Hickman v. Frazier, 47622

• Decision Date: 02 March 1973
• Docket Number: 2,3,No. 47622,Nos. 1,47622,s. 1
• Citation: 197 S.E.2d 441,128 Ga.App. 552
• Parties: Marian HICKMAN v. Josie FRAZIER
• Court: Georgia Court of Appeals

Page 441

197 S.E.2d 441

128 Ga.App. 552

Marian HICKMAN v. Josie FRAZIER.

No. 47622.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 2, 1973.

Rehearing Denied March 20, 1973.

Saul, Bowen & Blount, Percy J. Blount, Augusta, for appellant.

George W. Fryhofer, Waynesboro, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

1. In this action for ejectment and loss of rents, the trial judge erred in entering judgment for the defendant on her counterclaim for 'expenses of litigation' on account of the plaintiff's alleged bad faith, stubborn litigiousness, and causing the defendant unnecessary trouble and expense.

The general rule is that expenses of litigation, including attorney fees, are not recoverable by a litigant against the opposite party except in those cases which are specifically provided for by contract or by statute. Harrison v. Harrison, 208 Ga. 70(1), 65 S.E.2d 173 and cit. 'A defendant, as against a plaintiff (i.e., by counterclaim), cannot avail himself of the provisions of Code § 20-1404 (King v. Pate, 215 Ga. 593(3), 112 S.E.2d 589). . . .' Pitman v. Dixie Ornamental Iron Co., 122 Ga.App. 404(3), 177 S.E.2d 167.

2. 'The entry of judgment on a verdict by the trial court constitutes an adjudication by the trial court as to the sufficiency of the evidence to sustain the verdict, affording a basis for review on appeal without further ruling by the trial court.' Code Ann. § 6-702(a) (Ga.L.1965, pp. 18, 20; 1966, pp. 493, 494). Even in the absence of a motion for new trial therefore, and regardless of the efficacy of the plaintiff's motion to dismiss the counterclaim (which motion was not prosecuted), the appeal from the judgment on the verdict, together with the enumeration of errors, which asserted the three usual general grounds of a motion for new trial and attached the counterclaim as one not maintainable under the law, give this court jurisdiction to reverse the judgment on the verdict as being contrary to law.

Judgment reversed.

BELL, C.J., HALL and EBERHARDT, P. JJ., and QUILLIAN and CLARK, JJ., concur.

PANNELL and DEEN, JJ., concur specially.

EVANS, J., dissents.

PANNELL, Judge (concurring specially).

I concur in the rulings made in the majority opinion, but think that more should be said about the two prior actions by the same plaintiff, one of which was against this same defendant in 1971. The 'counterclaim' is couched in such general terms that it could include abuse of legal process in the 1971 action and could be construed to be a cross action properly admitting of proof that the 1971 action caused the damages complained of, that is, expenses of litigation, or if evidence thereto be admitted without objection it would authorize a verdict as under a cross claim for damages occasioned by the 1971 action; however, all the proof as to damages went to the expenses of litigation in the present action. It follows therefore, that since the only damages proved went to the expenses of litigation in the present action, the verdict was unauthorized, as the majority opinion holds.

DEEN, Judge (concurring specially).

I would reverse, based on the specific reason pointed out in Judge Pannell's special concurrence. This, of course, goes only to the subject matter of the counterclaim based on abuse of process and the punitive damages related there to. It does not go to the main action by the plaintiff who sought to recover possession of the land; this issue was properly decided in favor of the defendant. The judgment in the case should read affirmed in part and reversed in part; that is, affirmed as to the jury verdict against the plaintiff on her cause; reversed as to the award of damages to the defendant.

EVANS, Judge (dissenting).

The majority opinion reverses the trial court, and holds that defendant was not entitled to file and prosecute her counterclaim for damages in this action.

Marian Hickman, as plaintiff, filed suit against Josie Frazier, as defendant, to recover a certain tract of land in Burke County, alleging that Frazier was in possession of Hickman's land. Frazier filed an answer and counterclaim, in which she alleged plaintiff was guilty of bad faith in prosecuting said action, has been stubbornly litigious, and has put defendant to unnecessary trouble and expense of litigation in the amount of $3,000.

