Garmon v. Warehouse Groceries Food Center, Inc.

• Decision Date: 13 January 1993
• Docket Number: No. A92A1997,A92A1997
• Citation: 427 S.E.2d 308,207 Ga.App. 89
• Parties: GARMON v. WAREHOUSE GROCERIES FOOD CENTER, INC.
• Court: Georgia Court of Appeals

Page 308

427 S.E.2d 308

207 Ga.App. 89

GARMON v. WAREHOUSE GROCERIES FOOD CENTER, INC.

No. A92A1997.

Court of Appeals of Georgia.

Jan. 13, 1993.

Hughes & Gibson, Ralph E. Hughes, Clarkston, for appellant.

Goldner, Sommers, Scrudder & Bass, Glenn S. Bass, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

Appellant/plaintiff Terry Steven Garmon appeals the order of the trial court granting appellee/defendant Warehouse Groceries' motion for summary judgment in this suit for malicious prosecution and false imprisonment.

The following material facts are undisputed based on the posture of the record before us on appeal: Appellant and his wife entered appellee's grocery store. As he crossed the front of the store and approached the tobacco display, appellant was noticed by the store manager who was in his office, and by two store employees performing security duty behind a see-through mirror in a security area above the meat counter. The tobacco area is one of the top three theft areas in the store. Appellant approached the display (which was located in close proximity of and visible to the cash registers in the front of the store) in a normal manner, openly and without looking around took possession of a can of snuff, which he "got ... really fast," and then "immediately walked off" to the area where his wife was shopping. He opened the snuff, removed some snuff which he put into his mouth, and placed the snuff can in his pocket. He was observed engaging in this open and visible conduct by the store manager and by both employees. The manager considered the point in the store where he observed appellant openly dipping snuff as being "out of the way" and "out of the normal shopping pattern." By the time appellant opened the snuff can, one of the employees had repositioned himself in a back room, about ten feet away, watching the incident through the glass of the double doors of a cooler. Appellant continued shopping with his wife for about 45 minutes, and the couple bought approximately $68 worth of groceries. The couple, being under surveillance, went to the cash register; one of the employees reported to the manager what the two employees performing security duties had observed. The couple's groceries were rung up on the cash register and during that time appellant neither removed the snuff from his pocket nor made any offer to pay for it. As appellant's wife was in the process of paying the grocery bill, appellant was confronted about the snuff by the store manager. Appellant, who never denied having the snuff and never attempted to run, replied that he was sorry and attempted to pay for the item. Appellant was asked to accompany the manager to the office, grabbed by the arm in a non-confrontational manner, and directed to the office. Appellant attempted to explain that he put the snuff can in his pocket to prevent the open contents from spilling, he was going to pay for it, and he had forgotten about it being there. He again offered to pay for it but his offer was declined. At some point, appellant signed a store information form, captioned "Shop Lifter Information," and bearing a signature block line labelled "Shop Lifter's Signature." Several minutes thereafter, appellant was told that the police would be called.

When the police arrived, appellant asked if he would be arrested; the store manager said, "yes," and explained the store's policy that any adult arrested for shoplifting would be prosecuted. The manager explained what had happened to the police, "and the police made the judgment and asked [the manager] if he wanted to prosecute," and the manager replied in the affirmative. The police informed appellant he would be arrested for shoplifting, read him his rights, and placed him under arrest. Before leaving the premises and after being arrested, appellant was allowed in the presence of the police to pay for and take possession of the snuff. Appellant does not remember whether the police asked him what had happened; however, he did not speak with the police about what was going on, except to tell them that he was upset and did not understand it. After appellant was arrested for shoplifting, he was taken to the station in handcuffs, fingerprinted, booked, and released on bond.

Appellant appeared in city court for a preliminary hearing, but, after appellant requested through his counsel to be bound over to state court for jury trial, the store employees then present were not called to the stand to testify; neither did the witnesses discuss their testimony with the prosecutor. Appellant subsequently was re-booked, during a three-hour procedure at the holding facility, and was required to appear in state court under a charge of shoplifting. However, at that time, the prosecutor entered a nolle prosequi of the case on the grounds that due to anticipated conflicts in testimony, the state would be unable to prove appellant had the requisite criminal intent and that appellant had been allowed to pay for the snuff at the time of his arrest. Thus, the testimony of any store employees was not taken in state court. Held:

1. Facts and inferences asserted and in briefs not reasonably supported by the record cannot be considered on appellate review. See Behar v. Aero Med Intl., 185 Ga.App. 845(1), 366 S.E.2d 223. However, in ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 595-596, 370 S.E.2d 843. Nevertheless, a movant for summary judgment who is a defendant may discharge his burden by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474. At 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 nonmoving party's case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the nonmoving party's case. In other words summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the nonmoving party, concludes that the evidence does not create a triable issue as to each essential element of the case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that is, the record reveals there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. Lau's Corp., supra at 495, 405 S.E.2d 474.

2. "The lack of probable cause is the gravamen of a malicious prosecution action. [Cits.] Probable cause is absent when the circumstances would satisfy a reasonable person that the accuser had no ground for proceeding except a desire to injure the accused." K-Mart Corp. v. Coker, 261 Ga. 745, 746(1), 410 S.E.2d 425. Although criminal intent is a material element of shoplifting, a store employee need not determine the subjective intent of a suspected shopper before seeking an arrest and prosecution under the shoplifting statute. Id. at 747(2), 410 S.E.2d 425. Furthermore, "criminal intent may be inferred from the 'words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.' " Id. The basic question is whether, under the attendant circumstances, the suspected shopper's conduct would "cause reasonably prudent persons to believe they had probable cause to prosecute [the shopper] for the offense of shoplifting." Id. at 747(4), 410 S.E.2d 425. "Although a jury normally decides whether probable cause exists, the judge determines the issue when the material facts are[, as in this case,] undisputed." Id. at 746(1), 410 S.E.2d 425; Williamson v. Alderman, 148 Ga.App 297, 298(1), 251 S.E.2d 153. Malice is also a material element of malicious prosecution, but " '[a] total want of probable cause is a circumstance from which malice may be inferred.' " McMillan v. Day Realty Assoc., 159 Ga.App. 366, 368(2), 283 S.E.2d 298. Examining the evidence of record, we are satisfied that there exists no genuine issue of material fact that appellant was subjected to arrest and prosecution without probable cause. We conclude from an examination of the undisputed facts of record that a reasonably prudent person, with the same knowledge as appellee's store manager, would believe he had probable cause to prosecute appellant for shoplifting; accordingly, the trial court did not err in granting appellee summary judgment based on the undisputed facts before it. Compare Turner v. Bogle, 115 Ga.App. 710, 155 S.E.2d 667.

Independent of the evidence of record concerning the circumstances surrounding appellant's arrest and booking for shoplifting, there exists an additional legal reason for the trial court's finding of the existence of probable cause. The unrefuted evidence of record establishes that in appellant's appearance before the city court (see generally OCGA §§ 17-7-22; 17-7-23), appellant's counsel requested appellant be bound over for a Cobb County jury trial. Appellant was forthwith bound over to the State Court of Cobb County where nolle prosequi ultimately was entered. It has long been the rule in this state that committal of a defendant by a magistrate is prima facie, although not conclusive, evidence of probable cause for such prosecut...