concurring in part and dissenting in part.
I concur in the portion of the majority opinion affirming the trial court’s grant of summary judgment in Case Nos. A05A1836,A05A1837, and A05A1838.1 respectfully dissent from the majority opinion to the extent it reverses the trial court’s grant of summary judgment to defendants in Case Nos. A05A1837 and A05A1838.
In Case No. A05A1836, the majority affirmed the trial court’s grant of summary judgment on all claims (including false arrest, false imprisonment, and malicious prosecution) in favor of all the police officer defendants (Corporal Johns, Investigator Miller, and Sheriff Carlisle). In doing so, the majority correctly rejected the claim made by Adams and Elliott that they were arrested and prosecuted without probable cause. The majority rejected this claim as a matter of law holding that the officers made the warrantless arrests on the basis of undisputed material facts appearing at the time of the arrests which created “a reasonable belief that there was probable cause for the arrest and prosecution.” (Footnote omitted; emphasis in original.) McNeely v. Home Depot, 275 Ga. App. 480, 482 (621 SE2d 473) (2005). The officers used their training in the detection of counterfeit bills to observe that a counterfeit pen made suspicious looking color marks on the bills; that the layout of the bills was not properly centered; and that the bills did not feel right and had a strange watermark and a funny color. As the majority points out, evidence that the counterfeit pen did not work on older bills was not sufficient to show there was a lack of probable cause. In addition to the above undisputed facts observed by the arresting officers, probable cause for the arrests was based on the undisputed fact that the officers were aware that counterfeit bills were frequently being passed at the mall where Adams and Elliott were shopping. As the majority notes, Officer Miller also had a lawful basis to arrest and detain Adams for violation of OCGA § 16-13-75 when the officer obtained Adams’ consent to search her purse and he found prescription drugs not contained in their original container. On that charge, the officer’s personal observation of the facts provided probable cause for the arrest.
The same probable cause for the arrest and prosecution that entitled the police officer defendants to summary judgment on the claims for false arrest, false imprisonment, and malicious prosecution, also entitles Glenda K. Evans and her employer, Le Gourmet Chef (LGC) (Case No. A05A1837), and Michael G. Grayson and his employer, CPG Partners, L.P., d/b/a North Georgia Premium Outlet Mall (CPG) (Case No. A05A1838), to summary judgment on those claims. Proof that there was a lack of probable cause to support the criminal proceedings was an element that Adams and Elliott were required to prove on all of these claims. Whether a false arrest claim *796is based on an arrest under process of law or, as in the present case, a warrantless arrest, lack of probable cause for the arrest is an element of the claim. Gantt v. Patient Communications Systems, 200 Ga. App. 35, 38 (406 SE2d 796) (1991); Mohamud v. Wachovia Corp., 260 Ga. App. 612 (580 SE2d 259) (2003). Similarly, false imprisonment and malicious prosecution claims include the elements of unlawful detention and prosecution without probable cause. Fleming v. U-Haul Co. &c., 246 Ga. App. 681, 682-683 (541 SE2d 75) (2000); McNeely, 275 Ga. App. at 482; Mitchell v. Lowe’s Home Centers, 234 Ga. App. 339, 340-341 (506 SE2d 381) (1998) (defense of warrantless arrest in false imprisonment case must show an arrest based on probable cause and made pursuant to the appropriate exigent circumstances).42
In support of their claims for false arrest, false imprisonment, and malicious prosecution, Adams and Elliott alleged that Evans and Grayson (and LGC and CPG based on the principle of respondeat superior) instigated or procured the criminal proceedings by making statements to the police officers about the bills which provided the officers with a false basis to arrest, detain, and prosecute. The record shows, however, that material facts directly observed by the arresting officers (what the bills looked like to them) and otherwise known to the officers (that counterfeit bills had been frequently passed at the mall) provided a probable cause basis for the officers to arrest, detain, and prosecute. Accordingly, this is a case where facts seen by and known to the officers — independent of anything told to them by Evans or Grayson — provided the necessary probable cause. Even if, as the majority finds, Evans urged Corporal Johns not to believe Elliott’s explanation as to how she got the bills, and Grayson gave misleading information to Johns insinuating that Elliott may have attempted to flee the store after passing the bills, the officers had probable cause independent of these statements.
