Torts - David A. Sleppy and Lisa J. Bucko

• Publication year: 2002

Tortsby David A. Sleppy^* and Lisa J. Bucko^**

I. Intentional Torts

A. Malicious Prosecution

In Ye v. Kroger Co.,¹ Mr. Ye visited a Kroger grocery store to shop for a few essential items, including a box of condoms. While partially concealing the condoms in his sleeve, Ye picked up tangerines and contact lens solution. A Kroger employee saw Ye put the box of condoms in his pants pocket. The employee informed the assistant store manager, and both observed Ye proceed through the checkout and exit the store without paying for the condoms. The assistant manager followed Ye out of the store and asked him about the condoms. Ye admitted that he had not paid for the condoms and asked if he could pay for them at that time. The assistant manager did not answer, but took Ye to the manager's office where a shoplifting incident report was completed, and the police were called. Ye was arrested for shoplifting, placed in handcuffs, and transported to jail. After a jury found Mr. Ye not guilty of theft by shoplifting, he sued Kroger for malicious prosecution, false arrest, and false imprisonment.²

In affirming the trial court's grant of summary judgment to Kroger, the court of appeals first enumerated the elements of a malicious prosecution action: (1) prosecution for a criminal offense; (2) instigation of the prosecution under a valid warrant, accusation, or summons; (3) termination of the prosecution in favor of the plaintiff; (4) malice; (5) lack of probable cause; and (6) damages to the plaintiff.³

While ordinarily a jury decides whether probable cause exists, because Ye admitted he placed the box of condoms in his pocket and failed to pay for it before exiting the store, the existence of probable cause was a proper question for the judge.⁴ "Although criminal intent is a material element of shoplifting, a store employee is not required to determine the shopper's subjective intent before seeking an arrest and prosecution for shoplifting."⁵ Because Ye's actions would have caused reasonably prudent persons to believe that they had probable cause to prosecute Ye for shoplifting, Ye could not recover for malicious prosecution.⁶

Addressing the third element of a malicious prosecution action, the court of appeals in Sherrill v. Stockel⁷ found error in the trial court's denial of defendant's motion for summary judgment.⁸ The termination of the prosecution was brought about by a compromise and agreement of the parties, and therefore, the prosecution did not terminate in favor of plaintiff, and he could not recover for malicious prosecution.⁹

The court of appeals addressed the second element of a malicious prosecution action in Erfani v. Bishop.¹⁰ Bishop swore out an arrest warrant for criminal trespass after Erfani, who leased property from Bishop, vacated the premises prior to the expiration of the lease term, then forcefully re-entered to collect his property after Bishop changed the lock on the door.¹¹

While the arrest warrant was valid when sworn out by defendant,¹² the statute of limitations for plaintiff's misdemeanor criminal trespass charge ran before the case was prosecuted. The trial court incorrectly ruled that Erfani's malicious prosecution claim was time-barred by the statute of limitations.¹³ The court of appeals, however, disagreed, holding that although the issuance of the arrest warrant did not toll the criminal statute of limitations, the civil statute of limitations for malicious prosecution did not commence until "the termination of the criminal prosecution in plaintiff's favor."¹⁴

Nonetheless, because the trial court's decision was justified for another reason, the court of appeals affirmed the grant of summary judgment.¹⁵ The fact that the magistrate bound the criminal case over to the state court was prima facie evidence of probable cause, though not conclusive of probable cause.¹⁶ Plaintiff became a trespasser when he re-entered Bishop's property after vacating prior to the end of the rental term.¹⁷ The facts that plaintiff admittedly (and forcefully) re-entered the property after he abandoned the premises and that defendant accepted the surrender by installing new locks would lead a reasonable person to believe that plaintiff committed criminal trespass.¹⁸ Therefore, probable cause existed to swear out the warrant and summary judgment was proper.¹⁹

Plaintiff's defamation claim was barred by the statute of limitations because the complaint was filed more than one year after publication of defendant's statements in an affidavit supporting plaintiff's arrest warrant. Moreover, an absolute privilege protects such statements, and plaintiff's complaint made no allegation that the statements were false or were made with malice.²⁰

B. Conversion

In Walden v. Jones,²¹ Walden operated Capricorn Records out of a building he had owned since 1959. In 1986 he decided to move the recording studio to Nashville and sold the building to Lewis, a high school friend. With Lewis's permission, Walden stored certain music industry memorabilia in the building until he could establish himself in Nashville.²²

