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Timothy R. Zike v. Advance America

July 18, 2011

TIMOTHY R. ZIKE, APPELLANT,
v.
ADVANCE AMERICA, CASH ADVANCE CENTERS OF MISSOURI, INC., APPELLEE.



Appeal from the United States District Court for the Eastern District of Missouri.

The opinion of the court was delivered by: Smith, Circuit Judge.

Submitted: January 11, 2011

Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.

Timothy R. Zike sued his former employer, Advance America, Cash Advance Centers of Missouri, Inc. ("Advance America"), claiming under Missouri law that Advance America subjected him to malicious prosecution and false arrest for his alleged theft of certain checks. The district court granted summary judgment in*fn1 Advance America's favor on both claims, concluding, inter alia, that Zike failed to create a genuine issue of fact as to the lack of probable cause for the theft prosecution, an essential element of malicious prosecution and false arrest under Missouri law. Zike presently appeals and, for the following reasons, we affirm.

I. Background

Zike is a former employee of Advance America. In March 2006, Advance America hired Zike to work as a manager in training at its Moberly, Missouri location. In March 2007, Gerri Richardson became the new Divisional Director of Operations (DDO) and Zike's new supervisor at the Moberly office. The next day, Zike failed to report to work as scheduled, and Richardson ordered him to report to the office. The next week, Richardson visited the Moberly office, where Zike and his co-worker, Monitaka Brown, were on shift.When Richardson arrived, Zike was departing to deposit a check at one bank and verify funds at another. Specifically, Zike intended to verify at Citizens Bank & Trust ("Citizens Bank") the funds of three customers, each of whom had tendered postdated checks to Advance America to secure their payday loans. Richardson terminated Zike's employment when he returned to the office. Richardson cited Zike's "poor performance" as the reason for the termination. The termination report-which Zike, Richardson, and Brown signed-rated Zike's attendance, cooperation, initiative, and quality of work as unsatisfactory.

After terminating Zike, Richardson audited the store and discovered that the three checks Zike had taken for verification, as well as a fourth check written by a Jack Zike, were missing. Richardson promptly telephoned Zike and left a voicemail*fn2 message requesting that Zike locate and return the checks. The next day, on March 6, 2006, Richardson instructed Brown and Tony Garrett, another Advance America employee, to go to Citizens Bank and inquire about the missing checks. A teller confirmed Zike's visit to the bank the preceding day and stated that she had verified that all the accounts linked to the outstanding checks were closed. Brown called Zike and informed him that Richardson was alleging that he stole the checks. Zike assured Brown that he had returned the checks to the store prior to being terminated.

Also on the day after Zike's firing, Richardson telephoned Brian Beck, Advance America's regional loss-prevention manager, and notified him that four checks were missing. Beck called Zike at least once to inquire about the checks and left a voicemail, receiving no return call from Zike. On March 15, 2007, Beck mailed Zike a letter via regular postage and return receipt requested, reciting Zike's failure to return his phone calls and demanding that Zike return the four checks within ten days, lest Advance America pursue "future legal action." Eleven days later, Beck emailed Richardson, requesting that she file criminal charges against Zike for theft of the four checks.

Thereafter, Richardson tendered a statement to Officer T. R. Mitchell, recounting the check incident and company actions. Officer Mitchell prepared a report that included Richardson's statement that Advance America "does not have the physical check [sic] in their possession that they cannot collect on the check, nor could they take civil action against the people as they do not have the check to send to the bank," and thus, that "Advance America is out $1[,]489.25."

Advance America's policy at the time stipulated that, before legal action could be taken to collect on the checks, Advance America had to be in possession of the returned check. Indeed, one of the six questions on the worksheet that DDOs like Richardson were required to complete prior to instituting legal collections actions, asked whether Advance America possessed the check returned for insufficient funds. Zike notes that this policy was not actually reduced to writing and circulated among Advance America employees until after the events giving rise to his case. Richardson, however, offered unrefuted testimony that, written or not, company policy at the time required check possession. Richardson believed that Advance America could not legally collect from the checks' drawers without the actual checks.

In addition to Richardson's statement, Officer Mitchell took the statements of Brown and the bank teller. The teller could remember only that Zike came to the bank with checks, but she could no longer identify them. Officer Mitchell called Zike to arrange a meeting to take his statement before submitting information to the prosecutor. Zike, however, refused to meet outside the presence of counsel. Zike never called Officer Mitchell to arrange a mutually agreeable time for a meeting with counsel. Zike did not object to Officer Mitchell making his report without Zike's statement.

On April 27, 2006, Officer Mitchell signed a sworn "Probable Cause Statement" (his "report"), including therein, (1) Richardson's statement that she was unable to locate the checks after terminating Zike and that Zike never returned any of her correspondence, (2) Brown's statement confirming the same, (3) Richardson's statement that Advance America could not bring civil collection actions against the drawers of the checks without the checks themselves, and (4) Zike's statement that his lawyer had instructed him not to answer any questions. Upon receiving Officer Mitchell's report, Prosecutor Mike Fusselman independently determined that probable cause existed to charge Zike with felony theft, in violation of Missouri Revised Statute § 570.030, and consequently filed a one-count felony complaint against Zike.*fn3

Fusselman's complaint was unsworn.

Over a year later, sometime in June 2007, after learning of the complaint and associated warrant for his arrest, Zike turned himself in. In September 2007, the Circuit Court of Randolph County, Missouri, held a preliminary hearing in Zike's case, at which only Richardson testified. Specifically, Richardson testified consistent with Officer Mitchell's report that Advance America could not collect on the checks without the checks themselves. Additionally, when asked, Richardson stated that, to her knowledge, the Moberly store had never lost checks during her tenure. Also, despite finding the Jack Zike check among its own files on April 5, 2006, and before Officer Mitchell even submitted his report, Richardson included that check as among those missing. At other times during the hearing, Richardson identified only the other three missing checks. Richardson testified that she did not know whether the checks' drawers were related to Zike. Finally, when asked by the court if she was merely surmising that Zike had taken the checks because he was the last one to have them, she replied, "I have no documentation that I can say he took them. All I know is he left with them out of my center ...


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