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Lashawna Chenice Goodman¹ sued Wal-Mart Stores, Inc., and its employee Denise Milner, alleging malicious prosecution. The jury returned a verdict in favor of Goodman, awarding her compensatory damages of $200,000 and punitive damages of $3 million. Wal-Mart and Milner filed a postjudgment motion seeking a judgment as a matter of law ("JML"), or, in the alternative, a new trial or a remittitur of damages. In partially granting this motion, the trial court found the punitive-damages award excessive and ordered a remittitur to $1 million. Goodman filed a "Motion to Alter, Amend, or Vacate the Remittitur," and, in response, the trial court reinstated the jury's punitive-damages award. The court entered a judgment based on the jury's awards.

Wal-Mart and Milner appeal, arguing that the court erred in reinstating the punitive-damages award and in denying their motion for a JML or a new trial. We affirm conditionally.

Goodman claims that upon exiting the store she was stopped by Milner and another Wal-Mart employee, and she says they asked her to return inside the store to show proof that she had purchased the telephone. Goodman alleges that Milner accused her of stealing the telephone. Goodman testified that she provided Milner with an explanation and with the receipt for the telephone; she claims Milner completely dismissed her explanation and the receipt. Goodman also says that upon reentering the store she asked Milner to verify her story with the employees at the customer-service desk, the cashier in the automotive department, and the employees at the store where she said she had purchased the telephone, in order to provide verification of the receipt. She claims Milner refused to do so. She testified that Milner escorted her and her two children to a back office in the store building. There, Goodman says, she retrieved her receipt and put it in her shoe. The police arrived and arrested Goodman. Goodman, who was pregnant at the time, was handcuffed and taken to jail, accompanied by her two children. She was charged with theft of property. Once at the police station, Goodman claims, she began having lower abdominal pains, which she says continued through the next day, which was Christmas. She testified that because of these pains she had to seek medical treatment. Goodman also testified that she sought treatment from her obstetrician because of the worry and stress she says she was suffering because of the arrest for the alleged theft. Further, she claims that her employer fired her from her job because he heard about her arrest over a police scanner when she was being transported to the police station.

Milner's account of the facts, however, is different. She testified that she saw Goodman take a box containing a cordless telephone from a bottom shelf in the electronics department of the Opelika Wal-Mart store. She claims that Goodman placed the box containing the telephone in the top part of the shopping cart with two Wal-Mart bags. Milner testified that she then watched Goodman as she walked through the store. She stated that Goodman first went to the domestics department in the back of the store; then to the boys' wear department; then to the lingerie department, where, Milner says, Goodman had a conversation with a Wal-Mart employee; and then back to the domestics department. Milner claims that, from there, Goodman walked through the automotive, sporting goods, and toy departments before entering a garden-center aisle; Goodman was in that aisle, Milner says, when Milner watched Goodman conceal the telephone. Milner claims that she watched Goodman take automotive merchandise out of one of the Wal-Mart bags and slip the cordless telephone into the remaining empty bag. She contends that Goodman then stopped to look at the fish *Page 172 in the pet department and then exited the store without purchasing the telephone. Milner and another employee stopped Goodman in the parking lot and asked her to accompany them to an office in the back of the store. Milner says that when Goodman was stopped she claimed she had purchased the contents of the bags, but that later she told Milner the telephone belonged to her and that she had brought it into the store in an attempt to exchange it. Milner testified that Goodman told her she had attempted to exchange the telephone after she left the boys' wear department. Milner said she knew this was not true because she had watched Goodman leave the boys' wear department, and, she said, Goodman never went to the customer-service desk.

Milner stated that during the interview in the back office, Goodman was uncooperative, would not give Milner any information, and denied the theft. Milner testified that Goodman then presented a receipt, which had been dated a week earlier and which showed a purchase made at a Montgomery Wal-Mart store. Milner claims that she gave no credence to the receipt because she had seen Goodman take the telephone off the shelf in the electronics department and then had seen her conceal it in a bag. Moreover, she stated that because she had seen Goodman leave from the boys' wear department and exit the front of the store — not going to the customer-service desk, as Goodman claimed she had done — she was sure that Goodman had attempted to steal the telephone.

Milner testified that she asked Goodman if she wanted to make a telephone call in order to arrange for her children to be taken home. She said Goodman made three telephone calls but did not find anyone to pick up her children. The police arrived, arrested Goodman, and escorted her and her children through the store to a police vehicle parked in front of the store. Milner claims that, at that time, she confirmed with the customer-service employees that Goodman had not been at the customer-service desk to exchange the telephone.

