Florida Rock Industries, Inc. v. Smith

• Citation: 294 S.E.2d 553,163 Ga.App. 361
• Decision Date: 07 September 1982
• Docket Number: No. 64053,64053
• Parties: FLORIDA ROCK INDUSTRIES, INC. v. SMITH et al.
• Court: United States Court of Appeals (Georgia)

Page 553

294 S.E.2d 553

163 Ga.App. 361

FLORIDA ROCK INDUSTRIES, INC. v. SMITH et al.

No. 64053.

Court of Appeals of Georgia.

Sept. 7, 1982.

W.G. Scrantom, Jr., Richard A. Marchetti, Columbus, for appellant.

James E. Butler, Jr., Columbus, for appellees.

BIRDSONG, Judge.

Mabel R. Smith in November, 1978, sued appellant Florida Rock Industries for damages and injunction in connection with appellant's alleged tortious conduct, including trespass and nuisance, in mining its rock quarry on land adjacent to hers. No hearing was called on the injunction issue. In April, 1979, while the 1978 suit was still alive, Mabel R. Smith, this time with her four adult children joining as plaintiffs, again sued appellant for essentially the past and continuing tortious conduct, and sought yet again an injunction. The Smiths alleged in this second suit that "another action has been filed by your petitioner Mabel Reese Smith, seeking damages, but the filing of said action has not caused an abatement of any activity by [Florida Rock]." In answer to this second suit, appellant asserted the prior pending action and prayed that the 1979 suit be abated or dismissed. At a hearing for injunction in the second suit, the trial court orally ruled to abate the second suit (Code Ann. § 3-601) and consequently granted no injunction upon it. Within a month, in June, 1979, Mabel R. Smith and her four adult children filed a third suit against appellant alleging a continuing course of trespassory ills to their peace and property wrought by appellant in its rock quarry operations, claiming nuisance and seeking injunction. Appellant, in answering this third suit, again asserted the first suit was a prior pending action and prayed the third suit be abated; and also averred that the filing of all three suits constituted a multiplicity of suits and begged they all be consolidated. However, nothing was done in this regard until two years later in 1981, when Mabel R. Smith and her four adult children moved to add the four children as plaintiffs to the first suit, and stated that "there is a multiplicity of actions filed between movants and defendant, each seeking essentially the same relief." The Smiths moved to consolidate all their claims for damages and injunctive relief in the first suit and to dismiss the second and third suits. This, at last, was done by court order "without prejudice" to the Smith's maintenance of the first suit.

To the "recasted" complaint of the first (and now only) suit, appellant counterclaimed for malicious use of process and malicious abuse of process, alleged the Smiths guilty of bad faith and stubborn litigiousness, and sought punitive damages and expenses of litigation. On the Smith's motion, the trial court granted summary judgment against appellant Florida Rock on its counterclaim. Held:

1. Appellant had no cause of action for malicious use of process because the dismissed suits did not terminate in appellant's favor (see Ferguson v. Atlantic Land etc. Corp., 248 Ga. 69, 72, 281 S.E.2d 545, where the action against the defendant did terminate by summary judgment). The dismissal without prejudice or abatement of a suit for prior pending action is not a "termination of the suit in defendant's favor" which will support an action for malicious use of process, because it is not a judgment at law or dismissal reaching substantive right to the cause of action. It does not "vindicate" the defendant as to the subject matter of the suit. See Taylor v. Greiner, 156 Ga.App. 663, 664(2), 275 S.E.2d 737, reversed on other grounds at 247 Ga. 526, 277 S.E.2d 13. The Smiths' causes of action are still as alive as ever, in the first suit. Malicious use of process is the bringing of a groundless suit for malicious purposes; it has no reference to the bringing of multiple suits, however harassful, for the same viable cause of action.

Moreover, appellant has not shown that its "person" was arrested or its property attached, nor has it plead or shown any special damages. Taylor v. Greiner, supra. Appellant's costs of litigating the dismissed suits are not recoverable special damages in an action...