                              FOURTH DIVISION
                              ELLINGTON, P. J.,
                           BRANCH and MERCIER, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                  December 15, 2016




In the Court of Appeals of Georgia
 A16A1937. EXAMINATION MANAGEMENT SERVICES, INC.
     v. STEED.

      ELLINGTON, Presiding Judge.

      Pursuant to a granted application for interlocutory appeal, Examination

Management Services, Inc. d/b/a ICS Merrill (“EMSI”) appeals from the order of the

State Court of Fulton County denying its motion for summary judgment. As explained

below, because the undisputed evidence shows that EMSI is not liable to Steed on his

claims for defamation (slander and slander per se) and false imprisonment, we reverse

the state court’s order.

      1. When reviewing a trial court’s order on a motion for summary judgment, this

Court must

      construe the evidence most favorably towards the nonmoving party, who
      is given the benefit of all reasonable doubts and possible inferences. The
      party opposing summary judgment is not required to produce evidence
      demanding judgment for it, but is only required to present evidence that
      raises a genuine issue of material fact. Our review of the grant or denial
      of a motion for summary judgment is de novo.


(Citation and Punctuation omitted.) Nguyen v. Southwestern Emergency Physicians,

P.C., 298 Ga. 75, 82 (30 (779 SE2d 334) (2015). So viewed, the record shows the

following.

      On April 22, 2014, Juliette Lowe, an investigator employed by ICS Merrill,1

was conducting surveillance of Steed. The investigation was related to Steed’s

pending workers’ compensation claim. At around 11:00 a.m., Lowe called 911 to

report that she had seen Steed, a convicted felon,2 standing on the porch of his

apartment, cocking a sawed-off shotgun. The transcript of the 911 call shows that

Lowe informed the police that Steed may have already left the apartment to go to an

appointment, but that she was making the call because she felt that it was her civic



      1
        ICS Merrill is a division of EMSI. ICS Merrill does investigatory work,
primarily for insurance companies.
      2
         The record shows that, pursuant to a pardon granted on April 5, 2013, Steed’s
civil liberties, except his right to bear arms, were restored. The pardon reflects that
Steed had been convicted of armed robbery, kidnapping/false imprisonment,
terroristic threats and acts, and child molestation.

                                          2
duty to report what appeared to be an “illegal weapon.” She described Steed, his

clothing, and his car.

      Police officers employed by the City of College Park responded to Steed’s

apartment to investigate the call. Lowe was not present. According to the police,

Steed was uncooperative; he was loud, sarcastic, and profane; he refused to provide

identification or to allow an officer to pat him down for weapons; and he refused to

move away from his open doorway. Consequently, the officers handcuffed him and

walked him to a patrol car while they investigated the complaint. Steed tried to kick

one of the officers as he was being escorted into the patrol car. Steed agrees with the

officers’ description of the general sequence of events; however, he denies being

uncooperative, that he obstructed the officers in their investigation, or that he tried

to kick an officer. Rather, he contends that a senior officer, a sergeant, became irate

with him, started showing off to impress a rookie officer, and abused his position of

authority by roughly handcuffing him and then manhandling him into the patrol car.

      The officers spent about 15 minutes walking through Steed’s apartment and

looking inside his car, but they did not see a shotgun. The officers averred that,

though they released Steed, they believed that they had probable cause to arrest him

for disorderly conduct and obstruction. They also averred that Steed was not detained

                                          3
based on the nature of the 911 call or because of any statement that Lowe had made;

rather, the police made an independent decision to detain Steed based on his behavior

during their investigation.

      1. Defamation. Steed contends that Lowe’s 911 call was defamatory3 in that she

accused him of having committed a crime. Pursuant to OCGA § 51-5-4 (a) (1),

“[s]lander or oral defamation consists in . . . [i]mputing to another a crime punishable

by law[.]” Lowe’s statement that Steed, a convicted felon, possessed a sawed-off

shotgun alleges criminal conduct.4 However, as EMSI contends and as Steed

acknowledges, Lowe’s 911 call is subject to a privilege. By statute, statements “made

in good faith in the performance of a public duty” or “in good faith in the




      3
        In Georgia, a viable cause of action for defamation, whether slander or libel,
“consists of (1) a false and defamatory statement concerning the plaintiff; (2) an
unprivileged communication to a third party; (3) fault by the defendant amounting at
least to negligence; and (4) special harm or the actionability of the statement
irrespective of special harm.” (Citations and punctuation omitted.) Saye v. Deloitte
& Touche, LLP, 295 Ga. App. 128, 129-130 (1) (670 SE2d 818) (2009).
      4
         OCGA § 16-11-131 (b) provides that “[a]ny person … who has been
convicted of a felony by a court of this state or any other state … who receives,
possesses, or transports any firearm commits a felony.” OCGA § 16-11-122 provides
that “[n]o person shall have in his possession any sawed-off shotgun, sawed-off rifle,
machine gun, dangerous weapon, or silencer except as provided in Code Section
16-11-124.”