Goodman claims that Wal-Mart employed a "quota-apprehension" system. A Wal-Mart representative testified that all of Wal-Mart's "loss-prevention associates," including Milner, must report to district supervisors the number of apprehensions made per month. This system of reporting follows to the regional supervisors, the divisional supervisors, and ultimately to the loss-prevention vice president. Wal-Mart scores its loss-prevention associates on their apprehension productivity, which is based on the number of apprehensions made by the loss-prevention associate. This score is a factor in determining raises and promotions. The regional loss-prevention associate for Milner's area testified that she tabulates the figures for her region to determine an apprehension average. On Milner's 90-day review form, Milner was described as needing improvement on her number of apprehensions per month. Milner was below average in apprehensions, and she wrote on her 90-day-evaluation form that she was going to improve the number of her monthly apprehensions.

The trial court entered a summary judgment for Wal-Mart on some of Goodman's claims. The trial court ruled that only Goodman's claims alleging false imprisonment (referred to by the trial judge as "false arrest/false imprisonment") and malicious prosecution would go to trial. On the first day of trial, February 8, 1999, Goodman voluntarily dismissed her false-arrest/false-imprisonment claim, and the case was tried solely on the claim of malicious prosecution.

At the close of Goodman's case, Wal-Mart moved for a JML, asserting that Goodman had failed to provide sufficient evidence to submit the question of probable cause and malice to the jury. The trial court denied the motion. Wal-Mart again filed motions for a JML at the close of its case-in-chief and at the close of all the evidence. The trial court denied those motions also.

The case was submitted to the jury on February 12, 1999, and the jury returned a verdict in favor of Goodman, assessing compensatory damages of $200,000 and punitive damages of $3 million. The trial court entered a judgment on the verdict. Wal-Mart filed a renewed motion for a JML, or, in the alternative, a new trial or remittitur; the trial court reduced the punitive-damages award to $1 million but denied the motion for a JML or a new trial. Goodman then filed a "Motion to Alter, Amend or Vacate the Judgment" entered by the trial court; the court granted that motion and reinstated the $3-million punitive-damages award. Wal-Mart appealed.

Wal-Mart makes several arguments on appeal: (1) that Wal-Mart was entitled to a JML on the basis that Goodman did not present, in support of her malicious-prosecution claim, substantial evidence of either a lack of probable cause or malice; (2) that Wal-Mart is entitled to a new trial (a) on the basis that Goodman intentionally destroyed evidence; (b) because of improper ex parte out-of-court testing, by Goodman's counsel, of Wal-Mart's merchandise-return procedure; and (c) based on Batson² violations by Goodman's counsel in striking the jury; (3) (a) that the compensatory-damages award of $200,000 — for mental anguish — is not supported by the record, and (b) that the punitive-damages award of $3 million does not withstand review by the "guideposts" of BMWof North America, Inc. v. Gore³ or by the factors stated in Hammondv. City of Gadsden⁴ and Green Oil Co. v. Hornsby,⁵ and therefore should be vacated or substantially remitted; and (4) that if this Court orders a new trial, the new trial should take place in Lee County, based on an application of the doctrine of forum non conveniens.

In order for a claim of malicious prosecution to be submitted to a jury, the trial court must determine that the plaintiff has presented substantial evidence of the following elements: (1) that the present defendant instituted a prior judicial proceeding against the present plaintiff; (2) that in instituting the prior proceeding the present defendant acted without probable cause and with malice; (3) that the prior proceeding ended in favor of the present plaintiff; and (4) that the present plaintiff was damaged as a result of the prior proceeding.Delchamps, Inc. v. Bryant, 738 So.2d 824, 831-32 (Ala. 1999). In malicious prosecution cases, "probable cause" is defined as "such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty." Delchamps, Inc. v.Morgan, 601 So.2d 442, 445 (Ala. 1992) (citation omitted). Thus, the determination of probable cause does not hinge upon whether Goodman was in fact guilty of shoplifting, but whether Milner's subjective belief under the circumstances led her to believe that Goodman was guilty. In order to produce substantial evidence on the element of lack of probable cause, Goodman had to present evidence "of such weight and quality that fair-minded persons in the exercise of impartial judgment [could] reasonably infer the existence of the fact sought to be proved." Westv. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala. 1989).

