Booker v. Eddins, 74462

• Court: Georgia Court of Appeals
• Writing for the Court: BIRDSONG; DEEN, P.J., and POPE
• Citation: Booker v. Eddins, 359 S.E.2d 211, 183 Ga.App. 449 (Ga. App. 1987)
• Decision Date: 26 June 1987
• Docket Number: No. 74462,74462
• Parties: BOOKER v. EDDINS et al.

Page 211

359 S.E.2d 211

183 Ga.App. 449

BOOKER v. EDDINS et al.

No. 74462.

Court of Appeals of Georgia.

June 26, 1987.

Floyd Mincey, Dublin, for appellant.

Michael K. Jablonski, Charles M. Dalziel, Jr., Elmer Nash, Atlanta, for appellees.

BIRDSONG, Chief Judge.

Summary Judgment--Malicious Prosecution. The facts in this record show that M.V. Booker, a member of the Georgia Bar, moved to Dublin and joined together in practice with an attorney already in practice in that city. Shortly after commencing practice, Ms. Booker received a letter notice from the city governing authorities that a local ordinance required the payment of an annual fee of $100 in order to practice in Dublin. This fee was labeled a "license" rather than a tax. Ms. Booker replied by mail that her associate in practice had already paid the required fee and accordingly declined to pay an extra $100. By return mail, Ms. Booker was informed the fee was required of all persons engaging in certain type activities in the City of Dublin, including the practice of law. Ms. Booker then complained that the "practice of law" was controlled by a license issued by the state and thus the City of Dublin could not limit her right to practice law by a local law. The authorities of the City considered the declination by Ms. Booker to pay the fee. Being aware that all others similarly situated had paid the fee without protest and relying on case law that a revenue raising "tax" could be imposed by local governments, the authorities pursuant to the requirements of the local ordinance, sought and obtained a summons requiring Ms. Booker to appear in the local city court and answer the failure to pay the fee while still practicing law. The city court took the case under advisement and ultimately determined that even though Ms. Booker was in clear violation of the local ordinance, the enforcement provisions of the ordinance were contrary to case law and dismissed the complaint filed by the City for failure to pay the fee. The ordinance in effect provided a criminal sanction whereas in the opinion of the city court the proper sanction was the civil imposition of penalties (see Gleason v. City Council of Augusta, 242 Ga. 796, 251 S.E.2d 536).

After Ms. Booker received a favorable verdict, she brought the present complaint in the superior court against the governing authorities in both their corporate and personal capacities. After hearing arguments and considering the briefs and affidavits filed by the respective parties, the trial court found no evidence of malice nor absence of probable cause so as to support a conclusion of malicious action by any of the members of the City Council to support a malicious prosecution. Accordingly, the trial court granted summary judgment to each of the appellees. Ms. Booker now brings this appeal contending there were unanswered questions of fact that precluded the grant of summary judgment. Held:

OCGA § 51-7-40 provides a remedy for those who have been subjected to a criminal prosecution carried on without any probable cause and thus maliciously. This form of action however is not favored by the courts of this state. Public policy encourages bringing to justice those who are or apparently are guilty of disregard for the criminal law. See Day Realty Assoc. v. McMillan, 247 Ga. 561, 277 [183 Ga.App. 451] S.E.2d 663. Where the facts are undisputed and disclose that a complaint was filed in good faith with probable cause, and there is no sufficient issue of fact as to at least one element of the tort of malicious prosecution, such a factual posture warrants the grant of a summary judgment. See Fisher v. Kentucky Fried Chicken, 175 Ga.App. 542, 333 S.E.2d 877. In the recent case of Monroe v. Sigler, 256 Ga. 759, 353 S.E.2d 23, the existing law was reaffirmed concluding again that citizens of this state have a duty to report a suspected crime. Who has such a duty is a matter for the courts and should be handled within the legal system. It constitutes no encouragement for the reporting of misconduct when a criminal victim can easily and at great hazard become a civil defendant.

Pertinent provisions of the ordinance in question required the appropriate authority to enforce the fee ordinance in that any person, firm or corporation violating the ordinance, upon conviction, was to be punished as prescribed by the Official Code of the City of Dublin. We must presume that a public official will carry out the duties imposed upon that official. See Bank of Clearwater v. Kimbrel, 240 Ga. 570, 572, 242 S.E.2d 16.

In a suit for malicious prosecution, the gravamen of the action is the want of probable cause on the part of the person or persons instituting the prosecution. Probable cause in this regard may be defined as the existence of such facts and circumstances in the mind of a reasonable person, the reaction of those facts and circumstances upon the mind of such reasonable person, and the reasonable acting on the facts within the mind of the prosecutor, so as to cause a belief the person was guilty of the crime for which the prosecution was being pursued. Where the facts are...