1. This case should terminate favorably to defendant, at the very outset, whereby the lower court would be affirmed, on one point alone. The plaintiff filed a written motion in the lower court to dismiss defendant's counterclaim in the following language, to wit: '1. That the counter-claim does not state a claim upon which relief can be granted. 2. That the counter-claim sounds in an action for damages for abuse of process, and such an action is not maintainable under the laws of the State of Georgia by way of a counter-claim.' But plaintiff never did invoke any ruling on the merits of said written motion to dismiss, and the trial court dismissed same for want of prosecution. Plaintiff did not enumerate error on the trial court's failure to rule on the merits of her written motion, nor did she enumerate error on the trial court's action in dismissing said motion for want of prosecution. But she did enumerate error touching this question in this language, to wit: 'The court erred in allowing the case to go to the jury on counter-claim filed by appellee, as case sounded in abuse of process and attorney's fees, the same not being maintainable in a cross action under the law.' Of course, this language does not raise the point as to whether the trial court erred in dismissing the written motion for want of prosecution. And, of course, no error can be successfully shown in allowing the jury to pass on a counterclaim to which plaintiff's objection has been dismissed for want of prosecution.

2. This court is without power to pass upon a question which was by plaintiff abandoned in the lower court, and especially when error is not enumerated thereon, as is plainly shown by the following authorities: McKenzie v. Guaranteed Bond &c. Co., 168 Ga. 145(5), 147 S.E. 102; Alexander v. Slear, 177 Ga. 101(4), 169 S.E. 304; Velkey v. Grimes, 214 Ga. 420, 105 S.E.2d 224; N.A.A.C.P. v. Overstreet, 221 Ga. 16, 30, 142 S.E.2d 816; Lunsford v. Ferrell, 85 Ga.App. 37(2), 68 S.E.2d 153; King v. State, 121 Ga.App. 347(3), 173 S.E.2d 746; Sheard v. State, 121 Ga.App. 666, 175 S.E.2d 148; Canal Ins. Co. v. Lawson, 123 Ga.App. 376(2), 181 S.E.2d 91.

Again, these authorities clearly demonstrate that this case should stop right here; that it is not necessary to consider the remaining portions of this dissent; and that the majority opinion incorrectly reversed on a point that is not properly before the court.

3. Further, there being no appeal from the trial court's actions respecting plaintiff's attack on defendant's counterclaim; same stands as the 'law of the case' and establishes conclusively that defendant's counterclaim set forth a legal cause of action and right to prosecute same for the wrongs therein complained of, and to recover the damages therein prayed for. In Miller v. Coleman, 213 Ga. 460(3), 99 S.E.2d 905 it is held: 'A judgment of a trial court, which after a writ of error stands unreversed, or to which no exception has been taken, is the law of the case.' Citing Palmer v. Jackson, 188 Ga. 336, 338, 4 S.E.2d 28; Ballard v. Harman, 202 Ga. 603, 605, 44 S.E.2d 260.

4. The majority opinion seeks to disregard the 'law of the case' as established by the plaintiff's attack on the counterclaim, and the subsequent actions respecting same, and asserts that under Code Ann. § 6-702(a), the sufficiency of the evidence to sustain the verdict may be reviewed by a simple appeal on that question. But such appeal cannot upset the 'law of the case' and have a question reviewed which has been finally adjudicated.

5. The majority opinion at page one cites three cases which hold that the general rule does not permit recovery of expense of litigation except in those cases specially provided for. Those cases support defendant's position, and her counterclaim. Harrison v. Harrison, 208 Ga. 70(1), 65 S.E.2d 173, specially provides that such expense may be recovered 'where the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.' The holding in King v. Pate, 215 Ga. 593, 596, 112 S.E.2d 589, is the same as above; while Pitman v. Dixie Ornamental Iron Co., 122 Ga.App. 404(3) (177 S.E.2d 167), provides that in an action for 'malicious use of process' it must be shown that the former action has terminated favorably to the plaintiff.

6. The evidence in support of the defendant's counterclaim in this case shows an earlier case between these same parties, which has terminated favorably to defendant. But actually defendant's counterclaim is for malicious abuse of legal process and not for malicious use of legal process. As to cases for malicious abuse of process there is no requirement that the first case shall have terminated prior to institution of the second case. Brantley v. Rhodes-Haverty Furniture Co., 131 Ga. 276(1), 62 S.E. 222; McElreath v. Gross, 23 Ga.App. 287, 98 S.E. 190; Vandalsem v. Caldwell, 33 Ga.App. 88, 125 S.E. 716.

7. Formerly, although malicious abuse of process could be sued for prior to termination of the action in which malicious abuse of process appeared, the action for malicious abuse could not be litigated in the same action; it had to be litigated by separate suit. Ellis v. Millen Hotel Co., 192 Ga. 66, 14 S.E.2d 565; Werk v. Big Bunker Hill Mining Corp., 193 Ga. 217, 17 S.E.2d 825; Alexander v. C & S Nat'l Bank, 212 Ga. 295(4), 92 S.E.2d 16.

8. But under the new Civil Practice Act, effective September 1, 1967 (Code Ann. § 81A-186) both plaintiffs and defendants are required to set up all claims that each has against the other, if it arises out of the transaction for which suit...