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Neff v. Wal-Mart Stores East, L.P.

Court of Appeals of Indiana

October 25, 2018

Denny Alan Neff, Appellant-Plaintiff,
v.
Wal-Mart Stores East, L.P., Appellee-Defendant.

          Appeal from the Putnam Circuit Court Trial Court Cause No. 67C01-1506-PL-187 The Honorable Matthew C. Kincaid, Special Judge

          Attorney for Appellant Gregory W. Black Plainfield, Indiana

          Attorneys for Appellee Thomas L. Davis Matthew R. King Darren A. Craig Frost Brown Todd, LLC Indianapolis, Indiana

          RILEY, JUDGE

         STATEMENT OF THE CASE

         [¶1] Appellant-Plaintiff, Denny Alan Neff (Neff), appeals the trial court's summary judgment in favor of Appellee-Defendant, Wal-Mart Stores East, L.P. (Wal-Mart), on Neff's allegations sounding in negligence and tort and derived from his arrest and termination by Wal-Mart.

         [¶2] We affirm.

         ISSUES

         [¶3] Neff presents us with six issues on appeal, which we restate as follows:

(1) Whether the trial court properly entered summary judgment for Wal-Mart on Neff's claim for breach of employment contract and wrongful termination when Neff was an employee at-will;
(2) Whether the trial court properly entered summary judgment for Wal-Mart on Neff's claim for false arrest, criminal confinement, tortious confinement, trespass against person, and false imprisonment when Wal-Mart detained Neff pursuant to the Shoplifting Detention Act;
(3) Whether the trial court properly entered summary judgment for Wal-Mart on Neff's claim for negligent infliction of emotional distress;
(4) Whether the trial court properly entered summary judgment for Wal-Mart on Neff's claim for intentional infliction of emotional distress;
(5) Whether the trial court properly entered summary judgment for Wal-Mart on Neff's claim for defamation; and
(6) Whether the trial court properly entered summary judgment for Wal-Mart on Neff's claim for invasion of privacy.

         FACTS AND PROCEDURAL HISTORY

         [¶4] In September 2014, Neff worked as a service writer in the tire and lube express department at Wal-Mart, located in Greencastle, Indiana. When he entered his employment on July 25, 2013, Neff had received Wal-Mart's written employee handbook setting forth the company's policies. On September 24, 2014, Neff and service manager Anthony Brackett (Brackett) removed tires, described by Neff as "outdated and deleted," from the service area. (Appellant's App. Vol. III, p. 145). Service manager Travis Wilbur (Wilbur) then authorized the sale of those tires for ten dollars or one dollar each, depending on the tire. The actual retail price of the tires was at least five to ten times the discounted price. Wilbur claimed that assistant manager, Dana Lyday, had approved the discount. Neff, Brackett, and another Wal-Mart associate purchased the tires at the discounted price and they rang up the transactions for each other at the cash register.

         [¶5] The following day, September 25, 2014, Wal-Mart's asset protection manager, Randall Spannuth (Spannuth), received his daily report reflecting any discounts greater than fifty dollars and noticed the steep discounts involved in the tire sale. Investigating the sale more closely, Spannuth pulled the receipts in the system, the electronic journal, and store videos. Based on this information, he identified the cashiers and talked to their managers about the "extremely discounted" price for the tires. (Appellant's App. Vol. III, p. 38). Spannuth concluded "there was an issue" because the "tires were being sold for under what the retail price was," and the "associates were discounting for each other." (Appellant's App. Vol. III, pp. 38-39). Spannuth determined that Neff had not followed Wal-Mart's written Associate Purchase Policy which limits the merchandise its associates may purchase to merchandise "which is available to all Customers/Members." (Appellant's App. Vol. III, p. 177). Furthermore, the policy provides that "[o]nly salaried members of management can authorize the point-of-sale markdown," and "[d]efective or damaged merchandise must have been marked down and offered to the public at a lower price for at least one day before any associate, or salaried member of management, including the Facility Manager, can purchase it." (Appellant's App. Vol. III, pp. 177-78). Pursuant to this policy, neither Neff nor Wilbur had authority to set the discounted price without prior managerial approval. When questioning the store managers, both managers informed Spannuth that they had not authorized the discounts or transactions. Because Spannuth determined that it was not reasonable for Neff to assume that he had properly purchased the tires, Spannuth concluded that Neff had intended to commit a theft of the tires.

         [¶6] At the close of the investigation and after consulting with his supervisor, Spannuth arranged for interviews with Wilbur, Brackett, and Neff. Neff's interview occurred in an office in the back of the store. Following the interviews, Wal-Mart decided to report the three employees to the police for theft. After having been provided with a copy of Wal-Mart's asset protection records, the video surveillance disk, and internal investigation, the police officers spoke with Neff, arrested him, and escorted him to jail.[1] Wal-Mart terminated Neff's employment.

         [¶7] On June 5, 2015, Neff filed a Complaint against Wal-Mart, the City of Greencastle, and the Greencastle police department, in which he asserted thirteen causes of action. On June 26, 2017, the City of Greencastle and the Greencastle Police Department filed a motion for summary judgment which was granted by the trial court on December 7, 2017. Neff did not appeal. Subsequently, ...


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