Marriott Corp. v. Allen

• Decision Date: 01 November 1995
• Docket Number: No. A95A1386,A95A1386
• Citation: 463 S.E.2d 716,218 Ga.App. 877
• Parties: MARRIOTT CORPORATION v. ALLEN.
• Court: Georgia Court of Appeals

Page 716

463 S.E.2d 716

218 Ga.App. 877

MARRIOTT CORPORATION v. ALLEN.

No. A95A1386.

Court of Appeals of Georgia.

Nov. 1, 1995.

Gorby & Reeves, Michael J. Gorby, Blakely H. Frye, Atlanta, for appellant.

James M. Thomas, Atlanta, for appellee.

JOHNSON, Judge.

Neal Allen cashed three separate $100 checks on his First Los Angeles Bank account at Marriott Corporation's hotel. The bank returned the three checks to Marriott due to insufficient funds in the account. Marriott resubmitted the checks to the bank, which again returned them due to insufficient funds. About three weeks after cashing those three checks, Allen cashed another $100 check at Marriott which was drawn on an account at First Interstate Bank of California. That bank also returned that check to Marriott due to insufficient funds in the account. Two days after cashing this latest check, Allen tried to cash another $100 check on the First Interstate account at Marriott. Marriott refused to cash that check and told Allen about the four returned checks. He claimed there was sufficient money in both the First Interstate and First Los Angeles accounts to cover the checks. Marriott telephoned First Los Angeles, which verified that at that time there was enough money in Allen's account to cover the three returned checks. Marriott then called First Interstate, which indicated that there were still insufficient funds in that account to cover the check it had returned and the most recent check that Allen tried to cash. Based on these two First Interstate checks, Marriott had Allen arrested and charged with issuing a bad check and attempting to issue a bad check. Four days after Allen's arrest, there was enough money in the First Interstate account to pay Marriott for the returned check. Six days later, the state entered nolle prosequis on the bad check charges. Allen then sued Marriott for malicious prosecution and intentional infliction of emotional distress. Marriott moved for summary judgment. The trial court granted the motion as to the emotional distress claim, but denied it as to the malicious prosecution claim. This court granted Marriott's application for interlocutory review.

Marriott correctly asserts that the court erred in denying its motion for summary judgment on the malicious prosecution claim. "Among the essential elements of a claim for malicious prosecution are (1) a prosecution instituted maliciously and (2) without probable cause which (3) has terminated favorably to the plaintiff. [Cits.]" J.C. Penney Co. v. Miller, 182 Ga.App. 64, 66(2), 354 S.E.2d 682 (1987); OCGA § 51-7-40. Although Marriott's bad check prosecution terminated favorably to Allen, there is no evidence that Marriott instituted the prosecution without probable cause or with malice.

"Probable cause is absent 'when the circumstances are such as to satisfy a reasonable (person) that the accuser had no ground for proceeding but his desire to injure the accused.' [Cit.] The determination is dependent upon whether the facts as they appeared at the time of instituting the prosecution were such as to lead a person of ordinary caution to entertain a belief that the accused was guilty of the offense charged. The civil action fails if probable cause for the criminal prosecution is shown. [Cits.]" Wal-Mart Stores v. Blackford, 264 Ga. 612, 613-614, 449 S.E.2d 293 (1994). In the present case, the facts as they appeared to...