Taylor v. Greiner

275 S.E.2d 737, 156 Ga. App. 663, 1980 Ga. App. LEXIS 3164

Opinions

Birdsong, Judge.

In their suit below, the appellees Greiner and Giddings alleged that the defendant had maliciously and with ulterior motive instigated investigative and disciplinary proceedings against them by the State Board of Medical Examiners. They contend that the defendant Taylor, an attorney, demanded a settlement for his client in the form of a debt forgiveness from Greiner, a physician, and Giddings, the social work counselor to whom Dr. Greiner had referred Taylor’s client; and further, that in the settlement demand letter Taylor threatened to instigate investigatory and disciplinary proceedings against both Giddings and Greiner if they refused to mark the bill satisfied in full and return to Taylor’s client an amount she had already paid. The letter written by Taylor to Greiner and Giddings questioned the legal authority and medical ethic by which Mr. Giddings with a master’s degree in social work could hold himself out as offering medical services of any kind, “and particularly in consort with a medical doctor.” The letter continued “I assure you that a complete investigation of this affair will be made through the State Medical Board, Investigative Bureau, etc. unless you can show me by what license this treatment and billing procedure is authorized by law. As an alternative, I am authorized by [my client] to drop the entire matter provided the current billing of $570.00 is dismissed, marked satisfied in full, and a return of the $256.00 is made so she may reimburse Blue Shield.”

This letter was written April 10,1975. The plaintiffs allege that in January, 1976 the defendant Taylor furnished certain information to the Georgia Composite State Board of Medical Examiners and requested an investigation which resulted in disciplinary proceedings being filed against the plaintiffs; but on May 6, 1976, these proceedings were dismissed by the Board of Medical Examiners. The plaintiffs filed their lawsuit below on May 1, 1978. The defendant Taylor moved for summary judgment and was denied the grant. Held:

1. On appeal, Taylor argues that if the appellees’ petition alleges malicious abuse of process, it came too late because the “abuse” occurred in January, 1976, when the defendant furnished information to the Board of Medical Examiners and requested the investigation which resulted in the disciplinary proceedings; appellant further argues that if, on the other hand, the petition alleges a cause of action for malicious use of process, the cause of action is insufficient because it does not allege the appropriate special damages. We agree.

We observe that an action for malicious abuse of process must be based on process legally and properly issued against a party, but wrongfully and unlawfully for a purpose the law did not intend; i. e., the lawful process is abused. Brantley v. Rhodes-Haverty Furn. Co., 131 Ga. 276 (62 SE 222). Hence, the process need not have terminated in the party’s favor so as to constitute the cause of action, and it would be anomalous to say that it should first terminate in the party’s favor. We deem it logical, then, that in actions for malicious abuse of process the cause of action arises when the abuse occurs, and not when the proceedings terminate in the party’s favor. If the petition had alleged malicious abuse of process in this case, it came too late.

2. The action for malicious use of process is based on a process which is itself instituted and prosecuted with malice and without probable cause and which, in vindication thereof, terminates in the party’s favor. Brantley, supra, p. 281. If this were a complaint for malicious use of process, it would not be barred by the statute of limitations, because the suit was filed within two years of the termination of the proceedings in the plaintiffs’ favor on May 6,1976.

It was stated in Jacksonville Paper Co. v. Owen, 193 Ga. 23, 25 (17 SE2d 76) that a cause of action for malicious use of process arises only when “ ‘the person of the defendant was arrested or his property attached, or some special damage was done to him.’ ” See also Pair v. Southern Bell Tel &c. Co., 149 Ga. App. 149 (253 SE2d 828). In 1885 the Georgia Supreme Court wrote that “since the passage of the [1784 Act], in order to maintain the action, it must be shown that the defendant maliciously sues the plaintiff either with intent to imprison him or do him some special prejudice.” (Emphasis supplied.) Mitchell v. Southwestern Railroad, 75 Ga. 398, 405. See also American Wholesale Corp. v. Kahn, 42 Ga. App. 411 (156 SE 324); and see the results in Slater v. Kimbro, 91 Ga. 217, 221 (18 SE 296), and Haverty Furn. Co. v. Thompson, 46 Ga. App. 739, 740, 742 (169 SE 213). Today, however, and since at least the case of Woodley v. Coker, 119 Ga. 226,228 (46 SE 89), the expression of the law is that an action for malicious use of process will lie only where the person of the defendant was arrested or his property attached, or he suffered some special damage by reason of the suing out of the process. Jacksonville Paper Co., supra; Woodley, supra. While we do not doubt that the plaintiffs’ professional licenses and right to pursue their professions are valuable property rights (Muse v. Connell, 62 Ga. App. 296 (8 SE2d 100)), they have not shown that any material issue of fact remains that their right to follow their professions was actually denied or attached, or that they were arrested. They show no special damage except that which normally results from all proceedings prosecuted as lawsuits or administrative hearings. See Jacksonville Paper Co., supra; Swain v. American Surety Co., 47 Ga. App. 501 (171 SE 217). The plaintiffs therefore have no cause of action for malicious use of process in this case.

