Tallman v. Hinton

• Decision Date: 25 January 1996
• Docket Number: No. A95A2773,A95A2773
• Citation: 220 Ga.App. 23,467 S.E.2d 596
• Parties: TALLMAN v. HINTON et al.
• Court: Georgia Court of Appeals

Page 596

467 S.E.2d 596

220 Ga.App. 23

TALLMAN v. HINTON et al.

No. A95A2773.

Court of Appeals of Georgia.

Jan. 25, 1996.

Dishonored check; notice. Henry Superior Court. Before Judge Smith.

Paul S. Weiner, Jonesboro, for appellant.

Swift, Currie, McGhee & Hiers, Susan A. Dewberry, Atlanta, for appellees.

POPE, Presiding Judge.

This appeal arose out of a complaint filed by Kelly Tallman in which Tallman contended that she had been maliciously prosecuted for a dishonored check. The trial court determined that all the defendants to her lawsuit were entitled to civil immunity pursuant to OCGA § 16-9-20(h)(1) because of their substantial compliance with the notice provisions of OCGA § 16-9-20(a)(2)(B). For the reasons that follow, we reverse.

Tallman wrote a check for groceries on July 24, 1990, for $41.95 to Zack's Big Buy. Tallman's bank failed to honor her check because the signature on the check did not appear to match her signature card and the bank returned it to Zack's Big Buy with a notation "refer to maker." No evidence was presented to show that her checking account lacked sufficient funds. ¹

Zack's Big Buy sent Tallman a certified mail notice concerning the dishonored check and this notice was eventually returned undelivered. ² After receiving no response from Tallman, on October 9, 1990, Robert Carmichael, the manager of Zack's Big Buy, procured a criminal warrant for Tallman's arrest based on the dishonored check. When Tallman discovered that a criminal warrant had been issued, she voluntarily reported to the jail, where she was arrested, photographed, fingerprinted and required to make bond. She testified that between July 24, 1990, the date of the dishonored check and the date of her arrest, she had written at least 18 checks from the same checking account to Zack's Big Buy including a check on the night before her arrest. All of Tallman's 18 checks written subsequent to July 24, 1990, were accepted and cashed by Zack's Big Buy.

After her arrest, Tallman testified that she informed Carmichael that her checking account had automatic overdraft protection, her account had had ample funds at all times and she was prepared to pay the deficiency immediately. Tallman presented evidence that Carmichael refused to accept her payment offer, and that he refused to dismiss the warrant, claiming the matter had to be resolved in court.

On November 2, 1990, a magistrate reviewed Tallman's bank statements from June to October 1990, which purportedly showed Tallman's account had never been overdrawn and had always contained sufficient funds. Tallman claimed the bank documents also indicated that she had overdraft protection. The magistrate accepted $56.95, the amount of the check plus $15, and dismissed the criminal case. Tallman then brought suit for false arrest, malicious prosecution, illegal detention, loss of reputation, and damages against Zack B. Hinton, Sr. d/b/a Zack's Big Buy, Zack's Mini Warehouses, Recycling Center, Robert Carmichael and Zack's Properties, Inc. ("Hinton"). Following the trial court's grant of Hinton's motion for summary judgment, Tallman brought this appeal.

1. Tallman contends the court erred in granting summary judgment to Hinton because Hinton's notice did not conform substantially to the notice required by OCGA § 16-9-20(a)(2)(B).

Hinton counters that Tallman's argument places form over substance and that the notice substantially complied with the statute.

OCGA § 16-9-20(a)(2)(B) requires that the notice describe the check number, date, check amount, name of bank drawn upon, name of the payee and the words "(has) ... been dishonored." The statute further provides, "Pursuant to Georgia law, you have ten days from receipt of this notice to tender payment of the total amount of the instrument(s) plus the applicable service charge(s) of $_______, the total amount due being ___ dollars and ___ cents. Unless this amount is paid in full within the specified time above, a presumption in law arises that you delivered the instrument(s) with the intent to defraud and the dishonored instrument(s) and all other available information relating to this incident may be submitted to the magistrate for the issuance of a criminal warrant or citation or to the district attorney or solicitor for criminal prosecution." OCGA § 16-9-20(a)(2)(B).

Hinton's notice letter consisted of the following: "Dear Kelly Tallman, Your check in the amount of $41.95 was returned to us by the bank because of refer to maker. Please make payment plus $20.00 'per check' service charge at Zack's Big Buy within ten (10) days from date of this letter or we will be forced to take appropriate legal action. Make all restitutions to attn: of Robert Carmichael. Sincerely, (signed) Robert Carmichael, Manager."

Hinton's notice...