                               SECOND DIVISION
                                ANDREWS, P. J.,
                            MILLER and BRANCH, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                  November 12, 2015




In the Court of Appeals of Georgia
 A15A1419. STANDARD v. FALSTAD et al.

      ANDREWS, Presiding Judge.

      Christy R. Standard sued Nathan Falstad and his employer, Wal-Mart Stores

East, L.P., for maliciously prosecuting her for the offense of felony theft by

shoplifting, and for intentional infliction of emotional distress, and sought the

imposition of punitive damages and the award of attorney fees pursuant to OCGA §

13-6-11.1 Standard appeals from the trial court’s grant of summary judgment in favor

of Wal-Mart. For the following reasons, we affirm.

      The relevant facts are undisputed. Falstad worked for a Wal-Mart store in

Peachtree City as an “Asset Protection Associate” trained in shoplifting investigations

      1
        Standard’s suit also alleged claims for false and malicious imprisonment and
for negligence, but she withdrew those claims in her response to Wal-Mart’s motion
for summary judgment.
and prosecutions. On April 5, 2011, video cameras at the Wal-Mart store where

Falstad worked recorded a woman attempting to steal a television from the store by

bringing an empty television box into the store and obtaining a “return sticker”

(representing that the box contained returned merchandise); then leaving the empty

box in the store; placing a similar boxed television in her shopping cart; removing the

store’s security device from the box; and attempting to leave the store with the

television without paying for it. Falstad was alerted when the security device was

detached, at which point he saw the woman with the shopping cart and television

already past the registers attempting to walk out the front door of the store. When a

Wal-Mart “People Greeter” asked for a receipt, the woman left the cart and the

television, walked to her car, and drove away. Falstad followed the woman from a

distance as she walked to her car, saw the license plate on the car, and wrote down

the number. While following the woman from behind, Falstad did not speak to the

woman or see her from the front and did not see her face. Falstad then returned to the

store and reviewed the store video which contained various images of the woman

from the front and side showing her face. On the same day, Falstad contacted the

Peachtree City Police Department; reported the woman’s actions to a police officer;

showed the officer the store’s video of the woman; and gave the officer the license

                                          2
number from the woman’s car. The officer’s affidavit confirms that he conducted a

search on the car’s license number; determined that the car with that license number

(a silver 2006 Mazda 3) was registered to Christy R. Standard; and searched for and

obtained Standard’s driver’s license registration information. The officer further

states that he concluded “Ms. Standard appeared to have a similar driver’s license

photograph as the female seen in the security video,” but that he told Falstad “that

there was not sufficient evidence of an attempted theft at that point to pursue any

criminal charges.” Nevertheless, based on his personal observations, the store’s video,

and the information obtained by the police officer, Falstad submitted an application

on April 7, 2011 to the Magistrate Court of Fayette County for a criminal arrest

warrant for Standard’s arrest for the offense of theft by shoplifting. Based on the

application, the Magistrate Court scheduled a “pre-issuance hearing” for May 11,

2011 for the purpose of determining if there was probable cause to issue the arrest

warrant.

      Falstad and Standard were notified and appeared at the hearing. Falstad gave

sworn testimony describing the woman’s actions at the store on April 5, 2011 that he

personally witnessed, describing the woman’s actions that he saw on the store’s

video, and describing his report to the police and the police investigation showing

                                          3
that the license number he saw on the car driven by the woman belonged to a car

registered to Standard. Standard gave sworn testimony that she was not the woman

seen by Falstad at the store or on the video; that she was at home all day on April 5,

2011 recovering from being hospitalized; and that her husband had her car. Standard

testified that she drove a Mazda 3 but that she did not know the license number. In

response to Standard’s denial that she was the woman at the Wal-Mart store, Falstad

stated under oath: “Okay[,] well someone who looks very similar to you.” When the

Magistrate Judge commented that Falstad was “saying that [Standard] is in the

video,” Standard asked the Magistrate Judge to compel Falstad to produce the video,

but the Judge refused. After hearing testimony from Falstad and Standard, the

Magistrate Judge found that Falstad’s testimony was sufficient to establish probable

cause, and the Judge immediately issued the arrest warrant and set bond at $2,000.00.

Standard testified by deposition that she was arrested immediately after the

Magistrate Court probable cause hearing on May 11, 2011; that she posted bond and

was released about 16 hours after she was arrested; and that, after the probable cause

hearing, she had no other court appearances on the charge. On June 16, 2011, the

Fayette County District Attorney filed a document captioned “Dismissal” in the

Magistrate Court referencing the warrant number on which Standard was arrested,

                                          4
and stating that the State “hereby dismisses the above charge for the following

reason: Insufficient evidence to secure a conviction beyond a reasonable doubt.”

