Charles L. Watkins, III, brought suit against his former employer, Laser/Print-Atlanta, Inc., and three of its employees, David Waugh, Mark Graves, and David Pinney (hereinafter collectively referred to as Laser/Print). Watkins later voluntarily dismissed Pinney from the suit and added Rene Cote, president of Laser/Print, as a defendant. The suit alleged damages resulting from libel, slander, malicious prosecution and malicious arrest. The trial court granted partial summary judgment in favor of Laser/Print on the malicious prosecution and malicious arrest counts, and denied Laser/Prints’s motions for summary judgment on the libel and slander counts. All parties appeal.
The record reveals that Watkins left Laser/Print’s employ in 1984 to work for a competitor. Prior to his departure Watkins and Graves had a heated conversation concerning Watkins’ resignation. After Watkins left, certain Laser/Print computer programs were discovered to be missing. Laser/Print swore out warrants against Watkins, who was arrested on charges of terroristic threats and theft by taking of computer software.
1. In case number 74120, the main appeal, Watkins contends the trial court erred by granting partial summary judgment to Laser/ Print on the malicious prosecution and malicious arrest counts. Watkins argues that contrary to the trial court’s finding otherwise, the criminal cases against him have been abandoned, constituting a termination favorable to him. We do not agree. It is uncontroverted that subsequent to Watkins’ arrest, the warrants were placed on the “dead docket.” Since four years have not elapsed since the warrants were issued, nothing prevents the district attorney from proceeding with a prosecution. See OCGA § 17-3-1 (c). “The present disposition simply does not constitute an abandonment and/or termination of the proceeding, absent a subsequent formal entry of dismissal of the criminal charges. [Cits.]”
McCord v. Jones,
2. In case number 74121, the cross appeal, Laser/Print first contends the trial court erred by denying its motion for summary judgment as to the libel count. Laser/Print argues the only written defamation alleged attributable to Laser/Print is the warrant signed by Graves which, under the provisions of OCGA § 51-5-8, is absolutely privileged. It is well established that an affidavit before a magistrate, made for the purpose of causing an arrest, will not support an action for libel, though falsely and maliciously made.
Francis v. Wood,
3. Laser/Print next contends the trial court erroneously denied its motion for summary judgment on the slander count. Three instances of slander were alleged by Watkins. First, Watkins alleged that a co-worker, Pam Davis, was told by Graves that Watkins had been arrested. Second, Watkins alleged that in a telephone conversation between Graves and Watkins’ new employer, Graves called Watkins a thief. In addition (although not briefed or argued by Laser/ Print), Watkins alleged that a telephone conversation between Laser/ Print and a prospective employer was defamatory, and resulted in cancellation of a scheduled job interview.
Laser/Print argues that the information imparted to Davis is not slander because Graves told Davis only that Watkins had been arrested, which was true. It is axiomatic that truth is an absolute defense in a defamation action, OCGA § 51-5-6, and we therefore agree with Laser/Print that as to the publication to Davis, no slander oc
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curred. We do not agree, however, with its argument that because the telephone call from Graves to Watkins’ new employer was privileged, no slander existed. The privilege asserted by Laser/Print is that set forth in OCGA § 51-5-7 (3) as to “[statements made with a good faith intent on the part of the speaker to protect his interest in a matter in which it is concerned.” Even assuming, arguendo, that the statement was so privileged, this privilege is conditional rather than absolute,
Fedderwitz v. Lamb,
4. Laser/Print finally contends the trial court erred by allowing the addition of Rene Cote, a new defendant, to relate back to the time of filing the initial complaint, thereby avoiding the bar of the statute of limitations as to him. “An amendment adding or changing a party may be allowed even though a separate action by or against that party would be barred by the statute of limitation. Pursuant to OCGA § 9-11-15 (c) . . . , the amendment relates back to the date of the original suit if the claim against the new party arose out of the ‘conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading,’ and if ‘within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.’ This court has held that the movant may establish lack of prejudice by showing an ‘identity of interest’ between the old and the new parties and has also held that the party offering the amendment must demonstrate that he or she has not been guilty of inexcusable delay. [Cits.]”
Horne v. Carswell,
“The adding or dropping of parties requires the exercise of discretion by the trial court.”
Cartin v. Boles,
Judgment affirmed in part and reversed in part.