Rowe v. CSX Transportation, Inc.

465 S.E.2d 476, 219 Ga. App. 380, 95 Fulton County D. Rep. 3616, 1995 Ga. App. LEXIS 1072

• Court: Court of Appeals of Georgia
• Decided: November 16, 1995
• Docket: A95A1485
• Status: Published

Opinions

Andrews, Judge.

In this malicious prosecution and defamation case, plaintiffs Freddy Rowe and Cleo Brown appeal the trial court’s order granting summary judgment to defendants CSX Transportation, Inc. (“CSX”), a railroad, and its detective, Robert Johnson.

This case arose in January 1992 when a Racine rail saw, used to cut rails, was stolen from a truck parked in the CSX railyard. Six months later, while investigating the theft, Johnson interviewed Fabian Terry, who stated that he got the saw from Willie, Jr. who said he bought it for $20 from Brown. Terry also told Johnson that the saw was on Rowe’s property and Rowe knew it was stolen. After Johnson went to Rowe’s house and asked about the saw, which had “Property of CSX” painted on it, Rowe admitted he had lent it to a friend and agreed to give it back to the railroad. At his deposition, Rowe testified that Johnson promised not to press any charges if he brought back the saw. Rowe returned the saw, but Johnson subsequently reported the results of his investigation to a county magistrate who issued arrest warrants for Rowe and Brown for receiving stolen property. After their arrest, the men waived their right to a preliminary hearing and posted bond. It is undisputed that Johnson did not attempt to contact Brown after receiving Terry’s statement.

The criminal cases against Rowe and Brown ultimately were dismissed without prosecution because Johnson was unable to appear. In addition, the assistant district attorney prosecuting the case indicated that, because Brown had been incarcerated when the crime occurred, he felt the charges should be dropped. Rowe and Brown were subsequently indicted on the same charges, but the charges were again dismissed.

Rowe and Brown then commenced this action alleging malicious prosecution and defamation. CSX and Johnson moved for summary judgment, arguing that probable cause for the arrests existed based on the evidence and because Rowe and Brown waived their preliminary hearing. They also contended that Johnson lacked malice. CSX and Johnson further argued that, because the evidence showed Johnson made his statements in good faith in the performance of a public duty, summary judgment was warranted on the defamation claim. The trial court summarily granted the motion for summary judgment.

Rowe and Brown argue that the trial court erred in granting summary judgment because whether Johnson lacked probable cause to prosecute them was a jury question. They also contend that disputed issues remain to be tried on malice. We disagree.

“[A]t summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate . . . that there is an absence of evidence to support at least one essential element of the non-moving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

The essential elements of malicious prosecution are: “(1) prosecution for a criminal offense; (2) instigated without probable cause; (3) with malice; (4) under a valid warrant, accusation or summons; (5) which has terminated favorably to the plaintiff; and (6) has caused damage to the plaintiff. [Cit.]” Wal-Mart Stores v. Blackford, 264 Ga. 612, 613 (449 SE2d 293) (1994). Lack of probable cause exists when the circumstances satisfy a reasonable person that the accuser had no ground for proceeding but a desire to injure the accused. OCGA § 51-7-43. Further, the return of an indictment is prima facie, though not conclusive, evidence of probable cause, as is the waiver of a preliminary hearing. Smith v. Holeman, 212 Ga. App. 158, 161 (6) (441 SE2d 487) (1994); Garmon v. Warehouse Groceries Food Center, 207 Ga. App. 89, 93 (427 SE2d 308) (1993).

Prima facie evidence of probable cause existed because Brown and Rowe were indicted by a grand jury and waived their preliminary hearing. Moreover, Terry’s statements that he had acquired the saw from a man who bought it from Brown, the saw was located on Rowe’s property, and Rowe knew it was stolen are also prima facie evidence of probable cause. In this procedural posture, the prima facie establishment of probable cause becomes conclusive if left unrebutted. Garmon, supra at 93 (2). Thus, the burden shifted to Brown and Rowe to “ ‘point to specific evidence giving rise to a triable issue.’ . . . [Cits.]” Id. at 94; Smith v. Trust Co. Bank, 215 Ga. App. 413 (1) (450 SE2d 866) (1994).

The record reveals no such evidence. The dismissal of the charges against Brown due to his incarceration when the offense occurred does not create a dispute about the existence of probable cause. Brown’s incarceration lasted from January 1992, when the saw was stolen, to February 1992. The saw was returned in June 1992. Because Brown was charged with theft by receiving, the fact that he was jailed on the date of the theft is irrelevant to the issue of probable cause. Nor does the reasonableness of Johnson’s failure to corroborate Terry’s statements give rise to a triable issue. In circumstances where a cursory investigation would have revealed physical or documentary evidence corroborating the factual defenses claimed by the accused, we have held that a reasonable person would be required to investigate further before initiating legal proceedings. Garmon, supra at 95;

see, e.g., Bi-Lo, Inc. v. McConnell, 199 Ga. App. 154 (2) (404 SE2d 327) (1991); Atlantic Zayre v. Meeks, 194 Ga. App. 267 (1) (390 SE2d 398) (1990). No such circumstances exist in this case. Because Brown and Rowe failed to offer evidence to rebut the prima facie proof of probable cause, no disputed issue of fact precluded summary judgment. Akins v. Warren, 258 Ga. 853 (4) (375 SE2d 605) (1989). This alone is fatal to their case.

In addition, however, no issues remain to be tried on the element of malice. Rowe and Brown base their argument that a jury must decide the issue of malice solely on inferences drawn from the purported absence of probable cause and Johnson’s broken promise that Rowe would not be prosecuted if he returned the saw. Malice, however, cannot properly be inferred absent a total lack of probable cause. OCGA § 51-7-44; Lolmaugh v. T.O.C. Retail, 210 Ga. App. 605 (2) (436 SE2d 708) (1993). Moreover, Johnson presented undisputed evidence that he did not know Brown or Rowe prior to this investigation and bore them no ill will. Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876 (2) (429 SE2d 264) (1993). Brown and Rowe have presented no evidence of the requisite animus in response. Id. at 881 (4).

Further, the trial court’s disposition of this case comports with public policy. “[M]alicious prosecution suits are not favored. It is public policy to encourage citizens to bring to justice those who are apparently guilty.” Monroe v. Sigler, 256 Ga. 759, 761 (8) (353 SE2d 23) (1987). Accordingly, the trial court properly granted summary judgment.¹

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Johnson, Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., and Pope, P. J., dissent.

1 Inasmuch as Rowe and Brown failed to address the trial court’s adjudication of their defamation claim in their appellate brief, we deem the issue abandoned and decline to reach it. Court of Appeals Rule 27 (c) (2).