Yarbrough filed this complaint against SAS Systems, Inc., and its chief executive officer, Turner.
In Count 1, he alleged that he had been discharged by SAS without his vacation pay, pre-notice pay, a bonus, and expense reimbursement.
Count 2 sought general and punitive damages based on the following version of events. He alleged Yarbrough and Turner settled the dispute as to what he was owed by an agreement resulting in a letter from SAS to Yarbrough, over the signature of Turner, assigning a CAD software system to Yarbrough. Yarbrough registered this system with its designer and manufacturer, Visionics. Turner reported that Yarbrough had stolen this system and pressured the district attorney into bringing the matter before the grand jury, which indicted Yarbrough for forgery and theft. This resulted in Yarbrough’s being jailed, booked, and mug-shot, being terribly embarrassed and humiliated, and spending large sums of money in attorney fees. The district attorney agreed to dismiss the forgery charge for Yarbrough’s plea of nolo contendere to the theft charge. Yarbrough committed no theft, but chose to plea bargain in exchange for a small fine and no incarceration, rather than face the risk of spending several years in jail. The only evidence of criminal activity by Yarbrough came through the words and falsehoods of Turner. Defendants’ actions were intentional, designed to harm Yarbrough, and caused him great emotional distress.
Turner testified that after he discharged Yarbrough, he tried to access the CAD software system but a notation came on the computer screen that the hardware protection device was missing. Turner contacted Visionics, which sent him a letter on SAS stationery which it had received. The letter bore Turner’s signature and stated that the right to use and license the CAD system had been transferred to Yarbrough. Turner testified that he did not write or sign the letter. He contacted the district attorney’s office and was instructed to report the matter to the police department. An investigation ensued, and after the investigating officer testified before the grand jury, Yarbrough was indicted for the felony theft of the computer hardware device and first-degree forgery of the letter. On his plea of nolo contendere to theft, Yarbrough was fined $500 and ordered to return the CAD system.
Yarbrough testified that after he was discharged, Turner agreed during a telephone conversation to transfer ownership of the CAD system to him, and Turner sent him a letter authorizing him to register the new ownership with the software manufacturer. He sent a
The court granted defendants’ motion for summary judgment, concluding in part that Yarbrough’s entry of a plea of nolo contendere to the charge upon which he bases his claim for malicious prosecution eliminates the requisite element of a prosecution terminated in his favor.
1. To the extent that Yarbrough has asserted a claim for malicious prosecution, see
Ellis v. Knowles,
2.
Fortson v. Hopper,
Fortson
lists some of those side effects, and OCGA § 17-7-95 (c) provides that “[e]xcept as otherwise provided bylaw, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose ...” This does not mean that such a plea may not be proven as fact by the criminal defendant when, as a plaintiff, he sues for malicious prosecution. But it does not constitute favorable termination of the prosecution for the purpose of such a cause of action. Cf.
Proulx v. State,
3. To the extent that Yarbrough asserted a claim for the intentional infliction of emotional distress, it fails. “Liability [for this tort] has been found only where the conduct has been so outrageous in character, and 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 community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” Restatement, Second, Torts § 46, Comment d, p. 73 (1965). See
Yarbray v. Southern Bell Tel. &c. Co.,
He presented no evidence of any such conduct on defendants’ part. Summary judgment as to this claim was proper also. See generally
Lau’s Corp. v. Haskins,
4. The only additional claim Yarbrough is pursuing at this juncture is for the CAD system. He agreed to return the system as part of his sentence for theft. His assertion of this claim is barred by his plea to the criminal charges.
Judgment affirmed.