Myers v. Clark

• Decision Date: 25 April 1972
• Docket Number: No. 47110,No. 3,47110,3
• Citation: 126 Ga.App. 154,190 S.E.2d 134
• Parties: Patricia E. MYERS v. Charles E. CLARK, Jr., et al
• Court: Georgia Court of Appeals

Page 134

190 S.E.2d 134

126 Ga.App. 154

Patricia E. MYERS v. Charles E. CLARK, Jr., et al.

No. 47110.

Court of Appeals of Georgia, Division No. 3.

April 25, 1972.

William L. Skinner, Atlanta, for appellant.

Cochran, Camp & Snipes, Donald O. Nelson, Smyrna, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

Plaintiff, a former tenant of defendant landlord, sought recovery of actual and punitive damages for 'malicious use and/or abuse of civil process' (quoting from the complaint). She alleges 'wrongful dispossession' from premises under a dispossessory affidavit and distraint of her possessions under a warrant alleging that she 'was in fact $200 behind in her rent' when she was not in arrears of rent on the date defendant landlord had sworn out dispossessory and distress warrants. There is no allegation as to the result of these former suits, nor is there an averment that the distraint was 'wrongful' or that the processes were used for an ulterior purpose or any improper act in the bringing of the previous actions but only an allegation that rent was not owed at that time. The trial court sustained a motion to dismiss for failure to state a claim upon which relief could be granted. The appeal is from this dismissal order. Held:

1. Appellant contends the complaint is sufficient under the Civil Practice Act of 1966. She states the defense urged below, namely a failure to plead favorable termination of the two suits which served as the basis for the instant action, is a matter of defense. We disagree. Even under our liberalized notice pleading ¹ a motion to dismiss is properly sustained whenever the complaint fails to show a legal basis for recovery. Poole v. City of Atlanta, 117 Ga.App. 432, 160 S.E.2d 874; Watkins v. Coastal States Life Ins. Co., 118 Ga.App. 145, 162 S.E.2d 788; Ungar v. Mayor &c. of Savannah, 224 Ga. 613, 163 S.E.2d 814; Beckwith v. Peterson, 227 Ga. 403, 181 S.E.2d 51.

2. If the complaint is intended to constitute an action for malicious use of process, then an essential element is successful termination of the previous litigation. Georgia Veneer &c. Co. v. Florida Nat. Bank, 198 Ga. 591, 609(2), 32 S.E.2d 465 and cases cited therein; Marshall v. Armour Fertilizer Works, 24 Ga.App. 402, 100 S.E. 766.

3. If the complaint is based upon malicious abuse of process, then it is not necessary to show that the previous litigation is ended. King v. Yarbray, 136 Ga. 212, 71 S.E. 131; Collier v. Buice, 36 Ga.App. 198(2), 136 S.E. 287. But it is required of plaintiff who pleads some facts that are intended to show entitlement to relief to state enough to show that the alleged relief should be granted. The essential elements of an action for malicious abuse of process are stated in 1 Encyc. of Ga.Law, p. 120, to be 'an ulterior purpose and an improper act in the use of the action.' As is said in Gaines v. Pirkle, 58 Ga.App. 546(2), 199 S.E. 317, '(T)he swearing out of a distress warrant can not be the basis of an action for malicious abuse of process unless it is alleged that the warrant was sworn out for a purpose other than that of collecting rent claimed to be due, or of accomplishing some purpose which the warrant was not intended to effect. (Citations).' See also Dantley v. Burge, 88 Ga.App. 478, 77 S.E.2d 107.

4. 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...