Falstad subsequently testified by deposition that he had an opportunity to see

Standard at the probable cause hearing on May 11, 2011, and that the sworn

testimony he gave at the hearing in support of the application for an arrest warrant

was based on his belief at the time that Standard was the woman he saw in the store

video. A subsequent affidavit from an investigator in the District Attorney’s office

stated that the investigator spoke with Falstad on June 3, 2011; that Falstad told him

Standard “was not the same woman he saw shoplifting in reference to the charge he

was pursuing;” and that he advised Falstad “that [the District Attorney’s office]

would be dismissing the case against Standard, which he understood as the reasonable

thing to do.” Although the record contains evidence that Standard, Standard’s ex-

husband, and Standard’s grandparents testified that they did not recognize the woman

shown in the store video, Standard’s cousins testified that they recognized the woman

shown in the video as Standard’s mother.

      Standard does not dispute that the woman’s actions, as shown in the store’s

video, provided probable cause to issue an arrest warrant for theft by shoplifting. See

OCGA § 16-8-14 (a). Rather, Standard contended in response to the motion for

                                          5
summary judgment that she was not the woman shown in the video, and that Falstad

(and his employer, Wal-Mart, on the basis of respondeat superior) maliciously

prosecuted her for shoplifting despite knowing that she was not the woman in the

video.

                In order to prevail on a claim for malicious prosecution, a plaintiff
         must show the following: (1) a criminal prosecution; (2) instigated
         without probable cause; (3) with malice; (4) pursuant to a valid warrant,
         accusation, or summons; (5) that terminated in the plaintiff’s favor; and
         (6) caused the plaintiff damage.

McNeely v. Home Depot, Inc., 275 Ga. App. 480, 482 (621 SE2d 473) (2005)

(citation, punctuation, and footnote omitted). “For purposes of such claim, the

prosecution must be ‘carried on,’ which requires ‘an inquiry before a committing

court.’ Swift v. Witchard, 103 Ga. 193, 196 (2) (29 SE 762) (1897).” McNeeley, 275

Ga. App. at 482 (citations and footnote omitted); OCGA §§ 51-7-40 and 51-7-42.

This means “when instituted, the prosecution has been carried on so far as to bring

the person charged before some officer, body or authority invested by law with the

power and duty of inquiring into the merits of the charge.” Swift, 103 Ga. at 196. The

suing out of a warrant, if done maliciously and without probable cause, wrongfully

institutes a prosecution, but, without more, it is not sufficient to sustain a cause of



                                              6
action for a prosecution which was then maliciously “carried on.” Id. at 196-197;

Walker v. Bishop, 169 Ga. App. 236, 238 (312 SE2d 349) (1983).

      Even if the warrant issued, and the party was arrested, this, without
      more, would not be sufficient cause for such an action. The party
      aggrieved would have a right of action for malicious [or false] arrest, as
      is provided by the Civil Code in another section.

Swift, 103 Ga. at 197; Walker, 169 Ga. App. at 238. When Standard appeared before

the Magistrate Court, the Court determined only that there was probable cause to

institute a prosecution, and issued the warrant pursuant to which Standard was

immediately arrested on the charge of theft by shoplifting. Neither the proceeding in

the Magistrate Court to establish probable cause to issue the arrest warrant, nor

issuance of the warrant by the Magistrate Court, was evidence of a prosecution

“carried on” by “an inquiry before a committing court . . . with the power and duty of

inquiring into the merits of the charge.” Swift, 103 Ga. at 196-197; Garner v. Heilig-

Meyers Furniture Co., 240 Ga. App. 780, 781-782 (525 SE2d 145) (1999).

      In response to the motion for summary judgment, Standard provided

undisputed evidence showing that, after the Magistrate Court found probable cause

to issue the arrest warrant and Standard was arrested, the warrant was dismissed by

the District Attorney, and Standard never again appeared before any court on the


                                          7
charge. In fact, Standard’s complaint for malicious prosecution alleges only that she

was arrested based on Falstad’s application for an arrest warrant and his testimony

before the Magistrate Court, and that, after Standard was arrested, the District

Attorney dismissed the warrant. The allegations of the complaint and the undisputed

facts show that Standard failed as a matter of law to establish any claim for malicious

prosecution, and that her alternative cause of action was for false arrest.2 See OCGA

§ 51-7-1. Accordingly, Wal-Mart was entitled to summary judgment on the malicious

prosecution claim. OCGA § 9-11-56; Lau’s Corp. v. Haskins, 261 Ga. 491, 491 (405

SE2d 474) (1991) (defendant entitled to summary judgment by showing no evidence

sufficient to create a jury issue on at least one essential element of plaintiff’s case).

The trial court granted summary judgment in favor of Wal-Mart on the malicious

prosecution claim for a different reason – finding as a matter of law that probable

cause existed to issue the arrest warrant to institute the prosecution. We need not

address that finding, and affirm the trial court’s grant of summary judgment on this

claim under the right for any reason rule.



      2
         Standard’s complaint does not explicitly assert a cause of action for false
arrest, and, in response to Wal-Mart’s motion for summary judgment, Standard
affirmatively stated that “Plaintiff has not asserted a claim of false arrest.”

