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REMENESKI v. KLINAKIS6/28/1996
Following our grant of an interlocutory appeal, Victor J. Remeneski appeals the trial court's partial denial of his motion for summary judgment on Anthony S. Klinakis' claim for malicious prosecution. Remeneski contends summary judgment should have been granted on all of Klinakis' claims against him because both charges against Klinakis arose from a single incident and the trial court denied Klinakis' motion for a directed verdict of acquittal on one of the charges arising from that incident.
The record shows that Remeneski and Klinakis had different interest in a union matter when there was a confrontation. According to Remeneski, Klinakis stood in front of him screaming and yelling at him. Remeneski states that Klinakis called him "a f__king scumbag, and a scumbucket, and a f__king a__hole numerous times," and while Klinakis shouted these epithets he was close to Remeneski's face, he was red in the face and his body shook all over, and he put his finger close to and shook it in Remeneski's face. Remeneski also states that he thought Klinakis was going to hit him and he prepared himself to receive a punch. Although at the probable cause hearing, Remeneski testified he thought he would punch Klinakis, two years later at the trial of the case, Remeneski repeated the substance of his testimony about the incident, but recanted his testimony that he thought he might hit Klinakis. Remeneski testified at the trial that he could remember feeling scared. The record also shows that Klinakis produced witnesses who stated that he did not call Remeneski the names Remeneski contends he did, but that Klinakis merely called Remeneski a scumbag and a Polack scumbag.
Remeneski testified that the day after the incident, he was approached by a co-worker who encouraged Remeneski to report the incident to local authorities. The next day, Remeneski visited a magistrate who, after listening to Remeneski's version of the events, told him that based upon what Remeneski related, Klinakis' conduct violated the Georgia statute on fighting words and told Remeneski that he could fill out an application for an arrest warrant. Remeneski did so, and later he and another person who witnessed the incident testified before another magistrate at a hearing to determine whether a warrant should issue against Klinakis for violating the fighting words statute (OCGA § 16-11-39). Klinakis was present at the hearing with counsel, but did not testify. After the hearing, an arrest warrant issued charging Klinakis with fighting words, and subsequently the county solicitor's office added a count, based upon the same incident, charging Klinakis with simple assault (OCGA § 16-5-20).
Initially, Klinakis filed a plea in abatement to the fighting words
charge asserting that Federal labor law had preempted the area and also filed a demurrer to the simple assault charge asserting the charge was moot. Finding that the fighting words charge was preempted by jurisdiction of the National Labor Board, the trial court granted Klinakis' plea in abatement to the fighting words charge and dismissed the simple assault charge as moot because the court found the same conduct was complained of in both counts. This court reversed that decision because we found that federal law did not preempt state law in these circumstances and because we found the counts alleged separate violations: one violation based on uttering fighting words and the other based on certain physical conduct. See State v. Klinakis, 206 Ga. App. 318 (425 S.E.2d 665).
The case finally came to trial about two years after the incident giving rise to the charges. Following presentation of the prosecution's case, Klinakis moved for a directed verdict of acquitt
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