Valades v. Uslu

• Decision Date: 03 December 2009
• Docket Number: No. A09A1611.,No. A09A1612.,A09A1611.,A09A1612.
• Citation: 301 Ga. App. 885,689 S.E.2d 338
• Parties: VALADES et al. v. USLU et al. Uslu et al. v. Valades et al.
• Court: Georgia Court of Appeals

689 S.E.2d 338

301 Ga. App. 885

VALADES et al. v. USLU et al.

Uslu et al. v. Valades et al.

No. A09A1611.

No. A09A1612.

Court of Appeals of Georgia.

December 3, 2009.

Reconsideration Denied January 8, 2010.

William H. Arroyo, Tucker, for Valades et al.

Coy J. Johnson Jr., Steven E. Rosenberg, Atlanta, Matthew C. Welch, for Uslu et al.

MIKELL, Judge.

Enedina Janet Armenta ("Dina"), the daughter of plaintiffs Irasema and Armando Valades, called her parents to come to the scene of a traffic stop of her husband, Marco Antonio Armenta ("Armenta"). Fulton County Police Officer George Hodge initiated the traffic stop and fellow officer Hakan Uslu arrived in its midst. The Valadeses became embroiled in a confrontation with Uslu and were charged by Hodge with misdemeanor obstruction of an officer. A jury found them not guilty, and the trial court directed a verdict of acquittal in favor of Mr. Valades.¹ The Valadeses then filed a complaint against Uslu and Fulton County,² asserting claims of false arrest, false imprisonment, negligent hiring and retention, malicious prosecution, assault and battery, and intentional infliction of emotional distress. The parties filed cross-motions for summary judgment. The trial court granted summary judgment to the County on the basis of sovereign immunity and to Uslu as to the claims against him in his official capacity. In Case No. A09A1611, the Valadeses appeal this ruling. The trial court denied summary judgment to Uslu on the claims against him in his individual capacity, and he appeals this ruling in Case No. A09A1612. We conclude that all of the Valadeses' claims, except for the malicious prosecution claim against Uslu, are barred by the statute of limitation, and that the malicious prosecution claim is barred by official immunity. Accordingly, we affirm the judgment in Case No. A09A1611 and reverse the judgment in Case No. A09A1612. As the appeals raise overlapping arguments, we consolidate them for disposition in a single opinion.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the evidence and all reasonable inferences and conclusions drawn therefrom, viewed in the nonmovant's favor, warrant judgment as a matter of law.³ We review de novo the trial court's ruling on a motion for summary judgment.⁴

Construed most favorably to the Valadeses, the evidence shows that on October 24, 2004, Officer Hodge stopped the Armentas' car because it had an expired tag. After discovering that Armenta was driving without a license, Hodge placed him in custody in the rear of the patrol car. Uslu then arrived on the scene. Dina remained inside the Armentas' car, and Hodge spoke to her while Uslu began questioning Armenta. Hodge advised Dina to call someone with a valid license to take the car so that it would not have to be impounded. Dina called her parents, the Valadeses, and they arrived shortly thereafter.

The situation quickly deteriorated. Mrs. Valades deposed that when she arrived, Uslu was yelling at Armenta that he had been stopped because he did not have a driver's license and was "illegal." The Valadeses both deposed that Armenta was, in fact, "illegal." Mrs. Valades approached Uslu and offered to translate for Armenta because he did not speak English. Uslu said he did not need help and that Armenta would learn English "in a minute." Mrs. Valades began arguing with Uslu and pointed out that he spoke with an accent and probably did not learn English in a minute either.

Uslu then told Mrs. Valades that he was taking her to jail "because he was a police officer and can do whatever he wants." Because she had children at home, Mrs. Valades informed Uslu that she was going to her truck to get her cell phone to tell a relative. Uslu told her to "go ahead, do what you want." Mr. Valades deposed that the driver's side door to their truck was open, and when his wife reached in to get her purse, Uslu yelled at her to put it down and pointed a gun at her.

Officer Hodge deposed that when he saw Mrs. Valades reach into the truck, he unholstered his weapon and commanded, "Stop reaching. Let me see your hands." Hodge heard Uslu shout the same command as well as order Mrs. Valades to get down on the ground. Mrs. Valades did not respond immediately; she exited the truck holding her purse and cell phone. Eventually, she dropped her purse. Both officers were pointing their weapons at her.

