1The Honorable Harold D. Vietor, United States District Judge for the Southern

District of Iowa, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-2741

___________

Joseph L. Cassady, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Dillard Department Stores, doing *

business as Dillard's, Inc., *

*

Appellant. *

___________

Submitted: January 14, 1999

Filed: February 19, 1999

___________

Before BOWMAN, Chief Judge, MURPHY, Circuit Judge, and VIETOR,1 District

Judge.

___________

BOWMAN, Chief Judge.

Dillard Department Stores appeals from the judgment of the District Court

entered on a jury verdict in favor of Joseph Cassady on his claim of malicious

prosecution. We vacate the judgment of the District Court and remand for entry of

judgment as a matter of law (JAML) in favor of Dillard's.
-2-

We review de novo the District Court's decision to deny Dillard's motion for

JAML, viewing the evidence in the light most favorable to the verdict and giving

Cassady the benefit of all reasonable inferences that may be drawn from the evidence.

See Roberts v. Unidynamics Corp., 126 F.3d 1088, 1092 (8th Cir. 1997), cert. denied,

118 S. Ct. 1676 (1998). We will direct entry of JAML only if no reasonable jury

could have found in favor of Cassady on his claim. See id. Mindful of the foregoing

principles, we recite the facts of the case.

On May 24, 1995, Cassady was in the Dillard's store in Jefferson City,

Missouri, when the store manager saw him behaving suspiciously, or so she believed.

She watched him leave the store and take a few steps into the enclosed mall (exactly

how far he ventured into the mall is disputed). He had in his hand a shirt and a pair

of socks that he had picked up in the men's department and for which he had not paid.

Cassady later said he had left the men's department with the items to see if his

girlfriend's sister, who worked in the lingerie department in the store, was there so

that she could ring up his purchases. When he saw she was not there, he

inadvertently stepped out of the store as he left the lingerie department. When the

store manager stopped him and took him back into the store to the customer service

department, he did not offer this explanation–or any explanation–for why he had left

the store without paying. Instead, when they arrived at customer service, Cassady

dropped the clothing on a table and quickly exited the store into the parking lot. As

the manager gave chase, yelling at him to stop, Cassady began to run and continued

running at least until he left the parking lot and was out of the view of the manager.

He called a friend from a payphone at a nearby business and asked the friend to come

pick him up. Cassady left his own vehicle parked in the mall lot and retrieved it later.

Dillard's called the police to report the incident. A Dillard's employee was able

to identify Cassady for police, and officers went to his home and issued him a

summons for stealing. One of the officers told Cassady he would be barred from

returning to the store. On that same day, Joy Sweigert, a security officer for the
-3-

Dillard's store, sent Cassady a form "barment" notice which read in pertinent part as

follows:

You are hereby notified that from this day forward, you are not

permitted to enter upon the physical premises of Dillard's Department

Stores for any purpose whatsoever.

Your failure to heed this warning and come upon the premises [sic], will

result in your being prosecuted for the crime of trespass, as set forth in

section 569.140 of the Revised Statutes of Missouri. This notification

may not be rescinded by any store employee, and may only be rescinded

by the manager in writing.

Letter of May 24, 1995, from Joy A. Sweigert to Joseph L. Cassady. It is the usual

practice of Dillard's to give shoplifting suspects the notice in person and to verbally

advise them of the policy. But because Cassady had absconded almost immediately

upon being returned to the store, Sweigert sent the notice by registered mail, return

receipt requested. Unbeknownst to Dillard's, the zip code in the address used was

incorrect. Nevertheless, Cassady received the notice and signed the return receipt.

The stealing charge was presented to a grand jury in late July 1995. An

indictment did not issue because the grand jury returned a no-true bill. At that time,

with the stealing charge dismissed, Cassady believed he was free to return to

Dillard's, even though he had not received written permission from the store manager

as the barment notice required. From August 1995 to October 1996, Cassady

estimated that he was in the Jefferson City Dillard's store five to ten times.

