Commercial Plastics & Supply Corp. of Georgia v. Molen, 73339
| Decision Date | 06 March 1987 |
| Docket Number | No. 73339,73339 |
| Citation | 355 S.E.2d 86,182 Ga.App. 202 |
| Court | Georgia Court of Appeals |
| Parties | COMMERCIAL PLASTICS & SUPPLY CORPORATION OF GEORGIA et al. v. MOLEN. |
H. Andrew Owen, Jr., Perry A. Phillips, Atlanta, for appellants.
Russell D. Waldon, Atlanta, for appellee.
For use in his business, Molen ordered 500 pieces of a foam-like material from Commercial Plastics and issued a check to the company for $3,320.63. The company was able to deliver only part of the order and held the check until the balance arrived. The transaction disintegrated, and in this suit which ultimately materialized, Commercial Plastics contends that it was entitled to summary judgment.
Molen stated that at the time the order was placed Commercial Plastics' employee Caine agreed to hold the check until Molen's company was paid for the job for which the ordered material was to be used. Molen further stated that at the time he gave Commercial Plastics the check, he told Caine there were insufficient funds to cover it; that on the day of delivery of the supplies, only 350 pieces were available so he took delivery of the lesser amount; that Caine thereafter asked if the check could be deposited and that he again explained that his own company had not yet been paid so the check should not be deposited because it was for an incorrect amount and that Caine agreed not to deposit the check.
Commercial Plastics maintained that when it received the additional materials Molen was so advised, but that after numerous calls he failed to pick them up so the company deposited the check. It was returned for insufficient funds. Attempts were made to contact Molen, and a certified letter, return receipt requested, was sent stating that if payment was not received in ten days an arrest warrant would be obtained. The letter was sent to the address imprinted on the check and numerous deliveries were attempted unsuccessfully.
Caine swore out a warrant for Molen's arrest and a preliminary hearing was held at which Molen claims the company's employee Pruitt swore falsely under oath that there was no agreement to hold the check until Molen received payment. Molen was bound over and required to post bond. Agreement was reached and executed for Molen to pay the check and the company to request that the criminal charge be dropped. Molen then filed suit against Commercial Plastics and employees Pruitt and Caine, claiming breach of the alleged agreement to hold the check, false swearing by employee Pruitt, and malicious prosecution.
Defendants moved for summary judgment which was denied. The court concluded that defendants' affidavits had failed to pierce plaintiff's allegation of an agreement to hold the check, that the complaint was not separated into counts setting forth the three causes of action, and that defendants' motion was for total rather than partial summary judgment and there remained a question of fact as to some claims. We granted defendants' application for interlocutory review.
1. Appellants contend that the trial court erred in not granting summary judgment on malicious prosecution (OCGA § 51-7-40) because termination of the criminal action as a result of compromise, i.e., their agreement to ask that the criminal charge be dropped in exchange for payment, cannot be considered as a termination in Molen's favor for the purpose of grounds for such a suit. Molen counters that prosecution of the criminal action did not terminate as a result of the prosecuting party withdrawing a warrant or by compromise of the parties but rather by action of the district attorney's office in dismissing the charge.
Medoc Corp. v. Keel, 166 Ga.App. 615(1), 305 S.E.2d 134 (1983). With respect to the third ingredient, Waters v. Winn, 142 Ga. 138, 140 (2) 82 S.E. 537 (1914).
The record shows conclusively that the parties agreed that defendants would request the office of the district attorney to dismiss any criminal charges against Molen relating to the bad check and would cooperate with the district attorney in any way in order to cease prosecution of the case against Molen in exchange for Molen's payment of an agreed amount owed; that Molen paid Commercial Plastics $1,200 and executed a promissory note to the company for ...
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Kelly v. Curtis
...of the proceedings; (5) lack of probable cause for the proceedings; and (6) damage to the plaintiff. Commercial Plastics & Supply Corp. v. Molen, 355 S.E.2d 86, 87 (Ga.App.1987). The district court found that Kelly had presented enough evidence to survive summary judgment on the federal mal......
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Pelletier v. Zweifel
...action for false swearing that occurs during a judicial proceeding. Peters, 375 S.E.2d at 636; see also Commercial Plastics & Supply Corp. v. Molen, 182 Ga.App. 202, 355 S.E.2d 86 (1987); Sun v. Bush, 179 Ga.App. 140, 345 S.E.2d 873, 874 (1986). And the only possible evidence of false swear......
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Harris v. Wal-Mart Stores E., LP, CIVIL ACTION NO. 1:11-CV-03406-CC
...prosecution has not terminated in favor of the party pursuing a malicious prosecution claim. Commercial Plastics & Supply Corp. of Ga. v. Molen, 182 Ga. App. 202, 203-04, 355 S.E.2d 86, 87 (1987). Here, Ms. Harris provides a certified copy of assistant district attorney Holly Varner's Reque......
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