Holmes v. ACHOR CENTER, INC., A99A1924.

• Decision Date: 20 March 2000
• Docket Number: No. A99A1924.,A99A1924.
• Citation: 242 Ga. App. 887,531 S.E.2d 773
• Parties: HOLMES v. ACHOR CENTER, INC., et al.
• Court: Georgia Court of Appeals

531 S.E.2d 773

242 Ga. App. 887

HOLMES v. ACHOR CENTER, INC., et al.

No. A99A1924.

Court of Appeals of Georgia.

March 20, 2000.

Lawson & Thornton, George O. Lawson, Jr., Alton Hornsby III, Atlanta, for appellant.

Long, Weinberg, Ansley & Wheeler, Milton B. Satcher III, Anna C. Palazzolo, Freeman, Mathis & Gary, Maureen M. Middleton, Atlanta, for appellees.

SMITH, Judge.

Appellant Sarah Holmes brought this action alleging false arrest, false imprisonment, malicious prosecution, negligence, and intentional infliction of emotional distress against the appellees, Achor Center, Inc. and its agents Teresa Connell, Robert Barnes and Isaline Boston, as well as the City of Atlanta and police officers Major Harold R. Dunovant, Officer Dunn, Sergeant D. Ricks, and Lieutenant Crowder. Achor filed a motion to dismiss. At oral argument, at the request of Holmes's counsel, the motion was converted into one for summary judgment, and defendants Connell and Boston joined in the motion. The trial court granted summary judgment in favor of Achor, Connell, Barnes, and Boston. Holmes appeals, and we affirm.

1. Holmes asserts that the trial court erred in granting summary judgment because material issues of fact remain in dispute. The trial court granted summary judgment in favor of the defendants, properly construing the evidence in the light most favorable to the plaintiff as nonmovant. "A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant." Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459, 486 S.E.2d 684 (1997).

The present action arises from a long history of disputes between appellant Holmes's husband, Kenneth Holmes, and Achor, the owner of real property previously used for church purposes by Holmes and other tenants and former owners of the property.¹ Achor, a nonprofit organization, provides shelter and training for homeless and destitute women on the property. Achor Center v. Holmes, 219 Ga.App. 399, 465 S.E.2d 451 (1995). Originally, Achor gained rights to the land through a 1989 warranty deed from the Christian Coalition of Metropolitan Atlanta ("CCMA"), see Achor Center v. Holmes, supra at 399, 465 S.E.2d 451, and a quitclaim deed from United Baptist Church ("UBC"), the original owner of the property. At the time Achor gained ownership of the property, it was subject to a previous "joint-use" agreement established by CCMA and UBC.² One of the groups that benefitted from the agreement was Capitol View Community Church, or the "Noon Congregation," a religious ministry led by Kenneth Holmes. After persistent difficulties between Kenneth Holmes and Achor, UBC decided to expel the members of the Noon Congregation. Id. at 399-400, 465 S.E.2d 451. Following this expulsion of Kenneth Holmes and his congregation, both UBC and Achor began filing criminal trespass warrants against members of the group who disobeyed the ban and returned to the property. Id. From that point onward, the parties have been embroiled in seemingly endless legal disputes.

In the initial suit, the Noon Congregation claimed a right to use the property pursuant to a clause in the joint-use agreement between CCMA and UBC. The case was resolved when the trial court granted summary judgment in favor of Achor, ruling that the congregation members did not have standing to bring a derivative suit on behalf of UBC. Following the entry of this final order and while it was on appeal, the Superior Court of Fulton County issued an injunction against Kenneth Holmes, preventing him from entering onto Achor's property. This injunction also applied expressly to other members of the congregation, including appellant Sarah Holmes, a party to that litigation. Appellant Holmes and others were permitted to use certain portions of the facility for church services at noon on Sunday but were enjoined from entering the property at any other time or for any other purpose. The terms of the injunction specified that the order was to remain in effect until the "final resolution" of the case or until further order by the trial court.

