# Wal-Mart Stores, Inc. v. Lee > Supreme Court of Arkansas · May 16, 2002 · 348 Ark. 707 URL: https://www.frixlaw.com/law-library/cases/9612190 ## Case - **Full name:** WAL-MART STORES, INC. v. Andy LEE, Benton County Sheriff, and David Clark - **Court:** Supreme Court of Arkansas - **Decided:** May 16, 2002 - **Citations:** 348 Ark. 707; 74 S.W.3d 634; 19 I.E.R. Cas. (BNA) 73; 2002 Ark. LEXIS 302 - **Precedential status:** Published - **Opinion:** Dissent by Thornton - **Judges:** Annabelle Clinton Imber - **Cited by:** 48 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9612190 ## How later opinions describe it (automated extraction) - affirming a jury verdict finding the defendant guilty of false light invasion of privacy based upon allegations that the plaintiff was a thief ## Opinion text Ray Thornton, Justice, dissenting. In its analysis of the intrusion invasion-of-privacy claim, the majority has concluded that there was substantial evidence to support the jury’s verdict that Clark established a legitimate expectation of privacy in his property because the scope of the verbal consent Clark gave to Elder was limited in scope to a search for missing life jackets and fishing poles and that his written consent was not given freely and without coercion. I cannot agree with the majority’s conclusion regarding Clark’s verbal and written consent. For this reason, I respectfully dissent. As the majority acknowledges, our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence. City of Caddo Valley v. George, 340 Ark. 203 , 9 S.W.3d 481 (2000). We will reverse only if there is no substantial evidence to support the jury’s verdict and the moving party is entitled to judgment as a matter of law. Conagra, Inc. v. Strother, 340 Ark. 672 , 13 S.W.3d 150 (2000); Dodson v. Dicker, 306 Ark. 108 , 812 S.W.2d 97 (1991). Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or another. George, supra. It is not the appellate court’s place to try issues of fact; rather, this court simply reviews the record for substantial evidence to support the jury’s verdict. Id. In reviewing the sufficiency of the evidence as being substantial on appellate review, we need only consider the testimony of the appellee and the evidence that is most favorable to the appellee. Wal-Mart Stores, Inc. v. Dolph, 308 Ark. 439 , 825 S.W.2d 810 . (1992). In addition, the majority correctly acknowledges that intrusion has been recognized in Arkansas as one of the four actionable forms of invasion of privacy. Milam v. Bank of Cabot, 327 Ark. 256 , 937 S.W.2d 653 (1997). The majority also notes that the Eighth Circuit has opined that while Arkansas courts have seldom adjudicated intrusion claims, we would likely follow the Restatement (Second) of Tort’s analysis of the tort of intrusion, whereby a plaintiff must establish that there has been (1) an intrusion; (2) that is highly offensive; (3) into some matter in which a person has a legitimate expectation of privacy. See Fletcher v. Price Chopper Foods of Trumann, Inc., 220 F.3d 871 (8th Cir. 2000) (citing Restatement (Second) of Torts § 652B (1977)). In the present case, I am unable to agree that there was substantial evidence that Clark, who gave both verbal and written consent to a search of his property, had a legitimate expectation of privacy of this case. Clark testified that the verbal consent he gave Elder when Elder interviewed him in the Quail Room was limited in scope to a search of his property for missing lifejackets and fishing poles. However, Clark’s own handwritten notes, which were written the day after the search, indicate that his verbal consent was not limited to a search for missing life jackets and fishing poles, but, rather, was broadly given. When asked about his handwritten notes, Clark conceded that he was mistaken in his testimony and adopted the recitation of the facts regarding his verbal consent as he had written in his handwritten notes. Clark testified on recross examination: The discussion about the life jackets and the fishing equipment didn’t happen' in the Quail Room. I guess it was outside the Quail Room. I was still under the impression that it was fishing equipment and life jackets he was looking for even though the conversation happened after I told him he could search my barn. I don’t remember it that way. I possibly had it closer to right when I wrote the statement. I don’t know. (Emphasis added.) Clark also testified on recross examination: I remember you asked me this morning if I [was] certain about the fishing equipment and life jackets in the Quail Room and I said I was. I was mistaken about that. (Emphasis added.) The majority concludes that this conflict between Clark’s initial testimony and his corrected testimony after reviewing his own prior handwritten notes was an issue for the jury to decide. However, what the majority fails to recognize is that Clark repudiated his own prior statement when he adopted as true his handwritten notes, which reflected that he consented to a general search when first asked for consent. Only two people were in the Quad Room at the time that Mr. Elder asked for permission to search and Mr. Clark gave his consent. That oral consent was reaffirmed by a written consent to a general search, and Mr. Clark certainly understood that the search was general. On unlocking his shop door, he pointed to an air compressor and said that it belonged to Wal-Mart. With reference to the initial oral request, it is clear that Mr. Elder’s testimony was an unequivocal statement that a general consent was given. However, the majority finds that there was a credibility question as to which of two statements by Mr. Clark the jury would believe: (1) his first testimony that his consent in the Quail Room was limited to a search for fishing equipment, or (2) his repudiation of that testimony after being confronted with his own contemporaneous notes. When resolving a discrepancy in the testimony of a witness, the general rule is that a credibility question is presented to the jury. See Smith v. Galaz, 330 Ark. 222 , 953 S.W.2d 576 (1997). However, this is not the rule when a witness is also a party to the action, and his testimony amounts