Lewis defaulted on his loan, and the bank foreclosed on the building in September 1991. When Lewis received notice of the foreclosure sale, he contacted Walden's brother and recommended that the memorabilia be removed from the building before the foreclosure occurred. With Walden's permission, Walden's brother and nephew removed much, but not all, of the memorabilia. The building was then sold by the bank to Jones by general warranty deed in April 1992. While the warranty deed conveyed only the building to Jones, the bank quitclaimed the memorabilia to Jones in 1995.²³

After hearing rumors in December 1996 that Jones loaned selected memorabilia items to the Georgia Music Hall of Fame, Walden wrote Jones demanding return of the memorabilia. Jones subsequently sold the building, without the memorabilia, to Mercer University in March 2000. Walden sought to recover the memorabilia and sought a declaration by the court that the music memorabilia belonged to him. Walden further sought an injunction that would prevent Jones from selling or marketing the memorabilia and asked for damages for conversion.²⁴

The court of appeals affirmed the trial court's finding that Walden abandoned the property, explaining that "'abandonment . . . may result from acts ofthe owner or from failure to bring an action for the recovery of the personalty within four years.'"²⁵ "An owner may abandon personal property by acts of commission and omission."²⁶

The record failed to show any evidence that Walden inventoried the memorabilia left behind when he moved to Nashville in 1986 or when his brother and nephew delivered additional memorabilia to him in 1991. Nor did the record establish that plaintiff was absent when his brother and nephew collected the memorabilia in 1991. Walden's December 1996 letter to Jones was the first communication wherein plaintiff asserted a claim of right to the memorabilia. Under these circumstances, Walden abandoned all the memorabilia that remained in the building after he accepted delivery of a portion of the memorabilia delivered to him by his own agents.²⁷

Moreover, the court of appeals held that the conversion action failed because the statute of limitations set forth in Official Code of Georgia Annotated ("O.C.G.A.") section 9-3-32²⁸ expired.²⁹ The court stated that, "'The true test to determine when a cause of action accrues is to ascertain the time when the plaintiff could first have maintained her action to a successful result.'"³⁰ Plaintiff's cause of action accrued in 1991, when his agents failed to remove all memorabilia from storage. Because the action was not instituted until 2000, it was time-barred.³¹

Plaintiff in Taylor v. Powertel, Inc.³² sued defendant for conversion after defendant assigned Florida taxes on plaintiff's monthly cellular phone bill.³³ The court of appeals explained that, generally, money is not subject to a conversion action because it is intangible personal property that is fungible.³⁴ It cannot be differentiated by specific identification absent a specific fund created and set aside from other money.³⁵ Because plaintiff failed to show that the portion of the total cellular phone bill attributable to the taxes constituted an identifiable fund that belonged to him, and to which he had an immediate right of possession, he failed to show that he sought the kind of personal property subject to suit for conversion.³⁶ He should have sued for "money had and received."³⁷

II. Libel/Defamation

In Swindall v. Cox Enterprises, Inc.,³⁸ Swindall sued for libel for statements made in a 1999 editorial published in the Atlanta Constitution entitled "Barr's Claims Outrageous, Invalid," which quoted statements made by U.S. Representative Bob Barr during former President Clinton's impeachment trial.³⁹ When asked if prosecutors would have sought an indictment for an individual who engaged in the perjury of which the President was accused, Barr responded that he had prosecuted such cases, "including a case that probably cost me a primary election in the Republican Party for prosecuting a member of Congress for precisely the activity which brings us here today; that is perjury, misleading a grand jury."⁴⁰

The editorial then commented on Barr's statements as follows: "Barr compares the charges against Pat Swindall, the then-member of Congress he prosecuted and convicted for perjury, to the accusations against Clinton."⁴¹ The editorial made the following references to Swindall's situation: (1) "Swindall was charged with lying about his involvement in a drug-money laundering scheme"; (2) "Swindall's lying about drug-money laundering"; and (3) "Swindall was a man who lied about drug-money laundering."⁴² While conceding that the first statement was true, Swindall claimed that the other two statements were false.⁴³

Plaintiff had been convicted of nine counts of perjury in the United States District...