Wal-Mart's next contention is that it did not intrude upon any legitimate expectation of privacy where Clark consented to the search. The plaintiff in an invasion-of-privacy case must have conducted himself or herself in a manner consistent with an actual expectation of privacy.
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Wal-Mart asserts that there is no legitimate expectation of privacy in one's home where that person signed a consent form allowing a search. Clark counters that his consent to search was limited, as well as obtained through fraud and misrepresentation. As previously discussed, substantial evidence supports the jury's verdict in favor of Clark on the validity of his consent to Wal-Mart's intrusion. The jury could have reasonably concluded from the record that any consent Clark may have given was both limited and obtained through duress or coercion and, therefore, invalid.
As Wal-Mart's argument is premised on the assumption that Clark validly consented to a search of his residence, the argument must fail. Finally, Wal-Mart asserts that affording Clark recovery on the intrusion cause of action would operate to deprive Wal-Mart of its constitutional right to due process. Clark replies that Wal-Mart's due process argument is not preserved because it was not raised in Wal-Mart's motions for directed verdict. Wal-Mart argues that the due process argument is preserved because the argument was included in its motion for judgment notwithstanding the verdict, new trial, and remittitur.
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In Willson Safety Products v. Eschenbrenner, Ark. This language discounts Wal-Mart's argument for preservation, as Wal-Mart did not raise its due process challenge during trial. In addition, Rule 50 of the Arkansas Rules of Civil Procedure states that a party who has moved for directed verdict may, not later than ten days after entry of judgment, move to have the verdict set aside and to have judgment entered in accordance with his motion for directed verdict. The language of this rule indicates that a motion for judgmentnotwithstanding the verdict can be made only upon grounds that were raised during the trial.
In its reply brief, Wal-Mart asserts that a due process challenge is precisely the type of argument that can only be raised in a motion for judgment notwithstanding the verdict. The argument is that the imposition of a civil penalty on a party, without notice, is a due process violation that occurs only when the jury decides to award punitive damages. Wal-Mart's argument is without merit. The trial in this case was trifurcated into separate phases on liability, compensatory damages, and punitive damages at Wal-Mart's request.
Thus, Wal-Mart was on notice during the trial that a civil penalty might be imposed against it and had ample opportunity to raise the issue. This court has long held that an issue, to be considered on appeal, must be properly preserved at trial. Willson Safety Products v. As Wal-Mart did not raise its due process argument during trial, we hold that Wal-Mart's due process challenge is not preserved for appeal. On appeal, Wal-Mart claims that Clark's action for defamation was premised on republication of defamatoryinformation in the newspaper articles.
Wal-Mart then asserts that Clark should have proffered a jury instruction on republication because the basis of Clark's claim for damages was the republication of allegedly defamatory facts in the newspaper articles.
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Wal-Mart contends that Clark cannot now establish a republication claim because there is no evidence that Wal-Mart provided any information to the media in this case. Clark, on the other hand, asserts that Wal-Mart should have proffered an instruction on republication in its attempt to limit his right to recover on defamation because of the republication. Courts are divided as to whether one accused of defamation is liable for the republication of another where it is shown that the republication was foreseeable as a natural and probable consequence of the original publication.
Luster v. Retail Credit Co. See M.
Robinson, Ark. Murphy, Ark.
On appeal, we commented: "We see no need to discuss the issue of republication, i. Once again, that issue is not properly before us. In the instant case, Wal-Mart was charged with defamation, and the jury was not instructed on republication. On appeal, Wal-Mart claims that it should not have been found liable for damages caused by any republication of defamatory information by the newspapers.
However, Wal-Mart did not make the proper objections at trial to preserve this argument on appeal. In Luster v. Here, Wal-Mart did not object to the admission of the newspaper articles in question or to the admission of testimony from witnesses concerning damages that were the result of the newspaper articles.
In addition, Wal-Mart did not proffer a jury instruction that stated Wal-Mart could not be liable for the unauthorized republications by the newspapers. Any assertion by Wal-Mart that republication was a potential issue in this case made it incumbent upon Wal-Mart to proffer a jury instruction in support of its position. The failure to proffer or abstract a proposed instruction precludes this court from considering the argument on appeal.
