Torok v. Yost, 70544

• Citation: 176 Ga.App. 149,335 S.E.2d 419
• Decision Date: 05 September 1985
• Docket Number: No. 70544,70544
• Parties: TOROK et al. v. YOST.
• Court: Georgia Court of Appeals

Page 419

335 S.E.2d 419

176 Ga.App. 149

TOROK et al. v. YOST.

No. 70544.

Court of Appeals of Georgia.

Sept. 5, 1985.

Rehearing Denied Sept. 24, 1985.

Certiorari Denied Oct. 30, 1985.

Robert A. Elsner, Atlanta, for appellants.

Irwin W. Stolz, Jr., Seaton D. Purdom, Atlanta, for appellee.

DEEN, Presiding Judge.

Mr. and Mrs. Torok filed suit against appellee Yost July 19, 1984, seeking damages for personal injury to appellant Janos Z. Torok allegedly arising from an automobile collision which occurred August 11, 1982. Appellee answered and counterclaimed, alleging that appellants had filed their complaint without cause and had thereby maliciously abused civil process. The counterclaim was voluntarily dismissed shortly thereafter.

In December of 1984 appellants filed a new action against appellee in three counts: malicious abuse of civil process, slander, and libel. In January 1984 appellee filed a timely answer and a motion to dismiss the more recent action on the ground that appellants' complaint failed to state a claim upon which relief could be granted. After a hearing, the trial court granted appellee's motion, and the Toroks appeal. Held:

1. The libel and slander alleged by appellants consist of the allegations made in the pleadings incorporated in appellee's counterclaim filed in the original action. It is a matter of statutory law that "[a]ll charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous ..." OCGA § 51-5-8; Household Fin. Corp. v. Gilley, 167 Ga.App. 195, 306 S.E.2d 85 (1983). In view of this clear statutory provision, appellants' allegations of libel and slander state no claim upon which relief can be granted, and with respect to Counts II and III of appellants' complaint, the trial court acted properly in granting appellee's motion to dismiss. OCGA § 9-11-12(b)(6).

2. With respect to malicious abuse of process, plaintiffs say Yost used the groundless counterclaim as leverage to "blackmail" them to drop their legitimate suit for auto collision damages. This, they say, constituted malicious abuse of process.

"As to an action for malicious abuse of legal process two elements are necessary, that is, the existence of an ulterior motive and an act in the use of the process not proper in the legal process of the proceeding. [cits.]." Trawick v. Consolidated Capital &c. Fund, 156 Ga.App. 764, 766-767, 275 S.E.2d 394 (1980). Lane Co. v. Taylor, 174 Ga.App. 356, 362-364(6), 330 S.E.2d 112 (1985).

Unlike malicious use, an element of which is termination of the prior lawsuit in favor of the present plaintiff (to prove that there was no probable cause to bring the lawsuit), see Woolbright v. Hensley, 174 Ga.App. 615(2), 330 S.E.2d 812 (1985), malicious abuse relates to perversion of the civil process to an unlawful use after it has issued, an improper employment of it which the law does not intend it to serve. Davision-Paxon Co. v. Walker, 174 Ga. 532, 535-536, 163 S.E. 212 (1932); Cooper v. Public Fin. Corp., 146 Ga.App. 250, 254, 246 S.E.2d 684 (1978). For that reason, the cause of action could accrue before the underlying suit is concluded, because the act of perversion may have been done during its pendency. That is the case here, where the allegation is that defendant tried to wield a false counterclaim to compel them, for the wrong reasons, to dismiss their auto collision suit. While the law encourages settlements of countervailing legitimate claims, it cannot be said that it intends unfounded claims to be a legitimate tool of negotiation.

Thus, if plaintiffs prove that defendants filed the counterclaim for the purpose of effecting a wrongly bottomed dismissal of their suit, evidencing an ulterior motive, and in addition actually committed an act in furtherance of this ulterior motive, the cause of action would be made out. Plaintiffs are not alleging that the filing of the claim was the tort; that would relate to malicious use of process with its three elements, which they are not pursuing. See Cooper v. Public Fin. Corp., supra at 254, 246 S.E.2d 684. Instead, they have alleged that after it was filed, the counterclaim was used improperly; and thus not only were the legitimate purposes of counterclaims not served, but an unpermitted purpose was advanced. In other words, they allege, defendant's act corrupted the process which the law provides. Whether that is so or not remains to be seen when the facts are developed.

Although only general damages are claimed, no authority requires that special damages must be pled and proved here. While it appears that plaintiffs did not suffer the dismissal of their lawsuit, which is what they say defendant sought wrongfully to accomplish, they may at least be entitled to nominal damages. OCGA § 51-12-4.

Thus the dismissal of count one was premature. " 'Not unless the allegations of the complaint disclose with certainty that the plaintiff[s] would not be entitled to relief under any state of provable facts, should the complaint be dismissed.' " Storm Systems v. Kidd, 157 Ga.App. 527, 528(3), 278 S.E.2d 109 (1981); Ledford v. Meyer, 249 Ga. 407, 408(2), 290 S.E.2d 908 (1982). In this connection, pleadings are to be liberally construed. Poole v. City of Atlanta, 117 Ga.App. 432, 434(2), 160 S.E.2d 874 (1968).

Judgment affirmed in part; reversed in part and case remanded.

POPE, J., concurs.

BEASLEY, J., concurs specially.

BEASLEY, Judge, concurring specially...