Malice is an inference of fact, and it may be inferred from a lack of probable cause or from mere wantonness or carelessness if the actor, when doing the act, knows it to be wrong or unlawful. Bryant,738 So.2d at 833. Personal ill will or a desire for revenge is not essential for a finding of malice. Delchamps, Inc. v. Larry, 613 So.2d 1235, 1239 (Ala. 1992). However, an inference of malice drawn from the lack of probable cause may be rebutted by evidence showing that the defendant acted in good faith. Bryant, 738 So.2d at 832.

Here, the evidence was in sharp dispute. Goodman's version of the event presented a jury question as to whether a reasonably prudent person acting in good faith would have made further inquiry before prosecuting. Dean Prosser wrote, on determining reasonableness:

"The appearances must be such as to lead a reasonable man to set the criminal proceedings in motion. The defendant is not necessarily required to verify his information where it appears to be reliable; but where a reasonable man would investigate further before beginning *Page 175 the prosecution, he may be liable for failure to do so. All such factors as the reliability of the source, the availability of further information and the difficulty of obtaining it, the representations of the accused and his opportunity to offer an explanation, and the apparent necessity of prompt action, are to be considered in determining whether it was reasonable to act without seeking verification."

William L. Prosser, Law of Torts, § 119 at 842 (4th ed. 1971) (quoted in Atlantic Zayre, Inc. v. Meeks, 194 Ga. App. 267, 390 S.E.2d 398 (1990) (using Prosser, Law of Torts, § 119, as a basis for its rationale that a store security guard could be found to have acted unreasonably in arresting a customer: the customer had offered "over and over to give an explanation and to fetch [his] receipts [from his car], but was not permitted to."). We find the reasoning of the Court of Appeals of Georgia persuasive under the circumstances presented by this case.

The record reflects that Goodman, at the time of the apprehension, presented to Milner a receipt that matched the product code of the merchandise Goodman had allegedly concealed. Although the receipt was dated seven days before the date of the apprehension, Milner made no effort to verify its legitimacy. Before calling the police, she did not confirm with the customer-service-desk employees whether Goodman had, in fact, attempted to exchange the telephone; nor did she confirm with the store greeter whether Goodman had entered the store with the telephone. Therefore, the question whether a reasonable person acting in good faith would have investigated the situation further before proceeding with the arrest was disputed; the trial court correctly allowed the jury to decide the issue of probable cause.

Generally, one making a Batson challenge to the composition of the jury must do so before the jury is sworn. Stegall v. State, 628 So.2d 1006,1008 (Ala. 1993). Additionally, a Batson challenge is untimely if it is made after the venire has been dismissed. McGregory v. Lloyd WoodConstr. Co., 736 So.2d 571, 577 (Ala. 1999). A Batson challenge made after the unselected members of the venire have been released would create the difficulty of a great delay in drawing and summoning a new venire. McGruder v. State, 560 So.2d 1137, 1143 (Ala.Crim.App. 1989).

Wal-Mart claims that before the jury was sworn the parties held an unrecorded sidebar conference with the judge, informing the judge that Wal-Mart wished to make a Batson challenge to Goodman's exercise of her peremptory strikes. Wal-Mart further claims that the trial court, in an effort to accommodate the veniremembers, who had been in court all morning, decided to hear the Batson challenge after dismissing both the jury and the unselected members of the venire. Wal-Mart contends that this was made apparent in the record by the language the trial court used after dismissing the jury for the day: "I believe a motion has been made by the defense. You can go ahead and read *Page 176 your motion into the record." Wal-Mart claims that this statement by the court shows that Wal-Mart had made its Batson objection to the court before the court dismissed the jury and the unselected members of the venire. The court entertained a Batson challenge by Wal-Mart in the absence of the jury and the unselected veniremembers. Goodman's counsel responded with explanations for striking the white jurors. The trial court found no Batson violation in Goodman's exercise of her peremptory strikes.

This Court is limited to a review of the record, and the record cannot be changed, altered, or varied on appeal by statements in briefs of counsel. Gotlieb v. Collat, 567 So.2d 1302, 1304 (Ala. 1990). Moreover, we cannot assume error or presume the existence of facts as to which the record is silent. Alfa Mut. Gen'l Ins. Co. v. Oglesby,711 So.2d 938, 942 (Ala. 1997). The first mention in the record of any alleged Batson violation came after the trial court had dismissed the jury and the unselected veniremembers. The sidebar conference, in which Wal-Mart claims the trial court discussed entertaining its Batson challenge, was not reported. We cannot assume facts from the record, nor can we presume that an unreported motion was timely made. We must conclude that Wal-Mart's Batson challenge was untimely. We therefore need not address whether Goodman's proffered explanations were race-neutral.

