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Foster v. Noel

June 04, 1998

DON FOSTER AND THE CITY OF YAZOO CITY, MISSISSIPPI
v.
JACQUELINE NOEL



EN Banc.

The opinion of the court was delivered by: Banks, Justice

DATE OF JUDGMENT: 08/14/96 TRIAL JUDGE: HON. JANNIE M. LEWIS COURT FROM WHICH APPEALED: YAZOO COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - TORTS (OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE)

DISPOSITION AFFIRMED IN PART; REVERSED AND RENDERED IN PART - 6/4/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

¶1. Here, the appellants appeal a verdict in favor of the plaintiff under the Tort Claims Act, challenging the denial of a summary judgment, the examination of an adverse witness, the admission of certain evidence and testimony, the sufficiency of the evidence on the issue of liability and whether the amount of damages was against the overwhelming weight of credible evidence. Because we find the police officer's involvement in this matter was limited to executing a valid arrest warrant and that there is no evidence he acted in reckless disregard of the plaintiff's safety and well-being, we reverse as to him on the issue of liability. As to all issues concerning the City of Yazoo City, we affirm.

I.

¶2. On November 15, 1994, Phil Kirby, the manager of the Jitney Jungle grocery store in Yazoo City, Mississippi, was carrying a customer's groceries to the car when he noticed a black male with two packages of rib-eye steaks under his shirt. Kirby told an employee to call the police. He then followed the male to a truck where he observed the man place the steaks under the driver's seat of the truck. There was another black male in the passenger seat of the truck whom Kirby recognized as Robert Kyles. Kirby told the man to return the steaks. After retrieving the steaks, Kirby directed the men to wait there as the police would arrive shortly. Instead, the man drove off, but not before Kirby wrote down the truck's tag number.

¶3. When police officers arrived at Jitney Jungle, Kirby gave them the license plate number. He also told the officers that the perpetrators were two black men and that he knew one of the men to be Robert Kyles. A few days following the theft, Kirby went to the Yazoo City Police Department to execute an affidavit regarding the shoplifting incident. Following standard procedure for the Yazoo City Police Department, Kirby supplied the assisting officer Kent Luckett with the details of the shoplifting incident and the truck's license plate number. In turn, Officer Luckett filled out an "Information for Affidavits" form and a subsequent affidavit. On both forms, the appellee, Jacqueline Noel who owned the truck, was listed as the person who stole the steaks.

¶4. A few months following the shoplifting incident, Jacqueline Noel received a letter from the Yazoo City Police Department, informing her there was an outstanding warrant for her arrest for petit larceny. Noel's sister, Eddie Mae, drove her to the Yazoo City Police Department to inquire about the warrant. Once there, she informed appellant Officer Foster that there was a warrant for her arrest for shoplifting. Foster looked through the warrant file and found that there was, in fact, an outstanding warrant for Noel's arrest. Pursuant to the warrant, Officer Foster placed Noel under arrest and detained her at the station for approximately ninety minutes, until her sister bailed her out.

¶5. On the way home, Noel cried and complained of a headache. Her sister bought a "BC" headache powder for Noel's headache and implored her not to allow the incident to upset her. Eddie Mae dropped Noel off at home and went to her own nearby house. Shortly after that, Eddie Mae told her daughter to call and check on Noel. Noel's two-year-old son answered the phone, informing Eddie Mae's daughter that his mama was dead. Eddie Mae rushed over to find Noel unconscious in the middle of the living room floor. Noel's husband arrived shortly thereafter. Unable to revive Noel, they rushed her to the hospital where she saw her physician, Dr. Bartee. Dr. Bartee diagnosed Noel as suffering from acute anxiety due to the arrest, which exacerbated her pre-existing condition of depression. *fn1 Dr. Bartee gave Noel a shot and a prescription for an anti-anxiety drug. He also told her to return for a follow-up visit, although there was no evidence in her medical records of a scheduled follow-up appointment.

¶6. Noel sued Jitney Jungle Stores of America, Inc., the Jitney Jungle manager, Phil Kirby, Officer Foster (the arresting officer) and the City of Yazoo under the Mississippi Tort Claims Act, alleging false arrest and emotional and mental distress. She settled with Jitney Jungle Stores of America, Inc. and Phil Kirby.

¶7. The remaining defendants, Officer Foster and Yazoo City, filed a motion for summary judgment with attached exhibits in which they asserted that Kirby went to the Yazoo City Police Department to report a theft, that Kirby signed an affidavit stating Noel stole the steaks and that Officer Foster and Yazoo City relied upon the sworn-to, notarized affidavit executed by Kirby when they obtained the warrant for Noel's arrest and when Officer Foster executed the warrant. According to the defendants, there was no proof the arrest was unlawful as it was performed pursuant to an affidavit and warrant issued by a Judge.

¶8. Noel did not file an answer to the defendants' motion for summary judgment, and on March 27, 1996, a hearing on the motion was held. Counsel for the defendants argued that Noel's arrest was lawful. They conceded she was detained, but they opined the detention was lawful because Kirby came to the station and swore out an affidavit against Noel. They further opined that the Judge issued the warrant and that as a police officer, Officer Foster, had a duty to execute the warrant when Noel came to the station.