                                           4
performance of a legal or moral private duty” are communications subject to a

conditional5 privilege. OCGA § 50-5-7 (1), (2). Under Georgia law,

      [r]eporting criminal behavior is expected and even demanded of the
      ordinary citizen, who should not be discouraged from reporting what he
      knows to the authorities and from lending his aid to secure evidence of
      a crime. Indeed, in Georgia, it is the duty of one having such information
      to report it to those in authority.


(Footnotes omitted.) Camp v. Eichelkraut, 246 Ga. App. 275, 285 (7) (539 SE2d 588)

(2000). See also Wall v. Seaboard Air-Line R., 18 Ga. App. 457 (3) (89 SE 533)

(1916) (“Upon grounds of public policy, communications which would otherwise be

slanderous are protected as privileged, if made in good faith in the prosecution of an

inquiry regarding a crime which has been committed, and for the purpose of detecting

and bringing to punishment the criminal.”).

      To set forth its conditional privilege defense, EMSI was required to show that

Lowe acted in good faith, had an interest to uphold (in this case a public duty), gave

      5
         Georgia law recognizes two different kinds of privileged communications,
absolute and conditional. Saye v. Deloitte & Touche, LLP, 295 Ga. App. at 130 (1)
(a) (citing OCGA §§ 51-5-7, 51-5-8, 51-5-9). “[C]ommunications which are afforded
an absolute privilege cannot form the basis of a defamation action, regardless of the
falsity of the statements or the speaker’s malicious intent; conditionally privileged
statements, on the other hand, are actionable upon a showing of malice.” (Citations
omitted.) Id. at 131 (1).

                                            5
a statement properly limited in its scope and upon a proper occasion, and that the

publication was made to proper persons, in this case, the police. See Smith v. Vencare,

Inc., 238 Ga. App. 621, 625 (2) (c) (519 SE2d 735) (1999); Dominy v. Shumpert, 235

Ga. App. 500, 504-505 (2) (510 SE2d 81) (1998). The transcript of Lowe’s 911 call

was sufficient to satisfy these requirements. It showed that Lowe called the police

because she believed she had a civic duty to report witnessing what she thought was

criminal conduct. See Meyer v. Ledford, 170 Ga. App. 245, 247 (1) (316 SE2d 804)

(1984) (holding that the defendant established the applicability of a conditional

privilege under OCGA § 51-5-7 where the defamatory statement was given at the

request of speaker’s superior officer in the course of an official investigation

concerning improper conduct by a fire department official).

      Once EMSI established the existence of a conditional privilege, the burden

shifted from it to Steed to show that Lowe’s statements were made with malice. As

we have explained, “[t]he effect of a conditional privilege is to require the plaintiff

to prove actual malice. Consequently, the determination of whether [Lowe’s]

statements were privileged, and thus immune from liability, turns on the issue of

malice.” (Citation, punctuation, and footnote omitted.) Wertz v. Allen, 313 Ga. App.

202, 207 (1) (721 SE2d 122) (2011). See also Saye v. Deloitte & Touche, LLP, 295

                                          6
Ga. App. at 132 (1) (a) (“[T]he burden is ultimately on [the plaintiff] to furnish proof

of malice, and conclusory allegations of conspiracy, malice, and defamation are

insufficient – in the absence of substantiating fact or circumstances – to raise a

material issue for trial.”) (citation and punctuation omitted).

      Steed has not adduced any evidence, either direct or circumstantial, of actual

malice. Rather, he argues that malice may be inferred from Lowe’s allegedly false

report of a crime. However, such an inference is based on speculative possibility, not

fact-based probability. As we have explained, when an inference

      is founded on speculation, it is without evidentiary value. As we have
      held, no inference of fact may be drawn from a premise which is wholly
      uncertain. And, inferences must be based on probabilities rather than
      mere possibilities. Moreover, when a party relies on inferences to prove
      a point, not only must those inferences be factually based, they must
      tend in some proximate degree to establish the conclusion sought and
      render less probable all inconsistent conclusions.


(Citations and punctuation omitted.) Ogletree v. Navistar Intl. Trans. Corp., 245 Ga.

App. 1, 7 (1) (535 SE2d 545) (2000).

      In this case, it is true that the police did not find a shotgun in Steed’s car or

apartment. While it is possible that Lowe lied to the police about Steed having a

shotgun, it is also equally possible that Steed successfully hid or disposed of the

                                           7
shotgun before the police arrived. Moreover, while it is possible, as Steed argues in

his appellate brief, that Lowe was motivated to call 911 in the hope that Steed would

be “put behind bars” and therefore deprived of his workers’ compensation benefits,

it is also possible that Steed was aware of Lowe’s presence and cocked the shotgun

at her to intimidate her. These inferences are speculative because they do not render

less probable other contrary or inconsistent inferences that may be drawn from the

circumstances. See id. See also Williams v. Booker, 310 Ga. App. 209, 211-213 (1)

(712 SE2d 617) (2011) (a reasonable inference cannot be based on mere conjecture

or probability, or on evidence that is too uncertain or speculative); Denson Heating

& Air Conditioning Co., Inc. v. Oglesby, 266 Ga. App. 147, 148 (596 SE2d 685)

(2004) (accord). Therefore, as the record in this case fails to rebut the existence of a

conditional privilege with evidence of actual malice, the trial court erred in denying

EMSI’s motion for summary judgment on EMSI’s defamation claims. See Wertz v.