Furthermore, the arresting officers gave uncontradicted deposition testimony that they acted on this independent basis for probable cause when they made the decision to arrest, detain, and prosecute. The majority disregards this testimony as self-serving opinion. Although opinion testimony alone is not sufficient to support the award of summary judgment in a nonexpert opinion case, the reason for this rule is that opinion testimony cannot resolve questions of fact reserved for the jury. Ginn v. Morgan, 225 Ga. 192, 193-194 (167 SE2d 393) (1969). But whether or not probable cause existed is not a *797question of fact for the jury in the present case. As the majority correctly holds as a matter of law, undisputed material facts in the record established that the officers had probable cause. Moreover, these facts were directly observed by or known to the officers independent of any statements made to them by Evans or Grayson. It is not a matter of opinion but a statement of fact by the officers that they relied on these independently obtained facts as the basis for their decision to arrest, detain, and prosecute. The testimony by the officers that they relied on facts independently obtained by them cannot be disregarded as self-serving or conclusory merely because the officers were parties to the case. The testimony was supported by substantiating fact and circumstances, so it was neither self-serving nor conclusory. Keene v. Herstam, 225 Ga. App. 115, 117 (483 SE2d 335) (1997). Even if the officers also considered statements made to them by Evans and Grayson, the record clearly shows that facts obtained by the officers independent of those statements provided probable cause for the officers’ decision to arrest, detain, and prosecute Adams and Elliott. Jacobs v. Shaw, 219 Ga. App. 425, 426-427 (465 SE2d 460) (1995).
In response to the motion for summary judgment, Adams and Elliott were required to show that a factual issue existed as to whether Evans or Grayson instigated or procured the criminal proceedings by knowingly giving the officers false, misleading, or materially incomplete facts which were the determining factor or an undue influence in the officers’ decision to arrest, detain, and prosecute. Willis v. Brassell, 220 Ga. App. 348, 350-353 (469 SE2d 733) (1996); Ginn v. C & S Nat. Bank, 145 Ga. App. 175, 178 (243 SE2d 528) (1978); Melton v. LaCalamito, 158 Ga. App. 820, 822-823 (282 SE2d 393) (1981). Because the record shows as a matter of law that facts independently obtained by the officers provided probable cause for the officers’ decision to arrest, detain, and prosecute, there is an absence of any causal link between the officers’ decision and statements made by Evans and Grayson. McLeod v. Pruco Life Ins. Co. 215 Ga. App. 177, 179-180 (449 SE2d 895) (1994). Accordingly, there is an absence of any evidence in the record supporting the claims by Adams and Elliott that they were falsely arrested, falsely imprisoned, and maliciously prosecuted because of any false, misleading, or materially incomplete statements made by Evans and Grayson. Jacobs, 219 Ga. App. at 426-427. It follows that Evans and her employer, LGC (Case No. A05A1837), and Grayson and his employer, CPG (Case No. A05A1838), were entitled to summary judgment on the claims for false arrest, false imprisonment, and malicious prosecution. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).
*798I also dissent in Case No. A05A1838 from the majority’s reversal of the trial court’s grant of summary judgment to Grayson and CPG on the claims for intentional infliction of emotional distress and punitive damages.