¶9. Counsel for Noel responded that Yazoo City instigated the arrest of Noel - not Kirby because Kirby merely went to the station with a license plate number. Noel's position was that the police officers, not Kirby, put Noel's name on the "Information for Affidavits" form and the affidavit. Furthermore, Noel's attorney emphasized the fact that on the "Information for Affidavits" form it recited that Officer Luckett - the officer who filled out the forms - investigated the allegations when in fact no such investigation occurred.

¶10. The trial court Judge ruled, relying upon the memorandum submitted to the court and the arguments of counsel, that there were genuine issues of fact in dispute and therefore that the motion for summary judgment should be denied - the factual dispute being who provided Noel's name as the shoplifter. The Judge ordered Noel's attorney to draw up an order denying the motion for summary judgment. *fn2

¶11. The bench trial of this matter was held on August 09, 1996. At the trial, Phil Kirby testified on Noel's behalf. In short, Kirby testified that he gave the police officers the license plate number and that he signed the Information for Affidavits form and the affidavit, both of which included Noel's name. However, Kirby told the trial court that the only name he gave the officers was that of the man he recognized, Robert Kyles, and that while he saw Noel's name on the Information for Affidavits form when he signed it he thought Noel's involvement (the extent of it) would be to tell the officers who was in possession of her truck on the day of the shoplifting incident. Kirby also maintained that Noel's name was not on the actual affidavit when he signed it.

¶12. Noel called Officer Kent Luckett as an adverse witness. Luckett conceded that on the Information for Affidavits form he signed his name as the investigating officer although an investigation was not conducted as far as he knew. Nevertheless, Officer Luckett testified that Kirby stated Noel stole the steaks. Counsel for Noel contradicted Luckett's trial testimony with his deposition testimony in which he stated that he did not know if Kirby told him Noel stole the steaks or not.

¶13. After a lengthy redirect examination between Noel's attorney and Luckett, the officer finally conceded that he could not really remember whether Kirby supplied Noel's name. In addition, he admitted that usually when a citizen comes in with a tag number and accuses the owner of the vehicle with that particular tag number of committing a crime an investigation is conducted. He could not "quite" remember if he investigated Noel as the alleged shoplifter.

¶14. Noel's sister, Eddie Mae, testified as well. She informed the court of Noel's reaction to the false arrest, i.e., that she was crying and complaining of a headache on the way from the police station and that she bought Noel a "BC" powder. She also testified that at the hospital Noel continued to cry and pull her hair out. According to the sister, "Jacqueline wasn't Jacqueline any more." In fact, a couple of months after the arrest, Eddie Mae broached the subject of the arrest with Noel and was dismayed when Noel "snapped," started crying and went into a daze.

¶15. Through Noel's sister, Noel's attorney introduced a copy of a newspaper insert which reported that Noel had been arrested for shoplifting. Defense counsel objected to the introduction of the copy, arguing that it was not the original and that plaintiff failed to reveal that she had the original newspaper before trial. Noel countered that the obligation to request the original was on defense counsel, not the proponent of the copy.

¶16. The trial court resolved the matter by allowing the defendants a fifteen minute recess to review the original. Following the recess, the trial court held a preliminary hearing on the admissibility of the paper. At the hearing, the Judge asked counsel for the defendants how seeing the original paper the morning of trial prejudiced his parties. The defendants asserted the paper's relevance was greatly diminished because it was published in Yazoo County while Noel resided in Holmes County.

¶17. The trial court admitted the copy of the notice of arrest into evidence, noting that the defendants had a copy of the insert for several months before the trial commenced and that they failed to show any harm. The Judge did, however, limit testimony concerning the paper to the copied portion. The defendants did not request that the entire original newspaper be admitted into evidence.

¶18. Noel testified that she received phone calls from people who read the paper and saw the notice of her arrest. Following Noel's testimony, Dr. Bartee, her family physician and the doctor who treated her the night of the arrest, was called to testify. The defendants adamantly objected to Dr. Bartee testifying because he had not been listed as an expert witness pursuant to Miss. R. Civ. P. 26 and URCCC. 4.04(a). Noel conceded that Dr. Bartee had not been disclosed as an expert witness pursuant to the rules, but maintained he was being called as a fact witness instead of an expert witness.

¶19. The trial court allowed Dr. Bartee to testify as a treating physician. Over defense objection, Dr. Bartee testified about Noel's history of depression and that he diagnosed her as suffering from anxiety the night of the arrest. He further stated that he believed the arrest exacerbated her previous condition of depression. Defense counsel objected to this opinion, but the trial court determined it was proper as it referred to the doctor's direct treatment of Noel on the night of the arrest.

ΒΆ20. The sole witness for the defendants was Officer Foster. Foster testified that he is legally bound to serve a warrant once a Judge signs it. He also stated that he had no information or indication that the information in the affidavit was incorrect, i.e., he had ...


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