Johnson v. Lomas Mortg. USA, Inc.

• Court: Georgia Court of Appeals
• Writing for the Court: BEASLEY
• Citation: Johnson v. Lomas Mortg. USA, Inc., 411 S.E.2d 731, 201 Ga.App. 562 (Ga. App. 1991)
• Decision Date: 04 October 1991
• Docket Number: No. A91A1395,A91A1395
• Parties: JOHNSON v. LOMAS MORTGAGE USA, INC.

Page 731

411 S.E.2d 731

201 Ga.App. 562

JOHNSON v. LOMAS MORTGAGE USA, INC.

No. A91A1395.

Court of Appeals of Georgia.

Decided Oct. 4, 1991.

Reconsideration Denied Oct. 22, 1991.

Certiorari Denied Nov. 21, 1991.

Harold A. Johnson, pro se.

McCalla, Raymer, Padrick, Cobb & Nichols, Linda S. Finley, Teresa R. Perrotta, Carol V. Clark, Atlanta, for appellee.

BEASLEY, Judge.

Appellant Harold Johnson, as legal guardian of Marion Johnson, filed the present pro se action against appellee Lomas Mortgage seeking damages for abusive litigation under OCGA § 51-7-80 et seq. The trial court dismissed the complaint under OCGA § 9-11-37(b)(2)(C) because of Johnson's failure to comply with a court order compelling discovery.

The complaint is that Lomas named Marion Johnson as one of several defendants in a proceeding in Florida to foreclose a mortgage on property titled in the name of Harold Johnson. Johnson contends that "[t]here was no substantial justification to include Mrs. Johnson in that foreclosure and it was but a frivolous act groundless in fact and law and was intended to be vexatious...." See OCGA § 51-7-80(7). On Marion Johnson's behalf, he alleges that the foreclosure proceedings damaged her credit and reputation.

In the proceeding in Florida to foreclose the mortgage, Lomas named Harold Johnson, an unknown spouse of Harold Johnson (if married), Marion Johnson, a bank, a credit union, a savings and loan association, and the Florida Department of Revenue, on grounds that each of the foregoing parties might have a claim or demand in the subject property.

By virtue of a power of attorney executed in July of 1988 and authorizing Harold Johnson to represent Marion Johnson, he filed an answer on her behalf, stating that she had no interest in the property as a result of a quitclaim deed conveying her interest to Harold Johnson and the Florida courts were therefore without jurisdiction over her. The quitclaim deed was dated February 24, 1987, and was filed on March 11, 1987. It was also executed by Harold Johnson on Marion Johnson's behalf, pursuant to a power of attorney that was dated December 26, 1985, but filed on January 23, 1987, approximately one month before the quitclaim deed was executed.

In the Florida proceeding, Harold Johnson asserted that he had not defaulted on the mortgage but that fraud and improper servicing by the mortgagee's servicing agent had caused the default.

Final judgment confirming the foreclosure sale was entered by the Florida court.

In this case, Lomas served Johnson with interrogatories and a request for production of documents pursuant to OCGA §§ 9-11-33 and 9-11-34, seeking, among other things: the dates Johnson acquired his interest in the property, took possession of the property, and vacated the property; loan applications by Johnson with any lender offering the property as security for a loan; the reasons that legal guardianship of Marion Johnson was required; the application for guardianship and the date it was made; and each and every place Harold Johnson had resided over the past ten years and documents relating thereto.

In response, Johnson filed a collection of documents, letters, and pleadings. These papers chronicled such things as a settlement agreement between him and the mortgagee allowing him to reinstate the mortgage by paying various sums; a subsequent letter to Johnson from the mortgagee's servicing agent stating that foreclosure proceedings would be commenced, but that he could appeal to HUD for an assignment of the mortgage; and correspondence requesting that HUD and a congressional subcommittee investigate the servicing agent.

After service of the collection, Lomas filed a motion under OCGA § 9-11-37(a) to compel response to its discovery requests, stating that what was served was not responsive and that Lomas had unavailingly requested Johnson to respond, pursuant to Uniform Superior Court Rule 6.4.

The trial court entered an order finding that Johnson's collection of papers was not responsive to Lomas' discovery requests and directing Johnson to file a response within 15 days of the court order and to pay expenses to Lomas. Johnson filed various successive motions but no response to Lomas' discovery requests other than the statement that he had no documents other than those originally served.

After the 15-day period had passed, Lomas sought sanctions and dismissal of the complaint pursuant to OCGA § 9-11-37(b)(2)(C) for failure of Johnson to comply with the court order.

The court denied each of the successive motions filed by Johnson and granted Lomas' motion to dismiss the complaint because of Johnson's "persistent and unjustified refusal to respond to the legitimate discovery requests of defendant, and blatant refusal to comply with the Court's order ... compelling discovery."

1. Johnson contends that the trial court erred in denying his motions for summary judgment.

Summary judgment was denied because of the existence of issues of fact as to whether the naming of Marion Johnson in the Florida foreclosure proceeding was with "malice," OCGA §§ 51-7-81(1); 51-7-80(5), and "[w]ithout substantial justification." OCGA §§ 51-7-81(2); 51-7-80(7).

Lomas asserts that given the circumstances under which the quitclaim deed was executed, Marion Johnson had at least a colorable claim to the property, so that naming her as a defendant along with the other claimants was justified and not malicious. Lomas also asserts that it has a defense to Johnson's abusive litigation claim under OCGA § 51-7-82(c), since it was "substantially successful on the issue forming the basis for the claim of abusive litigation in the underlying civil proceeding."

OCGA § 51-7-81 provides: "Any person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation if such person acts: (1) With malice; and (2) Without substantial justification."

"Malice" is defined in OCGA § 51-7-80(5) as meaning "acting with ill will or for a wrongful purpose and may be inferred in an action if the party initiated, continued, or procured civil proceedings or process in a harassing manner or used process for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based." Cf. OCGA §§ 13-6-11; 9-15-14(b); Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986). The undisputed facts by no means establish that, as a matter of law, Lomas acted "maliciously" in naming Marion Johnson as a defendant/claimant in the foreclosure proceeding. Cf. Yost v. Torok, supra.

"Without substantial justification" is defined in OCGA § 51-7-80(7) as meaning "any civil proceeding, claim, defense, motion, appeal, or other position [which] is: (A) Frivolous; (B) Groundless in fact or in law; or (C) Vexatious." Cf. OCGA § 9-15-14(b), supra; Ferguson v. City of Doraville, 186 Ga.App. 430, 434 (2a, c), 367 S.E.2d 551 (1988), overruled on other grounds, Vogtle v. Coleman, 259 Ga. 115, 119 (n. 8), 376 S.E.2d 861 (1989). The...