >Sorry for the long-windedness but the question seems to come up a lot and
> >the answer is usually not so cut-and-dried as most armchair legal experts
> >apparently think it is.
>
> If you are implying that you are a *real* lawyer rather than an
> armchair expert, then please provide an authoritative cite that
> upholds a store in detaining *everyone* to check receipts.
>
> >BTW, here are a couple recent cases that analyze the shopkeeper's
privilege
> >in different fact situations:
>
> I don't understand the reason for posting 20 pages of irrelevant
> material, unless it's an attempt at misdirection or to create an image
> of expertise for yourself. No one here has disputed the right of the
> merchant to detain one for suspected theft.
>
> ToddH
> Copyright(c) 2000
>
Mark
he merely refused to show his receipt. I doubt there is one.
Just re-read my previous posts for answers to your other questions. The law
is not always so cut-and-dried as you think it is, but it seems you are more
interested in being right than you are in trying to carry on an intelligent
discussion. Yes, I'm a licensed lawyer. But so what should that matter to
you? No one's nearly as knowledgeable in the law as you are.
toddh <webm...@cableid.com> wrote in message
news:1FF2B854C7A68AD9.A3222F9A...@lp.airnews.net...
> x-no-archive: yes
> >Wow, toddh, good to see a person so confident in his legal abilities.
> >Unfortunately, though, the more you write, the more you reveal you just
> >don't have a clue. It may amaze you, but admitting that you don't know
> >something is OK. I am unable to cite a case on this fact scenario
because
> >it doesn't appear one's been published in Texas.
>
> All I said in my previous post is that I believe it is not reasonable
> to suspect *everyone* exitting a store of stealing, and asked you to
> provide a cite upholding receipt checks. Unfortunately, the more you
> write reveals that you cannot do so, and you admit that you cannot do
> so.
>
> >But as "real" lawyers
> >know, if there is not a case on point, you try to find similar or
analogous
> >cases and applicable legal principles and make your case from there.
>
> Do you really think a case where one particular individual (or group)
> was detained on a specific suspicion of shoplifting is similar or
> analogous to stopping every single person at the door as standard
> operating procedure?
>
> And you didn't answer the question to your expertise, so please state
> for the record whether or not you are a licensed lawyer.
>
>
> >Anyway, notwithstanding your expert opinion, there is a valid legal
argument
> >for shopkeepers to detain customers long enough to confirm that they have
a
> >receipt for the merchandise they are leaving the store with.
>
> Given that there are quite a few stores maintaining such checkpoints
> and people are routinely ignoring them, the absence of precedent tells
> me that the stores have likely consulted their own lawyers (wise to do
> before implementing public policy) and determined they have no legal
> basis to pursue one who refuses to cooperate.
>
> For whatever reason, people who don't cooperate are not being forcibly
> detained.
>
> Amidst your general lecture on the finer points of caselaw, you also
> didn't answer my other specific questions. If one refused to show for
> their receipt, could they be ticketed or arrested? What exactly
> would/could be the charge?
>
>
> ToddH
> Copyright(c) 2000
>
Mark
for thinking that having a receipt gave him license to steal.
http://www.14thcoa.courts.state.tx.us/Opinions/040600/990271f.PDF
Mark
> x-no-archive: yes
> >As I already said, I don't know of any criminal law he would be violating
if
> >he merely refused to show his receipt. I doubt there is one.
>
> what this thread was really about, and that's what I have been saying
> all along. What the hell is it that you take so much issue with?
>
I posted this answer in my first response to this thread, which you, in
turn, responded to. No reason for me to have had to repeat myself except
that you kept overlooking what I posted before you even asked the question.
Now you're smugly acting like I'm admitting it for the first time after long
trying to avoid you. Please.
I initially took issue with your response to my post in which I provided a
scenario where the shopkeeper's privilege might apply (i.e., in which the
merchant might have a right to detain the original poster). I posted a
statute and suggested a plausible inference from it but you responded in
arrogant fashion: "That self-justifying argument wouldn't be accepted by a
court. That's like a cop asking to search your car, then getting a warrant
from the judge that your refusal constitues reason to search." I called you
on it because you attempted to speak authoritatively on a legal issue, but
you had no basis for it; you really just pulled the claim out of your ass. I
realize this is a group for laypeople but if you spout an irresponsible
blanket assertion like that, you should expect to be called on it. You
started this portion of the thread by taking issue with me on the law in a
manner that revealed your abject ignorance on the matter. In turn I tried to
provide you a legal frame of reference. In response you have been
contentious, evasive, or tried to recast the issue you yourself challenged
(in pseudo-legal terms).
Ex.: I state "An argument that might be advanced by a merchant under this
statute is that if they see a customer about to take merchandise out the
door, ask the
customer for a receipt, and the customer refuses to show it, they then have
a reasonable belief that the person may be stealing. As such, they can
detain them long enough to determine ownership of the property." You
somehow turn it into: "Do you think it "reasonable" to suspect *every*
paying customer of
stealing?" Was this an intentional straw man or do you really just not get
it?
Your latest post continues to show you still don't have any idea how to
frame in legal terms the very issue you challenged on a legal basis.
