IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-01279-COA JAMIE LYNN ORR APPELLANT

v. MALLORY MORGAN, THE BUCKLE, INC. AND NASON STEPHENS APPELLEES

DATE OF JUDGMENT: 08/19/2016 TRIAL JUDGE: HON. STEVE S. RATCLIFF III COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: JOHN W . CHRISTOPHER GREGORY JOHN FARIES ERIK GREGORY FARIES ATTORNEYS FOR APPELLEES: MARK D. MORRISON W I LLIAM CHRISTOPHER IVISON NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 11/14/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. BARNES, J., FOR THE COURT: ¶1. Retail-store em

ploy ee Jam ie Ly

nn Orr was charged with petit larceny f or stealing her

em ploy e r’s iPad. Af

ter she was acquitted of the charge, Orr f iled a m alicio u s - prosecution claim against her f

orm er em ploy e r , T h e B uckle Inc., and the store’s m anagers, Mallory Morgan a n d Nason S t e p h e n s (the Appellees). The A ppellees f iled a m otion f

or sum m ary judgm ent, which the M adison County Circuit Court granted. On appeal, we f i nd t here were
ge nuine issues o f m a terial f act whether the Appellees h ad probable cause t o institute thecrim inal proceedings against O r r a n d whether they acted w ith m alice. Accordingly , we

reverse and rem and f

or f urther proceedings.
FACTS AND PROCEDURAL HISTORY ¶2. On the evening o f July 4, 2014, Orr was working at T he Buckle, along with Stephens and two o ther em

ploy ees, Thom as Manchester and Lauren Miller. She had been em ploy ed since May 2014, and had only w orked approxim ately eight shif ts. Security f

ootage reveals that, prior to closing, Orr was using the store ’ s i P a d at the register counter. Stephens was also present, closing out the reg i sters, a s it was closing tim e. O rr took the iPad to the

storeroom (out of view of the security cam era) and returned to the f r ont of the store with a large p u r s e . No iPad was visible. She talked with S tephens f or s everal m inutes about her schedule, with Orr e xpressing she wanted m ore h ours. Af ter som e discussion, Orr verbally
gave Stephens her two-week notice, and she walked o ut to t he parking lot w ith Manchester and Stephens. Miller had already lef t, carry ing just her key s and cell phone. ¶3. The f

ollo w i n g d a y , M o r g a n w a s unable to locate the s tore’s iPad. Af ter other

em ploy e es searched the store and w ere questioned about t he m issing i Pad, Morgan contacted the corporate of

f ice. V iewing t he s tore’s s ecurity f ootage, T he Buckle’s corporate of f ice told Morgan to f

ile a report with the local police. Morgan contacted Ridgeland Police Departm ent to reported that a black iPad m ini, valued at $350, was presum ed stolen, along with a c ase, valued at $150. 1 Morgan told police that Orr was the l ast person seen with the

1 T h ere is m

u ch d i scu ssio n in th e ap p ellan t ’s b rief ab o u t th e d i screp an cy in th e reco rd as to w h eth er t h e iP ad i n q u estio n w as a reg u lar iP ad o r an iP ad m in i

. M o r g an ’s statem en t 2iPad a nd that Orr had taken t he iPad into the storeroom

. O n July 16, 2014, S tephens signed

an af f i davit against Orr f

or petit larceny , af

ter being requested by

police to do so. Orr was arrested and charged with petit l arceny . O n Decem b er 16, 2014, Orr w as f

ound “not guilty ” of the charge. ¶4. Orr f

iled a com

plaint against the Appellees on January 19, 2015, alleging m alicious prosecution, f

alse arrest, f

als e im prisonm ent, civil conspiracy , negligence, i ntentional inf liction of em otional distress, a nd negligent inf liction of em otional distress. 2 Orr said that Morgan and S tephens acted m aliciously by f iling a f alse statem ent with p o l i ce and an af f idavit f or a warrant, respectively , and Morgan’s conclusion that Orr stole t he iPad “was based on nothing m ore than unf ounded suspicions and c o njecture.” She said that she went
to t he back storeroom to plug i n the iPad. She also noted that her purse was open in f ront of Stephens during their discussion. ¶5. Af ter discovery , the Appellees f i l e d a m otion f

or sum m ary judgm ent on M arch 17, 2016, and the circuit court granted the m otion. Aggrieved, Orr argues on appeal that there