The Supreme Court affirmed the trial court's decision in Anderson v. Dowd, supra, 268 Ga. 146, 148(1), 485 S.E.2d 764 (1997), and the remittitur in that case was returned to the trial court on July 11, 1997. On August 5, 1997, the trial court entered the final order on the remittitur.

The appeal now before us is based upon the arrest of appellant Sarah Holmes for criminal trespass after she was found on the Achor premises at 10:45 a.m. on November 9, 1997. A magistrate eventually dismissed the charge for lack of probable cause. The trial court granted summary judgment in favor of Achor and its agents, holding that Achor reasonably believed that Holmes was guilty of criminal trespass and thus had probable cause to seek her arrest. On appeal, Holmes asserts that the grant of summary judgment in favor of the defendants was inappropriate, because factual questions still remain for the jury regarding whether Achor reasonably believed she was guilty of criminal trespass. We disagree.

A party is liable for malicious prosecution for carrying on a criminal prosecution maliciously and without probable cause, causing damage to the person prosecuted. OCGA § 51-7-40. The existence of probable cause is an absolute defense to a claim of malicious prosecution. Zohoury v. Home Depot, 239 Ga.App. 454, 455(1), 521 S.E.2d 389 (1999).

Public policy disfavors malicious prosecution actions because citizens should not be discouraged from reporting what they consider to be criminal activity. K-Mart Corp. v. Coker, 261 Ga. 745, 747, 410 S.E.2d 425 (1991).

The courts have always distrusted malicious prosecution actions, and have retained a strong hand over them. For this reason the existence of probable cause, which involves only the conduct of a reasonable man under the circumstances, and does not differ essentially from the determination of negligence, usually is taken out of the hands of the jury, and held to be a matter for decision by the court.

(Citation and punctuation omitted.) Chen v. Tai, 232 Ga.App. 595, 598(3), 502 S.E.2d 531 (1998); see also K-Mart, supra.

The overriding question in actions for malicious prosecution is not whether the plaintiff was guilty, but whether the defendant had reasonable cause to so believe—whether the circumstances were such as to create in the mind a reasonable belief that there was probable cause for the prosecution. This burden is not carried in any reasonable sense unless the plaintiff ... shows that under the facts as they appeared to the prosecutor at the time of the prosecution, that the defendant ... could have had no reasonable grounds for believing the plaintiff to be guilty of the charge brought.

(Citation and punctuation omitted.) Monroe v. Sigler, 256 Ga. 759-760(1), 353 S.E.2d 23 (1987). We therefore consider only whether Achor and its agents reasonably believed that Holmes was guilty, not whether appellant was actually guilty of the charge against her.

In considering whether the trial court properly granted summary judgment, and construing the evidence in favor of Holmes, we must determine whether the actions of Achor's agents on November 9, 1997, were reasonable in light of their understanding of the prior litigation and subsequent final judgment.

First, we consider the offense of criminal trespass and its legal significance.

A person commits the offense of criminal trespass when he or she knowingly and without authority ... [e]nters upon the land or premises of another person ... after receiving, prior to such entry, notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner ... that such entry is forbidden.

OCGA § 16-7-21(b). Holmes asserts that she was authorized to enter onto the property by the injunction in Anderson v. Dowd, supra, to which she was a party. She claims that the injunction was still in effect on November 9, 1997, and that neither she nor the defendants could have had reason to believe otherwise.

The injunction states, in part, that these remaining plaintiffs "are restricted to the following portions of the property at 1332 Stewart Avenue: the sanctuary, choir room, restrooms, and two classrooms on the lower level, and reasonable ingress and egress thereto, prior, during and after the noon service." But Holmes entered on the property before 10:45 a.m., the time of her arrest. Since the injunction authorized Holmes's presence on the property only at the noon service, with "reasonable ingress and egress," Achor could reasonably have concluded that Holmes's presence more than an hour and one-quarter before the service began was not authorized by the injunction.

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