Troup County Elec. Membership Corp. v. Traylor

• Decision Date: 05 March 1984
• Docket Number: No. 67817,67817
• Citation: 170 Ga.App. 121,316 S.E.2d 568
• Parties: TROUP COUNTY ELECTRIC MEMBERSHIP CORPORATION v. TRAYLOR.
• Court: Georgia Court of Appeals

Page 568

316 S.E.2d 568

170 Ga.App. 121

TROUP COUNTY ELECTRIC MEMBERSHIP CORPORATION v. TRAYLOR.

No. 67817.

Court of Appeals of Georgia.

March 5, 1984.

Allen C. Levi, Columbus, for appellant.

Hoke J. Thomas, Jr., LaGrange, for appellee.

McMURRAY, Chief Judge.

In approximately April 1977, when the Troup County Electric Membership Corporation changed its practice of allowing its customers to read their own meters and began taking the meter readings itself, a large discrepancy was discovered between the meter readings reported by one of its customers, David Traylor, and the meter readings taken by one of its employees. Accordingly, the power company computed a bill based on the meter readings of its employee and sent it to Mr. Traylor for collection. Traylor failed to pay the bill and was notified that arrangements would have to be made to pay or else his electrical services would be discontinued. Shortly thereafter, the power company brought suit against Traylor in the Small Claims Court of Troup County for collection of the alleged debt. However, before disposition of the suit, Traylor's electrical services were discontinued. In November 1982, by operation of the automatic five (5) year rule, the complaint against Traylor in the Troup County Small Claims Court was dismissed. Subsequently on April 28, 1983, plaintiff (Traylor) filed this action in either malicious abuse of process or malicious use of process against defendant (Troup County Electric Membership Corporation). From a denial of its motion for summary judgment, defendant appeals. Held:

Defendant enumerates as error the trial court's denial of its motion for summary judgment as to plaintiff's action based upon either malicious abuse of process or malicious use of process. Defendant contends that since plaintiff would be unable at trial to prove the essential elements of either of these tort actions, there is no genuine issue as to any material fact, and it is entitled to prevail as a matter of law.

As to plaintiff's cause of action based upon malicious abuse of process, we need not even analyze whether the essential elements of this tort action were met since the evidence clearly shows and, in fact, the plaintiff concedes that this action is barred by the applicable two year statute of limitation. See Butler v. Cochran, 121 Ga.App. 173, 174(3), 173 S.E.2d 275. Accordingly, our focus shifts to plaintiff's cause of action based upon malicious use of process.

The essential elements of the tort of malicious use of process are (1) prosecution of a civil action with malice; (2) such prosecution was without probable cause; (3) a termination of the prosecution in favor of the defendant; and (4) the prosecution of the process caused: (a) arrest of the person; (b) a seizure of his property; or (c) other special damages. Pair v. Southern Bell Tel. etc. Co., 149 Ga.App. 149, 253 S.E.2d 828; Pugh v. Frank Jackson Lincoln-Mercury, 165 Ga.App. 292, 300 S.E.2d 227. Plaintiff, in his complaint, alleged as damages attorney fees and expenses; emotional stress, humiliation and embarrassment;...