Willis v. Brassell

Decision Date27 February 1996
Docket NumberNo. A95A2089,A95A2089
Citation220 Ga.App. 348,469 S.E.2d 733
PartiesWILLIS et al. v. BRASSELL.
CourtGeorgia Court of Appeals

Zachary & Segraves, J. Ed Segraves, Decatur, for appellants.

Cashin, Morton & Mullins, James M. Sherman, Atlanta, O'Neal, Brown & Sizemore, John C. Clark, Macon, for appellee.

BEASLEY, Chief Judge.

Defendants Willis and Coventry Holding Group, Inc. appeal a civil jury verdict for malicious prosecution (OCGA § 51-7-40) in favor of Brassell, alleging that the court erred in denying defendants' motions for new trial and judgment notwithstanding the verdict (OCGA § 9-11-50(b)) and in allowing the issue of punitive damages to go to the jury (OCGA § 51-12-5.1).

"Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. [Cits.]" Taylor v. Ga. Power Co., 136 Ga.App. 412, 413 (1), 221 S.E.2d 222 (1975). A trial court may grant a motion for j.n.o.v. only where there is no conflict in the evidence as to any material issue and the evidence, with all reasonable deductions, demands a particular verdict. See Allen v. Wometco Cable TV, etc., 198 Ga.App. 103, 104, 400 S.E.2d 362 (1990). The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. Williamscraft Dev. v. Vulcan Materials Co., 196 Ga.App. 703, 704(2), 397 S.E.2d 122 (1990). As long as there is some evidence to support the verdict, the denial of defendant's motions for new trial and j.n.o.v. will not be disturbed. Bldg. Materials Wholesale v. Reeves, 209 Ga.App. 361, 364(2), 433 S.E.2d 346 (1993); Wehunt v. Wren's Cross of Atlanta, etc., Assn., 175 Ga.App. 70, 72(1), 332 S.E.2d 368 (1985).

Viewed in this light, the evidence supports the following findings of fact. Roberta Brassell was a nurse's assistant responsible for the care of several elderly residents at Coventry Place, a retirement community. She was employed by Trimark Health Services, a contractor which provided special nursing services to elderly clients in the community. Coventry Place is owned and operated by Coventry Holding Group; its managing director is Daniel Willis.

Coventry Place, through Willis, was in the process of starting a special care nursing service which would directly compete with Trimark and was attempting to eliminate Trimark as a competitor for nursing services, so that Coventry would become the sole provider to Coventry Place residents. Tension existed between Trimark and Coventry Place personnel, harassment of the Trimark employees assigned to work at Coventry Place occurred, and "getting rid of" Trimark was discussed at staff meetings. Trimark employees were required to sign in and out, ring a doorbell when entering the facility, and be escorted by a Coventry Place employee in the common areas.

Louis Flemister was a nearly blind 85-year-old resident. Renatta Diebold, Willis's assistant, testified that Flemister could not read his mail or insurance forms or fill out his checks. He could not see elevator floor buttons but rather had to feel and count them to determine which button to press. He was able to sign his name only if someone held a finger where he was to sign or placed an "X" by the signature line.

When Diebold arrived at work on August 9, 1991, she found Flemister waiting outside Willis's office. He reported that he had entered his apartment and found a black woman wearing green clothes in his room. When he accused her of taking his sleeping pills, she left. Diebold instructed Flemister to wait in the office until Willis arrived. Upon Willis's arrival, Diebold related Flemister's report. Willis took Flemister aside, conversed privately, and called the police.

Before the police arrived, Diebold told Willis that Mizell, another black female Trimark employee, usually wore green clothing and that she worked on Flemister's floor. In fact, on the morning of Brassell's arrest, Flemister had accused Mizell of stealing his sleeping pills when he saw her on the third floor. No one, including Willis, talked with or questioned Mizell before calling the police, even though she had signed in to work that morning. Willis sent an employee to the apartment of one resident in Brassell's care, ostensibly to inquire as to the resident's health but in fact to locate Brassell to determine the color of her clothing. Brassell has red hair and was wearing pink and white.