Spoliation is an attempt by a party to suppress or destroy material evidence favorable to the party's adversary. May v. Moore, 424 So.2d 596,603 (Ala. 1982). Proof of spoliation will support an inference of guilt or negligence. May, 424 So.2d at 603. One can prove spoliation by showing that a party purposefully or wrongfully destroyed a document that the party knew supported the interest of the party's opponent. Id.

Wal-Mart insists that because Goodman's counsel made a copy of the front of the box it is obvious that Goodman knew or should have known the importance of the box as a piece of evidence. However, nothing in the record shows that Goodman knew that the entire box would be a key piece of evidence in her case, and Wal-Mart provided no evidence to show that Goodman intentionally destroyed the box in order to inhibit Wal-Mart's case. Wal-Mart is not entitled to a new trial on the basis that Goodman or her counsel did not preserve the original package.

Alabama State Bar Ethics Opinions RO-84-160, RO-86-125, RO-88-27, and RO-88-34 answer the question whether any ethical prohibition forbids counsel to directly contact and interview witnesses for a defendant corporation without first contacting counsel for the corporation. These opinions stand for this proposition:

"[Opposing counsel] may directly contact and interview certain employee witnesses of the defendant, without the necessity of obtaining permission from the defendant or giving notice to the defendant's attorney. . . . [But opposing counsel] may not interview, without notice and permission, witnesses who are in a position to bind the defendant. [In addition,] such contact may be initiated without reference to whether suit has been filed or is merely anticipated."

Ethics Opinion, RO-88-34. (Citation omitted.)

The assistant store manager did not act as a corporate agent with the authority to bind Wal-Mart. No evidence indicated that he had the authority to commit Wal-Mart to his statements in any way. Thus, Goodman's counsel was not required to notify Wal-Mart regarding his contact with its employee. Because Goodman's counsel was acting were within the scope of the rules when he interviewed the assistant store manager regarding Wal-Mart's merchandise-return procedures, no objectionable out-of-court "experiment" occurred and the court properly allowed the manager's testimony offered to rebut earlier testimony presented for Wal-Mart.

A physical injury or physical symptom is not a prerequisite for a finding of mental anguish. Kmart Corp. v. Kyles, 723 So.2d 572, 578 (Ala. 1998). A plaintiff is required only to present some evidence of mental anguish, and once the plaintiff has done so the question whether the plaintiff has suffered mental anguish and, if so, the question of how much compensation the plaintiff is entitled to for the mental anguish are questions for the jury. Kyles, 723 So.2d at 578. The amount of the jury's award is left to the jury's sound discretion, and it will not be set aside absent a clear abuse of discretion. Id. A jury's verdict is presumed correct, and that presumption is strengthened by the trial court's denial of a motion for a new trial. Id.

In Foster v. Life Insurance Co. of Georgia, 656 So.2d 333, 337 (Ala. 1994), this Court stated:

"We recognize that mental anguish and emotional distress are not items for which a precise amount of damages can be assessed; thus, in considering whether a jury verdict for compensatory damages is excessive, we must view the evidence from the plaintiff's perspective and determine what the evidence supports in terms of the plaintiff's suffering."

This Court then ordered a reduction of the mental-anguish compensatory damages in Foster from $250,000 to $50,000, noting that the plaintiff's suffering during the two months between the injury and the filing of the plaintiff's action could not justify an award exceeding $120,000 for each month.

Wal-Mart cites Kyles in order to support its proposition that the compensatory-damages award should be reduced. In Kyles, the jury awarded the plaintiff $100,000 in compensatory damages and $100,000 in punitive damages in her malicious-prosecution case against Kmart Corporation. Kmart suspected Kyles of shoplifting lawn chairs from the front of the store, and it subsequently had a warrant sworn out for her arrest. The grand jury no-billed the charge. Kyles sued Kmart and its loss-prevention employee. At trial, however, Kyles presented no testimony or other evidence indicating that the circumstances surrounding her arrest had caused her to suffer mental anguish, other than her husband's testimony that she cried when she telephoned to ask him to pick her up at the jail. This Court ordered a remittitur of her compensatory damages to $15,000, reasoning that this was the greatest amount of compensatory damages that a jury, using sound discretion, could have awarded her.

