465 S.E.2d 476 | Ga. Ct. App. | 1995
Lead Opinion
In this malicious prosecution and defamation case, plaintiffs Freddy Rowe and Cleo Brown appeal the trial court’s order granting summary judgment to defendants CSX Transportation, Inc. (“CSX”), a railroad, and its detective, Robert Johnson.
This case arose in January 1992 when a Racine rail saw, used to cut rails, was stolen from a truck parked in the CSX railyard. Six months later, while investigating the theft, Johnson interviewed Fabian Terry, who stated that he got the saw from Willie, Jr. who said he bought it for $20 from Brown. Terry also told Johnson that the saw was on Rowe’s property and Rowe knew it was stolen. After Johnson went to Rowe’s house and asked about the saw, which had “Property of CSX” painted on it, Rowe admitted he had lent it to a friend and agreed to give it back to the railroad. At his deposition, Rowe testified that Johnson promised not to press any charges if he brought back the saw. Rowe returned the saw, but Johnson subsequently reported the results of his investigation to a county magistrate who issued arrest warrants for Rowe and Brown for receiving stolen property. After their arrest, the men waived their right to a preliminary hearing and posted bond. It is undisputed that Johnson did not attempt to contact Brown after receiving Terry’s statement.
The criminal cases against Rowe and Brown ultimately were dismissed without prosecution because Johnson was unable to appear. In addition, the assistant district attorney prosecuting the case indicated that, because Brown had been incarcerated when the crime occurred, he felt the charges should be dropped. Rowe and Brown were subsequently indicted on the same charges, but the charges were again dismissed.
Rowe and Brown then commenced this action alleging malicious prosecution and defamation. CSX and Johnson moved for summary judgment, arguing that probable cause for the arrests existed based on the evidence and because Rowe and Brown waived their preliminary hearing. They also contended that Johnson lacked malice. CSX and Johnson further argued that, because the evidence showed Johnson made his statements in good faith in the performance of a public duty, summary judgment was warranted on the defamation claim. The trial court summarily granted the motion for summary judgment.
Rowe and Brown argue that the trial court erred in granting summary judgment because whether Johnson lacked probable cause to
“[A]t summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate . . . that there is an absence of evidence to support at least one essential element of the non-moving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).
The essential elements of malicious prosecution are: “(1) prosecution for a criminal offense; (2) instigated without probable cause; (3) with malice; (4) under a valid warrant, accusation or summons; (5) which has terminated favorably to the plaintiff; and (6) has caused damage to the plaintiff. [Cit.]” Wal-Mart Stores v. Blackford, 264 Ga. 612, 613 (449 SE2d 293) (1994). Lack of probable cause exists when the circumstances satisfy a reasonable person that the accuser had no ground for proceeding but a desire to injure the accused. OCGA § 51-7-43. Further, the return of an indictment is prima facie, though not conclusive, evidence of probable cause, as is the waiver of a preliminary hearing. Smith v. Holeman, 212 Ga. App. 158, 161 (6) (441 SE2d 487) (1994); Garmon v. Warehouse Groceries Food Center, 207 Ga. App. 89, 93 (427 SE2d 308) (1993).
Prima facie evidence of probable cause existed because Brown and Rowe were indicted by a grand jury and waived their preliminary hearing. Moreover, Terry’s statements that he had acquired the saw from a man who bought it from Brown, the saw was located on Rowe’s property, and Rowe knew it was stolen are also prima facie evidence of probable cause. In this procedural posture, the prima facie establishment of probable cause becomes conclusive if left unrebutted. Garmon, supra at 93 (2). Thus, the burden shifted to Brown and Rowe to “ ‘point to specific evidence giving rise to a triable issue.’ . . . [Cits.]” Id. at 94; Smith v. Trust Co. Bank, 215 Ga. App. 413 (1) (450 SE2d 866) (1994).
The record reveals no such evidence. The dismissal of the charges against Brown due to his incarceration when the offense occurred does not create a dispute about the existence of probable cause. Brown’s incarceration lasted from January 1992, when the saw was stolen, to February 1992. The saw was returned in June 1992. Because Brown was charged with theft by receiving, the fact that he was jailed on the date of the theft is irrelevant to the issue of probable cause. Nor does the reasonableness of Johnson’s failure to corroborate Terry’s statements give rise to a triable issue. In circumstances where a cursory investigation would have revealed physical or documentary evidence corroborating the factual defenses claimed by the accused, we have held that a reasonable person would be required to investigate further before initiating legal proceedings. Garmon, supra at 95;
In addition, however, no issues remain to be tried on the element of malice. Rowe and Brown base their argument that a jury must decide the issue of malice solely on inferences drawn from the purported absence of probable cause and Johnson’s broken promise that Rowe would not be prosecuted if he returned the saw. Malice, however, cannot properly be inferred absent a total lack of probable cause. OCGA § 51-7-44; Lolmaugh v. T.O.C. Retail, 210 Ga. App. 605 (2) (436 SE2d 708) (1993). Moreover, Johnson presented undisputed evidence that he did not know Brown or Rowe prior to this investigation and bore them no ill will. Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876 (2) (429 SE2d 264) (1993). Brown and Rowe have presented no evidence of the requisite animus in response. Id. at 881 (4).