Mrs. Valades deposed that she threw her purse on the ground as soon as Uslu ordered her to drop it. Uslu then yelled at her, pulled her hair, and threw her on the ground. She fell on her chest, face down. Uslu handcuffed her and pointed his gun at her neck. Hodge observed Uslu forcibly place Mrs. Valades on the ground but did not see Uslu pull her hair or point his weapon at her neck and did not hear Uslu threaten her.

Uslu deposed that Mrs. Valades was confrontational and that he admonished her to stop arguing with him. Uslu admitted drawing his weapon when Mrs. Valades exited her truck with her purse and cell phone, stating that he felt threatened until he saw her hands. She did not drop her purse right away, and Uslu handcuffed her and took her down. He denied pointing a gun at Mrs. Valades's neck but admitted that he grabbed her by the neck and that he might have held her hair in the process.

Mr. Valades, who witnessed his wife's takedown, began walking toward Uslu and asked why he pulled her hair. According to Mr. Valades, both officers aimed guns at him, and Uslu asked three times whether "he wanted to die." The officers deposed that Mr. Valades began charging toward Uslu after he forced Mrs. Valades to the ground. Uslu ordered him to get down on the ground and kicked him in the knee when he did not comply quickly enough. Hodge saw Uslu strike Mr. Valades in the back of the leg and forcibly place him on the ground.

After securing the Valadeses, Uslu placed them both in his patrol car and stated that he was going to let them go once they calmed down. Uslu held them for about 20 minutes until relatives arrived and then released them. Hodge issued them citations for obstruction of an officer.

1. We first address the statute of limitation issue. The incident giving rise to the Valadeses' complaint occurred on October 24, 2004. The jury returned not guilty verdicts on the obstruction charges on September 27, 2006, and the trial court directed a verdict of acquittal the next day. The Valadeses filed their complaint on August 31, 2007, asserting claims of false arrest, false imprisonment, negligent hiring and retention, malicious prosecution, assault and battery, and intentional infliction of emotional distress. The applicable statute of limitation, OCGA § 9-3-33, provides, in pertinent part, that "[a]ctions for injuries to the person shall be brought within two years after the right of action accrues." All of the Valadeses' claims except for malicious prosecution, discussed infra, accrued on the date of the incident.⁵ As such, the claims are time-barred.

The Valadeses counter that the limitation period is tolled by OCGA § 9-3-99, which provides:

The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years.

The Valadeses interpret this statute as tolling the running of the two-year limitation period because it mentions tolling from the date of "the commission of ... the act giving rise to such action in tort until the ... act has become final. ..." This interpretation ignores our rules of statutory construction. "The fundamental rules of statutory construction require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. At the same time, we must seek to effectuate the intent of the legislature."⁶ The legislature enacted OCGA § 9-3-99 as part of the Crime Victims Restitution Act of 2005.⁷ The statute's plain language tolls the statute of limitation for any cause of action in tort brought "by the victim of an alleged crime" while the prosecution of the defendant is pending, for a period not to exceed six years. Uslu was not prosecuted for any crime arising out of this incident. Therefore, OCGA § 9-3-99 does not toll the two-year statute of limitation, and the claims of false arrest, false imprisonment, battery, assault and intentional infliction of emotional distress are time-barred because they were filed more than two years after they accrued.

The malicious prosecution claim, however, is not time-barred. "The criminal prosecution forming the basis for an action for malicious prosecution must be ended before the right of action for malicious prosecution accrues."⁸ This means that a malicious prosecution action "must be brought within [two] years after the underlying criminal prosecution terminated in [the] plaintiff's favor."⁹ Thus, the claim did not accrue until September 27, 2006, the date that the Valadeses were acquitted of the obstruction charges. As the complaint was filed on August 31, 2007, the malicious prosecution claim was timely.

Uslu's reliance on Daniel v. Ga. R. Bank & Trust Co.¹⁰ for the proposition that the statute of limitation on a malicious prosecution claim begins running at the time of the plaintiff's arrest is unavailing. In Daniel, the Supreme Court, while expressly declining to decide whether a defendant may be liable for negligently causing the arrest of another, assumed that if such a cause of action exists, the statute of limitation begins...