Gooch v. Tudor, A09A0299.

• Decision Date: 16 February 2009
• Docket Number: No. A09A0299.,A09A0299.
• Citation: 296 Ga. App. 414,674 S.E.2d 331
• Parties: GOOCH v. TUDOR.
• Court: Georgia Court of Appeals

674 S.E.2d 331

296 Ga. App. 414

GOOCH v. TUDOR.

No. A09A0299.

Court of Appeals of Georgia.

February 16, 2009.

Reconsideration Denied March 4, 2009.

Bovis, Kyle & Burch, Charles McCall Medlin, Melissa A. Tracy, Wayne S. Tartline, Atlanta, for appellant.

Stroud P. Stacy II, for appellee.

BLACKBURN, Presiding Judge.

Dale Gooch appeals from two separate orders of the trial court, entered following a bench trial; he asserts that the trial court erred in: (1) finding in favor of Dede Tudor on her claim against Gooch for malicious prosecution; (2) awarding Tudor punitive damages; and (3) granting Tudor's motion for a directed verdict on Gooch's claim for trover and cancelling the notice of lis pendens he had filed against Tudor's property. Discerning no error, we affirm.

While we apply a de novo standard of review to any questions of law decided by the trial court, factual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. OCGA § 9-11-52(a). Because the clearly erroneous test is in effect the same standard as the any evidence rule, appellate courts will not disturb fact findings of a trial court if there is any evidence to sustain them.

(Citations and punctuation omitted.) Lifestyle Home Rentals, LLC v. Rahman.¹

So viewed, the evidence shows that in the fall of 2006, Gooch contracted with Tudor to build a fence around the perimeter of her property. The parties agreed that Tudor would pay $10.25 per linear foot of fence, with the entire amount being due upon completion of the fence. During the course of the fence construction, the parties further agreed that Gooch would build several fence partitions with gates, on interior portions of the property. Gooch and Tudor also agreed that Gooch would install a custom-built wrought iron gate and latch and specially-made gate posts at the front entrance to the property.

The project took over a month to complete and, after he finished construction, Gooch presented Tudor with a bill for $27,277.50. According to Gooch, Tudor told him she did not have the money to pay the bill. Tudor, however, testified that she had repeatedly asked Gooch for an estimate of the total cost of the completed project both prior to and during the construction of the fence, that Gooch had refused to provide such an estimate, and that she was unprepared to receive so large a bill. She therefore told Gooch that she could pay him $10,000 toward the fence, but would need to check with her bank about the availability of additional funds before writing him a larger check. Gooch declined the offer of a $10,000 payment and demanded payment of the entire bill. Tudor specifically denied telling Gooch that she had no money to pay his bill.

Two to three days later, Tudor sent Gooch a letter, enclosing a check for $10,000 and stating that the check represented "payment towards material and labor" and that "[t]he balance remains in dispute." After receiving this letter, Gooch telephoned Tudor and she explained to him that the $10,000 check represented "a down payment toward the job, that he had provided me services, but I was in dispute with the rest of the amount because I hadn't really ever approved of all the work he was doing." In response, Gooch told Tudor that he would have to take the matter "before the magistrate judge."

Following his phone conversation with Tudor, Gooch went to the local magistrate to obtain his assistance in getting full payment for the fence. The magistrate advised Gooch that he should not cash Tudor's check, because if he did so he would not be able to collect the balance of his bill. The magistrate further advised Gooch not to have any further personal contact with Tudor.

After meeting with the magistrate, Gooch sent Tudor a letter, dated November 15 2006, informing her that if she did not pay the bill for the fence within ten days, "the magistrate judge will set up an appointment for you and [me] to meet at his office to discuss this matter." Tudor sent no further payment toward the fence, and on December 6, 2006, Gooch made an application to the magistrate for a criminal warrant, claiming that Tudor had committed theft by deception.² Gooch executed an affidavit in support of that application, asserting that Tudor "had intentionally refused to pay for the completed fencing job after [it] was finished." Upon receipt of the warrant application, the magistrate scheduled a show cause hearing for January 10, 2007, and sent notice of the same to Tudor.