In December 1995, Cassady was in the store returning some items when an

employee who witnessed the May incident recognized him and called security. His

signature on the return merchandise form matched the signature on the return receipt

from the barment notice. Cassady was no longer in the store by the time security
-4-

arrived on the scene, so Sweigert mailed him a second barment notice. This time she

added a handwritten note indicating that his barment had not been rescinded by the

manager as the notice required. According to the note, if Cassady were seen in the

store again he would "be arrested and prosecuted for legal trespass." Letter of

Dec. 22, 1995, from Joy A. Sweigert to J. Cassady. Using the same address as she

had used to mail the first notice, and still unaware that the zip code was not correct,

Sweigert sent the notice to Cassady by regular mail. The notice was not returned to

Dillard's, but Cassady testified that he never received it.

On October 9, 1996, Cassady returned to the store to buy some men's clothing

from a Dillard's salesman who had been recommended to him. A Dillard's employee

again recognized Cassady and notified security. By that time, Cassady had left the

store having purchased a sport coat, pants, and accessories. He paid nearly $300 for

the items and wrote a check that was approved by management. Sweigert compared

the signature on the check with the signature on the return receipt from 1995, realized

Cassady in fact had re-entered the store in violation of the barment notices, and called

the police.

Sweigert told the investigating officer that she wanted trespass charges filed

against Cassady. After talking with Cassady the next day, the officer spoke about the

case with Richard Lee, an investigator and warrant officer in the Cole County

prosecutor's office. The police officer was unsure how to proceed because he did not

think he had probable cause to arrest Cassady, notwithstanding Dillard's insistence

that Cassady be prosecuted. Lee told the officer to do a report and a warrant

application, and the prosecutor's office would handle it. Cassady was charged with

trespass in the second degree, an infraction (that is, not a criminal charge). Counsel

for Cassady then spoke with the prosecuting attorney, and the decision was made not

to proceed with any charge. Lee called Sweigert and told her that his boss, the

prosecutor, was uncomfortable with the charge against Cassady because of the time

that had passed since Cassady had received the barment notice and because of
-5-

Cassady's $300 purchase from Dillard's on the day of the alleged trespass. He told

her that Dillard's could swear out a citizen's complaint for trespass and that she should

check with her superiors before deciding. Sweigert told Lee that she wished to

proceed with a complaint. Given the choice of an infraction or a criminal charge, she

elected to charge Cassady with trespass in the first degree, a class B misdemeanor

(the trespass charge referenced by the Missouri Revised Statutes section number in

the barment notice). That same day, Sweigert signed the citizen's complaint against

Cassady for trespass. 

The case was prepared by the prosecutor's office and tried by a law student

intern, with help from an assistant prosecutor. A jury found Cassady not guilty of

trespass in April 1997. He filed a claim against Dillard's for malicious prosecution

(among other charges) in May 1997 in Cole County Circuit Court. Dillard's removed

the case to federal court on diversity grounds. The case was tried and submitted to

a jury only on the malicious prosecution charge. The jury returned a verdict for

Cassady, awarding him $50,000 in compensatory damages and $150,000 in punitive

damages. Dillard's appeals.

Under Missouri law, which we are obliged to apply in this diversity case, the

successful plaintiff in a malicious prosecution action "must plead and prove six

elements: (1) the commencement of a prosecution against the plaintiff; (2) instigation

by the defendant; (3) termination of the proceeding in favor of the plaintiff; (4) the

want of probable cause for the prosecution; (5) [that] the defendant's conduct was

actuated by malice[;] and (6) that the plaintiff was damaged." Bramon v. U-Haul,

Inc., 945 S.W.2d 676, 684 (Mo. Ct. App. 1997). In the present case, sufficient proof

of the first three elements is without dispute.

After a careful review of the record, however, we conclude that Cassady's proof

fails on at least one of the remaining elements. Missouri favors a public policy that

encourages citizen involvement and cooperation in the reporting and prosecution of
2Cassady makes much of the fact that he testified he did not receive the second

notice. But it is the mental state of Dillard's, not Cassady, that matters here. Dillard's

sent the notice using the same address as on the first notice, believing that address

was correct and knowing for a fact that Cassady had received the first notice. The

-6-

crime. See Sanders v. Daniel Int'l Corp., 682 S.W.2d 803, 806 (Mo. 1984) (en banc).

