Wolf Camera, Inc. v. Royter

558 S.E.2d 797, 253 Ga. App. 254, 2002 Fulton County D. Rep. 223, 2002 Ga. App. LEXIS 35
CourtCourt of Appeals of Georgia
DecidedJanuary 14, 2002
DocketA01A2072, A01A2075; A01A2073, A01A2076; A01A2074, A01A2077
StatusPublished
Cited by19 cases

This text of 558 S.E.2d 797 (Wolf Camera, Inc. v. Royter) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wolf Camera, Inc. v. Royter, 558 S.E.2d 797, 253 Ga. App. 254, 2002 Fulton County D. Rep. 223, 2002 Ga. App. LEXIS 35 (Ga. Ct. App. 2002).

Opinion

Blackburn, Chief Judge.

In this action regarding the malicious prosecution of a store employee for theft, Wolf Camera, Inc., Leonard Wayne, and Rex Smith (defendants) appeal the jury’s verdict of $580,0001 in favor of Arthur Royter, contending that the trial court erred by: (1) denying their motions for a directed verdict and judgment notwithstanding [255]*255the verdict; (2) charging the jury on punitive damages; and (3) allowing testimony regarding an incident involving Royter and Wayne’s wife. In related cross-appeals, Royter contends that the trial court erred by denying his request for prejudgment interest pursuant to OCGA § 51-12-14. For the reasons set forth below, we affirm.

Case Nos. A01A2072, A01A2073, and A01A2074

1. Defendants contend that the trial court erred by denying their motions for directed verdict and j.n.o.v. on the malicious prosecution charges.

In determining whether the trial court erred by denying [defendants’] motion for a directed verdict and motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict and judgment n.o.v. are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.

(Punctuation omitted.) Dept. of Transp. v. Dalton Paving &c.2

Viewed in this light, the record reveals that Royter was employed as a salesperson at a Wolf Camera store located on Jimmy Carter Boulevard. Smith was the store manager, and Wayne served as the store’s district manager. Beginning in January 1994, the store began experiencing cash shortages, and Wayne decided to install a hidden camera above the cash register to monitor his sales staff. On May 13, 1994, Wayne, with Smith present, approached Royter with videotaped footage of May 9, 1994, and May 10, 1994. Wayne informed Royter that these videotapes contained footage of him taking money from the cash register at approximately 10:42 a.m. and putting it in his pocket.

Wayne then called the police to report the alleged theft. Officer Timothy Thompson responded to the call. When Officer Thompson arrived at the store, Wayne informed him that shortages had been occurring since January,3 and he showed Officer Thompson part of the May 10 videotape in which Royter could be seen removing cash from the register. Wayne and Smith then asked Officer Thompson to take out a warrant on Royter. Based on the information that he was [256]*256given along with what he had seen on the May 10 videotape, Officer Thompson arrested Royter.

Royter denied Wayne’s charges of theft to Officer Thompson. Royter also testified that he consistently denied the charges to Wayne and Smith as well; however, both Wayne and Smith testified that Royter confessed his guilt separately to each of them. Interestingly, neither Wayne nor Smith ever reported these confessions to the police.

Subsequent to Royter’s arrest, Wayne discovered that Royter had logged in a “paid out” slip at 5:00 p.m. on the date that he was accused of stealing. This slip showed that Royter had used store money to purchase supplies. Wayne did not come forward with this information, and neither did Smith, although Smith, as Royter’s direct supervisor, had personally signed the paid out slip. Wayne testified that, prior to Royter’s arrest, he made no attempt to determine whether there had been a paid out slip which would support the legitimacy of Royter’s removal of cash from the register. In addition, the state solicitor-general’s file indicates that Wayne agreed to provide copies of data sheets tracking use of the register and Smith stated that he could “back up shortages and documentation.” Wayne and Smith never did so. Ultimately, the paid out slip was not produced by defendants until the second day of Royter’s criminal trial, after they had been ordered to do so by the trial judge.

Royter and Wayne were neighbors, and, when Royter applied for the position at Wolf Camera, he listed Wayne as one of his references. Smith testified that Royter, prior to his termination, discussed an incident involving Wayne’s wife with three other employees.

In addition to not bringing forth information concerning the paid out slip, Wayne did not come forward with information that shortages occurred prior to Royter’s termination on days when Royter was not working. He also failed to disclose that the shortages continued after Royter’s arrest. Furthermore, at trial, Wayne admitted that he could not tell from the videotape whether Royter had engaged in theft or a legitimate transaction, despite his contrary statements to Officer Thompson at the time of Royter’s arrest.

Wolf Camera and its representatives also seemed to have some trouble providing relevant evidence. In response to a subpoena, Wolf Camera ran two printouts from its computer regarding paid out transactions in the Jimmy Carter Boulevard store on May 10, 1994. The first printout involving cash paid out transactions showed that Royter registered a paid out on the day in question. The second printout regarded “in-store paid outs,” or paid outs used to requisition products already in the store, and it showed that no such in-store paid outs occurred. Only the second printout was provided to the solicitor, despite the fact that the first printout showed that a [257]*257paid out had occurred on the date in question. And, despite corporate policy to the contrary, the detail tape for the register which Royter used was destroyed, and the closing checklist was discarded.

In addition to this information, Royter, during the malicious prosecution trial, pointed out numerous inaccuracies in Wayne’s testimony at an earlier hearing to determine whether Royter was entitled to unemployment compensation benefits. These inaccuracies include representations that, among other things, no paid outs had been posted and no shortages had occurred since Royter’s termination.

This evidence presented created a proper issue for the jury regarding Royter’s malicious prosecution pursuant to OCGA § 51-7-40,4 contrary to the defendants’ contentions that: (a) they could not be considered prosecutors; (b) probable cause existed for the initial arrest; and (c) no showing of malice was made.

(a) Defendants contend that only the solicitor could be considered a prosecutor in this case because they made no efforts to try Royter. The record, however, contains evidence contrary to this assertion.

First, Officer Thompson testified that Wayne and Smith asked him to arrest Royter. Second, despite their discovery of exculpatory evidence, the defendants kept this evidence to themselves. And, third, although the defendants may not have constantly pushed the prosecution forward, they refused to drop the charges despite the exculpatory evidence held by them. In addition, contrary to Smith’s arguments, the evidence could support a determination that the defendants acted in concert to further the prosecution against Royter.

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Bluebook (online)
558 S.E.2d 797, 253 Ga. App. 254, 2002 Fulton County D. Rep. 223, 2002 Ga. App. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolf-camera-inc-v-royter-gactapp-2002.