were no genuine issues of m aterial f act as t o t w o e l e m ents of her claim f or m alicious

to p o l ice w as a b l ack “ m in i ” iP ad w as sto len

. T h ere w as c o n f u sio n am o n g th e d ep o sed em p lo y ees ab o u t w h e th er th e iP ad in q u estio n w as a m in i o r r eg u lar iP ad , an d M o rg an d id em ail th e co rp o rate o f

f i ce, statin g th e “m in i i P ad is m issin g .” H o w e v e r, n o th in g in d icates th at th e sto re h ad tw o iP ad s. In f a ct, w h en O rr w as ask ed w h eth e r s h e h ad “u se[ d ] an y o f th e iP ad s” at th e sto re, O r r testif ied : “T h ere w as o n e iP ad , an d I u sed i t a co u p le o f tim es.” S h e reiterated th ro u g h o u t h er d ep o sitio n th at sh e h a d o n ly ev e r seen th e o n e iP ad , th e o n e sh e h ad u sed

.

2 O rr’s m o th er w as also an o rig i n al co m p l ain an t , b u t s h e w as l ater d ism issed f ro m th e case b y ag reem e n t o f

b o t h p arties. 3prosecution: ( 1) want of probable cause; and (2) m alice i n instituting the proceedings. She

also contends that since her rem aining claim s were dependent on the sam e set of operative
f acts, her other claim s s hould s urvive sum m ary judgm e nt. T heref ore, she argues the court’s grant of sum m ary j udgm ent should be reverse d a n d t h e case rem a n ded f or f urther proceedings.
STANDARD OF REVIEW ¶6. W e em

ploy a de novo s tandard of revie w t o a c i r c u i t c o u r t ’ s grant or denial of a

s u m m ary - judgm ent m otion. Franklin Collection S erv. I nc., v. Collins , 206 So. 3 d 1282, 1 28 8 (¶25) (Miss. Ct. App. 2 016) (citing Ferguso n v. Miss. Farm Bureau C as. I ns. , 147 So. 3d 374, 377 (¶12) (Miss. Ct. App. 2014) )

. “ S u mma r y judgm ent ‘shall’ be granted ‘if the pleadings, depositions, answers to interrogatories and adm issions on f ile, together with the af f idavits, if any , show that there is no g enuine issue a s to any m a t erial f act and that the

m oving party is entitled to a judgm ent as a m atter o f law.’” I d

. ( q uoting M.R.C.P. 56). Initially , the m oving party has the burden of proof “to dem o nstrate that there is no genuine issue as t o any m a terial f act.” I d

. (citing F

erguson , 147 So. 3 d a t 377 ( ¶12)). Then, the burden o f proof shif

ts to the n onm ovant, “who m ust produce specif

ic f acts t hat there is a genuine m aterial issue f or trial.” Id. “ I n reviewing a sum m ary -judgm ent m otion, the evidence will be considered ‘in the light m ost f avorable to the nonm oving party .’” Id.
DISCUSSION
I. Malicious Prosecution

4¶7. Orr c laim s the Appellees never had a “honest belief ” in h e r g u i l t o r p o s s e s sed reasonable g rounds to accuse her of petit larceny

. For Orr to m aintain a s uit f o r m alicious prosecuti o n , s h e is required t o prove t he f ollowing elem ents by a preponderance of the evidence: (1) The institution or continuati o n o f original judicial proceedings, either crim inal or civil; (2) [ b ] y , o r a t t he insistence of the d ef endants; ( 3) [ t]he term ination of s uch proceedings i n [ t h e] p laintif f ’s f avor; (4) [ m ]alice in instituting the proceedings; (5) [ w]ant o f probable cause f or the proceedings; and (6) [ t]he s uf

f ering of dam ages as a result of the action o r prosecution com plained of

. Moon v. Condere C

orp. , 6 90 So. 2d 1191, 1194 (Miss. 1997) (citations om itted). O rr’s appeal f ocuses on two elem ents: wan t o f p r o bable cause and m alice i n instituting the proceedings.
A. Probable Cause ¶8. In Huds o n v
. Palmer , 9 77 So. 2d 369, 381 (¶33) ( Miss. Ct. A pp. 2007), this Court held: In the context of

a m alicious[ -]prosecution claim , probable cause consists of a reasonable and honest b elief in the guilt of the accused. Coleman [ v. Smith ] , 914 So. 2d [ 807, 813 (¶12) (Miss. Ct. App. 2005)]. A l so, “probable cause is determ ined f