Inasmuch as malicious prosecution actions "tend[] to dilute" that public policy, courts

"require strict proof of each element of the tort." Id. (quoted case omitted); see also

Burnett v. Griffith, 769 S.W.2d 780, 783 (Mo. 1989) (en banc) (noting "the

requirement that proof of the essential elements of malicious prosecution be strict and

clear"). We hold there was insufficient "strict and clear" proof that Dillard's had the

requisite malice to sustain a judgment in Cassady's favor. 

In Sanders, the seminal Missouri case on the mental state required to prove a

claim of malicious prosecution, the Missouri Supreme Court stated that, in order "[t]o

subject a person to liability for malicious prosecution, the proceedings must have

been initiated primarily for a purpose other than that of bringing an offender to

justice." 682 S.W.2d at 814 (quoting Restatement (Second) of Torts § 668 (1965)).

To demonstrate the legal malice necessary to sustain the judgment, Cassady was

required to show either that Dillard's had an illegitimate motive for the prosecution,

or that it knowingly acted with flagrant disregard for Cassady's rights so that an

improper motive may be inferred. See Shaffer v. Sears, Roebuck & Co., 689 S.W.2d

683, 686 (Mo. Ct. App. 1985). He did not do so.

The evidence in this case does not prove a culpable mental state on the part of

Dillard's. Dillard's reasonably suspected that Cassady was a shoplifter and gave him

notice that he was barred from Dillard's unless and until the store manager gave him

written permission to return. The notice also threatened Cassady with prosecution for

criminal trespass if he returned without the necessary consent. Dillard's even sent a

second notice when Cassady was spotted in the store, a cautionary act unprecedented

in Joy Sweigert's twelve years' experience as a store security officer.2 The form
second notice never was returned to the store, and Dillard's had every reason to

believe Cassady received its follow-up barment notice.

-7-

notice was the same as the first, but included an explicit, handwritten note: Sweigert

knew that Cassady had re-entered the store after he had received the first barment

notice, and he had done so without first receiving written permission from the store

manager. Sweigert warned Cassady again that he would be arrested and prosecuted

for criminal trespass if in the future he violated the barment policy and returned to the

store without the written consent of the manager. Dillard's believed that Cassady had

received this second notice, and such belief is inconsistent with the culpable mental

state required for a showing of legal malice. There simply is no evidence that

Dillard's wantonly disregarded Cassady's rights by prosecuting him for trespass.

Moreover, there is no indication in the record that Dillard's had any motivation

for the prosecution other than enforcing both the law and Dillard's own right to bar

from its store any person who, store security had reason to believe, posed a

shoplifting risk. Dillard's admittedly had little experience with prosecuting

trespassers who had received a barment notice, because most people served such a

notice apparently had obeyed it and were not seen in the store again. Nevertheless,

Dillard's surely had every right to enforce its loss prevention policy (and the law)

against Cassady if for no other reason than to deter other barred patrons who might

think they too could return to the store at will and on their own terms.

Cassady maintains that Dillard's was miffed at the no-true bill returned on the

stealing charge Dillard's had brought against him. He claims that this attitude

precipitated the trespass prosecution and therefore is compelling evidence of legal

malice. We disagree with that analysis. In a malicious prosecution case, "if the

defendant's purpose [for prosecuting] is otherwise proper, the addition of the

incidental fact that he felt indignation or resentment toward the plaintiff will not make

him liable." Sinopole v. Morris, 743 S.W.2d 81, 85 (Mo. Ct. App. 1987). As we
-8-

have discussed, Dillard's had legitimate reasons for prosecuting Cassady–bringing an

offender to justice and enforcing its loss prevention policy–and acted reasonably in

doing so.