When Adams and Elliott appealed in Case No. A05A1838 from the grant of summary judgment to Grayson and CPG on all claims and submitted their appellants’ brief on July 20, 2005, they did not enumerate as error and did not address the fact that the trial court granted summary judgment against them on their claims for intentional infliction of emotional distress and punitive damages. Accordingly, the appellees’ brief filed in response on August 9, 2005, did not address these issues and noted that Adams and Elliott did not appeal from the trial court’s grant of summary judgment on these issues. On August 10, 2005, Adams and Elliott refiled their appellants’ brief in response to a motion requiring that it conform to Court of Appeals Rules. In their refiled brief, Adams and Elliott raise these issues on appeal in a single sentence buried in their argument that the trial court erroneously concluded there was probable cause for the criminal proceedings. Adams and Elliott then filed an appellants’ reply brief on August 20, 2005, arguing that they had not failed to appeal from the award of summary judgment on their claims for intentional infliction of emotional distress and punitive damages because “a finding by this court that Appellees lacked probable cause creates a jury issue as to these additional issues.” Because Adams and Elliott failed to timely raise these issues in their enumerations of error, and this failure cannot be cured by attempting to raise the issues in a refiled or supplemental brief, this Court has no jurisdiction to address the issues. Coweta County v. Simmons, 269 Ga. 694-695 (507 SE2d 440) (1998); In re Harvey, 219 Ga. App. 76, 79-80 (464 SE2d 34) (1995). The trial court’s award of summary judgment to Grayson and CPG on the claims for intentional infliction of emotional distress and punitive damages should be affirmed.
I am authorized to state that Presiding Judge Johnson and Presiding Judge Blackburn join in this opinion.
PHIPPS, Judge, in Case No. A05A1836, concurring in the judgment only; in Case No. A05A1837, concurring in the judgment only in Divisions 3 (a), 4, and 5, dissenting in Division 3 (b), and concurring fully in Division 6; in Case No. A05A1838, concurring fully in Divisions 7 and 8 and concurring in the judgment only in Division 9.
In Case No. A05A1836,1 concur in the judgment only. The record shows a lack of probable cause for the arrests of Adams and Elliott. But the appellants have failed to show any waiver of sovereign or official immunity. For this reason, the grant of summary judgment to *799Johns, Miller, and Carlisle on the claims of malicious prosecution, false arrest, and false imprisonment was proper.
In Case No. A05A1837, I concur in the judgment only with respect to that part of the judgment reversing the grant of summary judgment to Evans and LGC on the issues of false imprisonment, false arrest, and malicious prosecution; affirming the grant of summary judgment to Blackburn on these claims; and affirming summary judgment to the LGC Defendants on the issues of slander and tortious misconduct. I respectfully dissent from that part of the judgment affirming the grant of summary judgment to the LGC Defendants on the claims of negligence. And I concur fully in that part of the judgment determining that the grant of summary judgment on the issues of conversion, intentional infliction of emotional distress, and punitive damages stands as uncontested.
Finally, in Case No. A05A1838,1 concur fully in that part of the judgment reversing the grant of summary judgment to CPG and Grayson on the issues of false imprisonment, false arrest, malicious prosecution, intentional infliction of emotional distress, and punitive damages and in that part of the judgment affirming the grant of summary judgment to Wallace on these issues. With respect to that part of the judgment affirming the grant of summary judgment to the CPG Defendants on the claims of negligence, I concur in the judgment only.
Case No. A0SA1836
1. “Probable cause exists where the facts and circumstances within the arresting officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.”43 Where a reasonable person would investigate further before beginning a prosecution, the failure to do so may show a lack of probable cause.44
The defendant is not necessarily required to verify his information, where it appears to be reliable; but where a reasonable man would investigate further before beginning the prosecution he may be liable for failure to do so. All such factors as the reliability of the source, the availability of further information and the difficulty of obtaining it, the reputation of the accused, and his opportunity to offer an explanation, and the apparent necessity of prompt action, *800are to be considered in determining whether it was reasonable to act without verification.45
Applying the foregoing, the evidence shows a lack of probable cause to support the arrests of Adams and Elliott for forgery.
The video shows the significant reliance that Johns and Miller placed upon the results of the pen tests that failed to indicate that Adams’s and Elliott’s bills were authentic.46 Blackburn, the store manager, identified at his deposition a counterfeit detection pen, which he testified was like the one used by the store. The pen he identified pertinently instructed, “Use in addition to standard detection methods. Effective on most U. S. currency series 1959 and after.” Evans recalled in her deposition that the pen itself and/or the pen’s package instructed that the pen was not to be used to determine whether bills “older than 1959” were authentic. At the scene that day, she handed Johns both the pen she had used to test Elliott’s old bills and a new package containing a counterfeit detection pen. She also pointed out to Johns that Elliott’s bills had “1950 dates on them.”