to a judicial admission. A judicial admission is conclusive and bars the party himself from disputing it. See 9 John H. Wigmore, Evidence in Trials at Common Law § 2594a (Rev. ed. 1981). Wigmore refers to an Arkansas case on this point, Missouri Pac. R.R. Co. v. Eubanks, 212 Ark. 652 , 207 S.W.2d 610 (1948), rev’d on other grounds sub nom. Eubanks v. Thompson, 334 U.S. 854 (1948), where we held that plaintiff’s testimony that warning signals were given by the train was conclusive on that point, and that the testimony of other witnesses that they heard no warning signals did not raise a credibility issue for determination by the jury. See Wigmore, supra n. 1, at 834 (citing Eubanks, 212 Ark. 652 ). In the case before us, the trial court apparently recognized this principle, but failed to go to the record to resolve the question, as is reflected in the following colloquy that occurred between the trial court and Ranae Bartlett and George Rhoads, the attorneys for Wal-Mart: Ms. Bartlett: The cornerstone of the tort of intrusion is legitimate expectation of privacy. The key to Wal-Mart’s defense is the consent. We have three places where the consent occurred. Consent occurred at the Home Office at the initial interview when he said he would go ahead and show them his property. Consent occurred when they arrived at the property and the police came with a broadly written, very simply worded written consent form that he signed with no limitations. And then consent occurred throughout the process. His tacit consent, his failure to object, his failure to withdraw the consent. In light of the consent to search, there can be no tort of intrusion. The court has expressed concern about Mr. Clark’s allegation that the only reason he consented was because he thought that they were looking for fishing equipment. First, Mr. Clark has two different versions of this story. The first version was that Mr. Elder told him at the beginning that he was looking for fishing equipment. The second version from Mr. Clark is that he was at the Home Office and agrees to the search of his property and as they are going out to the car, that’s when Elder refers to fishing. The Court: That was in Mr. Clark’s handwritten statement that was admitted. But that doesn’t make it substantive evidence. It’s just impeachable. Mr. Rhoads: Well I think he changed his story on the stand to coincide with the written statement. The Court: I thought he just simply said he couldn’t remember, that he didn’t agree. I think it is fairly critical, and I am willing to review the record. The defense used it to demonstrate that Mr. Clark was telling two different stories. The reason I think that is critical is because I don’t recall him conceding that it was all outside when the fishing stuff came up. The point I am making is there was something admitted that contradicted his live testimony to the jury but it was up to the jury to decide whether that impeached his credibility. Mr. Rhoads: My recollection of the trial is that he did change his story and adopt the written version. That’s my recollection of what happened. The Court: If Mr. Rhoads is right that he then, when confronted with this written statement, he changed his testimony to the jury, that’s one thing. But otherwise, it looks like a credibility issue and the jury arguably accepted his live testimony versus what he wrote. (Emphasis added.) The trial court apparently recognized that there would be no credibility issue for the jury if the record showed that Mr. Clark adopted his contemporaneous written notes that the consent given in the Quail Room was a general consent. The trial court stated that he was willing to review the record on this point. However, he did not do so, but relied on his memory to the effect that Mr. Clark did not withdraw his testimony that the search agreed upon was limited to fishing equipment. The record reflects otherwise. Mr. Clark admits that his contemporaneous notes are correct and states that he was mistaken in testifying that the search agreed to in the Quail Room was a limited search. No question of credibility remains when the party plaintiff makes a judicial admission of a point that is vital to the determination of whether a valid general search was agreed upon. Because the oral consent to a general search was given, the next question is whether the written consent to a general search modified or limited the oral consent. Mr. Clark testified that he felt threatened and believed that Wal-Mart was trying to “railroad” him. However, the evidence overwhelmingly establishes that Clark’s consent was knowing and voluntary. First, Clark signed the form, which specifically authorized a search of the entire premises by Rogers police and Wal-Mart Loss Prevention Officers. The written consent authorized the officers to take from the premises any property that they deemed necessary, and Clark never indicated that the search should be limited in any way. Second, Clark testified on direct examination that he did not tell the police or loss-prevention officers to leave his property because he “figured they could do whatever they wanted to.” Third, Clark testified that he unlocked the doors to his shop. Fourth, when asked about merchandise, Clark testified that he said, “take it if you want it.” Fifth, Mrs. Clark testified that she served beverages to people on that hot day during the search. Finally, at the conclusion of the search, Mrs. Clark testified that she indicated to the police and loss-prevention officers that there were also some things in the attic and suggested that they not forget those items. I recognize that the jury’s assessment of damages in this case is a reflection of the factual circumstances of this case, which also involve the defamation that followed after Wal-Mart’s actions, but I cannot agree with the treatment of the intrusion invasion of privacy claim. Because I cannot agree with the majority’s conclusion that there was substantial evidence that Clark had a legitimate expectation of privacy after he had given verbal and written consent to search his property, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9612190. Public record. Not legal advice.