rom the f acts apparent to the o bserver when the prosecution is initiated.” Id. If p r o b a b l e cause existed f or the initiation of c rim i nal proceedings, a claim

f or m alicious prosecution m ust f ail. Id

. “Unf o unded suspicion or con j e cture are n ot proper bases f or f inding probable cause.” Perkins v. W

al-Mart Stores Inc. , 46 So. 3d 839, 845 (¶13) (Miss. Ct. App. 2010). ¶9. There i s no f

actual dispute that Orr possessed the store’s iPad o n the n ight of July 4,

52014. N o one saw Orr take the iPad f rom the store, but Orr was t he last person s een with it.
Orr lef t the f ront of the store with the iPad, and s he cam e o ut of s toreroom area a f e w m inutes later w ith a large purse. According to Orr, s he took the iPad t o the storeroom to c harge the b a t t e r y . S he put her purse on the counter in f ront o f S tephens and, af

ter som e discussion about h e r w o r k s c hedule, told Stephens she was quitting and gave her two-week notice. 3
W h en she and Stephens lef t the store, Orr was c arry ing her purse. Regarding the other two

em ploy e es present at c losing, Manchester lef t w ith Stephens and Orr that n ight. He returned

to w ork the next week and assisted Morgan in searching f or the iPad. Miller never returned

to w ork af

ter the a lleged thef

t either, but she lef

t that n ight in view of o thers without a purse – only k ey s and a phone. 4 ¶10. Orr stated in her deposition that she h ad only used the iPad a couple of tim es to enter in a ref erral f or work. W hen asked whether it w as custom ary to plug in the iPad, she said she only plugged it in that one tim e. But s he claim ed t h a t , prior to using i t, “Krista, who was assistant m anager at the tim e, said that i f I w a s using it and i f i t was ever low, to plug it up.” 5 Morgan acknowledged in her deposition that all em ploy ees had access to the iPad, and the charger f or the iPad was in t he b ack room . I f an e m ploy ee noted the b attery was low, he or

3 F o r o b v io u s reaso n s, O rr n ev er retu rn ed to w o rk

. 4 M iller e x p lain ed in h er d ep o sitio n th at sh e h ad a n o th er j o b , an d h er sh if ts at T h e B u ck le w ere in t erf

erin g w i th h er w o rk sch ed u l e th ere.

5 T h ere is n o o th er m en tio n o f an y o n e n am ed K rista in th e reco rd ; so w e are u n su re to w h o m O r r is ref e rrin g . 6she had the authority to go the back room

and charge it. ¶11. In Perkins , this court f ound that probable c ause existed because an e m ploy ee said the plaintif f , Perkins, knew he did not pay f or an ink cartridge, and video showed him looking

at his change f

rom th e transaction. Unlike Perkins , no one saw O rr take the iPad. Furtherm o re, m a nagem ent did not contact Orr until day s af te r the iPad was discovered

m issing. Rather, store m anagem ent continued to search the store, u nsure of what happened

to it, which a jury c ould reasonably f ind indicates conjecture as to what happened to it or who

m ay have taken it. In her statem ent to police, M organ said that “it seemed t o [ her] that [ Orr] took the iPad i nto t he back to conceal it in her purse.” ( Em phasis added). She testif

ied: “W e had searched the entire store. W e we r e h o p i ng that i t m ight turn back u p. A nd I had

attem pted to reach out to every one who w as there that night, and t o every t eam m ate who worked there . . . So after no conclusion, then that’s when we filed the report

. ” (Em phasis added). Morgan did not contact the corporate of f i ce until July 7. In her em ail, she noted that the i Pad was “MIA” when she cam e to work S aturday , and “no one seem s to rem em ber who had it last or where it was.” ¶12. But Orr said Morgan called her on J uly 12 (a week later), accused her of stealing the iPad, and told O rr that she did not need to talk to any one else because she k new Orr stole the iPad. Stephens t estif

ied that he watched the s ecurity video bef o re signing an af

f idavit f or an arrest warrant and talked to em ploy ees “that were working with m e at the tim e,” including Manchester and Miller. However, Stephens did not “look into [ Orr’s] p urse.” He said that

