Hatcher v. Moree

• Court: Georgia Court of Appeals
• Writing for the Court: CLARK; BELL, C.J., and QUILLIAN
• Citation: Hatcher v. Moree, 209 S.E.2d 708, 133 Ga.App. 14 (Ga. App. 1974)
• Decision Date: 15 October 1974
• Docket Number: No. 1,No. 49572,49572,1
• Parties: Mrs. L. D. HATCHER v. Mrs. Gray L. MOREE

Page 708

209 S.E.2d 708

133 Ga.App. 14

Mrs. L. D. HATCHER v. Mrs. Gray L. MOREE.

No. 49572.

Court of Appeals of Georgia, Division No. 1.

Oct. 15, 1974.

Hatcher & Cook, Donald E. Strickland, Albany, for appellant.

Smith, Geer, Brimberry & Kaplan, Peter Zack Geer, Albany, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal contends the trial court erred in two respects: First, in sustaining a defense motion to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted; second, in ruling the dismissal to be 'with prejudice.'

Plaintiff sought to recover damages from defendant because of defendant having sworn out two warrants charging appellant 'with the criminal offense of writing bad checks.' (R. 5). The complaint pleaded the details on which plaintiff sought damages. It recites that she was 'told by the sheriff of Dougherty County that she would have to pay a $500 bond or settle up.' (R. 6). She avers payment was made of the amounts of the two checks together with court costs because she was 'in a state of emotional shock, and under great mental stress and duress because of the previously enumerated events.' (R. 7).

Thereafter, according to the pleading, she consulted an attorney who upon requesting the case be set for trial was informed this could not be done 'as the case was 'settled. " (R. 7).

1. Plaintiff contends the trial court erred in dismissing the complaint because the elements necessary to establish a claim for either malicious arrest or malicious prosecution had been alleged. We disagree.

' Malicious prosecution offers from malicious arrest only in that in the former case there must be a carrying on of the prosecution.' Smith v. Embry, 103 Ga.App. 375(3), 119 S.E.2d 45. In either action, however, it is essential to show a termination of the prosecution in favor of the complaining party. Hughes v. Ga. Power Co., 65 Ga.App. 163, 166, 15 S.E.2d 466; Ellis v. Knowles, 90 Ga.App. 40, 42, 81 S.E.2d 884; Smith v. Embry, supra.

Prior to the enactment in 1966 of our Civil Practice Act our court decided that a malicious prosecution alleging the criminal prosecution was settled was subject to demurrer because it failed to establish the requisite element of termination of the prosecution in favor of the accused. Smith v. Otwell, 51 Ga.App. 741(1), 181 S.E. 493. With this controlling precedent we must undertake to answer the question: In view of the liberal pleading policy embodied in our new rules of Civil Practice, do the allegations here render the complaint sufficient to escape a motion to dismiss for failure to state a claim upon which relief can be granted?

' A petition filed before the effective date of the Civil Practice Act (Ga.L.1966, p. 609, as amended by Ga.L.1967, p. 226; Code Ann. Title 81A) would be construed most strongly against the pleader when considered on general demurrer and in light of its omissions as well as its averments. (Cits.) If an inference unfavorable to the pleader could be fairly drawn from the facts alleged, that inference would prevail in determining the rights of the parties. (Cits.) The Civil Practice Act changed these rules. As the Act is substantially identical with the Federal Rules of Civil Procedure (28 U.S.C.), it is appropriate to resort to federal cases for its construction. Holland v. Sanfax Corp., 106 Ga.App. 1, 4, 126 S.E.2d 442. On a motion to dismiss, a complaint should be construed in the light most favorable to plaintiff with all doubts resolved in his favor. (Cit.) The plaintiff is entitled to the most favorable inferences that can reasonably be drawn from the complaint, even if contrary inferences are also possible. (Cit.) The motion to dismiss should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim. (Cit.)' Harper v. DeFreitas, 117 Ga.App. 236, 237 160 S.E.2d 260, 261; Ghitter v. Edge, 118 Ga.App. 750, 165 S.E.2d 598.

Thus, 'the complaint, and other relief-claiming pleadings need not state with precision all elements that give rise to a legal basis for recovery as long as fair notice of the nature of the action is provided. However, the complaint must contain either direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested or intended by the pleader, or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.' 5 Wright & Miller, Federal Practice and Procedure: Civil § 1216. Moreover, 'When the claim alleged is a traditionally disfavored 'cause of action,' such as malicious prosecution, libel, and slander, the courts tend to construe the complaint by a somewhat stricter standard and are more inclined to grant a Rule 12(b)(6) motion to dismiss.' Id., § 1357, p. 610.

Our Georgia case law is in agreement with the foregoing authority. Thus, in Myers v. Clark, 126 Ga.App. 154, 155(4), 190 S.E.2d 134, 136, we stated that 'An original complaint must show the pleader is entitled to relief. Code Ann. § 81A-108. But where a complaint reveals a state of facts which affirmatively shows that there is no liability on the defendant, it is subject to dismissal. Hodge v. Dixon, 119 Ga.App. 397, 167 S.E.2d 377; 2 A Moore's Federal Practice 2265, § 12.08.' Furthermore, our courts have recognized that civil suits based upon criminal proceedings are not favored. Ventress v. Rosser, 73 Ga. 534, 541; Henderson v. Francis, 75 Ga. 178, 181(5); South Georgia Grocery Co. v. Banks, 52 Ga.App. 1, 8, 182 S.E. 61.

Applying the foregoing principles to the case at bar, we find that the complaint fails to allege directly, or to raise a fair inference of, the successful termination of the prosecution. Accordingly, the liberality of our Civil Practice Act notwithstanding, plaintiff's complaint fails to state a claim, for either malicious arrest or malicious prosecution, upon which relief can be granted.

2. Plaintiff contends that the court erred in dismissing her complaint because a claim for abuse of criminal process was stated therein. This contention is without merit. Our courts have ruled that...