Allen, 313 Ga. App. at 207 (1) (“As the record in this case fails to rebut the existence

of a conditional privilege with evidence of actual or express malice, summary

judgment against [the plaintiff] was proper as to his defamation claim.”); Cleveland

v. Greengard, 162 Ga. App. 201, 202 (290 SE2d 545) (1982) (“Since the appellee

neither encouraged nor commanded any law enforcement officer to arrest or prosecute

                                           8
the appellant, and the record is devoid of any suggestion of malice or bad faith, the

reporting of the appellant’s actions under such circumstances is privileged[.]”).

      2. False Imprisonment. OCGA § 51-7-20 defines the intentional tort of false

imprisonment as “the unlawful detention of the person of another, for any length of

time, whereby such person is deprived of his personal liberty.” “The essential

elements of the cause of action for false imprisonment are a detention of the person

of another for any length of time, and the unlawfulness of that detention.” (Citation

omitted). Fields v. Kroger Co., 202 Ga. App. 475 (414 SE2d 703) (1992). In this case,

the police, not EMSI, detained Steed. Therefore, even if the evidence supports an

inference that the police unlawfully detained Steed, his claim against EMSI fails if

the evidence does not support an inference that EMSI caused or directed the police

to detain him. As this Court has explained,

      one who actively instigates or procures an arrest, without lawful process,
      is generally regarded as the principal for whom the officer acts, and he
      may be liable to respond in damages. But one who merely states to an
      officer what he knows of a supposed offense, even though he expresses
      the opinion that there is ground for the arrest, but without making a
      charge or requesting an arrest does not thereby make himself liable for
      false imprisonment. It is not necessary that he direct the arrest in express
      terms. Rather, it is sufficient that the person alleged to have caused the


                                           9
      plaintiff’s arrest should by his conduct and acts have procured and
      directed the arrest.


(Citations and punctuation omitted.) Scott Housing Systems v. Hickox, 174 Ga. App.

23, 25 (1) (329 SE2d 154) (1985).

      In this case, the evidence shows only that Lowe reported having seen Steed

with what she believed was an illegal sawed-off shotgun. She did not swear out a

warrant against Steed nor did she urge or direct the police to arrest him. Her 911 call

prompted an investigation only. Moreover, according to the officers’ sworn

statements, Steed’s detention had nothing to do with Lowe’s 911 call or the allegation

that Steed possessed a sawed-off shot-gun.6 Rather, the officers stated unequivocally

that they independently decided to detain Steed based on his disorderly conduct and

efforts to obstruct their investigation. Finally, Steed himself deposed that his

detention was the result of the misconduct of a lone officer who abused his authority

to impress a rookie. Because the undisputed evidence shows EMSI did not cause or

direct the police to detain Steed, his claim of false imprisonment fails as a matter of

law. See, e.g., Welton v. Ga. Power Co., 189 Ga. App. 17, 20 (2) (375 SE2d 108)


      6
        As discussed in Division 1, supra, that the police did not find the shotgun in
Steed’s possession does not give rise to a reasonable inference that Lowe was lying.

                                          10
(1988) (Because the undisputed evidence showed that the defendant’s employee did

not instigate or procure the plaintiff’s detention, summary judgment for the defendant

was proper.). See also Arrowsmith v. Williams, 174 Ga App. 690, 692 (2) (331 SE2d

30) (1985) (“[I]f the decision to arrest or prosecute is left to the uncontrolled

discretion of the officer, or if the officer makes an independent investigation or

prosecutes for an offense other than the one charged by the private person, the latter

will not be deemed as having instigated the proceedings.”).

      3. Punitive damages and attorney fees. Finally, Steed is not entitled to punitive

damages or attorney fees under OCGA § 13-6-11 because, given the outcome of this

appeal, he has not prevailed on any of the claims asserted in his complaint. See Burns

v. Dees, 252 Ga. App. 598, 608 (1) (e) (557 SE2d 32) (2001) (“[The plaintiff’s]

claims for attorney fees and punitive damages rest upon the weight of his other

claims. As [he] has not prevailed on any of his enumerations, his claims for attorney

fees and punitive damages must fail.”) (footnotes omitted). See also R.T. Patterson

Funeral Home v. Head, 215 Ga. App. 578, 586 (5) (451 SE2d 812) (1994)

(“Inasmuch as defendants . . . are not liable to plaintiff for compensatory damages

under either theory submitted to the jury, they cannot be held liable for OCGA §

13-6-11 attorney fees and expenses of litigation.”); Viau v. Fred Dean, Inc., 203 Ga.

                                         11
App. 801, 804 (4) (418 SE2d 604) (1992). (Because the defendant had no liability for

the injuries resulting from the collision, there could be no recovery of punitive

damages against the defendant.).

      Judgment reversed. Branch and Mercier, JJ., concur.




                                        12
