J.C. Penney Co., Inc. v. Miller

• Court: Georgia Court of Appeals
• Writing for the Court: BANKE; This is a suit by the appellee, Patrick Tony Miller, acting by and through his next friend and mother, Mary Alice Miller, to recover damages for malicious prosecution, false imprisonment, and assault arising from his arrest for shoplifting at
• Citation: J.C. Penney Co., Inc. v. Miller, 354 S.E.2d 682, 182 Ga.App. 64 (Ga. App. 1987)
• Decision Date: 06 March 1987
• Docket Number: No. 73893,73893
• Parties: J.C. PENNEY COMPANY, INC. v. MILLER.

Page 682

354 S.E.2d 682

182 Ga.App. 64

J.C. PENNEY COMPANY, INC. v. MILLER.

No. 73893.

Court of Appeals of Georgia.

March 6, 1987.

Malcolm C. McArthur, Barbara B. Holmes, Atlanta, for appellant.

R. David Ware, E. Marcus Davis, Atlanta, for appellee.

BANKE, Presiding Judge.

This is a suit by the appellee, Patrick Tony Miller, acting by and through his next friend and mother, Mary Alice Miller, to recover damages for malicious prosecution, false imprisonment, and assault arising from his arrest for shoplifting at a store owned and operated by the appellant, J.C. Penney Company, Inc. We granted an interlocutory appeal from the denial of J.C. Penney's motion for summary judgment.

The appellee contends that he was unlawfully accosted and detained by a security guard while walking from the men's clothing department of the store to the women's clothing department wearing a hat which he had tried on in the men's clothing department and which he intended to show to his mother, who was in the women's clothing department shopping for a dress. The appellee does not contend that excessive force was used to effect the arrest but contends that no arrest was authorized under the circumstances.

After being held for approximately 10 minutes in the store's security office, the appellee was taken by police to a juvenile detention center. A delinquency petition was subsequently filed in juvenile court charging him with shoplifting. The charge was tried before a juvenile court referee, who entered the following written findings and recommendations at the conclusion of the adjudicatory hearing: "After hearing evidence on the matter before the court, it is the findings of the referee that the petition has been sustained beyond a reasonable doubt other than a need for treatment and rehabilitation. It is the recommendation of the referee that [the case be] reset to consider the need for treatment or rehabilitation and for disposition."

At the conclusion of the subsequent dispositional hearing, the referee made the following announcement on the record: "I'm not going to require any supervision by the court for the present time ... I will in effect allow the probation staff here to hold the case in his (sic) office ... without me ruling whether there is or is not a need for treatment or rehabilitation. I want him to monitor his school work. I'm satisfied that the supervision is sufficient in the home at the present time. If his school work is satisfactory at the end of three months' period of time, you can write me and, upon your recommendation at the time of your writing, I will consider dismissing the petition so that he does not have a record out here. If ... he's not behaving himself at school or not applying himself or not going like he's supposed to, then that's going to be an indication to me that maybe he does need some treatment through this court and we'll meet back in here at that time and adjudicate him to be delinquent and put him on formal probation."

Approximately three and one-half months after the dispositional hearing, the appellee's attorney requested that the petition be dismissed on the ground that the appellee had "performed well over the past 90 days" and had not "been in trouble of any kind." The referee granted this request, and the appellee contends that the resultant dismissal of the delinquency petition terminated the prosecution in his favor. Held:

1. At the outset, we reject the appellee's contention that the record of the juvenile court proceedings, being confidential, cannot properly be considered against him. This contention is clearly inconsistent with his reliance on the order dismissing the delinquency petition as having established a termination of the prosecution in his favor. Certainly, where a juvenile has filed a civil action which itself reveals the nature and purpose of the proceedings against him in juvenile court and has thereby raised issues which cannot properly be resolved without reference to the juvenile court record, he has waived whatever right he might otherwise have had to assert the confidentiality of that record. Cf. Federated Dept. Stores v. Kane, 180 Ga.App. 175, 348 S.E.2d 718 (1986).

2. Among the essential elements of a claim for malicious prosecution are (1) a prosecution instituted maliciously and (2)...