When Tudor appeared for the show cause hearing, the magistrate first had the parties attempt to mediate the dispute. When Tudor and Gooch could not reach an agreement, the magistrate told Gooch he would "take care of it," and proceeded with the hearing. Following the hearing, the magistrate had Gooch execute a second affidavit, in which he again asserted that Tudor had refused to pay for the fencing job upon its completion. Based on that affidavit, the magistrate issued an arrest warrant for Tudor, who was immediately taken into custody and placed in the Lumpkin County jail. Tudor spent two nights in jail before she was able to arrange for a bonding company to post the bail necessary for her release.

The Lumpkin County District Attorney's office refused to prosecute Tudor, citing the fact that the case represented a civil, rather than a criminal, matter. Gooch then initiated the current litigation, alleging that Tudor had breached the parties' oral contract by refusing to pay him for the fence. Gooch also asserted a cause of action for trover, claiming that because they had not been paid for, the materials used to construct the fence were his personalty, wrongly retained by Tudor. In connection with his trover action, Gooch filed a notice of lis pendens against Tudor's property. Tudor counterclaimed for malicious prosecution and sought punitive damages against Gooch. After the trial court denied Gooch's pre-trial motion for summary judgment on Tudor's counterclaim, the parties proceeded with a bench trial.

Following trial, the trial court granted Tudor's motion for a directed verdict on Gooch's trover claim and entered an order cancelling the notice of lis pendens against Tudor's property. The trial court also found in favor of Gooch on his breach-of-contract claim and found in favor of Tudor on her counterclaim for malicious prosecution. The trial court entered an order awarding Gooch $27,277.50 in actual damages and awarding Tudor $21,615 in compensatory damages and $2,500 in punitive damages. This appeal followed.

1. To prevail on her claim for malicious prosecution, Tudor was required to prove that: (i) she was prosecuted for a criminal offense; (ii) the prosecution was instigated under a valid warrant, accusation, or summons; (iii) the prosecution terminated in her favor; (iv) Gooch acted with malice in instigating the prosecution; (v) Gooch lacked probable cause to accuse Tudor of the crime at issue; and (vi) she suffered damage as a result of the prosecution. See OCGA § 51-7-40; Medoc Corp. v. Keel.³

On appeal, Gooch argues that the trial court erred in finding in favor of Tudor on this claim because: (i) the evidence showed that he was entitled to summary judgment on that claim; (ii) Tudor failed to show that he acted with malice in swearing out the warrant against her; (iii) Tudor could not prove that he lacked probable cause to sign the affidavits accusing her of theft by deception; and (iv) his reliance on the advice of the magistrate operated as a complete defense to Tudor's claim. We address each of these assertions, in turn.

(a) Gooch argues that the trial court erred in denying his motion for summary judgment on Tudor's counterclaim for malicious prosecution. "However, `[a]fter verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case.'" (Punctuation omitted.) Moore v. Moore.⁴ See also Kicklighter v. Woodward.⁵

(b) We next turn to Gooch's assertion that Tudor failed to prove he acted maliciously in instigating her prosecution for theft by deception.

"The malice contemplated by law in an action for malicious prosecution is the same as in an action for malicious arrest, and may consist in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual." (Punctuation omitted.) Melton v. LaCalamito.⁶ Malice may be inferred where the defendant makes a false statement to police for the purpose of achieving some personal goal, such as revenge or the collection of a debt. See Powell v. Cohen.⁷ Malice may also be found where the plaintiff's arrest is premised on the defendant's knowingly false statement to the police, regardless of the defendant's motive. See Melton, supra, 158 Ga.App. at 824-825(2)(c), 282 S.E.2d 393.

Gooch argues that Tudor could not prove malice because, given the fact that she refused to pay the entire bill upon receipt of the same, the statements in his affidavits that Tudor had refused to pay for the fence were not false. This argument, however, ignores the evidence refuting those statements. Specifically, the evidence showed that Tudor had made a $10,000 payment toward the fence, but that she disputed the total amount of the bill. Additionally, Tudor testified that she had told Gooch the $10,000 represented a down payment toward the fence, and indicated that she was willing to pay additional monies toward the fence, but did not believe the total cost was in excess of $27,000. In other words, while Tudor disputed the amount owed, Gooch knew that she was not, in fact, refusing to pay for the fence. The trial court clearly elected to credit Tudor's testimony, and on appeal we must defer to that decision. See, e.g., Fuller v. Jennings⁸ ("this court cannot weigh...