Libel suit claims H-E-B charged wrong man with theft

Marilyn Tennissen Aug. 13, 2008, 9:25am

Ken Lewis

When Merlin Fontenette went to have his driver's license renewed last November, he discovered there were two outstanding criminal warrants on his record that were due to a case of mistaken identity.

After finally having his name cleared, Fontenette has filed a libel suit against the local H-E-B that falsely accused him of trying to steal steaks from the Groves grocery store.

According to court documents, Sharon Rich, an employee of the H-E-B on 32nd Street in Groves, swore in a theft complaint that on Aug. 14, 2007, Fontenette concealed two packs of rib eye steaks and walked past all the open registers without paying for the meat.

But Fontenette says he was not the man in the store that day, and that H-E-B's false accusations constitute defamation. He filed suit against H-E-B and Rich on Aug. 11 in Jefferson County District Court.

The original complaint states that on Oct. 29, 2007, Fontenette was unable to renew his driver's license for failing to appear in court on the theft charge, "about which plaintiff had no knowledge."

On Oct. 30, 2007, Fontenette claims he was notified by the Groves Police Department that there was a warrant for his arrest for the theft charge and for his failure to appear.

Fontenette says that the next day he called and went by the H-E-B store and talked with the store manager.

He "showed the manager his driver's license, explained he had never been stopped in the store and had not stolen anything," the complaint states.

The plaintiff says the manager took the driver's license to the office and in a few minutes came back and told him it was alright for Fontenette and his girlfriend to shop there.

Next, Fontenette states he went to Groves Municipal Court on Nov. 7, 2007, and pleaded not guilty to the two criminal charges. He says he was booked and photographed with a trial date of Dec. 11, 2007.

He also learned a local newspaper published a notice of the theft charge filed against him.

"Plaintiff appeared at Groves Municipal Court on Dec. 11, 2007, and explained to the city prosecutor that he was not the person stopped for theft at defendants' store and the cases were reset for a jury trial on Feb. 27, 2008," the complaint states.

Fontenette subpoenaed the store's video surveillance tape from the day of the incident, which he, the store manager and a Groves police officer viewed at the Groves grocery store.

"After viewing its own security tape on its own computer in the store where the tape was originally recorded back on Aug. 14, 2007, the store manager admitted that the person in the tape was not plaintiff," the complaint states.

The plaintiff appeared again in Groves Municipal Court, and on March 14, 2008, had the charges against him dismissed as a "false ID."

Fontenette said the entire incident "involved significant inconvenience and lost time" for which he seeks reasonable and fair compensation.

Because of the theft report, Fontenette claims he suffered extreme mental anguish, public humiliation and embarrassment, as well as injury to his reputation for honesty and integrity, court papers state.

He also alleges that H-E-B and Rich had no probable cause for the prosecution and acted against him with malice.

"Throughout the prosecution of the theft charge against plaintiff, defendants had in their possession video tape that could establish that plaintiff was not the person that attempted to steal beefsteaks from defendant, but acted with conscious indifference even after plaintiff informed them of their mistake and attempted to get them to dismiss the charges," the complaint alleges.

Fontenette is demanding a jury trial and is seeking actual and exemplary damages, interest, court costs and other relief.

Ken Lewis of Bush Lewis PLLC in Beaumont is representing the plaintiff.

The case has been assigned to Judge Bob Wortham of the 58th District Court.

Case No. A182-210

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