Renton v. Watson, A12A1713.

Decision Date26 February 2013
Docket NumberNo. A12A1713.,A12A1713.
Citation319 Ga.App. 896,739 S.E.2d 19
PartiesRENTON v. WATSON.
CourtGeorgia Court of Appeals

319 Ga.App. 896
739 S.E.2d 19

RENTON
v.
WATSON.

No. A12A1713.

Court of Appeals of Georgia.

Feb. 26, 2013.


[739 S.E.2d 22]


Ernest Dewitt Napier III, for Appellant.

Tisinger Vance, Rebecca Jean Dobras, Kenneth Brown Crawford, Carrollton, for Appellee.


BARNES, Presiding Judge.

[319 Ga.App. 896]Dana Renton filed an amended complaint against Monica Watson in which she sought damages for malicious prosecution, defamation, and intentional infliction of emotional distress. The trial court granted Watson's motion to dismiss the amended complaint for failure to state a claim upon which relief could be granted and awarded her attorney fees. For the reasons discussed below, we affirm the trial court's dismissal of the malicious prosecution and [319 Ga.App. 897]emotional distress claims, but reverse its dismissal of the defamation claim and its award of attorney fees.

Under OCGA § 9–11–12(b)(6), a motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor.

(Citation and punctuation omitted.) Anderson v. Daniel, 314 Ga.App. 394, 395, 724 S.E.2d 401 (2012). Additionally, in considering whether a motion to dismiss should be granted, the trial court may consider exhibits attached to and incorporated into the complaint. See OCGA § 9–11–10(c); Bakhtiarnejad v. Cox Enterprises, 247 Ga.App. 205, 208(1), 541 S.E.2d 33 (2000).


Mindful of these principles, we turn to the allegations in the present case. The complaint alleges that Renton discovered that Watson was having an extramarital affair, which caused Watson and her husband to divorce. According to the complaint, Watson, who “harbor[ed] ill will towards [Renton]” for discovering the affair, maliciously and without any foundation applied for a warrant to have Renton arrested for forgery. Consequently, Renton was ordered to appear at a hearing on the warrant application before the Magistrate Court of Carroll County where Watson was to appear as the prosecuting witness.

The complaint further alleges that at the beginning of the hearing on the warrant application, Watson falsely declared that Renton had forged her name when the magistrate inquired about the nature of the case. However, before the hearing proceeded any further, the magistrate recessed the proceedings so that counsel for the parties could attempt to negotiate a resolution. After counsel reached an agreement, Watson voluntarily dismissed her warrant application without prejudice.

Renton subsequently filed her verified complaint for damages against Watson, asserting claims for malicious prosecution, intentional infliction of emotional distress, punitive damages, and attorney fees. Watson answered, moved to dismiss the complaint for [319 Ga.App. 898]failure to state a claim upon which relief could be granted under OCGA § 9–11–12(b)(6), and moved for attorney fees under OCGA § 9–15–14. Renton responded to the motions and also amended her complaint to add a claim for defamation per se. Renton attached as an exhibit to her amended complaint the transcript of the hearing before the magistrate on the arrest warrant application.

Following a hearing on the motion to dismiss, the trial court granted Watson's motion and dismissed Renton's amended complaint. The trial court concluded that the malicious prosecution claim failed as a matter of law because an arrest warrant was never issued. The trial court concluded that the defamation and intentional infliction of emotional distress claims were barred by the absolute privilege afforded for statements made in judicial proceedings. The trial court also awarded

[739 S.E.2d 23]

$1,400 in attorney fees to Watson on the ground that Renton had failed to present a justiciable issue of law or fact. This appeal followed.

1. Renton first contends that the trial court erred in dismissing her malicious prosecution claim on the ground that an arrest warrant had never been issued. We disagree.

The six essential elements of a malicious prosecution claim are “(1) prosecution for a criminal offense; (2) instigated without probable cause; (3) with malice; (4) under a valid warrant, accusation or summons; (5) which has terminated favorably to the plaintiff; and (6) has caused damage to the plaintiff.” Wal–Mart Stores v. Blackford, 264 Ga. 612, 613, 449 S.E.2d 293 (1994). See OCGA § 51–7–40. As the fourth element makes clear, “[t]o be actionable as a malicious prosecution under [our] precedents, an attempt to have someone prosecuted must result in the issuance of a valid warrant, summons, accusation, or other formal process.” Peterson v. Banker, 316 Ga.App. 571, 572, 730 S.E.2d 89 (2012) (citing cases).