Wal-Mart also cites Delchamps, Inc. v. Bryant, supra, 738 So.2d 824, a case in which this Court ordered a reduction of the jury's award of compensatory damages for mental anguish, from $400,000 to $100,000. Bryant was arrested for shoplifting two cartons of cigarettes from a Delchamps grocery store. An employee at the Delchamps store suspected the theft and told the assistant store manager. The manager questioned the suspect in the front of the store, but allowed him to leave. The manager wrote down the license-plate number of the automobile the suspect entered and then telephoned the Jefferson County Sheriff's Department. The investigation by the sheriff's department led to the arrest of Bryant. The criminal case against him, however, was nol-prossed because he presented evidence indicating that at the time of the alleged theft he was incarcerated. Bryant sued Delchamps, *Page 179 Inc., alleging malicious prosecution and claiming compensatory damages for mental anguish. At trial, Bryant testified, describing his arrest and incarceration; his hiring an attorney; the lapse of time between the arrest and the nol-prossing of his case; and his concern that a conviction could lead to his return to prison for a minimum of 10 years. This Court held that the scant direct testimony about mental anguish and the absence of any corroborating description of the intensity of his suffering could not have led a reasonable jury to award $400,000 in compensatory damages. We concluded that the greatest amount of compensatory damages a jury could have awarded based on the evidence was $100,000.⁷

Goodman testified at trial concerning the stress she claimed to have undergone because of worry over the case. She also testified that the arrest caused her to suffer lower abdominal pains during her pregnancy, pains she said lasted for several days and caused her to be very anxious over the health of her unborn child. She discussed the embarrassment and humiliation she said she felt because of the arrest on Christmas Eve, a very busy shopping day, and being led out of the Wal-Mart store in handcuffs, escorted by the police officers and accompanied by her two young children. She stated that she remains embarrassed over what has happened. Goodman also stated that at the time of the arrest, she was worried about whether her children were going to be taken away from her because she says she could not immediately find anyone to pick them up from the police station. Moreover, she testified that she was fired from her job as a consequence of the arrest and that she had a difficult time finding other employment. She was given a trial date in February 1996 (for trial of the shoplifting case); because she failed to appear for that trial, she was arrested and placed in a holding cell on March 25, 1996, to await trial. At trial, she was found not guilty.

Goodman's evidence of mental anguish afforded Wal-Mart ample opportunity for cross-examination.⁸ The jury, after hearing Goodman's testimony and after hearing Wal-Mart's evidence tending to minimize Goodman's injury or harm,⁹ awarded her $200,000 in compensatory damages for mental anguish. The jury's award does not shock the conscience of this Court. We cannot say Goodman's mental anguish was limited to the period between her arrest and her acquittal, because her testimony suggested she suffered it for a longer time than that. CompareSouthern Energy Homes, Inc. v. Washington, 774 So.2d 505 (Ala. 2000) (upholding damages award to plaintiff who testified that his mental anguish consisted of anger, embarrassment, and disruption of his sleep over a period of nearly five years); Bryant, *Page 180 738 So.2d at 839 (reducing the compensatory-damages award for mental anguish lasting for only four months).

Given the evidence concerning Goodman's mental anguish, and viewing it from the plaintiff's perspective, we cannot say the amount awarded was beyond what a properly functioning jury, using sound discretion, could award. While the damages award is high and borders upon excessiveness, we have no basis to interfere with the judgment of the jury. We therefore affirm the compensatory-damages award.

The evidence presented by Wal-Mart demonstrates that after she detained Goodman, Milner failed to act in good faith by exercising ordinary caution and prudence that would support a finding of an honest or strong suspicion. She failed to verify whether the receipt was legitimate or to investigate Goodman's contentions. The jury apparently determined that this failure indicated a lack of probable cause and indicated malice. On the other hand, Milner and Goodman did not know each other and had never met. They are of the same ethnicity, and no evidence presented at trial suggests that Milner had any vindictive, spiteful, or other improper motives. If the evidence stopped here, we would be inclined to compare this case to *Page 181 Bryant, where no punitive damages were awarded under similar circumstances — a failure to pursue information that would have exonerated the plaintiff. However, this case presents several additional factors. Upon Goodman's acquittal, Wal-Mart again demanded that she return the telephone. Wal-Mart's failure to address the significance of the receipt continues in the proceeding before this Court; it fails to address in its brief here the significance of the receipt. The evidence regarding Wal-Mart's loss-prevention policy, viewed favorably to Goodman, suggested the policy gave an unhealthy incentive for employees to make arrests in order to obtain favorable performance ratings.¹⁰ Even after Goodman was acquitted, Wal-Mart demanded the return of the telephone. Wal-Mart's evidence regarding its merchandise-return practices was impeached by testimony of a Wal-Mart employee.