7he, Morgan, and corporate “cam e to our conclusion based on the inf orm ation through the video and narrowing down wher e i t w a s l a s t seen.” W ith regard to the other e m ploy ees working that e vening, Morgan assum ed Miller did not take the iPad because security f ootage showed Miller carry ing key s a nd a phone. Mille r acknowledged in her deposition that the Appelle e s n e v e r contacted her regarding the m i ssing iPad. And Morgan elim inated Manchester sim

ply because he walked out with Orr and Stephens. Morgan said:
W e ll, we had looked at [ Miller]. I m ean, j ust kind of the power of elim ination, we looked at [ Miller]. A nd y o u can see her leaving on cam era t hat night with her key s and her phone when she leave s . [ Manchester] lef t that night with [ Stephens], and y ou can a lso see him leaving on cam era. And [ Stephens] actually [ gave] h im a ride h om e t hat night, because he didn’t have a car. A nd so, just by [ Stephens] a nd him they w e r e b o t h elim inated.

. . . [ Orr] was the only o ne out of every one who never connected with m e a f t er I tried calling her to ask about the iPad.

. . . So just based of f of that i n f

o r ma tion, I a ssume , that’s why

the police and our hom e of f ice decided to m ove f

orward. (Em phasis added). Morgan adm itted in her testim ony that she “assum e[ d]” Orr took it based

on the circum stances. Stephens said it was not his d ecision to f ile the af f idavit; he s igned the af f idavit because his em

ploy er instructed him to d o so. The only investigation he c onducted

was to watch the security video a nd search the store in a n attem pt to locate the m issing iPad.
W e also note that v ideo f o otage reveals that Orr put her open purse o n t h e c o u n t e r and

rum m aged around in it looking f or her phone right in f

ront of Stephens. ¶13. Theref

ore, the only basis f

or the charge of petit larceny is that Orr was t he last person
to be seen using the iPad. “ [ P]robable cause m ust not b e based u p o n a n i nadequate and unreasonable investigation of the circum stances concerning the alleged crim inal conduct.”

8Benjamin v. Hooper Elec. Supply Co. , 56 8 S o . 2 d 1182, 1191 (Miss. 1990) (citing

W ainauskis v. Howard Johnson Co. , 488 A.2d 1117, 1123 (Pa. S uper. Ct. 1985)). In Junior Food Stores Inc. v. R ice , 671 So. 2d 67, 74-75 (Miss. 1996), t he Mississippi Suprem e Court f ound a lack of probable cause af ter the store b rought grand-larceny c harges against one of its em ploy ees when m oney was d iscovered m issing, as the em ploy ee was one of t hree people with key s to the store, worked the last shif t, and f a i led a poly g raph test. The court noted:
O t h e r e m

ploy ees and possibly past em ploy ees had key s to the s t ore. Apparently , not all em

ploy ees who had key s to t he store o r had access to the key s we r e s u b

j e c ted to poly graph exam inations. It i s possible that t he other two e mp l oy e es who took poly graph exam inations and passed did s o af ter [ Ra l p h ] R ice’s arrest and not bef ore. No evidence indicates that Super Stop sought the advice of an attorney bef ore instituting crim inal proceedings. Not one witness was f

ound that could implicate Rice in the thef t

. N o n e o f the missing money was fo u nd in Rice ’ s p ossession. I n f a ct, the only evidence unique to im

plicating Rice as the thief as opposed to a ny other em ploy ee was the results of a poly g raph exami nation conducted by [ Daniel] W est, whom Super Sto p had em

ploy e d on a regular basis since 1981. A t trial, W e st adm itted that poly graph exam i nations can result in erroneous c onclusions and are not 100% accurate. Thus, f rom the f

oregoing f

a cts, t h e j u r y could reasonably have believed that Rice had done no wrong and t hat there was no reasonable basis f

or a belief

of the contrary

. (Em phasis added). ¶14. As already noted, all store em ploy ees had a ccess to t he iPad, and i t was not out of the ordinary f or an em ploy ee to take the iPad to the back room to charge the device. W e also observe that Orr talked with S tephens f or several m i nutes af

ter g oing t o the back, putting her
purse o n the counter right in f ront of him

