Arbee v. Collins
| Decision Date | 09 November 1995 |
| Docket Number | A95A1880,Nos. A95A1622,s. A95A1622 |
| Citation | 463 S.E.2d 922,219 Ga.App. 63 |
| Parties | ARBEE v. COLLINS et al. (two cases). |
| Court | Georgia Court of Appeals |
Harris O'Dell, Jr., Savannah, for appellant.
Karsman, Brooks & Callaway, Stanley Karsman, Tracie G. Smith, Savannah, for appellees.
Collins, acting as an agent and employee of Merry Land & Investment Company, Inc. which owned and operated Marsh Cove Apartments, arrested, detained and prosecuted Arbee for criminal trespass on Marsh Cove property. After a nolle prosequi was entered on the criminal charge, Arbee sued Collins and Merry Land & Investment for malicious prosecution and false imprisonment. Arbee brings these appeals from the trial court's grant of summary judgment against him on the malicious prosecution claim in Case No. A95A1622 and on the false imprisonment claim in Case No. A95A1880.
Prior to the day of the arrest, Collins had notified Arbee, who was not a resident of Marsh Cove, that because of complaints by residents about his conduct while on the premises, he was forbidden to enter upon Marsh Cove property. See OCGA § 16-7-21(b)(2). Subsequently, Collins saw Arbee on Marsh Cove property near the entrance to the apartments on a common area road which provided ingress and egress to the apartments. Arbee had entered on Marsh Cove property that day as the invited guest of Lineback, a Marsh Cove resident, who was walking with Arbee from his apartment toward the entrance to the apartment property. After Collins reminded Arbee that he had been notified not to enter on the premises, Collins went to the manager's office located at the apartments to report Arbee's presence on the property. While Collins was in the manager's office, Arbee accompanied by Lineback walked away from the apartment entrance toward the manager's office. Arbee was arrested and detained by Collins for criminal trespass when he reached the manager's office.
After he was arrested and detained for a short period at the apartments, police arrived, and Arbee was taken to jail where he was detained for about 24 hours. At a subsequent preliminary hearing, the recorders court judge found probable cause and bound the criminal trespass charge over to state court. The state court later approved a nolle prosequi of the charge.
In three enumerations of error, Arbee claims the trial court erroneously granted summary judgment against him in both cases because there was no lawful basis or probable cause for the arrest and prosecution. Specifically, he claims that: (1) he was lawfully on the premises as an invited guest of a Marsh Cove resident; (2) he lacked the requisite mental intent to commit criminal trespass because an attorney advised him he had a right to be on the property; and (3) a Marsh Cove employee gave him permission to be on the property. Arbee has abandoned the second and third enumerations of error by failing to support those claims by argument or by citation to the record or authority. Court of Appeals Rule 27(c)(2), (3). Accordingly, we address only the first enumeration of error.
A malicious prosecution claim must be supported by evidence showing that the prosecution was carried on without any probable cause and by evidence that it was carried on maliciously. K-Mart Corp. v. Coker, 261 Ga. 745, 746, 410 S.E.2d 425 (1991); El-Amin v. Trust Co. Bank, 171 Ga.App. 35, 37, 318 S.E.2d 655 (1984); OCGA § 51-7-40. "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." OCGA § 51-7-43. Malice may be inferred from a total lack of probable cause. OCGA § 51-7-44. The existence of probable cause is a jury question where the facts regarding probable cause are disputed and a question of law for the court when the relevant facts are undisputed. OCGA § 51-7-43; K-Mart Corp., supra 261 Ga. at 746, 410 S.E.2d 425. Although a judge's determination of probable cause at a preliminary hearing on the criminal charge is not conclusive, it is prima facie evidence of probable cause which shifts the burden to the plaintiff to produce evidence that probable cause did not exist for his arrest and prosecution and that the charge against him was motivated by malice. Smith v. Trust Co. Bank, 215 Ga.App. 413, 416, 450 S.E.2d 866 (1994).
An accused violates the criminal trespass provisions of OCGA § 16-7-21(b)(2) by entering or remaining upon the premises of another with knowledge that he has been given notice that his presence is forbidden. However, a recognized defense to such a charge is that the accused entered or remained upon the property under a right granted by a tenant in possession of the property. "In the absence of a special contract, the landlord has no right to forbid a person to go upon the premises in the possession of a tenant, by the latter's permission and for a lawful purpose." Mitchell v. State, 12 Ga.App. 557, 559-560, 77 S.E. 889 (1913); Horsely v. State, 16 Ga.App. 136, 141-143, 84 S.E. 600 (1915). The tenant's invitation to a third party carries with it the same rights enjoyed by the tenant to ingress and egress to the rented premises to the extent such ingress and egress are necessary to the purpose of the invitation. Anthony v. Chicopee Mfg. Corp., etc., 168 Ga. 400, 404, 147 S.E. 887 (1929); W.L.N. v. State of Ga., 170 Ga.App. 689, 691, 318 S.E.2d 80 (1984). It follows that the invitation also carries with it the same rights enjoyed by the tenant to common areas in a multi-dwelling apartment complex to the extent the use of such common areas is connected to the purpose of the invitation. See Restatement of the Law, Torts 2d, § 189. 1 A landlord who arrests and prosecutes a person for trespass without inquiring as to whether the person had a right to be on the premises pursuant to invitation by a tenant does so at his own risk. Ellis v. Knowles, 90 Ga.App. 40, 42, 81 S.E.2d 884 (1954).
Here, the facts relating to the existence of probable cause on the criminal trespass charge are undisputed, so the question is one of law. Arbee knew prior to the day of his entry upon the Marsh Cove property that he had been notified not to enter the premises. He produced evidence that he was invited by Lineback to visit Lineback at his father's apartment, that he entered Marsh Cove property for that purpose, and that after visiting Lineback at the apartment, he and Lineback were leaving the property when they saw Collins near the entrance to the apartments. After Collins reminded Arbee that he had been notified not to enter the premises, and Collins left without taking any action, Arbee then proceeded away from the exit and remained on Marsh Cove property for the purpose of going to the manager's office "to see what was going on." The arrest occurred after he arrived at the manager's office.
It is unclear from the record where the manager's office was located on the Marsh Cove property and whether the road adjacent to it or the area around it where Arbee was arrested was a common area of the apartment complex accessible to all tenants. Even assuming that Arbee was arrested in a common area of the apartment complex, there was evidence demonstrating the existence of probable cause. We agree with the trial court's conclusion that when Arbee proceeded to the manager's office "to see what was going on" this was evidence he deviated from the purpose for which he was invited on the property and entered upon a portion of the premises unrelated to the invitation. A tenant's guest may not proceed at will to a part of the premises wholly disconnected to the purpose of the invitation and use the invitation as a defense to a charge of criminal trespass. Evidence that Lineback merely accompanied Arbee to the manager's office is insufficient to show that Arbee took this action pursuant to the invitation from Lineback.
Arbee failed to rebut the defendant's prima facie showing of probable cause by coming forward with specific facts showing the lack of probable cause and the existence of malice. Smith, supra 215 Ga.App. at 416, 450 S.E.2d 866. Under the evidence presented, a reasonably prudent person would believe they had probable cause to prosecute Arbee for the offense of criminal trespass. See K-Mart Corp., supra 261 Ga. at 747, 410 S.E.2d 425. Moreover, although Arbee alleged that his arrest and prosecution were racially...
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