United Ins. Thus, we hold that any argument by Wal-Mart disputing liability for the newspapers' republication is not preserved for appeal. Wal-Mart argues that there is evidence to support the conclusion that the newspapers obtained their information from police communications rather than from Wal-Mart employees. Clark, on the other hand, argues there is substantial evidence, both direct and circumstantial, that Wal-Mart published defamatory information about him.
David Clark claims damages from Wal-Mart for defamation and has the burden of proving each of five essential propositions defining defamation. Fourth, that Wal-Mart acted with negligence in failing to determine the truth of the statement prior to its publication or with knowledge that the statement was false.
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And fifth, that the publication of the statement was a proximate cause of David Clark's damages. The trial court further instructed the jury that a defamatory statement must be false and must actually cause harm to a person's reputation. The court informed the jury that "published" refers to the act of intentionally communicating a statement to someone other than David Clark or under circumstances in which it was foreseeable that a statement would be received by someone other than David Clark.
The evidence presented at trial reflects five separate publications upon which the jury could have found Wal-Mart liable for defamation. Clark asserts that Elder first published defamatory information about him when Elder untruthfully communicated to Detective Haskins that Clark admitted having property at his residence that belonged to Wal-Mart.
The case synopsis prepared by Elder and Womack details Elder's view of the events that took place on August 17, and, therefore, would be circumstantial evidence of what Elder told Detective Haskins on the telephone when he requested that Detective Haskins meet him at Clark's residence. The entry in Elder's case synopsis for August 17 reads, in relevant part, as follows:.
On this date associate David Clark was interviewed based on information obtained through a confidential Wal-Mart associate as well as information gathered through the confiscation of Wal-Mart merchandise at the residences ofBob Kitterman and Wesley Beights. During the course of the interview Clark admitted that he had received stolen Wal-Mart merchandise from Bob Kitterman and that such merchandise had been delivered to his home at E.
Spruce St. Clark also admitted taking Wal-Mart merchandise to his home under the guise of mechanical repair without either doing the repair nor [sic] returning the merchandise. Clark also admitted having his own personal computer and electronics repair business established in his home. The statements in the report demonstrate Elder's version of the story that Clark admitted to receiving stolen Wal-Mart merchandise and admitted to taking Wal-Mart property to his home without repairing the merchandise or returning it to Wal-Mart.
This circumstantial evidence of what Elder told Detective Haskins is corroborated by Detective Haskins's testimony that he believed Elder was referring to stolen property. Moreover, as a result of Elder's statements to Detective Haskins, the police were dispatched to Clark's residence with the purpose of confiscating stolen property. The publications concerning Clark that were disseminated over police radio form a second group of publications upon which the jury could have found Wal-Mart liable for the tort of defamation. According to Clark, Elder knew or should have knownthat his untruthful statements would be disseminated on police radio, where they would be picked up by the press and the public.
In fact, Elder stated in his deposition: "I think if the police department does anything, that that's kind of public information for people to gather. Gail Mann, Clark's neighbor, testified that she owned a police scanner and that, on August 17, she heard a communication on her scanner dispatching a car to Clark's residence for "confiscation of stolen Wal-Mart property. Clark also points to circumstantial evidence to show that Wal-Mart published defamatory information to the media.
Circumstantial evidence that a defamatory statement was overheard can be sufficient evidence of publication to support a verdict in favor of a defamation claim.
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In the Dolph case, Carolyn Dolph was accused of shoplifting in the presence of customers entering and leaving a Wal-Mart store. Although there was no testimony from individuals who actually heard the accusations,this court held that the attendant circumstances provided sufficient evidence that defamatory statements were made in the presence and hearing of other people. Likewise, in this case, there is circumstantial evidence that Wal-Mart employees made defamatory publications to third parties.
The third and fourth instances upon which the jury could have based a finding of defamation involve Kenneth Womack. When asked if he had spoken with any member of the media on August 17, Womack responded: "Not that I am aware of. I hope I didn't. It's a possibility that I could have. Furthermore, Clark testified that, while on his property, he heard Womack mention a theft ring.