Gaar v. North Myrtle Beach Realty Co., Inc., 0622

Decision Date24 September 1985
Docket NumberNo. 0622,0622
Citation339 S.E.2d 887,287 S.C. 525
PartiesJohn E. GAAR and Karen B. Gaar, Appellants, v. NORTH MYRTLE BEACH REALTY CO., INC., Dewey Max Glasco, Joel Lee Glasco, John R. Clarke and Steven H. John, Defendants, of whom John R. Clarke and Steven H. John are Respondents. . Heard
CourtSouth Carolina Court of Appeals

Hammond A. Beale, Columbia, for appellants.

William C. Helms, III, Charleston, for respondents.

BELL, Judge.

John E. Gaar and Karen B. Gaar commenced this action for malicious prosecution against attorneys John R. Clarke and Steven H. John. This suit followed the granting of an involuntary nonsuit in a prior action filed by the attorneys for their client, North Myrtle Beach Realty Company, against the Gaars for breach of real estate contracts. The circuit judge granted the attorneys' motion for summary judgment in the malicious prosecution suit. The Gaars appeal. We affirm.

The prior breach of contract action was instituted by officers of the Realty Company in April 1981. The Gaars had signed three six-month exclusive listing agreements with the Realty Company, one in December 1980 and two in January 1981. The contracts covered three condominium units. The Realty Company advertised the units and began showing them to prospective buyers. In January 1981 the Gaars, without consulting the Realty Company, gave a one year lease on one of the units. In March 1981 they changed the locks on all three units and advised the Realty Company to return the keys and to begin showing the units by appointment only. The Gaars claim they desired to protect their property upon learning from a Realty Company employee that the keys to their units could not be located. The Realty Company, however, contends the Gaars' actual purpose was to deprive them of the opportunity to sell the units during the exclusive listing period.

The Realty Company returned the keys to the Gaars' employee at their place of business. Two weeks later the Realty Company's president asked the employee for a key to show the units. Upon consulting with the Gaars, the employee informed the Realty Company they could not have a key, and that the Gaars were considering allowing another company to handle the properties.

The Realty Company's president then contacted his attorney, John R. Clarke. He showed Clarke the six month listing agreements and reported the difficulties with the Gaars. The exact content of his conference with Clarke is disputed. It is undisputed, however, that the Realty Company's officers communicated only with the Gaars' employee during these events, not with the Gaars.

Following his consultation with the Realty Company's president, Clarke filed three breach of contract actions against the Gaars. Clarke's associate, Steven H. John, later amended the complaints into one action for damages in quantum meruit. John represented the Realty Company at trial on April 16, 1982, since Clarke was in court elsewhere when the case was called. Following testimony, the trial judge granted the Gaars' motion for an involuntary nonsuit, stating the Realty Company has no cause of action against the Gaars. The Gaars then brought this suit for malicious prosecution.

Our Supreme Court has recognized that an action will lie for the malicious prosecution of any ordinary civil action. Cisson v. Pickens Savings and Loan Assoc., 258 S.C. 37, 186 S.E.2d 822 (1972). To recover in an action for malicious prosecution, the plaintiff must show (1) the institution or continuation of original judicial proceedings, either civil or criminal (2) by, or at the instance of, the defendant (3) termination of such proceedings in plaintiff's favor (4) malice in instituting such proceedings (5) want of probable cause and (6) resulting injury or damage. Ruff v. Eckerds Drugs, Inc., 265 S.C. 563, 220 S.E.2d 649 (1975). The mere fact that the defendant was unsuccessful in the prior action has no bearing on the issue of probable cause. Cisson v. Pickens Savings and Loan Assoc., supra.

The circuit judge granted the attorneys' motion for summary judgment because he perceived no genuine issue of material fact regarding the existence of probable cause to pursue the breach of contract action. The Gaars contend the judge erred in finding no factual dispute on this issue. Because we hold that a suit for malicious prosecution does not ordinarily lie against an attorney who filed suit on behalf of his client, we affirm the granting of summary judgment.

We have discovered no South Carolina case dealing with an attorney's liability for malicious prosecution. Some jurisdictions have recognized such a suit directed against attorneys. See Annot., 27 A.L.R.3d 1113 (1969). The Gaars urge this court to recognize a cause of action in this case.

In our opinion, the better rule is that an attorney is immune from liability to third persons arising from the performance of his professional activities as an attorney on behalf of and with the knowledge of his client. Accordingly, an attorney who acts in good faith with the authority of his client is not liable to a third party in an action for malicious prosecution. See W.D.G., Inc. v. Mutual Mfg. & Supply Co., 5 Ohio Op.3d 397 (1976). Such a suit is properly brought against the party to the original action, not the attorney representing him. The attorney normally conducts the litigation solely in his professional capacity. He has no personal interest in the suit. In his professional capacity the attorney is not liable, except to his client and those in privity with...

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