Smith v. Holeman

• Decision Date: 23 February 1994
• Docket Number: Nos. A93A1815,A93A1816,s. A93A1815
• Citation: 441 S.E.2d 487,212 Ga.App. 158
• Parties: SMITH v. HOLEMAN et al. HOLEMAN et al. v. SMITH.
• Court: Georgia Court of Appeals

Page 487

441 S.E.2d 487

212 Ga.App. 158

SMITH v. HOLEMAN et al.

HOLEMAN et al. v. SMITH.

Nos. A93A1815, A93A1816.

Court of Appeals of Georgia.

Feb. 23, 1994.

McArthur & McArthur, John J. McArthur, Athens, for appellant.

Boyce, Ekonomou & Atkinson, Peter F. Boyce, Catherine M. Packwood, Duluth, for appellees.

BIRDSONG, Presiding Judge.

Mary Marlene Smith sued Clarence Holeman, The Varsity Drive-In of Georgia, Inc. and the City of Athens for damages for illegal arrest, malicious ("retaliatory") prosecution, false imprisonment, assault and battery, intentional infliction of emotional distress, and civil rights violations under 42 U.S.C.A. § 1983. These claims arise out of events which began when Smith tried to enter The Varsity restaurant while barefooted.

Holeman was a full-time employee of the Athens police department. While working at The Varsity part-time, he wore his Athens police uniform. When he told Smith she could not enter the restaurant without shoes, she cursed and left; she drove around the parking lot, onto Broad Street and back to The Varsity drive-thru lane to order food. Smith denies that she drove improperly in doing this. Holeman ran to her car and told her to leave. She contends he has admitted he did this not because of the way she drove but because he did not like her attitude. In his incident report Holeman stated: "I approached the suspect about her driving, she became smart and had a nasty attitude in general." Smith contends she apologized but Holeman said he did not like her attitude and acted very hostile; he opened the door and pulled her out; she fell to the ground and Holeman roughly jerked her up, handcuffed her, had her taken to jail, had her car towed and had her dog taken away by the dogcatcher. The evidence is not clear as to whether Holeman actually charged her with a crime at that time.

Holeman contends that when Smith left The Varsity, she got in her car and raced out of the parking lot and back on the premises at speeds of 50-60 mph before coming to a screeching halt in the drive-thru lane; he asked her at least four times to leave but she refused and told him to go ahead and arrest her. He told her she was under arrest, but she tried to drive off, so he reached in and turned the car off; he pulled her hands off the steering wheel and she accidentally fell to the ground. The five witnesses are all Varsity employees.

These events occurred on May 12, 1989. Four days later, Holeman got warrants charging Smith with criminal trespass and misdemeanor obstruction of an officer. Smith pled not guilty in state court. In August 1989, Holeman learned the charges had been nolle prossed and that Smith's attorney was making inquiries to the police department. According to Smith, Holeman immediately tried to get the charges reinstated. Holeman expressed concern to the solicitor about being left open for a lawsuit. The solicitor refused to reinstate the charges. Holeman said he would carry the case to the district attorney. On his way to that office, he spoke to an attorney to whom he appeared angry and expressed concern that he might be sued, and said "he was going to go and get [the district attorney] to indict it." The district attorney, when told Holeman might be sued, agreed to review the case. Before the grand jury, Holeman was the only witness. An indictment was returned in three counts: reckless driving, criminal trespass, and felony obstruction. Smith pled not guilty and filed a plea in bar, alleging this to be a retaliatory prosecution.

The prosecution for reckless driving, criminal trespass and felony obstruction of an officer remains pending. The trial court granted summary judgment to Holeman on the claims for false imprisonment, malicious prosecution, and the § 1983 claim, but denied summary judgment on the claims for assault and battery, intentional infliction of emotional distress, and punitive damages. The court granted summary judgment to The Varsity as respondeat superior and granted in part and denied in part the City of Athens' motion for summary judgment on the § 1983 claim.

