Seven Hills Security, Inc. v. Dillingham

372 S.E.2d 1, 188 Ga. App. 1, 1988 Ga. App. LEXIS 891

• Court: Court of Appeals of Georgia
• Decided: June 29, 1988
• Docket: 76478
• Status: Published

Opinions

Carley, Judge.

Appellant-defendant Tim Brannon, acting on behalf of his employer, appellant-defendant Seven Hills Security, swore out a warrant for the arrest of appellee-plaintiff on a charge of criminal trespass. Appellee was prosecuted on this criminal charge. At the trial of the criminal action, appellee moved for a directed verdict of acquittal at the close of the State’s evidence. The trial court denied appellee’s motion. Appellee moved for a directed verdict of acquittal at the close of all the evidence. The trial court then granted appellee’s motion.

Appellee subsequently brought this suit against appellants, seeking to recover for malicious prosecution. Appellants answered, denying the material allegations of the complaint. After a period of discovery, appellants moved for summary judgment. The trial court denied appellant’s motion, but certified its order for immediate review. This appeal results from the grant of appellants’ application for an interlocutory appeal from the trial court’s denial of their motion for summary judgment.

This case is controlled by our recent decision in Griffin v. Ga. Power Co., 186 Ga. App. 565, 567 (1) (367 SE2d 832) (1988), cert denied. “Since any subsequent determination as to a defendant’s guilt made at the close of all of the evidence is not inconsistent with any previous determination made at the close of the State’s evidence, it would necessarily follow that any finding which was implicit in the trial court’s denial of [appellee’s] initial motion for a directed verdict of acquittal would not be obviated by the trial court’s grant of [appellee’s] second motion. Implicit in the denial of [appellee’s] initial motion for a directed verdict of acquittal was the trial court’s determination of the existence of probable cause for the prosecution. [Cit.] This determination is unreversed and is binding. The grant of [appellee’s] subsequent motion for a directed verdict of acquittal establishes only that the criminal prosecution terminated in his favor. ‘(T)he existence of probable cause has been established, during the trial of the criminal case, in such manner as to preclude [appellee’s] action for malicious prosecution.’ [Cit.]”

Griffin v. Ga. Power Co., supra, cannot be distinguished on its facts. The trial court presiding at appellee’s criminal prosecution did not withhold its ruling on appellee’s initial motion for a directed verdict of acquittal and then subsequently grant that motion after the close of all the evidence. Here, as in Griffin v. Ga. Power Co., supra, there was a denial of the initial motion for a directed verdict of acquitted followed by the grant of a second motion, not merely the delayed grant of the initial motion. “[A] motion for a directed verdict of acquittal was made and denied at the close of the State’s evidence. A trial court cannot choose to deny a meritorious motion for a directed verdict of acquittal made at the close of the State’s case.” (Emphasis in original.) Griffin v. Ga. Power Co., supra at 566 (1). The evidence established, as a matter of law, the existence of probable cause for appellee’s criminal prosecution. Accordingly, the trial court erred in denying appellant’s motion for summary judgment as to their non-liability for the alleged malicious prosecution of appellee.

Judgment reversed.

Birdsong, C. J., McMurray, P. J., Sognier and Pope, JJ., concur. Deen, P. J., Banke, P. J., Benham and Beasley, JJ., dissent.