Despite evidence that the pen itself and the pen’s package contained plain disclaimers and evidence that Johns had both the pen and a pen package, the majority labels as a “fact” that “neither Johns nor Miller knew that the drimark pens did not work on bills older than 1959.” Moreover, the majority finds that this “fact” is not particularly pertinent because a savvy counterfeiter might use the pen’s technological limitations to his or her advantage.
The pen’s limitations and the series of the bills were readily available to Johns. And whether an officer investigates the evidence at hand before beginning a prosecution is certainly pertinent to a determination of probable cause.47 Because the pen was incapable of authenticating the old bills at issue here, the results of the pen tests of the bills were not “reasonably trustworthy information . . . sufficient in themselves to warrant a man of reasonable caution” to believe that forgery was afoot.48 Notwithstanding that a counterfeiter might use the pen’s technological limitations to his or her advantage, the results of the pen tests should have played no part in the law enforcement officers’ investigation of Elliott’s bills because the bills simply fell outside the testing range of the pen. No probable cause stemmed from the useless results of the pen tests.
*801Although there was a claim at the scene that Elliott’s bills had a “funny” color, this claim originated from Evans. Nothing in the record shows the cashier to have been a reliable source for analyzing color variations in currency.
The majority posits that Johns and Miller invoked their training in determining that probable cause existed. But Johns deposed, “I’ve never had formal and/or informal training on [counterfeit money detection pens].” Further, he testified that he had no formal training whatsoever in detecting fake money. While the majority credits him with having obtained “informal” training, Johns clarified in his deposition that his exposure to the subject consisted only of “another experienced officer pointing things out.” Johns further specified that even these tips were limited to the examination of newer money, such as checking that the front, center pictures on bills are offset and that the bills contain watermarks. But with respect to bills such as the ones in this case, Johns testified, “I don’t remember covering anything from the old bills.” Thus, Johns’s “informal training” added nothing to “the facts and circumstances within the arresting officers’ knowledge” pertinent to the situation at hand.49 It provided no “reasonably trustworthy information . . . sufficient in [itself] to warrant a man of reasonable caution” to believe that an offense was being committed.50
Similarly, Miller deposed that he had no formal training in detecting counterfeit bills. Although he had been involved in investigating counterfeit cases, he plainly stated that he had never been called upon to identify counterfeit money. And regarding the only counterfeit case he could remember, he stated, “[I]t didn’t take a whole lot to discover [that bill] was counterfeit.” It involved “a one-dollar bill that had the corners, if you will, of a hundred-dollar bill cut off, taped on there and then had run it through a color copier and then trimmed out.” Miller could not recall any other “on-the-job” training. He could not recall any publication he had read dealing with identifying counterfeit money. He asserted that he had picked up some tips from “talking] to some agents about counterfeit money ... like Secret Service, FBI agents,” although he could not recall the names of any of those agents. Essentially, those tips centered on comparing a questioned bill with a known bill. But at the scene that day, there was no known series 1950 bill available for Miller to employ this method. Finally, Miller admitted that, as of the date of the incident, he was unfamiliar with the use and limitations of the counterfeit detection pen. Thus, Miller’s “informal training” added *802nothing to “the facts and circumstances within the arresting officers’ knowledge” pertinent to the situation at hand.51 It provided no “reasonably trustworthy information . . . sufficient in [itself] to warrant a man of reasonable caution in the belief that an offense” was being committed.52
Johns and Miller might have been advised that counterfeit currency was being passed at the Mall. But the fact that counterfeit currency had been presented at the Mall does not make every shopper who presents currency subject to arrest.53 The law enforcement officers needed to have had reasonable grounds to believe that the particular bills at issue in this case were counterfeit.54 The officers did not.
Johns was alerted upon his arrival that the sheriff s department had been summoned because a pen had failed to show that Elliott’s bills were authentic. The pen and/or its package instructed that the pen had no utility on bills predating 1959. Johns had both the pen and a pen package. Evans pointed out to Johns that the bills were dated 1950. Neither Johns nor Miller had training — formal or informal — with respect to such older bills. Evans’s analysis of the currency was not reliable. And Miller’s comparison technique lacked a known bill of the same age.