Further, the trial court’s disposition of this case comports with public policy. “[M]alicious prosecution suits are not favored. It is public policy to encourage citizens to bring to justice those who are apparently guilty.” Monroe v. Sigler, 256 Ga. 759, 761 (8) (353 SE2d 23) (1987). Accordingly, the trial court properly granted summary judgment.
Judgment affirmed.
Inasmuch as Rowe and Brown failed to address the trial court’s adjudication of their defamation claim in their appellate brief, we deem the issue abandoned and decline to reach it. Court of Appeals Rule 27 (c) (2).
Dissenting Opinion
dissenting.
I respectfully dissent from the affirmance of summary judgment. My review of the evidence persuades me that a jury should decide whether defendant Robert L. Johnson, Jr., the private detective for defendant CSX Transportation, Inc. (“CSXT”), failed to take reasonable steps to verify the information leading him to swear out arrest warrants alleging plaintiffs Freddy Rowe and Cleo Brown were guilty of theft by receiving the stolen property of CSXT.
Plaintiffs brought this tort action against defendant CSXT and defendant Robert L. Johnson, Jr., “in his individual and official capacity, [as] a Special Agent for [CSXT],” alleging in their verified complaint that plaintiff Freddy Rowe cooperated with defendant
In their verified answers, defendant Robert L. Johnson, Jr. and defendant CSXT admitted that plaintiff Freddy Rowe, “upon learning that he was a suspect in the theft of the Racine rail saw, did return the rail saw to the Meriwether County Sheriff.” Defendants further admitted that defendant Robert L. Johnson, Jr. “during the course of his official duty as a CSXT police officer did present sworn testimony to the Grand Jury”; that indictments were returned; and that orders of nolle prosequi were entered as to these indictments after the Prosecuting Attorney declared “that he did not intend to prosecute . . . ,” but denied the material allegations of defamation and malicious prosecution.
After a period of discovery, defendants jointly moved for summary judgment, supporting their motion with the affidavit of defendant Robert L. Johnson, Jr., who deposed that he is employed by CSXT as a Special Agent for Police and Special Services; that he is POST (Peace Officer’s Standard Training) certified and authorized to carry a weapon and effectuate arrests; and that it is his responsibility to investigate crimes committed against CSXT and to report such offenses to local prosecutors so they may review them and decide whether to prosecute. Defendant Robert L. Johnson, Jr. investigated the theft of a Racine saw “from a truck while it was parked at the roadmaster’s office in the CSXT yard in Manchester, Georgia, on or about January 6, 1992.” Robert L. Johnson, Jr. questioned a young man named Fabian Terry, who told defendant that he, Fabian Terry, “had the rail saw, and had gotten it from ‘Willie, Jr.’, who had purchased it from Cleo Brown for $20.00.” Robert L. Johnson, Jr. further deposed that “Fabian Terry provided to me signed statements implicating [plaintiffs] Freddy Rowe and Cleo Brown in the crime of theft by receiving stolen property. I turned these written statements over
Other undisputed facts are that defendant Robert L. Johnson, Jr. never spoke with plaintiff Cleo Brown before swearing out a warrant for his arrest. Cleo Brown testified at his deposition that he was brought in for questioning first by Officer Dixie Cole of the Manchester Police Department. She informed Cleo Brown that “the Railroad Man wanted [him].” Cleo Brown accompanied Officer Cole but they “couldn’t never get in touch with [defendant Robert L. Johnson, Jr.], never could.” Consequently, the police released Cleo Brown “to go on to work that day.” After “another month or two,” officers of the Meriwether County Sheriff’s Office arrested Cleo Brown at work, only this time, “[t]hey locked [him] up. . . .” Cleo Brown testified that he has a record of petty thefts but no evidence was adduced in support of defendants’ motion for summary judgment that Robert L. Johnson, Jr. knew of and relied upon Cleo Brown’s record in charging him with theft by receiving the stolen CSXT saw. Cleo Brown denied all knowledge of the Racine saw and testified that he has “[n]ever been in possession of any Railroad property[.]”
Although Robert L. Johnson, Jr. did speak with plaintiff Freddy Rowe, who admitted knowledge of the location of the saw, Robert L. Johnson, Jr. never saw Freddy Rowe in possession of the saw, and Freddy Rowe never admitted any knowledge that the saw was stolen.
Plaintiffs each posted bond shortly after arrest and did not pursue a preliminary hearing. The grand jury returned true bills charging plaintiffs Rowe and Brown with “[TH]EFT BY RECEIVING” stolen property. At the behest of Assistant District Attorney Gomez, however, the Meriwether Superior Court entered orders of “NOLLE PROSEQUI” as to both indictments on August 25, 1992.
