Carroll v. Johnson
| Decision Date | 23 January 1978 |
| Docket Number | Nos. 54865 and 54866,No. 3,s. 54865 and 54866,3 |
| Citation | 144 Ga.App. 750,242 S.E.2d 296 |
| Parties | Wayne CARROLL et al. v. Frances JOHNSON. Frances JOHNSON v. Wayne CARROLL et al |
| Court | Georgia Court of Appeals |
Blanton & Fudge, Gerald W. Fudge, John G. Barrett, Atlanta, for appellants.
R. John Genins, Atlanta, for appellee.
In this case, Monumental Properties, Inc., through its agent, Carroll, brought a dispossessory proceeding against Johnson as a tenant holding over. Johnson filed an answer to that proceeding claiming that she had paid her rent and was not an illegal tenant or in arrears in her rent. She further filed a cross complaint urging malicious use of process. At the original hearing of the case, the trial court directed a verdict for Johnson on the dispossessory proceedings and a jury rendered a verdict in the amount of $1200 on the cross complaint in favor of Johnson. No appeal was taken by Monumental Properties as to the directed verdict, but Monumental appealed the award of $1200 on the cross complaint. This court reversed the award of $1200 on the grounds that though the original suit ended in a directed verdict in her favor, the trial continued on her counterclaim; thus, no judgment had been rendered as to the suit on which the action for malicious prosecution was predicated. We held that this did not meet the test of final determination, the sine qua non to the maintenance of a malicious use of process action. Monumental Properties v. Johnson, 136 Ga.App. 39, 40(2), 220 S.E.2d 55. The case was remanded to allow Johnson to amend her pleadings to reflect the final determination of the original dispossessory action. Upon retrial, Monumental moved for summary judgment urging that there was a simple mistake of fact and no wilfulness in its eviction action. The trial court granted that motion. On the second appeal of this case (involving the cross complaint), this court reversed the trial court again, holding there were issues of fact to be submitted to a jury. Johnson v. Monumental Properties, 141 Ga.App. 151(1), 232 S.E.2d 644. On the last hearing of the case, the jury returned a verdict in favor of Johnson, awarding her $1500 special damages and $750 punitive damages. During the trial, counsel for Ms. Johnson placed himself on the stand as a witness to testify as to the complexity of the appellate processes and apparently to show the value of his services as an attorney. Monumental moved for a mistrial on the sole grounds that this could only confuse the jury and that as held in the decision of this court in 141 Ga.App. 151, supra, at pp. 152-153, 232 S.E.2d 644, Ms. Johnson was limited in her cross complaint to attorney fees and costs incurred to avoid eviction and not to such costs incurred in defending the litigation started by Monumental. The trial court denied Monumental's motion for a mistrial, and gave a comprehensive, detailed charge to the jury to disregard any testimony pertaining to the appellate processes. Counsel for Ms. Johnson attempted to testify as to his services on behalf of Ms. Johnson apparently with a view toward establishing the value of those services. The trial court prohibited counsel from testifying as to the value of his own services, indicating that other attorneys could qualify as experts and establish the value of the attorney's services rendered on behalf of Ms. Johnson. Ms. Johnson's counsel then attempted to call Monumental's counsel for that purpose. When Monumental's counsel declined to so testify, Ms. Johnson's counsel unsuccessfully attempted to have the court compel opposing counsel qualify as an expert. In case no. 54866, Monumental appeals the denial of its motion for mistrial. In case no. 54865, Ms. Johnson appeals the refusal of the trial court to allow her to introduce evidence of the appellate processes followed in the case, the refusal to allow her attorney to testify as to the earlier trial proceedings, and the refusal to compel opposing counsel to be sworn as a witness to testify as to the earlier trial proceedings or to show the reasonable value of attorney fees. Held :
1. Though the appeals in this case are separate, they arise out of the same factual situation and will be treated as one case.
2. While it is true that this court in Johnson v. Monumental Properties, supra, 141 Ga.App. 152-153, 232 S.E.2d 644, held that attorney fees or costs incurred to avoid eviction from the premises are appropriate damages in such a suit and that expenses incurred in defending such a suit are not recoverable as special damages, that ruling did not govern the cross complaint which was prosecuted by Ms. Johnson as a malicious prosecution. It is well established as the law of this state that every intentional tort invokes a species of bad faith and entitles a person so wronged to recover the expenses of litigation including attorney fees. See Ponce de Leon Condominiums v. DiGirolamo, 238 Ga. 188, 190, 232 S.E.2d 62. Inasmuch as the evidence offered by Ms. Johnson was pertinent to her costs in prosecuting the litigation in the malicious prosecution action, the trial court was incorrect in applying the rule of law that evidence of costs of litigation including attorney fees in defending litigation were not recoverable as special damages. This misapplication of legal theories by the trial court, however, is of no legal consequence to Monumental. The evidence, under the proper legal theory, was admissible on behalf of Ms. Johnson to prove her costs of litigation; therefore, the denial of such evidence for consideration by the jury and the charge of the jury to give no consideration to such evidence was of benefit to Monumental and potential error to Ms. Johnson. It is an old and sound rule that error to be reversible must be harmful. First Nat. Bank of Chattanooga v. American Sugar Refining Co., 120 Ga. 717, 48 S.E. 326; Burger Chef Systems v. Newton, 126 Ga.App. 636, 639, 191 S.E.2d 479. Furthermore, only one who has been harmed is in a...
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... ... Blumenfeld, 250 Ga. 606, 607(1), 299 S.E.2d 727 (1983). The trial court erred in admitting evidence as to attorney fees. See generally Carroll v. Johnson, 144 Ga.App. 750, 753(4), 242 S.E.2d [174 Ga.App. 276] 296 (1978) ... Since there was no viable claim for attorney ... ...
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Smith v. Smith (In re Smith)
...of bad faith and entitles a person so wronged to recover the expenses of litigation including attorney fees." Carroll v. Johnson, 144 Ga. App. 750, 752, 242 S.E. 2d 296, 298 (1978). Expenses incurred defending thePage 13criminal prosecution, including attorney fees and loss of time, "repres......