. Viewing t he evidence in the light m ost f avorable

to the nonm o vant, we f

ind a genuine i ssue o f m aterial f act exists as to whether The Buckle’s

9m anagem ent t e a m h a d a reasonable b elief that Orr took t he iPad and, theref o re, whether probable cause existed to bring c harges against Orr. Accordingly , we f ind the circuit court erred in granting sum m ary judgm ent as to the claim of m alicious prosecution.
B. Malice ¶15. In regard to a m alicious-prosecution claim , “[ m ]alice does not denote ‘m ean or evil intent’ to perf

orm an action.” Robinson v. Hill C i ty Oil Co. , 2 S o. 3d 661, 666 (¶18) (Miss.
Ct. A pp. 2008) (quoting Strong v. Nicholson , 580 So. 2d 1288, 1293 ( Miss. 1991)). It sim ply

m eans that the “prosecution was instituted p rim arily f or a purpose other than that of bringing

an of f ender to justice.” Id

. (quoting McClinton v. Delta Pride Catfish Inc. , 792 S o. 2d 968,
974 (¶15) (Miss. 2001)). In analy zing a claim of m alice, we m u st exam ine “ the o bjective of the def endant who instituted t he crim inal proceedings.” Perkins , 46 So. 3d at 8 4 5 ( ¶11) (quoting McClinton, 792 So. 2d at 974 (¶16)). Based on this criteria, we f ind nothing in the record to support a f

i nding of m alice on the part of the Appellees. ¶16. However, th e “ a b s e n c e o f p r o b a b l e cause f or the prosecution is circum stantial evidence of m a lice.” Benjamin , 568 So. 2 d at 1191 (citing Royal Oil Co. Inc. v. W ells , 500
So. 2d 439, 444 (Miss. 1986)). As we have f o und that there was a genuine issue of m aterial
f act as to the absence of probable cause, we f i nd there is a genuin e d i s p u te as to the Appellees’ s tate of m ind when f iling t he af

f idavit against Orr. Moreover, s um m ary j udgm ent was im proper, as this elem ent of Orr’s m alicious-prosecution claim is generally a question
f or the j ury . See C& C T

rucking Co. v. Smith , 6 12 So. 2d 1092, 1100 (Miss. 1992) (“[ S]ince

1 0the question of m alice is a question of f act, it is t o be determ i ned by the jury unless only one conclusion m a y

reasonably

be drawn f

rom the evidence).
II. Civil Conspiracy ¶17. O r r c o n t e n d s t h e Appellees provided f alse inf orm ation to police and c o mmi t t e d
per j u r y a t h er crim inal trial. In doing so, she suggests the Appellees f orm ed a civil conspiracy

. “To establish a c i v i l c o nspiracy , the plaintif f m ust prove (1) an agreem ent b e tween two o r m ore persons, (2) to accom plish an unlawf

u l purpose or a lawf

ul purpos e unlawf ully , (3) an overt act in f

urtherance of the c onspiracy , [ and] (4)

. . . dam ages to the plaintif f as a proxim ate result.” Bradley v. K elley Bros. Contractors , 1 1 7 S o. 3d 331, 339 (¶32) (Miss. Ct. A pp. 2013) (citations om itted). However, because the f irst elem ent requires

an agreem ent b e tween two persons, and Morgan and Stephens were agents of The Buckle,
Orr’s claim m

ust f ail. “A corporation cannot conspire with itself a n y m o re t han a private individual c a n , a n d i t i s the general rule that t he acts o f the a gent are the acts of the corporation.” Nelson Radio & Supply Co. v. Motorola Inc. , 200 F.2d 911 , 9 1 4 ( 5 th Cir. 1952). Theref

ore, we f ind no genuine issue of m aterial f act e xists to support Orr’s claim f or civil conspiracy

. III. Intentional Infliction of Em otional Distress ¶18. A claim

f or intentional inf

liction of em otional distress requires: ( 1 ) T he def

endant acted willf

ully or wantonly toward the plaintif f by com m itting certain d escribed actions; (2) [ t ]he d ef endant ’ s acts are ones “wh i c h evoke outrage or r evulsion in civilized s ociety ”; (3) [ t ]he a cts were directed at, or intended to cause harm t o, the p l a i n t if f ; (4) [ t]he plaintif

f
1 1“suf f ered severe em o t ional distress as a direct result of the acts of t h e def endant”; a nd (5) “[ s]uch resulting em otional distress was f o reseeable f

rom the intentional acts of

the def endant.”
Rainer v. W

al-Mart Assocs. I

nc. , 119 So. 3 d 3 98, 403-04 (¶19) (Miss. Ct. A pp. 2013) (quoting J.R. ex rel. R.R. v. M a l l e y , 6 2 So. 3d 902, 906-07 (¶15) (Miss. 2011)). But Mississippi’s standard f