Smith appeals, contending that the trial court should not have granted summary judgment to defendants on any claim, but that any claims which cannot be pursued until after the criminal prosecution is terminated should only have been dismissed without prejudice. Holeman and the City of Athens cross-appeal. We apply the standards set out in Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 as to summary judgment proof and procedure. Held:

1. The defense that the prosecution has not terminated in a malicious prosecution action is one in abatement, because the prosecution may yet terminate in the plaintiff's favor, and she may yet have a cause of action. A motion for summary judgment tests the merits of a claim and cannot be granted on matters in abatement, which are properly disposed of by motion to dismiss. Primas v. Saulsberry, 152 Ga.App. 88, 262 S.E.2d 251; Bennett v. Fine Jewelers, etc., 194 Ga.App. 377, 379, 390 S.E.2d 625. So, wherever the trial court granted summary judgment to defendants on a claim which may yet be asserted should the criminal prosecution terminate in plaintiff's favor, the claim should have been dismissed without prejudice.

2. To prove false imprisonment (see OCGA § 51-7-20) it is not necessary to show malice. The defendant has the burden to prove the arrest was lawful, and when the arrest was without warrant he must show one of the exigent circumstances listed in OCGA § 17-4-20(a). Collins v. Sadlo, 167 Ga.App. 317, 306 S.E.2d 390. Holeman contends the arrest was proper because a warrantless arrest may be made "by a law enforcement officer ... if the offense is committed in his presence." OCGA § 17-4-20(a). See Wilson v. State, 223 Ga. 531, 536, 156 S.E.2d 446, cert. den., 390 U.S. 911, 88 S.Ct. 839, 19 L.Ed.2d 885. But, this proviso excuses Holeman only if he was acting as a police officer and not in his capacity as security guard for The Varsity. Colonial Stores v. Holt, 118 Ga.App. 826, 828, 166 S.E.2d 30. The mere fact that Holeman was accoutred as a police officer does not convert his conduct into that of a police officer. If Holeman arrested Smith because she violated the law, he was acting as a police officer, albeit an off-duty officer. See Duncan v. State, 163 Ga.App. 148(1), 294 S.E.2d 365. But if he arrested her to get her off his employer's premises, he was not acting solely as a "law enforcement officer." See Welton v. Ga. Power Co., 189 Ga.App. 17(1), 375 S.E.2d 108. There is evidence that Holeman's duties as a security guard included arresting disorderly persons to remove them from the premises, so it cannot be said as a matter of law that the arrest was lawful under § 17-4-20(a). Whether the arrest was lawful as one made by a police officer is a jury question.

However, Smith may not maintain an action for false imprisonment until the criminal action is terminated in her favor (McCord v. Jones, 168 Ga.App. 891, 311 S.E.2d 209) for the pending prosecution is a continuance of the prosecution which was nolle prossed and is not barred. Bowens v. State, 157 Ga.App. 334, 277 S.E.2d 326. The summary judgment on Smith's claim for false imprisonment is reversed with direction to dismiss the claim without prejudice. Bennett, supra; Primas, supra.

3. Holeman contends he is immune to the claims for assault and battery and intentional infliction of emotional distress, but we decline to so hold. If the arrest was lawful based on probable cause, he had the right to use that force reasonably necessary. See Morton v. State, 190 Ga. 792, 799, 10 S.E.2d 836; Smith v. State, 144 Ga.App. 785, 786-787, 242 S.E.2d 376. If the arrest was unlawful, Smith had the right to resist the unlawful arrest with all force necessary. See Wagner v. State, 206 Ga.App. 180, 424 S.E.2d 861 (physical precedent only, Court of Appeals Rule 35(b)). A police officer assaults a person by attempting an unlawful arrest with force. Brooks v. State, 144 Ga.App. 97, 100, 240 S.E.2d 593. Even in a lawful arrest, an officer may not use more force than is reasonably necessary in the circumstances. Bennett v. State, 169 Ga.App. 85, 86, 311 S.E.2d 513. These claims cannot be determined until the lawfulness of the arrest is determined. The motion for summary judgment was properly denied, but the claims must be dismissed without prejudice. Bennett, supra; Primas, supra.

4. The trial court erred in granting summary judgment on the merits to The Varsity as respondeat superior to Holeman in this suit. Smith's claims against The Varsity involve Holeman's conduct on its premises: unlawful arrest, assault and battery and intentional infliction of emotional distress. If the servant commits a tort as a police officer, the master will not be liable, unless it was done at his direction. Quinones v. Maier & Berkele, 192 Ga.App. 585, 589(2), 385 S.E.2d 719. But the fact that Holeman was a police officer does not relieve The Varsity for his acts within his capacity as its employee. The case against The Varsity comes down to...