                                             8
      The trial court also correctly granted summary judgment in favor of Wal-Mart

on Standard’s claim for intentional infliction of emotional distress. Standard asserts

that the same conduct she cited in support of her malicious prosecution claim also

supported her claim for intentional infliction of emotional distress. On a claim for

intentional infliction of emotional distress, the plaintiff must produce evidence to

establish all of the following elements:

      (1) the conduct must be intentional or reckless; (2) the conduct must be
      extreme and outrageous; (3) there must be a causal connection between
      the wrongful conduct and the plaintiff’s emotional distress; and (4) the
      emotional distress must be severe. MARTA v. Mosley, 280 Ga. App. 486,
      490-491 (634 SE2d 466) (2006).

Udoinyion v. Re/Max of Atlanta, 289 Ga. App. 580, 584 (657 SE2d 644) (2008). To

qualify as sufficiently “extreme and outrageous” the conduct at issue “must be so

extreme in degree, as to go beyond all possible bounds of decency, and to be regarded

as atrocious, and utterly intolerable in a civilized society.” Kaiser v. Tara Ford, Inc.,

248 Ga. App. 481, 488 (546 SE2d 861) (2001) (citation and punctuation omitted).

      As set forth above, undisputed evidence in the record showed the following:

Wal-Mart’s employee, Falstad, observed a woman on the store’s video system

engaging in conduct that provided probable cause to believe that the woman

committed the offense of shoplifting in the store. After obtaining the license number

                                           9
from the car the woman drove away from the store, Falstad immediately contacted

police, showed the police officer the video, and gave the officer the license number.

The officer conducted a search on the license number, which showed that the number

belonged to a Mazda 3 automobile registered to Standard. The officer obtained

Standard’s driver’s license information, compared Standard’s license photograph to

the woman the officer saw in the store video, and the officer concluded that

Standard’s photograph appeared similar to the woman in the video. Based on

information derived from his own observations and the police investigation, Falstad

applied to the Magistrate Court for a warrant to have Standard arrested for

shoplifting. At the Magistrate Court hearing on the warrant application, Falstad

described to the Court the actions taken by the woman on the store video – actions

sufficient to establish probable cause that the woman in the video committed the

offense of shoplifting. Falstad told the Court that he obtained the license number of

the car the woman drove from the store; that he reported the incident to the police;

and that the police investigation revealed that the car (a Mazda 3) belonged to

Standard. Standard told the Court she owned a Mazda 3 automobile, but could not

remember the license number, and testified that she had never been to the Wal-Mart

store at issue and was not the woman in the store video. Falstad, who had the

                                         10
opportunity to see Standard face-to-face at the hearing, testified to his belief that

Standard was the woman in the video, and that Standard “looks very similar” to the

woman he saw in the video. After hearing testimony from Falstad and Standard, the

Magistrate Court found probable cause to issue a warrant to have Standard arrested

on the shoplifting charge. Standard was arrested and spent about 16 hours in jail

before she was released on bond. About five weeks after Standard was arrested, the

District Attorney dismissed the warrant stating that there was insufficient evidence

to secure a conviction beyond a reasonable doubt. The District Attorney’s investigator

said that the warrant was dismissed subsequent to a conversation he had with Falstad

about three weeks after the arrest in which Falstad told him that Standard was not the

woman in the store video.

      On the above facts, there was a rational basis for Falstad’s identification

testimony in Magistrate Court that Standard looked similar to the woman in the store

video, and that he believed she was the woman in the video seen committing the

offense of shoplifting. The police officer’s independent statement that Standard

(based on her driver’s license photograph) looked similar to the woman seen in the

video supports this conclusion. The fact that Falstad subsequently told the District

Attorney’s investigator that Standard was not the woman in the video did not change

                                         11
the objective facts supporting his earlier identification testimony, and did not support

a reasonable inference that Falstad deliberately misidentified Standard to obtain the

arrest warrant without any factual basis. Rather, it reasonably suggests that Falstad

reconsidered the same objective facts and subsequently changed his mind about the

identification. Whether the conduct at issue was sufficiently extreme and outrageous

was a question of law for the court. Amstead v. McFarland, 287 Ga. App. 135, 140

(650 SE2d 737) (2007); McClung Surveying, Inc. v. Worl, 247 Ga. App. 322, 326

(541 SE2d 703) (2000). On the present facts, we find that the trial court correctly

concluded that the conduct at issue was not sufficiently extreme and outrageous, and

correctly granted summary judgment to Wal-Mart on the claim for intentional

infliction of emotional distress. OCGA § 9-11-56; Lau’s Corp., supra.

      Because the trial court correctly granted summary judgment to Wal-Mart on

Standard’s underlying tort claims, the court also correctly concluded that Wal-Mart

was entitled to summary judgment on Standard’s claims for punitive damages and

attorney fees. Johnson v. Johnson, 323 Ga. App. 836, 842 (747 SE2d 518) (2013).

      Judgment affirmed. Branch, J., concurs. Miller, J., concurs in judgment only.




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