Yost v. Torok

• Decision Date: 25 June 1986
• Docket Number: No. 42789,42789
• Citation: 344 S.E.2d 414,256 Ga. 92
• Parties: YOST v. TOROK et al.
• Court: Georgia Supreme Court

Page 414

344 S.E.2d 414

256 Ga. 92

YOST v. TOROK et al.

No. 42789.

Supreme Court of Georgia.

June 25, 1986.

Irwin W. Stolz, Jr., Seaton D. Purdom, Gambrell, Clarke, Anderson & Stolz Atlanta, for Stephen H. Yost.

Robert A. Elsner, John A. Bender, Jr., Scheer & Elsner, Atlanta, for Janos Z. Torok et al.

WELTNER, Justice.

1. The Toroks, who are husband and wife, sued Yost for personal injuries which they alleged arose out of an automobile collision. Yost filed an answer in which he contended that the collision never had taken place. He also filed a counterclaim for malicious abuse of civil process, which he later dismissed. The Toroks then brought an independent action against Yost for libel, slander, and malicious abuse of process, alleging that Yost had filed the counterclaim in order to induce them to abandon their action against him. Their action was dismissed by the trial court, and the Toroks appealed.

The Court of Appeals reversed as to the malicious abuse of process claim, holding that the Toroks had stated a claim upon which relief might be granted, in that they alleged that Yost had filed his counterclaim for a wrongful purpose, thereby using civil process improperly. Torok et al. v. Yost, 176 Ga.App. 149, 335 S.E.2d 419 (1985). Certiorari was granted to determine whether the Toroks' complaint stated a claim for malicious abuse of process.

2. There is a continuing concern over the abuse of the judicial process, and a justifiable interest in its prevention. There is proper apprehension over improper defensive tactics (protracted pleadings, prolonged discovery, massive depositions, and the like), which are designed not to discover the truth, but rather to exhaust the claimant. There is the need to contain the corrupting effect of groundless claims which, while having some merit, are brought with the principal intent or effect of harassment, coercion, or embarrassment.

3. We have recognized two separate torts which address these concerns, which we have denominated malicious abuse of process, and malicious use of process. ¹ See Porter v. Johnson, 96 Ga. 145, 23 S.E.123 (1895). We currently differentiate between them as follows:

(a) " '[M]alicious abuse lies for "wrongfully and unlawfully using legally and properly issued process for a purpose the law never intended it to effect, while the latter action [malicious use] lies for maliciously suing out civil process without probable cause." ' " Ferguson v. Atlantic Land & Development Corporation, 248 Ga. 69, 71, 281 S.E.2d 545 (1981). To state a claim for malicious abuse, we have required the claimant to show the existence of an ulterior motive, and an "act in the use of the process not proper in the regular prosecution of the proceeding." Id.

(b) The necessary elements of malicious use are malice, lack of probable cause, and termination of the proceeding in favor of the party who seeks to charge another with malicious use. In some cases, proof of actual damages has been required. See Taylor v. Greiner, 247 Ga. 526, 277 S.E.2d 13 (1981).

(c) The tort of malicious abuse arose as a modification of the tort of malicious use, to provide relief where the procedural requirements of malicious use could not be met. Grainger v. Hill, 4 Bing. N.C. 212, 132 Eng.Rep. 769 (1838), cited in W.L. Prosser and W.P. Keeton, Handbook of the Law of Torts, at 897 (5th Edition, 1984). The substantive difference between the two torts is often difficult to discern. Yet we have persisted in maintaining variant requirements for each.

4. The pursuit of claims sounding in either tort meets with barriers. The requirement that malicious use claims be brought in a subsequent suit results in substantial delay and additional expense to all parties, as the factual matters must be litigated, all over again, before another tribunal. This is a burden for bona fide litigants--wronged plaintiffs and wronged defendants--because they must bear the costs and delays of additional litigation. And the threat of that subsequent litigation can serve to restrain bona fide claimants from presenting genuine claims in the first instance.

5. In this case, the Toroks' claim cannot proceed as malicious use because Yost's counterclaim, which was dismissed voluntarily, has not terminated in their favor. See Florida Rock Industries, Inc. v. Smith, 163 Ga.App. 361, 362 (2), 294 S.E.2d 553 (1982). Thus, to state a claim they must call their complaint malicious abuse. But this, too, is less than clear. The Court of Appeals found in this case that "[p]laintiffs [the Toroks] are not alleging that the filing of [Yost's] claim was the tort; that would relate to malicious use of process.... 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." Torok, supra, 176 Ga.App. at 151, 335 S.E.2d 419. (Emphasis supplied.) However, we have stated that "[r]egular and legitimate use of process, though with a bad intention, is not a malicious abuse of process." Ferguson, supra, 248 Ga. at 71, 281 S.E.2d 545. (Emphasis supplied.)

6. The nomenclature which we have used for these two claims, along with the definition of their constituent elements, have combined to create substantial uncertainty, to the extent that a plaintiff with a bona fide claim might have no effective means of relief against a defendant who employs improper defensive tactics. An element of malicious abuse (none of which is stated with full clarity) might fail of proof; a genuine claim for malicious use might be lost by reason of conduct of an opposite party which itself constitutes that tort. In either event, there is injury without remedy.

7. We have suffered these impediments to remain in our law out of an old concern that there would arise in every case an antiphonal chorus of claims and counterclaims, which would waste judicial resources and discourage the pursuit of bona fide claims. "If the law were otherwise, the ending of an action would be merely the beginning of litigation. The defendant, immediately upon the failure of the action, would begin one against the plaintiff; and if the latter action should fail, the defendant therein would in turn bring another action; and so on ad infinitum." Porter, supra, 96 Ga. at 148, 23 S.E. 123. This is, of course, a valid concern.

8. The effort to prevent reciprocal and endless controversy has diminished the remedies for abusive litigation. Historically, the action for malicious use and its variant, malicious abuse, grew out of the English common-law system, which contained certain internal controls. In present day English practice, costs, including attorney fees, are assessed against losing parties (hence serving as a deterrent to baseless actions), and the torts of malicious use and malicious abuse provide remedies only for extraordinary circumstances, including actions (or positions) which are maintained principally for the purpose of coercion or harassment. ² In our system, however, those internal sanctions heretofore have been lacking, and the two torts have operated in something of a vacuum, performing in part functions for which they were not designed.

9. Recently enacted House Bill No. 1146, Ga.L. 1986, p. 1591 (to be known as OCGA § 9-15-14), provides for the award of attorney fees and expenses of litigation for specified abusive conduct. The new statute will, of course govern these two elements of damages.

10. That, however, in no way resolves the problems which we have outlined, relative to other elements of recovery, specifically: special damages other than attorney's fees and expenses of litigation; damages for mental distress, where there is either wilfulness, or wanton and reckless disregard of consequences which is the equivalent of wilfulness (see Hamilton v. Powell, Goldstein, Frazier & Murphy et al., 252 Ga. 149, 311 S.E.2d 818 (1984)); or nominal damages pursuant to OCGA § 51-12-4. ³

11. The tort system can (and should) provide within its...