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Click here for the full text of this decision FACTS:Theresa Suberu sued Kroger Texas Limited Partnership and assistant store manager Robert Moody (collectively, Kroger) for malicious prosecution and intentional infliction of emotional distress after she was acquitted on misdemeanor theft charges arising from an alleged shoplifting incident. On the evening of March 1, 1999, Theresa Suberu went to a Kroger grocery store in Garland to purchase medication. Karrah Parkey, Kroger’s pharmacy technician, recognized Suberu as a prior customer, assumed she had come to pick up medicine for her husband, Michael, and placed his medicine on the counter. Suberu uses cash for all transactions and did not have enough in her purse to pay for both her medicine and Michael’s. Therefore, she told Parkey she would retrieve money from her vehicle and would return momentarily. Suberu was leaving the store when Kellie Wier, the front-end manager, yelled “Stop!” According to Wier, Suberu was pushing a grocery cart full of unsacked goods. Suberu, however, testified that she has never used a cart to shop for groceries and did not have one that evening. Wier reached Suberu in the foyer, where the two had a brief quarrel. Suberu testified that Wier said, “Those two people who just left, you are with them,” and “You are going to jail for a long time.” Wier, however, denied making those statements. She claims Suberu became hostile when Wier asked to see a receipt, and that Suberu kept shouting, “You’re crazy!” Suberu testified that she was annoyed because Wier would not listen to her explanation for leaving the store. Major Belton, another Kroger employee, was bagging groceries when Wier yelled for Suberu to stop. Belton testified that he looked up and saw Suberu pushing a cart. He watched as Wier questioned Suberu in the foyer, and, when Wier called him over to take the cart, he noticed that it contained mostly unsacked groceries. Robert Moody, the assistant manager, arrived and discussed the occurrence with Suberu and Wier. Moody asked Suberu if she had a receipt, and she replied “No.” Belton then wheeled the cart to register three, where Matt Helwig was working as a checker. Helwig testified that he, too, saw Suberu pushing the cart out of the store. Moody and Wier escorted Suberu to an office, where Moody directed Wier to call the police. Police officers arrived ten minutes after receiving Wier’s call. Moody explained the events and filled out a shoplifting incident report. Meanwhile, Wier took the cart from Helwig’s register and scanned the unsacked groceries. Moody stapled to his report a printed list of the scanned items, which totaled $261. While sitting in the office, Suberu explained that she had been at the pharmacy and was going outside to get cash from her vehicle. Despite these pleas, neither the officers nor any Kroger employee checked with the pharmacy. The officers arrested Suberu and walked her out in handcuffs. Suberu testified that she felt humiliated and has been traumatized as a result of the ordeal. Her husband, Michael, said she was “in a state of shock” when he picked her up at the jail four hours after her arrest. Suberu could not sleep that night, and was unable to cook, do laundry, and shop for groceries for several months. At trial, Michael said he and Suberu were “still working through it.” After a jury acquitted her on misdemeanor theft charges, Suberu filed the present suit, alleging malicious prosecution and intentional infliction of emotional distress. The trial court rendered judgment on the jury’s verdict, which found in Suberu’s favor on both claims and awarded $500 in actual damages for expenses in defending the prosecution, $28,000 for past and future mental anguish, and $50,500 in exemplary damages based on the malicious prosecution claim. The jury awarded no exemplary damages for intentional infliction of emotional distress. The court of appeals affirmed. HOLDING:The court reverses the court of appeals’ judgment and renders judgment that Suberu take nothing. The jury could reasonably conclude, based on her acquittal and her testimony, that Suberu did not, in fact, steal groceries. Without more, however, Suberu’s innocence is insufficient to support a finding that Kroger lacked probable cause. Suberu points to the following evidence as supporting a finding that Kroger lacked probable cause: 1. Kroger’s failure to check Suberu’s explanation with the pharmacy technician before initiating criminal proceedings; 2. inconsistencies in Karrah Parkey’s testimony regarding whether she saw Suberu with a cart; and 3. Suberu’s testimony that she did not have a cart. If the acts or omissions necessary to constitute a crime reasonably appear to have been completed, a complainant’s failure to investigate does not negate probable cause. Thus, the fact that no one investigated Suberu’s explanation is not evidence that probable cause was lacking. The second item is irrelevant to whether Kroger had probable cause, because none of the Kroger employees spoke to Karrah Parkey before Moody initiated criminal proceedings. Parkey’s credibility does not affect whether Kroger, at the time it called the police, reasonably believed Suberu was guilty of shoplifting. Accordingly, this evidence must be disregarded. Suberu relies primarily on the third item � her testimony that she did not have a cart. In contrast to the criminal case, here the question is not whether Suberu had a cart, but whether Kroger reasonably believed she did. Wier, Belton, and Helwig each testified that they observed Suberu leaving the store with a cart containing items she had not purchased. The law presumes that Kroger honestly and reasonably acted on the basis of these observations in reporting Suberu to police. Kroger contends that Suberu’s evidence is legally insufficient to rebut this presumption. The court agrees. Kroger contends that the evidence is legally insufficient to support a finding that its conduct was extreme and outrageous. Suberu, however, argues that knowingly providing false information to police so that an innocent person is prosecuted for shoplifting is extreme and outrageous. “While we are inclined to agree that Suberu’s premise is sound, her argument is hypothetical in light of the record before us.” Though the court does not doubt that the incident caused Suberu embarrassment and emotional distress, there is no evidence that Kroger intentionally subjected her to such distress knowing she was innocent. Consequently, Suberu’s testimony does not exceed a scintilla of evidence and is legally insufficient to support a finding that Kroger’s conduct was extreme and outrageous, the court concludes. OPINION:Jefferson, CJ; Hecht, O’Neill, Wainwright, Brister, Green and Willett, JJ. CONCURRENCE AND DISSENT:Johnson, J; Medina and Wainwright, JJ., join as to part III. “Suberu’s testimony contained inconsistencies. Nevertheless, her testimony that she did not have a cart and that there was no cart next to her at the time Kellie Wier stopped her was more than a scintilla of evidence supporting the jury’s finding that Kroger’s belief in a contrary set of facts was not reasonable regardless of Kroger’s subjective sincerity in holding that belief. I would hold that the evidence was legally sufficient to support the jury’s finding that Kroger lacked probable cause. I dissent from the Court’s holding that it was not. “As to petitioner Robert Moody, individually, however, I agree that the evidence was legally insufficient to support the jury’s finding that he lacked probable cause . . . . “Finally, I note that Kroger does not challenge the evidentiary sufficiency of the jury findings as to malice, except in relation to exemplary damages. Kroger’s failure to challenge the evidentiary support as to malice is understandable in light of our decisions holding that malice may be inferred merely from a lack of probable cause. See, e.g., Shannon v. Jones, 13 S.W. 477, 479 (Tex. 1890); Gulf, Colo. & Santa Fe Ry. Co. v. James, 10 S.W. 744, 747 (Tex. 1889); Biering v. First Nat’l Bank of Galveston, 7 S.W. 90, 92 (Tex. 1888). Evidence of a defendant’s subjective motives, state of mind, and good faith and honesty of belief in initiating or commencing a prosecution is relevant to the malice element of the cause of action. A re-examination of our holdings that lack of probable cause will support an inference of malice without further examination of the evidence may well be in order.”

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