The trial court's order finds the conduct and the degree of reprehensibility sufficient to warrant a 15:1 ratio of punitive damages to compensatory damages. If we attached a presumption of correctness to the trial court's view of the propriety of the ratio, we would abdicate our responsibilities under BMW and Hammond. We must evaluate the evidence and make an independent determination of what would be a proper ratio. We have applied a ratio of three to one in instances of reprehensibility that caused substantial compensable damage without causing physical injury and that involved no outrageous or contemptible conduct. See Prudential Ballard Realty Co. v. Weatherly, [Ms. 1981671, July 28, 2000] ___ So.2d ___ (Ala. 2000) (reducing a punitive-damages award to a 3:1 ratio, based on conduct that was reprehensible but that involved no physical injury); American Pioneer Life Ins. Co. v.Williamson, 704 So.2d 1361 (Ala. 1997) (reducing the punitive-damages award to $750,000, for a 3:1 punitive-to-compensatory ratio; the jury had awarded $250,000 in compensatory damages in a breach-of-contract action where the plaintiff had suffered no harm to health and no risk to safety but the defendant's actions were found reprehensible). The Legislature has recently enacted a 3:1 punitive-damages cap for cases such as this present case. See § 6-11-21, Ala. Code 1975. We find the 3:1 ratio appropriate in this case, in view of Wal-Mart's conduct at the time of the arrest and its conduct thereafter, as well as the evidence concerning Wal-Mart's loss-prevention policies.

"The guaranty of due process does not require that this Court apply a mathematical formula to determine whether a punitive damages award is excessive; therefore, a remittitur generally is not justified solely on the basis of a high ratio. The ratio between the [punitive damages and the compensatory] damages awards must be reasonable; however, *Page 182 a higher ratio may be justified in cases in which the harm to the plaintiff is hard to detect or the monetary value of noneconomic harm is difficult to determine. This Court has found constitutionally acceptable ratios ranging from [1:1 to 121:1]."

(Citations omitted.)

The ratio of the jury's $3-million punitive-damages award to its $200,000 compensatory-damages award is 15:1. Given the circumstances of this case, we find that ratio unacceptably high.

We have determined that the award of $200,000 for compensatory damages, while borderline, was not excessive. These damages were awarded for the mental anguish, or actual harm, Goodman suffered. Wal-Mart's conduct was not grievous. While the evidence supports an award of more than the minimal amount of punitive damages, we conclude that the $3-million award does not bear a reasonable relationship to the actual harm Goodman suffered or was likely to suffer.

Overall, the circumstances surrounding the conduct of Wal-Mart at the time of Goodman's arrest, especially the fact that *Page 183 Goodman claimed to have a receipt for the telephone, a claim that warranted further investigation, weigh in favor of an award of punitive damages. However, these circumstances do not warrant a punitive-damages verdict of anything near $3 million, 15 times the compensatory damages of $200,000.

Wal-Mart relies on Cunningham v. Langston, Frazer, Sweet Freese,P.A., 727 So.2d 800 (Ala. 1999), in which this Court set out the standard a trial judge should use when considering a request for a change of venue based on a defendant's claim that another county would be a more convenient forum:

"`The doctrine of forum non conveniens was formally adopted in this state and codified at § 6-3-21.1, Ala. Code 1975; the doctrine has a field of operation only where an action is commenced in a county in which venue is appropriate. Transfers under this Code section are within the discretion of the trial judge. The purpose of the doctrine is to prevent the waste of time, energy, and money and also to protect witnesses, litigants, and the public against unnecessary expense and inconvenience. . . . Section 6-3-21.1(a) reads as follows:

"`"(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein."

"`The burden of proof under this doctrine is on the defendant to prove to the satisfaction of the trial court that the defendant's inconvenience and expense of defending the action in the venue selected by the plaintiff are such that the plaintiff's right to choose the forum is overcome. Stated differently, the transferee forum must be significantly more convenient than the forum in which the action is filed by the plaintiff, to justify transfer. . . .'"

