Remeneski v. Klinakis

• Court: Georgia Court of Appeals
• Writing for the Court: BIRDSONG; BEASLEY, C.J., McMURRAY, P.J., and SMITH; BEASLEY
• Citation: Remeneski v. Klinakis, 473 S.E.2d 223, 222 Ga.App. 12 (Ga. App. 1996)
• Decision Date: 28 June 1996
• Docket Number: No. A96A0107,A96A0107
• Parties: REMENESKI v. KLINAKIS.

Page 223

473 S.E.2d 223

222 Ga.App. 12

REMENESKI v. KLINAKIS.

No. A96A0107.

Court of Appeals of Georgia.

June 28, 1996.

Alfred L. King, Jr., Jonesboro, for appellant.

Peters, Roberts, Borsuk & Taylor, R. Stephen Roberts, Decatur, for appellee.

BIRDSONG, Presiding Judge.

Following our grant of an interlocutory appeal, Victor J. Remeneski appeals the trial court's partial denial of his motion for summary judgment on Anthony S. Klinakis's claim for malicious prosecution. Remeneski contends summary judgment should have been granted on all of Klinakis's claims against him because both charges against Klinakis's arose from a single incident and the trial court denied Klinakis's motion for a directed verdict of acquittal on one of the charges arising from that incident.

The record shows that Remeneski and Klinakis had different interest in a union matter when there was a confrontation. According to Remeneski, Klinakis stood in front of him screaming and yelling at him. Remeneski states that Klinakis called him "a f--king scumbag, and a scumbucket, and a f--king a--hole numerous times," and while Klinakis shouted these epithets he was close to Remeneski's face, he was red in the face and his body shook all over, and he put his finger close to and shook it in Remeneski's face. Remeneski also states that he thought Klinakis was going to hit him and he prepared himself to receive a punch. Although at the probable cause hearing, Remeneski testified he thought he would punch Klinakis, two years later at the trial of the case, Remeneski repeated the substance of his testimony about the incident, but recanted his testimony that he thought he might hit Klinakis. Remeneski testified at the trial that he could remember feeling scared. The record also shows that Klinakis produced witnesses who stated that he did not call Remeneski the names Remeneski contends he did, but that Klinakis merely called Remeneski a scumbag and a Polack scumbag.

Remeneski testified that the day after the incident, he was approached by a co-worker who encouraged Remeneski to report the incident to local authorities. The next day, Remeneski visited a magistrate who, after listening to Remeneski's version of the events, told him that based upon what Remeneski related, Klinakis's conduct violated the Georgia statute on fighting words and told Remeneski that he could fill out an application for an arrest warrant. Remeneski did so, and later he and another person who witnessed the incident testified before another magistrate at a hearing to determine whether a warrant should issue against Klinakis for violating the fighting words statute (OCGA § 16-11-39). Klinakis was present at the hearing with counsel, but did not testify. After the hearing, an arrest warrant issued charging Klinakis with fighting words, and subsequently the county solicitor's office added a count, based upon the same incident, charging Klinakis with simple assault (OCGA § 16-5-20).

Initially, Klinakis filed a plea in abatement to the fighting words charge asserting that Federal labor law had preempted the area and also filed a demurrer to the simple assault charge asserting the charge was moot. Finding that the fighting words charge was preempted by jurisdiction of the National Labor Board, the trial court granted Klinakis's plea in abatement to the fighting words charge and dismissed the simple assault charge as moot because the court found the same conduct was complained of in both counts. This Court reversed that decision because we found that federal law did not preempt state law in these circumstances and because we found the counts alleged separate violations: one violation based on uttering fighting words and the other based on certain physical conduct. See State v. Klinakis, 206 Ga.App. 318, 425 S.E.2d 665.

The case finally came to trial about two years after the incident giving rise to the charges. Following presentation of the prosecution's case, Klinakis moved for a directed verdict of acquittal on both charges. Although the motion was granted on the fighting words charge, the motion was denied on the simple assault charge; the case went to the jury; and a not guilty verdict was returned.

