dissenting.
In asserting the doctrine of res judicata as a bar to Doman’s present defamation claims, Banderas had the burden of establishing that: (1) the prior action brought by Doman and Doman’s present def*234amation action asserted claims concerning the same subject matter; and (2) that Doman had a full and fair opportunity to litigate the defamation claims in the prior action. Fowler v. Vineyard, 261 Ga. 454, 455-456 (405 SE2d 678) (1991); Waggaman v. Franklin Life Ins. Co., 265 Ga. 565 (458 SE2d 826) (1995). I agree that the first requirement for application of the doctrine of res judicata was established by Banderas. But when all the facts relevant to the second requirement for application of the doctrine are weighed, I conclude that Banderas did not carry the burden of establishing that Doman had a full and fair opportunity to litigate the defamation claims in the prior action.
When Doman filed the prior action on May 7, 1993, none of the four letters supporting his present defamation action had been written. He became aware of the defamation claims when he discovered the letters while the prior action was pending. Three of the four letters surfaced during discovery conducted after the case had been ordered to arbitration and after the parties had complied with the arbitrators’ order requiring them to submit a description of all the disputed questions to be addressed in the arbitration. Doman brought the defamation claim to the attention of the trial court in the motion he filed on July 8, 1994. In the motion, Doman informed the trial court that he had discovered a libel claim he had against Banderas based on two letters he had discovered written by Banderas, the first of which was published on July 15, 1993. The motion informed the court that the one-year statute of limitation (see OCGA § 9-3-33) was about to expire and stated that it was not clear whether the arbitrators would consent to an amendment of the disputed questions for the addition of a libel claim to the pending arbitration. The motion urged the trial court to amend an existing restraining order prohibiting any separate actions by the parties so that Doman could bring a separate defamation action. Banderas responded that he did not oppose the motion. The record also shows that prior to the motion, Banderas had already objected to one attempt by Doman to amend the disputed questions to add a fraud claim after the discovery period had expired. The arbitrators subsequently upheld Banderas’ objection and rejected this attempt by Doman to amend the disputed questions as untimely. The trial court granted Doman’s motion and entered an order on July 12,1994, modifying the restraining order to allow Doman to bring a separate defamation action. On July 13,1994, Doman filed the present defamation action alleging that Banderas libeled him by publishing two letters to Southern Regional Medical Center on July 15, 1993, and July 26, 1993. Doman amended the present action on November 28, 1994, alleging that Banderas also libeled him by publishing additional letters damaging to his medical practice on November 10, 1993, and February 23, 1994.
*235The trial court’s July 12 order did not prohibit Doman from seeking permission to litigate the defamation claim in the pending arbitration, nor did Doman seek an order pursuant to OCGA §§ 9-11-13 (i) and 9-11-42 (b) separating the defamation claim from the other claims in the prior action. See Fowler, supra at 459. Nevertheless, in bringing the present defamation action outside the pending arbitration, several factors militate against the conclusion that Doman had a full and fair opportunity to litigate the defamation claim in the prior action. First, none of the four letters supporting the defamation claim had been written when the prior action was filed. See id. at 458. Secondly, three of the four letters were not discovered until after the prior case had been ordered to arbitration and the time allotted by the arbitrators for submitting a statement of the questions in dispute between the parties had expired. At that point, the parties had already submitted a detailed 52-page statement of disputed questions to the arbitrators. Moreover, the arbitrators subsequently upheld Banderas’ pending objection to an attempt by Doman to amend the statement of disputed questions by adding a fraud claim. Id. Under these circumstances, I cannot agree with the majority’s statement that Doman was, without question, free to amend the arbitration case to include the defamation action. Thirdly, Doman did not attempt in the prior action to surreptitiously reserve the defamation claim for use in a future encounter. See Piedmont Cotton Mills v. Woelper, 269 Ga. 109 (498 SE2d 255) (1998). Rather, he filed a motion in the prior action bringing the claim to the attention of both the trial court and Banderas pointing out that the claim had been recently discovered; that the statute of limitation was about to expire (one week remained before the expiration of the one-year limitation period on the letter published July 15, 1993); and that given the posture of the arbitration proceeding (the disputed questions had already been submitted by the parties and the discovery period had expired), it was questionable as to whether the arbitrators would consent to the late addition of the claim. In light of these facts, he requested that the trial court modify the existing restraining order so that he could bring the claim in a later action. Banderas stated he had no objection, and the trial court modified the restraining order pursuant to Doman’s request.
Although none of these factors precluded Doman from attempting to bring the defamation claim in the prior action, on balance they demonstrate that Doman did not simply forgo litigation of his defamation claims in the prior action despite the full and fair opportunity to do so. Under these circumstances, Doman’s present defamation action is not precluded by the doctrine of res judicata.
I am authorized to state that Presiding Judge Pope and Judge Johnson join in this dissent.
*236Decided March 16, 1998 Webb, Carlock, Copeland, Sender & Stair, Dennis J. Webb, Marvin D. Dikeman, for appellant. Sullivan, Hall, Booth & Smith, John E. Hall, Jr., Frederick L. Hubbs, Jr., for appellee.