In Cunningham, this Court upheld the trial court's transfer of a case from Jefferson County even though the plaintiff had filed his action in the Jefferson Circuit Court and that court had jurisdiction over the action. We found it appropriate for the trial court to transfer the action to the Sumter Circuit Court because that court had tried the case that had produced the fee award that was at dispute in the Jefferson County action; the judge of the Sumter Circuit Court was familiar with the underlying issues in the case and with the attorneys involved; and that judge had expressly retained jurisdiction over any matters arising from the underlying case. These factors led the judge of the Jefferson Circuit Court to conclude that *Page 185 Sumter County was a significantly more convenient forum and that the interests of justice or the convenience of parties and witnesses would be best served by transferring the case.

Because we are not ordering a new trial in this case, we do not address the merits of Wal-Mart's claim that Lee County is a more convenient venue. If Goodman chooses a new trial over a remittitur of damages, then Wal-Mart may move for a change of venue based on the doctrine of forumnon conveniens. It would be premature for this Court to determine now whether a change of venue would be appropriate if the plaintiff chooses a new trial.

AFFIRMED CONDITIONALLY.^*

Maddox, Houston, Cook, Brown, and England, JJ., concur.

Johnstone, J., concurs in part and concurs in the result in part.

Hooper, C.J., dissents.

I concur in all holdings, except that I concur only in the result of the treatment of the defendants' Batson challenge. I think the record supports an inference that the trial judge knew of the Batson challenge before he discharged the jury venire. While I think the Batson challenge was timely, I do not think the trial judge erred to reversal in overruling the Batson challenge.

I must respectfully dissent. Unfortunately, the trial court's judgment in this case turns the concept of justice entirely on its head, rewards the unjust, and punishes a legitimate business for attempting to protect itself from theft. I do not see how any business can long survive when it loses its merchandise through shoplifting and then gets punished for seeking to enforce the laws against theft. I hope the kind of "legal" action this plaintiff engaged in is not occurring throughout the entire State of Alabama. However, if this kind of "legal" action — where a person shoplifts, is arrested, and then sues for malicious prosecution — is confined to certain counties in Alabama, I suspect we will continue to see an exodus of businesses from those counties, followed inevitably by the resulting economic decline that increases the poverty of those counties and the covetous desire to empty the coffers of the businesses that remain. The depressing cycle is easy to predict, but extremely difficult to stop, much less reverse. The corrosive effect of such a judgment as we have before us calls for this Court to exercise greater care in reviewing jury verdicts. This Court must, of course, by law, defer to the presumed "correctness" of a jury verdict; however, as a Justice on this Court, I will scrutinize such verdicts with great care, always within the standards set by this Court, and I *Page 186 will leave no stone unturned in an effort to prevent the self-destructive economic and judicial effects that inevitably arise from unjust verdicts.

This Court has stated the standard of review for jury verdicts in civil cases:

"`Upon review of a jury verdict, we presume that the verdict was correct; we review the tendencies of the evidence most favorably to the prevailing party; and we indulge such reasonable inferences as the jury was free to draw from the evidence. We will not overturn a jury verdict unless the evidence against the verdict is so much more credible and convincing to the mind than the evidence supporting the verdict that it clearly indicates that the jury's verdict was wrong and unjust.'"

I have tried my best in this case to look for the "reasonable inferences" the jury could have drawn that might support its verdict and damages awards. However, in doing so, I reach a conclusion opposite to that of the majority; I think "the evidence against the verdict is so much more credible and convincing to the mind than the evidence supporting the verdict that it clearly indicates that the jury's verdict was wrong and unjust." Charter Hosp., 558 So.2d at 911. Let us examine those facts.

The plaintiff LaShawna Goodman claimed that she bought the telephone that is the subject of this action, in order to give it to a friend for Christmas. She testified that she saw it advertised in a Wal-Mart advertising flier. Yet, no telephone was offered in a Wal-Mart advertising flier the week before the alleged purchase. (R. 1761-65.) After she was found not guilty on a charge of stealing the telephone, she said she did not give the telephone to the friend because Christmas had already passed once she received the telephone back from the Opelika Municipal Court; that court found her not guilty of theft, in March 1996. She said she threw the telephone away because, she said, it did not work. When Wal-Mart sought to obtain the telephone, in order to test whether it had been given the sticker that merchandise receives when a customer brings it in for return, Wal-Mart discovered that Goodman had thrown away the telephone and the box in which it had been packaged. The only evidence of the existence of that telephone was a photocopy of the back of the box she says had contained the telephone. Therefore, Wal-Mart could not test to see if a sticker had been applied to the box, as Goodman testified. Goodman claimed that the telephone did not work and that it was too late to return it to Wal Mart.¹¹ By Goodman's version of the *Page 187 facts, she threw away the box after she had contacted an attorney about suing Wal-Mart.