When the police arrived, Willis greeted them and spoke directly to Officer Berry. Berry testified that Willis reported that a black female with pink and white clothing and red hair was in Flemister's room stealing his medication. Willis repeatedly stated in front of the police officer that Brassell worked on the third floor where the alleged criminal trespass occurred and suggested that Brassell may have changed from green to pink clothes. Willis did not tell the officer that Flemister had seen a black female wearing green clothing, that he could not identify her by name, that he had terrible eyesight, that there was a black female who worked down the hall from Flemister who usually wore green and was in fact then wearing green. The officer further testified that had Willis made these facts known, he would have expanded his investigation by re-interviewing witnesses, interviewing additional witnesses, confronting all suspects, and calling additional investigators to the scene.

Willis was described as "pleased" that Brassell had been arrested and commented, "Well, we are going to get rid of Trimark now." Subsequently, Willis barred Trimark from doing business at Coventry Place and cited Brassell's arrest as a reason.

Brassell was jailed for 13 hours. Flemister was brought to the police department and was interviewed by a detective. A magistrate issued a warrant for Brassell's arrest. The magistrate testified that he issued the warrant after he satisfied himself that Flemister could identify the perpetrator as Roberta Brassell. He further testified that although Brassell was taken originally to the police station under a charge of burglary (OCGA § 16-7-1), the warrant was issued for criminal trespass (OCGA § 16-7-21(b)).

By stipulation, the transcript of Flemister's examination at Brassell's preliminary hearing was read into evidence. He testified that he did not know Brassell's name on the day she was arrested, that he had bad eyesight, that he was not wearing his hearing aid when he went to his room on the morning of the incident, and that the woman he saw in his room was wearing a tan and brown dress. He further testified that Willis called the police but he did not remember talking to them. He was unable to identify Brassell as the person he saw in his room, although he indicated she was about that person's height. The court dismissed the case, and Brassell sued defendants for malicious prosecution.

"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. Although an aggrieved party has an especially heavy burden in such cases since his interest is weighed against the public's interest in encouraging citizens to report violations of law, K Mart Corp. v. Griffin, 189 Ga.App. 225, 226, 375 S.E.2d 257 (1988), a plaintiff may prevail if each of the following elements is pled and proved: (1) prosecution for a criminal offense instigated by defendant; (2) issuance of a valid warrant, accusation, or summons; (3) termination of the prosecution in favor of plaintiff; (4) malice; (5) want of probable cause; and (6) damage to the plaintiff. OCGA § 51-7-40; Medoc Corp. v. Keel, 166 Ga.App. 615(1), 305 S.E.2d 134 (1983); J.C. Penney Co. v. Miller, 182 Ga.App. 64, 66(2), 354 S.E.2d 682 (1987). The question is whether each element is supported by evidence.

1. (a) At trial, defendants maintained that Willis merely told the investigating officer what he believed to be the truth and that the officer made his own independent investigation and decision to arrest Brassell, whereas Brassell contended that Willis instigated the prosecution for criminal trespass by withholding and misstating key information.

"The law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute. In the former case there is potential liability for ... malicious prosecution [cit.]; in the latter case there is not. [Cit.] It is clear, though, that initiation of the criminal action need not be expressly directed by the party to be held liable. [Cit.] ... [Cit.] 'A distinction must be taken between actually instigating or procuring the institution of criminal proceedings and merely laying information before a law enforcement official without in any way attempting to influence his judgment.' " Ginn v. Citizens & Southern Nat. Bank, 145 Ga.App. 175, 178(3), 243 S.E.2d 528 (1978). A person may be liable where "he gave information [to the investigating officer] which he knew to be false and so unduly influenced the authorities." Prosser, Law of Torts (4th ed. 1971), p. 837, § 119, quoted in Melton v. LaCalamito, 158 Ga.App. 820, 822(2), 282 S.E.2d 393 (1981).

Brassell presented evidence that tended to prove that Willis relayed to the police information which he knew to be false, misleading or materially incomplete, from which the jury reasonably could conclude that Willis was attempting to influence the police to prosecute: 1) Willis failed to relay to the police Flemister's actual description of the suspect--a black woman wearing green--and...

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