o r a claim of intentional inf liction of e m otional distress i s very high,
“f ocusing specif

ically on the d ef

endant’s conduct and not the plaintif f ’ s em otional condition.” Robinson , 2 So. 3 d at 668 (¶26) (citing Funderburk v
. Johnson, 935 So. 2d 1084, 1099 (¶40) (Miss. Ct. App. 2 006)). W hile the Appellees m a y have lacked probable cause and, thus, possibly a cted with m alice in charging Orr with petit larceny , the record does not support a f

inding that their actions would “evoke outrage or r evulsion i n civilized society .” Theref ore, we f i nd this claim

does not survive sum m ary judgm ent.
IV. Punitive Dam ages ¶19. As to Orr’s claim f or punitive dam ages, t he Mississippi Suprem e Court has held that “the m alice necessary to undergird the ma l i c i o u s [ -]prosecution tort is close e nough to the

m alice prerequisite t o an assessm ent of p u n i t i v e dam ages to warrant at the very least subm ission of the issue to the jury [ .]” Royal , 500 So. 2d at 441. As we have determ ined that the issue of

m a lice f or Orr’s m alicious-prosecution claim survives sum m ary judgm ent and

w a r r a n t s c onsideration by a jury , we sim ilarly hold the court erred in g ranting sum m a r y judgm ent as to the issue of punitive dam ages. V. False A rrest, False Im prisonm en t , N egligence, a nd Negligent Infliction of Em otional Distress
1 2¶20. Orr com bines these claim s together on appeal, arguing:
As to these f

o u r c a u s e s of action, [ T]he Buckle, w i thout a f actual basis, repeatedly argues that probable cause existed to initiate petit larceny , and theref ore, [ T]he Buckle i s entitled to a judgm ent as a m atter of law as to these cau ses of action. Probable cause never existed, and the [ c]ircuit [ c]ourt com m itted reversible error in granting the sum m ary [ -]judgm ent m otion.
As she o nly addresses the existence of probable cause, we will restrict our discussion of these claim s to that singular elem ent. 6 ¶21. This Court has h e l d : “ As with a claim f or m alicious prosecution, a c l aim of f alse

arrest m ust f ail where there was probable c ause t o m ake the arrest.” Richard v. Supervalu,
Inc. , 9 74 S o. 2 d 9 4 4, 949 (¶19) (Miss. Ct. App. 2008) (citations o m itted). Conversely , it stands to reason that if probable cause is f ound lacking, this could s upport a claim f or f alse

arrest. A s we have f

ound t here is a genuine issue of m aterial f act r egarding p robable cause,

we f i nd that Orr’s claim f

or f alse arrest m ay be considered on rem and. Furtherm ore, while probable cause is not a n elem ent of a claim f o r f alse i mp r i s o n m ent, as f

alse i m prisonm ent

m ay arise f

rom a f alse arrest, that too m ay

be considered on rem a nd. 7

6 O rr cites n o a

u th o rity o n th is issu e, w h ich w o u ld g en e rally p reclu d e th e issu e f ro m ap p ellate r ev i ew . “T h e f

ailu re to cite au th o rity in su p p o rt o f an issu e p r e c l u d e s t h is C o u rt f ro m co n s id erin g th e issu e o n ap p eal.” Welch v. B a n k O n e N a t’l A s s’n , 6 S o . 3 d 4 3 5 , 4 3 9 (¶1 4 ) (M iss. C t. A p p . 2 0 0 9 ) (q u o tin g K irkley v
. F

o r rest C ty. G en
. H

o sp
. , 9 9 1 S o . 2 d 6 5 2 , 6 6 2 (¶3 5 ) (M iss. C t

. A p p . 2 0 0 8 )). H o w ev er, as O rr h as t h o ro u g h ly d iscu ssed an d arg u ed th e ex isten ce o f p ro b a

b le cau se th r o u g h o u t h er b rief , w e w ill ad d ress th is issu e o n th e m erits.