Cassady argues that he had reason to believe he was welcome in the store and

thus the prosecution for trespass must have been malicious. He points to the

dismissal of the stealing charge; the purchases he made on some of his visits to the

store after he was barred; and the credit card account with Dillard's that he maintained

until early 1996, which apparently generated mailings to him advertising in-store

sales and promotions. Cassady misses the point. Cassady's personal view of whether

Dillard's wished for him to return to its stores goes to his defense on the trespass

charge; what he may have believed about Dillard's intentions is of no consequence

to his later claim of malicious prosecution. Only Dillard's mental state is material

here. Whether Cassady thought he was welcome in the store notwithstanding the

shoplifting incident is irrelevant to the true question: did Dillard's act with a

wrongful motive or wantonly disregard Cassady's rights in prosecuting him for

trespass?

Of course, some of the actions about which Cassady complains do go to

Dillard's state of mind, but as a matter of law they do not demonstrate the legal malice

that Cassady is required to prove. It is true that Dillard's did not cancel Cassady's

credit account upon his barment, and the company therefore maintained his name on

a mailing list. At least two store employees approved the check he wrote on the day

of the alleged trespass and neither of them noted that the name on the check belonged

to someone who had been forbidden from entering the store. Dillard's kept a list and

a book of photographs of barred persons for the use of security and certain managerial

personnel (although Cassady's photo was not in the book because he fled the store at

the time of the alleged stealing, and photos are normally taken after apprehension and

the concurrent in-store investigation of an incident). But it was Dillard's policy, for

reasons relating to privacy, not to circulate that information among its clerks. Thus
3

"In Missouri consent to trespass may be implied from conduct." Sinopole v.

Morris, 743 S.W.2d 81, 86 (Mo. Ct. App. 1987). We need not and do not decide

whether Dillard's actions in allowing Cassady in the store five to ten times after his

barment and allowing him to make purchases accord with the sort of conduct from

which permission may be inferred. In light of the very specific terms of the barment

notice as to how the barment could be rescinded, we doubt that implied consent

would be found in these circumstances. We do not decide the question, however,

because (we say again) whether Cassady thought he had consent to return to Dillard's

store would go to the legal question of whether he had the necessary intent to commit

trespass, and not to whether Dillard's had an improper motive or disregarded his

rights in prosecuting him for trespass.

-9-

there was no way that the average clerk (that is, one lacking any special knowledge)

who might see a barred person in the store would be aware of that person's status.

Now, these may be careless or imprudent business practices that inhibit Dillard's in

the enforcement of its own loss prevention policies, but it does not follow that such

sloppiness is evidence of the necessary animus towards Cassady. As it happened, he

was seen and identified by someone who knew he was on notice that he was not

allowed in the store; Dillard's then reasonably decided to prosecute him for trespass.

Finally, in Dillard's legitimate estimation–and we reiterate that it is Dillard's mental

state that is relevant here–Cassady was no less a trespasser under the language of the

relevant statute simply because he made a substantial purchase upon his visit to the

store.3

Finally, there is the matter of Dillard's swearing out a citizen's complaint

against Cassady when the county prosecutor declined to do so. Lee, the warrant

officer for the prosecutor's office, did tell Dillard's that the prosecuting attorney was

not comfortable bringing trespass charges against Cassady. But he also told Sweigert

that she (on behalf of Dillard's) could swear out a complaint and the county would

prosecute. He never said that Dillard's could not or should not bring its own

complaint, nor did he tell Sweigert that there was no probable cause or legal basis for

the complaint. The prosecutor's evident judgment that he wished to use the resources
-10-

of his office on cases with which he was more "comfortable" is not proof that

Dillard's acted with malice in going forward with the citizen's complaint. Further, the

ultimate adjudication of the trespass charge in Cassady's favor "is not evidence of the

culpable mental state embodied in the 'legal malice' standard required to establish

liability for malicious prosecution." Beard v. St. Mary's Health Ctr., 735 S.W.2d 27,

29 (Mo. Ct. App. 1987).

We do not consider the other arguments raised by Dillard's in this appeal as it

is not necessary for us to do so. On this record, there is insufficient evidence of legal

malice to make a submissible case for malicious prosecution. Dillard's was entitled

to JAML on Cassady's claim. Therefore, we vacate the judgment of the District Court

and remand for entry of JAML in Dillard's favor.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.