Under these circumstances, no reasonably prudent person would have begun prosecution without further inquiry. The officers were without any reliable means to determine whether the bills were authentic, and there is no showing of a “necessity of prompt action” in the nature of immediate arrests.55 Furthermore, there was evidence that additional information was available and that it could have been obtained without difficulty. The sheriffs department had on staff an officer with extensive, formal training in the detection of counterfeit currency. This officer, Hawk, deposed that he was available for questions that arose with regard to his expertise. In addition, the record shows that Adams and Elliott complied with the law enforcement officers’ requests to hand over their driver’s licenses. And there is no evidence that either had a history of or reputation for engaging in any criminal activity. Finally, Johns was given an explanation by Elliott regarding how she came into possession of the old bills. Therefore, there was no probable cause to arrest Adams and Elliott for forgery.
*803The majority concluded otherwise and thus did not reach the trial court’s rulings that the doctrine of sovereign immunity barred liability as to Johns, Miller, and Carlisle and that the doctrine of official immunity barred liability as to Johns and Miller. Sovereign immunity applies to counties and protects county employees who are sued in their official capacities.56 Sovereign immunity is waived, however, by any legislative act that specifically provides that sovereign immunity is waived and the extent of such waiver.57 Appellants rely on OCGA § 15-16-5, which provides, “The sheriffs shall give a bond in the sum of $25,000.00, which amount may be increased in any county by local Act, conditioned for the faithful accounting for all public and other funds or property coming into the sheriffs’ or their deputies’ custody, control, care, or possession.” Although this court has determined that the requirement of the posting of bond under OCGA § 15-16-5 waives sovereign immunity for acts and omissions that come under the bond coverage,58 the conduct underlying the claims asserted against Johns, Miller and Carlisle in their official capacities does not fall under the bond coverage.59 Because appellants have failed to show waiver of the defense of sovereign immunity with respect to these claims, the trial court’s grant of summary judgment to Johns, Miller and Carlisle in their official capacities was proper.60
Johns and Miller were also sued in their personal capacities, and the trial court determined that official immunity barred these claims.
The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee *804may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure.61
Deciding to arrest is a discretionary act.62 Thus, Johns and Miller were entitled to official immunity unless they acted with actual malice, defined as “a deliberate intention to do wrong.”63 Because Adams and Elliott have failed to make this requisite showing, the trial court’s grant of summary judgment to Johns and Miller in their individual capacities on the claims of malicious prosecution, false imprisonment, and false arrest was proper.64
Case No. A05A1837
2. I agree with the majority’s conclusions that Evans and LGC were not entitled to summary judgment on the claims of false imprisonment, false arrest, and malicious prosecution, that Blackburn cannot be held liable on those claims, and that the LGC Defendants were entitled to summary judgment on the issues of slander and tortious misconduct.65 I agree with the majority’s determination that the grant of summary judgment to the LGC Defendants on the issues of conversion, intentional infliction of emotional distress, and punitive damages stands as uncontested.
However, I disagree with the majority’s conclusion that the LGC Defendants were entitled to summary judgment on appellants’ claims of negligence. The majority’s conclusion was based upon a finding that probable cause existed. As Division 1 of this opinion states, this finding was erroneous. Moreover, these defendants — including Blackburn — knew or certainly should have known that the tool, which the store chose to employ as a counterfeit detection device, had no utility with respect to the bills Elliott presented.
Case No. A05A1838
3. I agree with the majority’s decision in Division 7, which concludes that neither CPG nor Grayson was entitled to summary *805judgment on the claims of false imprisonment, false arrest, and malicious prosecution, but that Wallace was entitled to summary judgment on these claims. And I agree with the majority’s decision in Division 8, which concludes that neither CPG nor Grayson was entitled to summary judgment on the issues of intentional infliction of emotional distress and punitive damages, but that Wallace was entitled to summary judgment on these issues.