7 “T o p ro v e f

alse im p r iso n m en t a p lain tif

f m u st sh o w (1 ) d eten tio n o f th e p lain tif f an d (2 ) t h e u n law f

u l n e ss o f th e d eten tio n .” H u d so n v. P a lm er , 9 7 7 S o . 2 d 3 6 9 , 3 8 3 (¶3 9 ) (M iss. C t

. A p p . 2 0 0 7 ) (citin g A l

p h a G u l f C o a st In c. v. Ja ckso n , 8 0 1 S o . 2 d 7 0 9 , 7 2 0 (¶2 8 ) (M iss. 2 0 0 1 )). 1 3¶22. As to the rem aining claim s, we also f i nd the court did n ot err in grantin g s u mm ary judgm ent as to Orr’s claim s of negligence and negligent inf liction of em o tional distress. As to Orr’s claim

f o r negligence, this Court held in M cGuffie v. Herrington , 966 So. 2d 1274,
1278 (¶10) (Miss. Ct. App. 2007), that because the a rgum ent f or t he pl a i ntif

f ’s “sim ple negligence c laim [ was] indi s t i n g u i s h a b l e fr o m h e r m a l i cious[ -]prosecution claim ,” that claim
“s u r vives only in the f

orm of [ the plaintif

f ’s] m a l icious[ -]prosecution claim .” As noted above, Orr’s claim f

or negligence sim

ply repeats her argum e n t f

or m alicious prosecution. ¶23. Orr also f

ailed to p roduce any genuine issue of m aterial f a ct f or the claim of negligent inf liction o f em otional d istress. T he tort of negligent inf liction o f e m otional distress requires

a p l a i n t if f to “plead and prove ‘som e sort of injury or dem onstrable harm , whether it b e phy sical or m e ntal, a nd that harm m ust have b een reasonably f o reseeable t o the def

endant.’” Breeden v
. Buchanan , 164 So. 3d 1057, 1069 (¶60) (Mi s s . C t

. App. 2015) (quoting Am. Bankers’ Ins. Co. of

Fla. v. W ells , 819 So. 2d 1 196, 1 208 (¶40) (Miss. 2 001)). The existence of probable cause is not relevant t o this claim ; thus, Orr m akes n o argum ent to substantiate this claim

. CONCLUSION ¶24. W e af

f irm the circuit court’s granting of sum m ary j u d g me n t a s i t relates to Orr’s claim s f or civil conspiracy , intentional inf liction of em o tional distress , n e gligence, and negligent inf

liction of em otional distress. W ith reg a r d t o t h e claim s of m alicious prosecution,
f alse arrest, f

alse i m prisonm ent, and punitive dam ages, w e r e v e r s e t he circuit court’s

1 4judgm ent and rem and f or f urther proceedings. ¶25. AFFIRMED IN PART; REVERSED AND REMANDED IN PART. LEE, C.J., I RVING AND GRIFFIS, P.JJ. , F AIR A ND WESTBROOKS, JJ., CONCUR. CARLTON, J ., D ISSEN T S I N PART WITH SEPARATE WRITTEN OPINION, JOINED BY GREENLEE, J.; WILSON, J., JOINS IN PART. TINDELL, J., NOT PARTICIPATING. CARLTON, J., DISSENTING IN PART: ¶26. Because I w o u l d a f f i r m t h e c i r c u i t c o u r t ’ s grant of sum m ary judgm ent to the Appellee s o n O rr’s m alicious-prosecution claim , I respectf u lly d issent i n p art f

rom the

m ajority ’s opinion. ¶27. In M

cClinton v. Delta Pride Catfish Inc. , 792 So. 2d 968, 973 (¶9) (Miss. 2001), the Mississippi Suprem e Court explained:
W h en a party opposing sum m ary judgm ent on a claim or def ense a s to which the party will bear the burden of p roo f a t t r i a l, f ails to m ake a showing suf f icient t o establis h an essential elem ent of t he claim or d ef ense, then all other f acts are i m m aterial and the m ov i n g p a r t y is entitled to judgm e n t as a m atter of law. (Quoting W

ilbourn v. Stennett, W

ilkinson & W

ard , 687 So. 2d 1205, 1214 (Miss. 1996)). ¶28. In t he present case, Orr b ore the burden of proving by a preponderance of t he evidence each of the f

ollowing e lem ents of m alicio u s p r o s e c u tion: “(1) The institution of a proceeding[ ;] (2) by , or at the insi s t e nce of t he def endant[ ;] (3) the term ination of such proceedings in the plaintif f ’s f avor[ ;] (4) m a lice in instituting t he proceedings[ ; ] (5) want of probable cause f

or the proceedings[ ; and] (6) t he s uf f ering of injury or dam a g e as a result of the p rosecution.” McClinton , 792 So. 2d at 9 73 (¶8) (citation om i tted). Upon review, I f ind
1 5that Orr f

ailed to m eet her burden of proof on two of the required elem ents—m alice and want of probable cause. ¶29. “Probable cause is de t e r mi n e d f r o m t h e f

acts apparent to the observer when the prosecution is initiated. Probable cause requires both (1) a subjective e lem ent—an honest belief in t he guilt of the person accused, and ( 2) an objective e lem ent—reasonable grounds
f or such belief