Believe me, law ain't rocket science, but it still requires one to address
an issue in reference to applicable legal principles. For instance, though
one frequently cannot cite to a case or statute that is right on point with
a particular issue, there are nonethless usually broader principles one can
glean from the law that weigh in favor of (or even compel) a certain result.
I cited some. Despite this, you continue to blithely chant the mantra that
unless I can cite a specific case on point, then your assertion of what a
court would do is correct, no matter what the broader principles say.
That's just not how it works.
You are offensive because you are so blindly cocksure of yourself with so
little to be base that confidence upon. You have demonstrated you only care
about being right. You can't so much as fathom you might have been even a
little off base, even though the reality of it is right in your face.
That's primarily why I have such little respect for the opinions you posted.
And once again, the cases weren't intended as misdirection but as a way to
illustrate how a court deals with similar legal issues. As I said, they
dealt with different fact scenarios. Nonetheless, some of the principles
cited within them would likely be employed in a legal analysis if this issue
came up in litigation. BTW, it should have been obvious, but the criminal
case was pretty much just for amusement.
What a waste of time this has been.
> >The law is not always so cut-and-dried as you think it is, but it seems
you are more
> >interested in being right than you are in trying to carry on an
intelligent
>
> No one ever said the law is cut-and-dried. I never professed legal
> expertise. You are the one that leads off every post alleging that I
> claim to know it all, followed by pre-emptive insult that I don't know
> what I am talking about. Then launch into another tirade on legal
> theory without answering specific questions that were asked or
> addressing the central issue originally posted. In fact, all you said
> in this last post was that you agree with me, but damn I'm such a
> know-it-all.
>
> All I have basically said throughout the thread is that I don't think
> it is reasonable to suspect all shoppers of theft, and I don't think
> there is any criminal law that would punish refusing such SOP receipt
> checks. You haven't taken issue with either point.
>
> What you seem to be upset about is that I challenged *your* expertise,
> after you postulated an unproven theory that one could say one event
> justified another (check receipts at door, use refusal as reasonable
> suspicion to detain), and repeatedly challenged you to provide cites.
> At first you tried to pass off irrelevant cites, then conceded that
> you cannot provide any.
>
> The only thing that I said that may have been out of bounds was that a
> court would not *accept* such an argument, you challenged my
> assertion, and I did not pursue that point further. I didn't mean that
> they wouldn't hear the case, but that they wouldn't buy it. that's my
> opinion, but who knows? Maybe you confused the layman's definition of
> "accept" with some legal definition. If so, that's your fault, since
> we are discussing this in a layman's forum, not a legal one.
>
> You have tried to divert this issue into whether or not one could
> recover damages based on false detention, which I won't allow happen.
> It's about whether the customer could be prosecuted over refusing to
> show receipt. When the original poster asked about damages, I said
> "That's a stickier question. Each case would have to be evaluated on
> its own merits by an attorney." So much for your assertion that I
> claim expertise or think that everything is cut-and-dried. I maintain
> confidently that one has the right to refuse to submit to these
> receipt checkpoints (until proven wrong). I do not, however, suggest
> that one is likely to win Lawsuit Lotto over a false detention.
>
> As for the rest, point out specifically what I said that was incorrect
> and show why, rather than attempt to discredit me through repeated
> insults. Try letting your opinions and arguments stand on their own
> merit. I'm sorry if I hurt your feelers by asking you to be specific
> and provide cites for your ideas on what *could* or *might* happen.
> That I don't agree with you on what *might* happen, and that I made
> statements that have not been challenged, doesn't translate into a
> claim of expertise. What burns you up is that, other than whether the
> court would accept your hypothetical argument, you have ultimately
> been forced to concede every assertion I have made, and what is
> actually happening on the street supports my stance that the merchant
> cannot physically force you to show your receipt. Every question that
> you have answered (could the customer be arrested or ticketed, is
> there a law he would be violating) has mirrored what I said 20 posts
> previously. You have been stretching to find *something* in every post
> to contest.
>
> >Just re-read my previous posts for answers to your other questions.
>
> I re-read your posts and cannot find where you answered these specific
> questions?
>
> Do you really think a case where one particular individual (or group)
> was detained on a specific suspicion of shoplifting is similar or
> analogous to stopping every single person at the door as standard
> operating procedure?
>
> Do you think it "reasonable" to suspect *every* paying customer of
> stealing?
>
> You didn't answer them because you cannot conscientiously say "no",
> but saying "yes" hurts your hypothetical argument and highlights the
> irrelevance of "shopkeeper's privilege" to the practice of checking
> receipts at the door.
>
> >discussion. Yes, I'm a licensed lawyer. But so what should that matter
to
> >you? No one's nearly as knowledgeable in the law as you are.
>
> I only wanted to know because you were speaking as if you were,
> comparing "real" lawyers to "armchair legal experts", without actually
> saying you were a lawyer. Also because you expected *your* opinions to
> be accepted as word of God while giving absolutely no consideration
> for *my* opinions.
>
>
> ToddH
> Copyright(c) 2000
>