LAGROON et al.
LAWSON et al
This opinion is uncorrected and subject to revision by the court.
Judgment affirmed in part, reversed in part.
McFADDEN, Judge. Andrews, P. J., and Ray, J., concur in the judgment only.
This appeal concerns a grant of summary judgment to three law enforcement officers -- Lincoln County Sheriff Gerald S. Lawson and Lincoln County Deputies James K. Foskey and Jack Hancock -- in an action brought by Robert Jay Lagroon and Kelli Sue Barnett for false imprisonment, false arrest, and malicious prosecution. Lagroon and Barnett were charged in a special presentment with contributing to the delinquency of minors by being present at a party where minors were consuming alcohol, which was held at the home of another person, Kathy Rhodes. They argue that the defendants were motivated to arrest and prosecute them, without probable cause to do so, out of friendship with Barnett's estranged husband and Kathy Rhodes' estranged ex-husband. The state eventually obtained an order nolle prosequi dismissing the charges.
Because we find that malicious prosecution is the exclusive remedy available to Lagroon and Barnett, we affirm the grant of summary judgment to the defendants on the claims for false imprisonment and false arrest. We reverse the grant of summary judgment on the malicious prosecution claims, however, because there are genuine issues of material fact as to whether the defendants were entitled to official immunity, whether they honestly and reasonably believed there was probable cause, and whether they acted with malice.
1. Facts .
" Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. On appeal, we review a trial court's grant of summary judgment de novo, construing the evidence and all inferences drawn from it in a light favorable to the non-movant." Stolte v. Hammack, 311 Ga.App. 710 (716 S.E.2d 796) (2011) (citation and punctuation omitted). Consequently, we view the evidence in the light most favorable to Lagroon and Barnett, even though the defendants have provided evidence depicting a dramatically different version of the events at issue, and even though a non-party witness, who had given affidavit testimony favorable to Lagroon and Barnett, flatly contradicted that testimony in a subsequent affidavit. See Thompson v. Ezor, 272 Ga. 849, 852-853 (2) (536 S.E.2d 749) (2000) ( self-contradictory testimony rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 S.E.2d 680) (1986) " applies only to the testimony of parties to a case, and not to the testimony of witnesses who are not parties" ) (citations omitted).
So viewed, the evidence shows that Appellant Lagroon was a dentist in South Carolina and Appellant Barnett was his office employee and babysitter for his two young children. On January 6, 2007, the two embarked on a driving trip to Savannah where Lagroon would attend a professional meeting and Barnett would babysit the children. They were towing a camper. When the lights on the camper began to malfunction, they stopped at property adjacent to the house of Kathy Rhodes, an acquaintance of Barnett. Lagroon could not repair the lights, and he and the children prepared to stay the night in the camper while Barnett waited to be picked up by a relative.
Unbeknownst to Lagroon and Barnett, Kathy Rhodes' two teenaged sons had arranged to have a party at her house to celebrate the older son's 18th birthday. Teenagers began arriving on the property, bringing coolers, food and drinks. Wade Rhodes, who was Kathy Rhodes' ex-husband and the father of the two boys, knew about the party and was concerned that the teenagers would be drinking alcohol. He and a friend watched the party through binoculars, became convinced that the party involved underage drinking, and reported the party to Sheriff Lawson.
Sheriff Lawson arrived at Kathy Rhodes' house with two deputies, one of whom was Deputy Foskey. They saw cars parked everywhere and a large number of underage people outside of the house near a bonfire. Many of the partygoers were drinking alcohol. On the deck of the house, teenagers were getting beer from coolers, and there was alcohol available inside the house, as well. As the law enforcement officers approached, many partygoers scattered, but the officers corralled some of them into the house.
Deputy Foskey interviewed partygoers to determine who had provided the alcohol. Most of them said they did not know who had provided the alcohol, but some gave statements indicating that Lagroon and Barnett had been at the party, and four gave statements identifying " the dentist" as the alcohol source. Two out of those four witnesses, however, subsequently testified that they originally told law enforcement officers they did not know who provided the alcohol and that they gave the statements implicating Lagroon only after being coerced to do so. In one case, at Sheriff Lawson's direction, Deputy Foskey tore up the witness's original statement and told the crying teenager to sign a new statement implicating Lagroon or else the deputy would arrest him and take him to the Juvenile Detention Center. In another instance, when a teenaged witness refused to give a statement implicating Lagroon, the teenager's father began " physically abusing" him and told him that he would " throw [the teenager] out of the house if [he] did not write a statement for the Sheriff stating that Dr. Lagroon had brought the beer to the party." This occurred in front of Sheriff Lawson. According to another teenager, the law enforcement officers " were telling us basically what to write down, at the beginning, that night. ... They were sitting there telling us that we needed to write this and we need to write that."
After receiving the statements from the teenagers, Sheriff Lawson went to the camper, accompanied by his chief investigator, Deputy Hancock, whom he had called to the scene, as well as Wade Rhodes and Rhodes's friend. Deputy Hancock knocked on the camper door and Lagroon answered. Sheriff Lawson asked for his identification and told him that he had eyewitnesses that Lagroon was serving drinks to kids out of the camper, a representation that was not supported by any of the witness statements. When Lagroon informed Sheriff Lawson that his children and Barnett were inside the camper, Deputy Hancock yelled: " Call DFACS!" Deputy Hancock took Barnett out of the camper and told her that they had eyewitnesses that she was either selling or serving alcohol to minors. As Barnett began to explain their presence on the adjacent property, Sheriff Lawson approached and said " arrest all the adults because they are going to lie for each other." He told Deputy Foskey that the witness statements supported the arrest of Lagroon and Barnett, and he instructed Deputy Hancock to interview them at the Sheriff's office. Deputy Hancock walked Barnett to Kathy Rhodes's house and told her to get into a law enforcement vehicle.
Barnett was driven to the Sheriff's office and placed in a holding cell until the following morning, when Deputy Hancock interviewed her. He did not question her about what happened at the party; instead, he questioned her primarily about her estranged husband, whom she was divorcing. He told Barnett that he was the officer who had to " kick [her] husband out of the house" in response to a temporary restraining order that Barnett had obtained the month before, that he felt bad about kicking her husband out, that her husband was a " nice guy," and that he had her husband's cell phone number and would call him to " come up there" to the Sheriff's office. He also told Barnett that he would be testifying against her in her divorce action. ...