Also, Goodman's friend Elizabeth Thomas testified that the receipt used by Goodman as a part of her defense in the criminal theft action against her was actually a receipt for a telephone that Thomas's husband had purchased for Ms. Thomas.¹² In other words, Goodman took a receipt for someone else's telephone and used it to claim that she had actually purchased the telephone that Wal-Mart accused her of attempting to steal. Goodman and her children lived with Thomas's family for a period of time.

The defense focused on the fact that Milner, the loss prevention associate for Wal-Mart who first stopped Goodman, had not attempted to discover the origin of the receipt that Goodman had in her possession. Milner answered that she had plainly seen Goodman take a telephone from the shelf in the electronics section of the Opelika Wal-Mart store and place it in the bottom of a bag in her cart.¹³ She then followed her and watched her travel through the store and eventually leave *Page 188 without paying for the telephone.¹⁴ Milner never saw Goodman return to the customer-service desk, as Goodman testified she did. That is a critical fact, because Goodman claimed she had left the telephone at the customer-service desk. Either she had to return to that desk to pick up her telephone, or she stole a telephone from Wal-Mart. Milner also saw that the receipt produced by Goodman had been issued by a different Wal-Mart store a week earlier. Goodman argued at trial that Milner was under some kind of pressure from her supervisor to meet a quota of shoplifting stops. Milner denied this was the case, as did her supervisor.¹⁵ Even if Milner *Page 189 had been under pressure to meet a quota of stops, that certainly does not mean that she would lie about the facts in Goodman's apprehension or set up an innocent person for arrest.

At her trial, Goodman claimed that the telephone she was accused of stealing was a telephone she had purchased from a Wal-Mart store in Montgomery. She used Thomas's receipt to support her story. On that basis, the municipal judge found her not guilty.¹⁶ She said she did not remember which Wal-Mart store in Montgomery she had purchased the telephone from or how to drive to that store from her doctor's office, where, she said, she had had an appointment — on December 17, 1995, a Sunday, and the same day she alleged she had purchased the telephone.

One "drawing reasonable inferences" from the evidence in this case would conclude that the jury did not evaluate the evidence at all but merely pitied Ms. Goodman's condition and predicament on the day before Christmas 1995.¹⁷ The only logical inference one could draw from the evidence is that Goodman had a receipt that did not belong to her, that she took a telephone off the shelf in the Opelika Wal-Mart store, that she did not pay for that telephone before leaving the store, and that she tried to use the fraudulent receipt to escape punishment for her crime. She then had the audacity to sue Wal-Mart for malicious prosecution, even though the employees of Wal-Mart had acted professionally and Wal-Mart was within its rights to have Goodman arrested as a suspected shoplifter. The testimony of Milner, Thomas, and Reese is all logical and consistent, and none of it appears contrived. On the other hand, Goodman's testimony is, of course, self-serving and filled with short and nonexplanatory answers to questions, and it contradicts the testimony of the other key witnesses at trial. It makes much more sense to conclude that Goodman produced the fraudulent receipt in order to escape arrest and a criminal conviction for shoplifting than it makes to conclude that Wal-Mart produced the other witnesses in the case and induced false testimony in order to escape civil liability.

The trial judge should have granted Wal-Mart's motion for a judgment as a matter of law, because Goodman did not produce substantial evidence to support a finding of malicious prosecution or to support the jury's damages awards. Even if I *Page 190 could vote to affirm the trial court's imposition of liability, I would demand a much greater remittitur of the punitive damages, because one could hardly call Wal-Mart's conduct in this case reprehensible. Wal-Mart had probable cause to have Goodman arrested, and it did not act maliciously in doing so. The effect of the trial court's judgment and of this opinion could be to encourage shoplifting in this State. I understand that sometimes criminals are able, by cunning manipulation of the criminal-justice system, to escape prosecution for their crimes. However, I do not want to see that unfortunate reality extended to include a criminal's quest to become a millionaire by cunning manipulation of the civil-justice system. I think that kind of manipulation caused the result in this case and that that manipulation poses a serious threat to the civil-justice system of this State. Therefore, I respectfully dissent.