Nicholl v. Great Atlantic & Pacific Tea Co.

• Decision Date: 11 May 1999
• Docket Number: No. A99A0129.,A99A0129.
• Citation: 517 S.E.2d 561,238 Ga. App. 30
• Parties: NICHOLL v. GREAT ATLANTIC & PACIFIC TEA COMPANY et al.
• Court: Georgia Court of Appeals

517 S.E.2d 561

238 Ga. App. 30

NICHOLL v. GREAT ATLANTIC & PACIFIC TEA COMPANY et al.

No. A99A0129.

Court of Appeals of Georgia.

May 11, 1999.

Simmons & Simmons, Annie R. Simmons, Atlanta, for appellant.

Donahue, Hoey, Rawls, Skedsvold & Richards, Charles H. Richards, Jr., Dana F. McBride, Atlanta, for appellees. ELDRIDGE, Judge.

Grant J. Nicholl, plaintiff-appellant, lost or had stolen his wallet with his driver's license, credit cards, and other identification in a night-club in DeKalb County in August or September 1993.

On October 28, 1993, an unknown perpetrator was allowed by NationsBank of Georgia, N. A., to open a checking account in the name of Grant J. Nicholl with plaintiff's stolen identification and with only a $25 deposit. Such perpetrator passed a number of checks on such account which were returned to the payees due to "NSF" or "Account In Process of Closing." Plaintiff was unaware that his credit identity had been stolen and that someone was using a fraudulent checking account with his identity to pass bad checks.

The checks included: four checks to Ingle Foods; one check to B. Dalton Books; one check to Pizza Hut; one check to Greyhound; five checks to Kroger Company; one check to A & P; and multiple checks to Cub Foods. All these checks were returned to the payees for "NSF" and "Account In Process of Closing." On December 23, 1993, the perpetrator wrote a check made payable to A & P for $136.42, forged with the signature of Grant J. Nicholl, and furnished a false address and telephone numbers; however, the date of birth and driver's license number were plaintiff's.

The defendant, upon return of the check marked "NSF, Account In Process of Closing," sent a certified letter to the perpetrator at 4106 Glenwood Road, Apartment Number 3, Decatur, Georgia, addressed to the stolen credit identity of "Grant J. Nicholl." The notice was returned to the defendant marked "Return to Sender; Addressee Unknown." On March 23, 1994, after return of the letter, the defendant obtained a warrant for Grant J. Nicholl which was sworn out by Douglas Anderson, its employee-store manager and co-defendant. Defendant made no investigation and took no steps to determine that Grant J. Nicholl was, in fact, the possessor of the NationsBank account and the drawer of the bad check. Other receivers of the bad checks, through reasonable investigation, determined that the plaintiff was not the drawer of checks in the name of Grant J. Nicholl drawn on the fraudulent NationsBank account.

The lack of further investigation was contrary to A & P's own practice of sending a second letter. A & P employees, when the letter comes back, go over the incident with the cashier to determine if there was anything that could assist in the identifying of the suspect; however, in this case it cannot be remembered if this was done. A & P's policy was to attempt to call the individual at home or work if the letter comes back. Although there were two telephone numbers on the check, the person responsible for contacting the check writer if the letter comes back did not know if he tried to call the numbers. The A & P store manager did not fill out the response sheet to show what he had done in this case. In short, the manager did not follow store investigative policy and practices prior to taking out the warrant.

On September 2, 1994, plaintiff was stopped for speeding. The arresting officer did a computer check for outstanding warrants and found a warrant for issuance of a bad check, which was drawn on the fraudulent checking account using plaintiff's stolen identity. Instead of releasing plaintiff for the traffic offense, the officer took plaintiff into custody on the bad check warrant.

Plaintiff pled not guilty in court. On February 14, 1995, after giving samples of his handwriting which showed that the account signature and checks were forgeries, the trial court approved the entry of a nolle prosequi to the charge of issuing a bad check.

On February 26, 1996, plaintiff sued The Great Atlantic & Pacific Tea Company ("A & P") and its employee, Douglas Anderson, for malicious prosecution. The defendants timely answered. On February 6, 1998, defendants filed their motion for summary judgment. On June 12, 1998, the trial court granted the motion. Plaintiff timely appealed.

1. The plaintiff's first enumeration of error is that the trial court erred in granting summary judgment for the defendants after finding that they acted with probable cause in swearing out a bad check warrant against the plaintiff. We agree.