Thereafter, Klinakis filed a complaint against Remeneski and Remeneski's union, the Aircraft Mechanics Fraternal Association, seeking damages for malicious prosecution (OCGA § 51-7-40) and false arrest (OCGA § 51-7-1). After filing an answer denying liability, Remeneski moved for summary judgment asserting that the denial of Klinakis's motion for a directed verdict on the simple assault charge and the magistrate's decision to bind Klinakis over for trial, as a matter of law, precluded a lack of probable cause for bringing the prosecution, and the fact that the charges were prosecuted barred Klinakis's claim for wrongful arrest. The trial court granted summary judgment on the simple assault charge and the wrongful arrest charge for those reasons, but denied the motion on the fighting words charge because the motion for directed verdict was granted on that charge.

On appeal, Remeneski contends the lower court erred by denying his motion because both charges arose from the same incident and, therefore, the denial of the motion for a directed verdict on the one charge established that there was probable cause to bring the prosecution for both charges. He also alleges the trial court erred by not finding that the magistrate's decision to bind Klinakis over for trial precluded a determination that there was no probable cause for bringing the fighting words charge. The Aircraft Mechanics Fraternal Association did not join in Remeneski's motion below and is not a party to the appeal. Held:

1. "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 [Klinakis] shows that under the facts as they appeared to the prosecutor at the time of the prosecution, that the defendant [Remeneski] 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, 353 S.E.2d 23. The denial of a motion for a directed verdict of acquittal constitutes a binding determination of the existence of probable cause. Id. at 761, 353 S.E.2d 23. Further, "[t]he gravamen of the complaint is the absence of probable cause on the part of the person instituting the prosecution. Probable cause is absent when the circumstances are such as to satisfy a reasonable person that the accuser had no ground for proceeding but his desire to injure the accused." (Citation and punctuation omitted.) Wal-Mart Stores v. Blackford, 264 Ga. 612, 613, 449 S.E.2d 293.

Remeneski asks us to hold that, because the trial court made a binding determination there was probable cause to bring the simple assault charge, this determination should also apply to the fighting words charge because both charges were based upon the same incident. Indeed, there is no dispute that the two charges arose from the same confrontation between Klinakis and Remeneski; the charges arose from Klinakis's actions occurring at the same time and at the same place. The only difference is that one charge is based on Klinakis's words and the other on his conduct. The issue thus presented is whether the trial court's binding determination there was probable cause for prosecuting the charge based upon Klinakis's physical conduct also constitutes a binding determination there was probable cause for prosecuting the charge based upon his utterances.

Our Supreme Court considered a similar issue in Day Realty Assoc. v. McMillan, 247 Ga. 561, 277 S.E.2d 663. The facts are set out in this Court's opinion, McMillan v. Day Realty Assoc., 156 Ga.App. 660, 275 S.E.2d 352. Shortly after McMillan was terminated from his employment as a yard worker at Day Realty's apartment complex, a lawn mower, a weed cutter, and a swing blade were found missing. The weed cutter and the swing blade were seen later at McMillan's home. After McMillan was charged with the theft of the lawn mower, the weed cutter, and the swing blade, McMillan showed the complex's manager where he left the lawn mower on the apartment grounds, some distance from where the mower was usually stored.

After the case against McMillan was nolle prossed, he sued Day Realty for malicious prosecution, but the case resulted in a directed verdict for Day Realty. Upon McMillan's appeal to this Court, we reversed because we found that under the circumstances, there was a serious question whether a reasonably prudent person would have believed there was any basis to find McMillan guilty of the theft of the lawn mower. McMillan, 156 Ga.App. at 663, 275 S.E.2d 352.

After granting certiorari to consider whether a jury issue is "presented in an action for malicious prosecution where the defendant obtains an arrest warrant for theft by taking of several items and the evidence, as a matter of law, supports a finding of probable cause for some items, but not for all of them" Day Realty, 247 Ga. 561, 277 S.E.2d 663, our Supreme Court held that a jury question was not presented under those facts. The Supreme Court held that "as long as there was probable cause to prosecute for the theft of some of the items, Day cannot be liable in tort for malicious prosecution." Id. at 562, 277 S.E.2d 663.

Although the court below found as a controlling factor that in Day Realty the items alleged to have been stolen were set out in one charge, we do not find that significant. The issue should not be whether the offenses were alleged in one charge, but whether there was probable cause for the criminal prosecution. Here, the facts...