The allegations of the amended complaint and the transcript of the warrant application hearing reflect that the warrant application submitted by Watson did not result in the issuance of an arrest warrant. Rather, Watson voluntarily dismissed her warrant application, and Renton was never arrested. Given that the no arrest warrant was issued by the magistrate, the trial court properly dismissed her malicious prosecution claim. See Peterson, 316 Ga.App. at 572, 730 S.E.2d 89 (trial court erred in awarding damages for malicious prosecution “for the warrant applications that resulted in the issuance of no warrant”); Cox v. Turner, 268 Ga.App. 305, 306(1), 601 S.E.2d 728 (2004) (“Since it is clear from the pleadings that a warrant was not issued, [the plaintiff's] claim for malicious prosecution must fail.”). See also Swift v. Witchard, 103 Ga. 193(2), 29 S.E. 762 (1897) (“Simply making an affidavit before a justice of the peace, charging one with an offense [319 Ga.App. 899]against the criminal laws of this State, when not followed up by an arrest, does not render the prosecution, even if malicious and without probable cause, actionable.”).

Renton, however, emphasizes that a malicious prosecution claim can be predicated on a valid warrant, accusation or summons. See Wal–Mart Stores, 264 Ga. at 613, 449 S.E.2d 293. Because she was ordered to appear before the magistrate for the hearing on the warrant application, Renton maintains that she was “summoned” before a court and thus satisfied the fourth element of a malicious prosecution claim even without the issuance of an arrest warrant. But “summons” in this context means formal legal process charging a person with a criminal offense and conferring a court jurisdiction over the subject matter. See Peterson, 316 Ga.App. at 572, 730 S.E.2d 89 (malicious prosecution claim requires “issuance of a valid warrant, summons, accusation, or other formal process ”) (emphasis supplied); Cary v. Highland Bakery, 50 Ga.App. 553, 554–555, 179 S.E. 197 (1935) (malicious prosecution claim requires that “the warrant or other accusation or summons charging the plaintiff with a criminal offense be a valid warrant, accusation, or summons, charging such person with some criminal offense”) (emphasis supplied). For example, certain misdemeanor offenses may be tried upon a summons rather than an accusation. See, e.g., OCGA §§ 17–7–71(b)(2); 17–7–72; 17–7–73. The magistrate's order requiring Renton to attend the warrant application hearing thus was not a “summons” as that term is understood in the malicious prosecution context.

Renton relies upon McNeely v. Home Depot, 275 Ga.App. 480, 482, 621 S.E.2d 473 (2005), as authority for the proposition that a malicious prosecution claim can be brought so long as the plaintiff is required to appear before a court. In McNeely, we held that evidence that the plaintiff was brought before a judge raised an inference that he was taken before a “committing court,” which went to the issue of whether the plaintiff was “prosecuted,” the first element of a malicious prosecution claim. See Wal–Mart Stores, 264 Ga. at 613, 449 S.E.2d 293 (setting out six elements of a malicious prosecution claim); Page v. Citizens Banking Co., 111 Ga. 73, 84(4), 36 S.E. 418 (1900) (inquiry before a

[739 S.E.2d 24]

“committing court” amounts to a “prosecution”). See also OCGA § 51–7–42 (“[A]n inquiry before a committing court or a magistrate shall amount to a prosecution.”). But that was a separate legal question from whether the fourth element of a malicious prosecution claim—issuance of a valid warrant, summons, or accusation—had been satisfied. See Swift, 103 Ga. at 193(2), 29 S.E. 762 (noting that “there must at least have been an arrest and an inquiry before a committing court,” before a malicious prosecution claim is actionable) (emphasis supplied). Moreover, in discussing the factual background in McNeely,[319 Ga.App. 900]this Court made clear that an arrest warrant had been sworn out against the plaintiff, with the result that he had been arrested and jailed for several days before he was brought before a judge. See McNeely, 275 Ga.App. at 481, 621 S.E.2d 473. Because the fourth element of a malicious prosecution claim clearly had been satisfied and was not at issue in McNeely, Renton's reliance on the case is misplaced.

2. Renton next contends that the trial court erred in dismissing her defamation claim on the ground that it was barred by the absolute privilege for statements made in judicial proceedings. We conclude that the trial court was correct to dismiss Renton's defamation claim to the extent that it was predicated on statements made by Watson in her warrant application and at the hearing on the application because those statements were absolutely privileged. But,...

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