.” Id. at (¶11) (internal citation om itted). “If probable cause existed f or the initiation of crim inal proceedings, a claim f o r m alicious prosecution m u st f ail.” Hudson v. Palmer , 977 So. 2d 369, 381 (¶33) (Miss. Ct. App. 2007) (citation om itted). ¶30. The undisputed record evidence shows the f ollowing: (1) The B uckle possessed only

one iPad during the tim e in question; (2) the s tore’s vide o s u r v e i llance showed this single iPad was last in Orr’s possession; (3) Orr took t he iPad to t he storeroom area ( out of view of the s ecurity cam era) a nd returned to the f ront of the store carry ing a large purse; (4) the iPad disappeared af

ter last being seen in Orr ’ s p ossession; and (5) The Buckle conducted a diligent investigation and inquiry i nto the incident but f ailed to l ocate t he i Pad. Based on this evidence, Orr is unable to ref u te these f

acts, and s h e i s unable to ref ute “that a r easonable

em ploy e r under the sam e circum stances would have had an honest b elief in [ h er] guilt.” McClinton , 792 So. 2d at 973 (¶11). Furtherm ore, the record ref lects that, at each level of prosecution, agreem ent existed between the l ocal police and prosecutor that the case against
Orr should progress. Compare id. Because I f ind Orr f ailed to m eet her burden to prove the Appellees lacked probable cause at the tim e they initiated the prosecution, I would a f f irm the

1 6circuit court’s grant of sum m ary judgm e nt to the Appellees on Orr’s m alicious-prosecution

claim

. ¶31. In addition, I f

ind that Orr f

ailed to prove by a preponderance of the e vidence that the Appellees m aliciously ini t i a t e d the proceedings against her. S ee id. at (¶8). As this Court has previously

explained:
In our analy s is of a claim of m a l ice, we m u st f o cus on the objective of the def en d a n t who instituted the crim inal proceedings. The m alice required f or m alicious prosecution occurs when t he prim ary purpose of prosecuting is one other t han b r i nging an of f ender to justice. A c itizen m ay f ile a c rim i nal com plaint as long as h e acts either i n good f aith, i.e., f

or a legitim ate purpose or with reasonable ground s t o b elieve that the person against whom proceedings are initiated m ay be guilty of the of f e nse of which he is c harged. For liability to be im

posed, there m

u st be a n af

f irm ative action that w ould advise, encourage, or pressure the institution of crim inal proceedings. Perkins v. W

al-Mart Stores Inc. , 46 S o . 3d 839, 8 45 ( ¶11) (Miss. Ct. App. 2010) (internal citations and quotation m arks om itted). ¶32. I agree w i t h t h e m a j o r i t y ’ s f i n d i n g t h a t, based on the criteria e stablished by Mississippi caselaw, “ nothing in the record [ exists] to support a f i nding of m a lice on the part of the A ppellee s . ” M a

j

. O p. at (¶15). As previously d iscussed, Orr b ore the b urden to provide com

petent evidence to dem onstrate t h e A ppellees acted unreasonably a nd in bad
f aith when they initiated the petit-larceny proceedings against h e r . See Perkins , 46 So. 3d

at 8 45 (¶13). However, Orr f a iled to ref

ute t he A ppellees’ undisputed evidence showing they possessed reasonable grounds to believe she stole the iPad and, theref ore, to report her to the police.

1 7¶33. F o r t h e f o regoing reasons, I would af f irm t he c i rcuit c o u r t ’ s g r a n t o f s u mma r y judgm ent to the Appellees on Orr’s m alicious-p r o s e c u t i o n claim

. I theref ore dissent f

rom
t h a t p art of the m ajority ’s opinion that would reverse the circuit court’s grant of su mma r y judgm ent and rem and the case f or f urther proceedings. GREENLEE, J., J OINS THIS OPINION. WILSON, J., J OINS T HIS OPINION IN PART.

1 8