In opposition to the motion, plaintiffs submitted a subsequent affidavit of former Assistant District Attorney Mark A. Gomez, who deposed that the indictment against Cleo Brown was dropped because it had been brought to his attention that Cleo Brown “was in confinement when the crime occurred.” This fact is corroborated by a letter from D. Givens, Warden of the Meriwether County Correctional Institution, indicating that “Cleo Brown was incarcerated . . . from 12-04-91 thru 02-20-92.” Mark A. Gomez further deposed that the decision to dismiss charges against Freddy Rowe was taken because “Mr. Robert L. Johnson, Jr., the railroad law enforcement officer, was the sole prosecuting officer involved in investigating this matter, and was unavailable to prosecute at arraignment.” Mr. Gomez identified from the jacket of the Freddy Rowe indictment a “notation made by me in my own handwriting[.]” This notation recites: “Dismissed by ADA per officer’s request[.] 24 July 92.” Plaintiffs also submitted a sworn statement from Fabian Terry, who deposed that he “got the Racein [sic] rail saw from Cleo Brown and took it down to the room [where] I
The trial court granted defendants’ motion for summary judgment as to all claims and this appeal followed. For the following reasons, I conclude that the trial court erred in granting that motion.
1. “A criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action.” OCGA § 51-7-40. The essential elements to a cause of action under this Code section are: “(1) prosecution for a criminal offense; (2) instigated without probable cause; (3) with malice; (4) under a valid warrant, accusation or summons; (5) which has terminated favorably to the plaintiff; and (6) has caused damage to the plaintiff. [Cit.]” Wal-Mart Stores v. Blackford, 264 Ga. 612, 613 (449 SE2d 293). In the case sub judice, plaintiffs contend the trial court erred in concluding no genuine issues of any material fact remained for jury determination with respect to their “claims for malicious prosecution. . . .” Specifically, they argue that a jury should determine whether Robert L. Johnson, Jr. acted without probable cause and with malice in swearing out the arrest warrants (and in testifying before the grand jury). It is plaintiffs’ burden to establish genuine issues on both of these factual matters in order to obtain a reversal of the judgment under review. “There can be no recovery, even though the prosecution was malicious, if there was probable cause for it; and [even] if there was no probable cause, there can be no recovery if the prosecutor acted without malice. [Cits.]” Ga. Loan & Trust Co. v. Johnston, 116 Ga. 628, 630 (43 SE 27).
2. “Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused. Lack of probable cause shall be a question for the jury, under the direction of the court.” OCGA § 51-7-43. This Code section is not exhaustive
“ ‘Probable cause is that apparent state of facts existing after reasonable and proper inquiry; the prosecutor is under a duty of cau
In the case sub judice, the subsequent return of true bills against the plaintiffs by the grand jury is “prima facie but not conclusive evidence that probable cause existed. . . . Darnell v. Shirley, [31 Ga. App. 764, 765 (7) (a) (122 SE 252)].” Hill v. Trend Carpet, 154 Ga. App. 446 (1) (268 SE2d 682). “This prima facie evidence could be
As it is undisputed that defendant Johnson never interviewed plaintiff Cleo Brown and failed to establish his whereabouts at the time of the theft in January 1992, before swearing out an arrest warrant for suspicion of theft by receiving stolen property, a jury question is presented as to whether defendant Robert L. Johnson, Jr.’s actions were reasonable, proper, and sufficient under the circumstances, or whether the warrant was sworn out in haste and without proper caution, impermissibly based upon mere conjecture and unfounded suspicion. McGonagil v. Treadwell, 216 Ga. App. 850, 853 (2), 854, supra. Similarly, the record does not conclusively establish that Robert L. Johnson, Jr. had probable cause to suspect Freddy Rowe of knowingly receiving the stolen saw, since the unrefuted testimony of Freddy Rowe shows that Robert L. Johnson, Jr. told him
3. “Malice consists in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual injured.” OCGA § 51-7-2. “A total lack of probable cause is a circumstance from which malice may be inferred; however, the inference may be rebutted by proof.” OCGA § 51-7-44. “This inference is one of fact to be drawn by a jury.” Auld v. Colonial Stores, 76 Ga. App. 329, 337 (3), supra. In Auld, the plaintiff was charged in an accusation with being a swindler and a cheat, because his personal check, presented for payment more than two months after he drew it, was returned unpaid due to insufficient funds. There, although the prosecutor stated that his design was to deter others, the whole court agreed that “the only method by which the sincerity of this declaration can be tested is the surrounding circumstances throwing light upon the motive.” Auld v. Colonial Stores, 76 Ga. App. 329, 337 (3). The whole court held that the circumstance where a prosecutor “expected to deter others by demonstrating to them how completely embarrassed they might become in winning the [criminal] case, and how much it might cost them in time, in worry and trouble defending it, and in cost of attorneys fees, etc., even though they should win . . . [would justify the jury] in finding that this kind of determent was within itself a malicious prosecution. It follow[ed] that malice may consist of a general disregard of the right and consideration of . . .a
I am authorized to state that Presiding Judge Pope joins in this dissent.
Compare Darnell v. Shirley, 31 Ga. App. 764, 765 (5) (122 SE 252), where this Court, applying § 4440 of the Civil Code (l910), held that want of probable cause “exists only ‘when the[se] circumstances . . .’ ” obtain. (Emphasis supplied.)
