Perry v. Brooks

• Court: Georgia Court of Appeals
• Writing for the Court: CARLEY; SOGNIER
• Citation: Perry v. Brooks, 175 Ga.App. 77, 332 S.E.2d 375 (Ga. App. 1985)
• Decision Date: 07 June 1985
• Docket Number: No. 70206,70206
• Parties: PERRY v. BROOKS et al.

Page 375

332 S.E.2d 375

175 Ga.App. 77

PERRY v. BROOKS et al.

No. 70206.

Court of Appeals of Georgia.

June 7, 1985.

J. Eugene Wilson, East Point, for appellant.

Steven L. Head, H. Lowell Hopkins, Atlanta, for appellees.

CARLEY, Judge.

Appellant-plaintiff filed a complaint against appellee-defendants, ostensibly alleging claims for malicious arrest, false imprisonment, malicious prosecution, and libel. Appellees answered, denying the material allegations of the complaint. After discovery, appellees moved for summary judgment. A hearing was conducted and summary judgment was granted in favor of all appellees.

1. Appellant first asserts that the instant case must be reversed because the trial court's order does not expressly indicate that the entire record was considered before summary judgment was granted in favor of appellees. This argument has previously been considered and rejected. See generally Eunice v. Citicorp Homeowners, 167 Ga.App. 335(2), 306 S.E.2d 395 (1983).

2. The evidence of record demonstrates that appellant was arrested pursuant to "a criminal process, valid on its face...." Grist v. White, 14 Ga.App. 147(2), 80 S.E. 519 (1913). "If a warrant or process is valid, malicious arrest or malicious prosecution is the exclusive remedy, and an action for false imprisonment will not lie. [Cits.]" Lovell v. Drake, 60 Ga.App. 325, 3 S.E.2d 783 (1939). See also Page v. Citizens' Banking Co., 111 Ga. 73 74(7), 36 S.E. 418 (1900); Michael v. Bacon, 5 Ga.App. 331(1), 63 S.E. 228 (1908); Mathews v. Murray, 101 Ga.App. 216(1), 113 S.E.2d 232 (1960). Thus, insofar as appellant's complaint could be construed as asserting a claim for false imprisonment, summary judgment was correctly granted in favor of appellees. Stephens v. Big Apple Supermarkets, 130 Ga.App. 841, 842(2), 204 S.E.2d 805 (1974).

3. "If a criminal process is sued out without probable cause, and an arrest is made under it, the remedy of the accused depends on whether or not he is actually prosecuted under the warrant. If after the arrest the warrant is dismissed or not followed up, the remedy is for malicious arrest. But if the action is carried on to a prosecution, an action for malicious prosecution is the exclusive remedy, and an action for malicious arrest will not lie. [Cit.]" Barnes v. Gossett Oil Co., 56 Ga.App. 220(1), 192 S.E. 254 (1937). Malicious prosecution and malicious arrest "are mutually exclusive; if one right of action exists, the other does not." Smith v. Embry, 103 Ga.App. 375(3), 119 S.E.2d 45 (1961). The record demonstrates that appellant was actually tried and acquitted of the crime of theft by taking. Accordingly, his right of action is for malicious prosecution and it was not error to grant summary judgment in favor of appellees as to a claim for malicious arrest.

4. With reference to malicious prosecution, "[i]t is well-settled law that ... there must be a concurrence of malice and want of probable cause. [Cits.]" Campbell v. Tatum, 71 Ga.App. 58, 60, 30 S.E.2d 56 (1944). "Actions for malicious prosecution are not favored. [Cits.] While the action will be strictly guarded and the circumstances on which it is based must be accurately stated ( [cit.] ), and 'all proper guard and protection should be thrown around those who, in obedience to the mandates of duty, may be compelled to originate and carry on a criminal prosecution,' the courts 'should not discourage actions for malicious prosecutions by establishing harsh rules of evidence, or by the rigid principles of law, by force of which a party may be deprived of an important remedy for a real injury.' [Cit.]" Price v. Cobb, 63 Ga.App. 694, 698, 11 S.E.2d 822 (1940).

Appellees Deborah and Lonnie Brooks assert that their affidavits demonstrate the existence of probable cause to initiate and carry on a prosecution of appellant for theft by taking. In their affidavits, appellees Brooks state that they actually observed appellant take property from the fenced and apparently closed premises of a business where appellant had formerly been employed. If undisputed, it is clear that the fact of the Brooks' personal observation of appellant's acts under the circumstances that they assert existed would establish the existence of probable cause. However, appellant's counteraffidavit specifically denies that he ever took any property from the premises. Indeed, appellant's counteraffidavit denies the existence of every fact upon which appellees Brooks base their assertion of probable cause. "In malicious prosecution actions '[w]ant of probable cause is a question for the jury, under the direction of the court. The question of probable cause is a mixed question of law and fact. Whether the circumstances alleged to show probable cause existed is a matter of fact....' [Cit.]" (Emphasis supplied.) Melton v. LaCalamito, 158 Ga.App. 820, 823, 282 S.E.2d 393 (1981). Since appellant denied the existence of the facts upon which appellees Brooks base their assertion of probable cause, there are genuine issues of material fact remaining for jury resolution. See Ginn v. C & S Nat. Bank, 145 Ga.App. 175, 177(3), 243 S.E.2d 528 (1978). Compare Smith v. Ragan, 140 Ga.App. 33, 34(2), 230 S.E.2d 89 (1976); Wahlquist v. Lanier Business Prods., 162 Ga.App. 286, 291 S.E.2d 118 (1982).

Appellees Brooks assert, however, that there can be no liability for malicious prosecution if an individual merely makes a report of a suspected crime to law enforcement and prosecutorial officials who recommend the swearing out of a warrant and who then seek and obtain an indictment. The principle of law to the effect that the independent actions of prosecutorial officers constitute a defense to a malicious prosecution claim is predicated upon the giving of a report that is a good faith and truthful communication of " 'all facts known to the [in]former in relation to a criminal charge against another....' [Cit.]" Spratlin v. Manufacturers Acceptance Corp., 105 Ga.App. 463, 464, 125 S.E.2d 110 (1962). If the informant " 'gave information which he knew to be false and so unduly influenced the authorities, he may be held liable.' " Melton v. LaCalamito, supra, 158 Ga.App. at 822, 282 S.E.2d 393. "The return of an indictment by the grand jury investigating the alleged offense is ... prima facie, but not conclusive, evidence of the existence of ... probable cause." Darnell v. Shirley, 31 Ga.App. 764, 765(7a), 122 S.E. 252 (1924). An indictment, if procured on false testimony, is no evidence whatsoever of probable cause. See Price v. Cobb, supra, 63 Ga.App. at 702, 11 S.E.2d 822. As noted above, appellant's counteraffidavit disputes the existence of every fact reported by appellees Brooks as true. Thus, the veracity of appellee Brooks' reported information which initiated appellant's prosecution is in dispute. Compare Spratlin v. Mfg. Acceptance Corp. supra; El-Amin v. Trust Co. Bank, 171 Ga.App. 35, 318 S.E.2d 655 (1984). Accordingly, the fact that appellees Brooks made a report to officials who then arrested, sought the indictment of and subsequently prosecuted appellant does...