Over a period of time, the unlawful taking and use of the identity and credit history of another has reached such major proportions in Georgia that in 1998, the General Assembly created a separate criminal act to protect the public, the "Financial Identity Fraud Act." Ga.L.1998, § 2; OCGA § 16-9-120 et seq. Clearly, plaintiff was a victim of what now is called "financial identity fraud." From 1993 through 1995, an unknown perpetrator committed (1) theft of plaintiff's identification papers, including his driver's license and social security card; (2) fraud and forgery in opening a bogus checking account; and (3) forgery in signing plaintiff's name and using his identification papers to pass bad checks. See OCGA §§ 16-8-2; 16-8-3(a); 16-9-1(a); 16-9-4; 16-9-20(a).

"A criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action." OCGA § 51-7-40.

The elements of malicious prosecution include: (1) prosecution for a criminal offense; (2) the prosecution instigated under a valid warrant, accusation, or summons; (3) termination of the prosecution in favor of the plaintiff; (4) malice; (5) want of probable cause; and (6) damage to the plaintiff. OCGA § 51-1-40[]; Sizemore Security Intl. v. Lee, 161 Ga.App. 332, 287 S.E.2d 782 (1982); Ellis v. Knowles, 90 Ga.App. 40, 81 S.E.2d 884 (1954).

Medoc Corp. v. Keel, 166 Ga.App. 615-616(1), 305 S.E.2d 134 (1983). Those essential elements that are attacked most often on summary judgment are: "(1) a prosecution instituted maliciously and (2) without probable cause which (3) has terminated favorably to the plaintiff. [Cits.]" J.C. Penney Co. v. Miller, 182 Ga.App. 64, 66(2), 354 S.E.2d 682 (1987); see also Atlantic Zayre v. Meeks, 194 Ga.App. 267, 268(1), 390 S.E.2d 398 (1990). However, in this case, probable cause is the essential element being attacked.

Want of probable cause is an essential element of a malicious prosecution cause of action. Ordinarily, the existence of probable cause is a question of fact for jury determination. Only where the material facts are not in dispute, or when only one reasonable inference can be drawn from the evidence, does the existence of probable cause become an issue of law for the court to resolve. [Cits.]

Kviten v. Nash, 150 Ga.App. 589, 591(4), 258 S.E.2d 271 (1979).

"Want of probable cause is the gravamen of an action for malicious prosecution; and there can be no recovery by the plaintiff when there was any probable cause for the prosecution, even though it may appear that the prosecutor was actuated by improper motives. [Cits.]"

Tanner-Brice Co. v. Barrs, 55 Ga.App. 453, 454(5), 190 S.E. 676 (1937).

Furthermore, [t]he burden of proving the want of probable cause [at trial] is on the plaintiff, and he does not in any reasonable sense carry this burden unless he shows by his evidence that, under the facts as they appeared to the prosecutor at the time of the prosecution, the prosecutor could have had no reasonable grounds for believing the plaintiff to be guilty of the charge for which he was prosecuted.

(Citations and punctuation omitted; emphasis in original.) West v. Baumgartner, 228 Ga. 671, 676-677, 187 S.E.2d 665 (1972); see also Lovinger v. Pfeffer, 107 Ga.App. 636, 637(1), 131 S.E.2d 137 (1963); Sirmans v. Peterson, 42 Ga.App. 707, 709, 157 S.E. 341 (1931).

The defendants placed themselves at risk of suit for malicious prosecution when they undertook criminal prosecution without adequate investigation to determine if there was a reasonable basis to believe probable cause existed. Ellis v. Knowles, supra at 42, 81 S.E.2d 884. Since probable cause was based upon the reasonable belief of the prosecutor at the time of the warrant was taken out by them, then, in deciding if the belief is reasonable, the prosecutors must have determined "that [the] apparent state of facts which seems to exist after reasonable and proper inquiry [by the exercise of] the duty of caution and avoidance of haste [constituted probable cause]." (Emphasis supplied.) Auld v. Colonial Stores, 76 Ga.App. 329, 335(2), 45 S.E.2d 827 (1947); see also Coleman v. Allen, 79 Ga. 637, 640-642, 5 S.E. 204 (1888); Sanfrantello v. Sears, Roebuck & Co., 118 Ga.App. 205, 207, 163 S.E.2d 256 (1968). If a reasonable person would have investigated to determine if probable cause existed prior to swearing out a warrant, then such failure to make an investigation may imply malice, as well as go to whether probable cause existed. See Medoc Corp. v. Keel, supra at 617(2), 305 S.E.2d 134; Melton v. LaCalamito, 158 Ga.App. 820, 824, 282 S.E.2d 393 (1981).

In actions for malicious prosecution, the question 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 of the defendant a reasonable belief that there was probable cause for the prosecution. Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.

(Citations and punctuation omitted; emphasis in original.) Tanner-Brice Co. v. Barrs, supra at 453(2), 190 S.E. 676; see also Wilson v. Wheeler's, Inc., ...