Decided March 30, 2006 Reconsideration denied April 13, 2006 Larry D. Wolfe, Mark A. Yurachek, for appellants. Jason C. Waymire, Terry E. Williams, for appellees (case no. A05A1836). Finley & Buckley, James B. Finley, Karen S. Focia, for appellees (case no. A05A1837).In Division 9, the majority concludes that the CPG Defendants cannot be held liable under a negligence theory. This conclusion is based on the determination that probable cause existed for the appellants’ arrests. As stated, I believe that the record shows no probable cause. While conduct underlying allegations of false imprisonment and false arrest may give rise to a claim of negligence,66 I find summary judgment appropriate here.
The record shows that Evans called the Mali’s security personnel and reported that the women were passing counterfeit bills; Grayson and Wallace responded to Evans’s call; Grayson told Evans to call the police; and Grayson thereafter pointed out Adams and Elliott to Johns. The appellants claim that the CPG Defendants breached a duty by “allow [ing] a patron to be injured, i.e., arrested or imprisoned, based on an erroneous or inaccurate accusation of criminal activity.” However, the appellants have failed to establish that a duty arose under the circumstances of this case for the security guards to halt the police investigation, thwart the subsequent arrests of Adams and Elliott, or otherwise alter what occurred.
I am authorized to state that Chief Judge Ruffin and Judge Barnes join in this opinion.
*806Gray, Rust, St. Amand, Moffett & Brieske, Michael J. Rust, Matthew L. Hilt, for appellees (case no. A05A1838).In the present case, the record not only shows probable cause, but also that the officers made the warrantless arrests pursuant to the exigent circumstances set forth in OCGA § 17-4-20 (a).
Means v. City of Atlanta Police Dept., 262 Ga. App. 700, 706 (586 SE2d 373) (2003) (citations and punctuation omitted).
See Melton v. LaCalamito, 158 Ga. App. 820, 824 (2) (b) (282 SE2d 393) (1981).
Id. (citation and punctuation omitted).
As to Adams, the video shows that after Johns tested her money with a pen supplied by Evans, he reported to Miller by telephone that “every bill [Adams] handed me is showing up brown.”
See id.
Means, supra.
Id.
Id.
Id.
Id.
See Henry v. United States, 361 U. S. 98, 103 (80 SC 168, 4 LE2d 134) (1959).
Id.
See Melton, supra.
Banks v. Happoldt, 271 Ga. App. 146, 147 (1) (608 SE2d 741) (2004).
Gilbert v. Richardson, 264 Ga. 744, 748 (3) (452 SE2d 476) (1994).
Cantrell v. Thurman, 231 Ga. App. 510, 514 (4) (499 SE2d 416) (1998).
Compare Jackson v. Norton, 75 Ga. App. 650, 652-654 (1) (44 SE2d 269) (1947) (where earlier version of law now codified at OCGA § 15-16-5 provided that sheriffs post bond conditioned “for the faithful performance of their duties as sheriffs, by themselves, their deputies, and their jailers,” false arrest could be a breach of the condition of a sheriffs official bond, where the false or malicious arrest was done colore officii).
See Banks, supra; Anderson v. Cobb, 258 Ga. App. 159, 160 (1) (573 SE2d 417) (2002); Cantrell, supra.
Standard v. Hobbs, 263 Ga. App. 873, 875-876 (1) (589 SE2d 634) (2003) (citation and punctuation omitted).
Anderson, supra.
See Merrow v. Hawkins, 266 Ga. 390 (467 SE2d 336) (1996) (distinguishing “actual malice” from “ ‘implied malice’, a term which has been defined to mean conduct exhibiting a ‘reckless disregard for human life’ ”).
See id. at 392; Anderson, supra at 160-161 (2); see generally Franklin v. Consolidated Govt. of Columbus, 236 Ga. App. 468, 471 (1) (512 SE2d 352) (1999).
As stated above, I concur in the judgment only as to these claims.
See Stewart v. Williams, 243 Ga. 580, 581 (1) (255 SE2d 699) (1979) (while false imprisonment is an intentional tort, where the confinement is due to the defendant’s negligence, the latter may be liable as for negligence, hut the claim is then governed by the rules and principles of the tort of negligence); Corporate Property Investors v. Milon, 249 Ga. App. 699, 705 (2) (549 SE2d 157) (2001) (physical precedent only).