Horne v. J.H. Harvey Co.

• Decision Date: 14 July 2005
• Docket Number: No. A05A0684.,A05A0684.
• Citation: 274 Ga. App. 444,617 S.E.2d 648
• Parties: HORNE v. J.H. HARVEY COMPANY.
• Court: Georgia Court of Appeals

274 Ga. App. 444

617 S.E.2d 648

HORNE v. J.H. HARVEY COMPANY.

No. A05A0684.

Court of Appeals of Georgia.

July 14, 2005.

Bradley M. Hannan, Smith, Hannan & Parker, Valdosta, for appellant.

Christopher T. Ross, Gardner, Willis, Sweat & Goldsmith, Albany, for appellee.

ADAMS, Judge.

Felicia Horne appeals from the trial court's grant of summary judgment in favor of J.H. Harvey Company ("Harvey's") on her claim of malicious prosecution. Because we find that an issue of material fact exists as to whether Harvey's acted with malice in pursuing the prosecution against Horne, we reverse.

"Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. We review a trial court's summary judgment ruling de novo, construing the evidence and all reasonable inferences in a light most favorable to the nonmovant." (Footnotes omitted.) Botterbusch v. Preussag Intl. Steel Corp., 271 Ga.App. 190, 609 S.E.2d 141 (2004).

Construed in that light, the evidence shows that Beatrice Horne, Felicia Horne's mother, forged her signature on three checks drawn on Felicia's account and presented them to J.H. Harvey's Supermarket No. 41 in Quitman, Georgia on April 16, 1999, to obtain cash and merchandise. The checks were later returned to Harvey's due to insufficient funds. On the day that Beatrice Horne presented these checks to Harvey's, Felicia Horne was incarcerated at the Brooks County jail on an unrelated charge.

On May 7, 1999, Mary Edwards, head cashier at Harvey's mailed notice via certified mail to Beatrice Horne at her home address in accordance with OCGA § 16-9-20. The notice stated that the checks Beatrice submitted to Harvey's had been returned due to insufficient funds.¹ Harvey's received no reimbursement for the check proceeds, so on July 12, Edwards completed an application for a warrant against Beatrice for deposit account fraud in connection with the three returned checks. Edwards presented the application and the returned checks to Brooks County Magistrate Judge Joyce Miskiel. After reviewing the checks, Judge Miskiel struck through the name 34;Beatrice" on the application and wrote in the name "Felicia" because the signatory on the check was ostensibly Felicia Horne. Judge Miskiel made this change on her own initiative, instructing Edwards that the application needed to be made out against Felicia Horne, not Beatrice Horne.

At the time she made this change Judge Miskiel was aware that Harvey's had sent notice of the returned checks to Beatrice Horne, not Felicia Horne, because Edwards presented the judge with a copy of the green, certified mail return card listing Beatrice Horne's name and address. Nevertheless, Judge Miskiel did not direct Edwards to send any notice to Felicia Horne. And by the time Judge Miskiel issued the warrants on July 28, she knew that Beatrice Horne was the individual who had presented the checks to Harvey's, not Felicia Horne. Judge Miskiel later admitted in her deposition in this case that she should not have issued the warrants against Felicia Horne because the requisite statutory notice was never sent to her.

A Brooks County sheriff's deputy subsequently attempted to execute the warrants at Beatrice Horne's house when Felicia Horne was there. The deputy notified the women that he had outstanding warrants for Felicia's arrest for deposit account fraud. Beatrice Horne explained that her daughter was not involved and asked for an opportunity to correct the situation. Beatrice then spoke with the sheriff's office and explained that she had deposited money in Felicia's account so that the returned checks could be resubmitted, but she never informed Harvey's about these attempts to resolve the situation. And Felicia Horne never took any steps to contact Harvey's or to otherwise correct the misunderstanding.

On March 19, 2001, when Felicia Horne appeared for jury duty at the Brooks County Courthouse, she was arrested on the outstanding warrants. On or about September 14, the prosecutor's office contacted Edwards to ask that she complete forms providing information about the case. Edwards testified in her deposition that someone from the prosecutor's office assisted her in completing the forms, directing her to fill in Felicia Horne's name and giving her the amount and date of the checks. Edwards admitted that information she provided on these forms was incorrect, but said that it had been a mistake on her part. The completed forms incorrectly stated, for example, that Felicia Horne was the individual who presented the check and that Harvey's had sent Felicia the statutory notice. Edwards denied acting with any intent, ill will or malice toward Felicia Horne and, in fact, denied that she even knew her.

Felicia Horne was indicted on October 4, 2001 by a Brooks County grand jury for three counts of deposit account fraud. The charges were later dismissed after Felicia Horne demonstrated that she was incarcerated at the time the checks were presented to Harvey's.

In order to establish her claim of malicious prosecution, Horne must provide evidence of "(1) a criminal prosecution; (2) instigated without probable cause; (3) with malice; (4) pursuant to a valid warrant, accusation, or summons; (5) that terminated in the plaintiff's favor; and (6) caused the plaintiff damage." (Punctuation and footnote omitted.) Vojnovic v. Brants, 272 Ga.App. 475, 477(2), 612 S.E.2d 621 (2005). Thus, to prevail a plaintiff must show that the defendant acted maliciously and without probable cause. And summary judgment is appropriate where the defendant's actions fails to satisfy either of these elements. Desmond v. Troncalli Mitsubishi, 243 Ga.App. 71, 74(2), 532 S.E.2d 463 (2000).

The trial judge granted summary judgment on Horne's claim because he found that the alteration of the warrant application by the magistrate judge was sufficient to create a reasonable belief by Edwards that probable cause existed for Felicia Horne's arrest and prosecution. The court also found that Horne failed to show that Harvey's acted with malice.² But Horne contends that the trial court erred in granting Harvey's motion because the record demonstrates that she was arrested without probable cause and because an issue exists as to whether Edwards, as Harvey's employee, acted maliciously in knowingly providing false information to the prosecutor.

"Malice" in this context refers to personal spite or "a general disregard of the right consideration of mankind, directed by chance against the individual injured." (Punctuation and footnote omitted.) Vojnovic v. Brants, 272 Ga.App. at 478(2)(a), 612 S.E.2d 621. This Court has held that such malice may be inferred where no probable cause exists for the prosecution. Id. And in addressing the issue of probable cause, we must determine whether the defendant had a reasonable belief that probable cause existed:

[T]he question is, not whether plaintiff was guilty, but whether defendants had reasonable cause to so believe — whether the circumstances were such as to create in the mind of defendants a reasonable belief that there was probable cause for the arrest and prosecution. Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind, that the person charged was guilty of the crime for which he was arrested and prosecuted.

(Citation and punctuation omitted; emphasis in original). Smith v. Trust Co. Bank, 215 Ga.App. 413, 415(1), 450 S.E.2d 866 (1994). Conversely, "[l]ack 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." (Punctuation and footnote omitted.) Vojnovic v. Brants, 272 Ga.App. at 478(2)(a), 612 S.E.2d 621. Generally it is for the jury to decide whether probable cause exists, but where, as in this case, the underlying facts are undisputed, the issue is properly for the court. Ye v. Kroger Co., 252 Ga.App. 712, 713(1), 556 S.E.2d 879 (2001).

The record demonstrates that Edwards initially sought to obtain warrants against Beatrice Horne as the person who passed the checks, but the magistrate judge determined, sua sponte, that Felicia and not Beatrice should be named in the warrant. The magistrate instructed Edwards that the law required that Felicia Horne be named in the warrant because her signature appeared on the checks. And there is no evidence that Edwards intentionally concealed any information from the magistrate that might have caused the judge to reach a different conclusion. Edwards provided documentation to show that she sent the statutory notice to Beatrice, not Felicia. Nor is there any evidence to indicate that Edwards knew at the time that Beatrice Horne had forged her daughter's signature on the checks. In fact, the...