3. The plaintiffs contend further that their complaint establishes a cause of action for malicious interference with property. Southern R. Co. v. Chambers, 126 Ga. 404 (1) (55 SE 37); Dale v. City Plumbing &c. Co., 112 Ga. App. 723 (146 SE2d 349); and see especially Muse v. Connell, supra. We said in Dale v. City Plumbing &c. Co., supra, at p. 727, that “ ‘the right to conduct one’s business without the wrongful interference of others is a valuable property right which will be protected . . . [a]nd the enjoyment of the good name and good will of a business is likewise a valuable property right ... One’s employment, trade or calling is likewise a property right and the wrongful interference therewith is an actionable wrong. [Cits] ----’” In Muse v. Connell, supra, p. 303, we held that “[t]he right to follow one’s profession, business, or occupation, or to labor, is a valuable property right, protected by the constitution and laws of this State ...” While we do not question the right and obligation of citizens to call to account members of professions who abuse their professional trust, or the law, that right and obligation must be based on probable cause and not motivated by a malicious or extortionate intent. As we said further, in Dale, supra, “ ‘[a] person’s business is property in the pursuit of which he is entitled to protection from tortious interference by a third person, who, in interfering therewith, is not acting in the exercise of some right.’ ” NAACP v. Overstreet, 221 Ga. 16 (142 SE2d 816). (Emphasis supplied.) Whether the appellant in this case tortiously interfered with the plaintiffs’ property rights, or was acting in the exercise of legal right and without tortious intent, is a question of fact for the jury. Since what is involved is a property right, the plaintiffs had four years in which to bring their action. Dale, supra, p. 728; Muse, supra, p. 303; Code Ann. § 3-1002, and their case is therefore not barred by the statute of limitations.

We find no merit in appellant’s contention that to maintain this cause of action the plaintiffs must show special damages. In NAACP, supra; Dale, supra; and Muse, supra, the plaintiffs apparently did show “special damages,” but this does not necessarily mean they would have had no recourse otherwise. It would be a gross anomaly, and would utterly defeat a plaintiffs right to protection from tortious interference with this type property if we held that it is only where the defendant actually succeeds in his intent that the plaintiff can recover. In an analogous situation, although it did not deal with interference of the right to follow a profession, the Supreme Court in Slater v. Kimbro, supra, p. 221, remarked that the dispossessory warrant which the defendant had sued out against the plaintiff “was aimed at her possession, and would have deprived her of it had she not given . . . bond and security. . . It failed to expel her from the premises but it brought her possession into imminent peril, and forced her to give bond and security as the price of preserving it. Had she not paid this price, she would have been expelled, and the groundless and malicious proceeding would have been triumphant. It did triumph so far as forcing her into making a bond. . . Had she failed to avail herself of this alternative, and if she had been turned out... in consequence, no one can doubt that she would have had a cause of action for the special damage occasioned thereby... Shall she recover nothing because she rendered their unfounded and malicious proceeding as harmless to herself, and consequently to them ... instead of leaving it to work all the mischief which they intended?” Having so said, the Supreme Court, feeling compelled to find special damages in that case of malicious use of process, found them in the circumstances of the wrong done to the plaintiff. Should we rule in this case, assuming the defendant did as alleged tortiously interfere with the plaintiffs’ property rights, that the plaintiffs have no cause of action because the disciplinary actions terminated in their favor and therefore the interference did not ultimately succeed? If what the plaintiffs allege is true, we think that as in Slater, supra, the proceedings against the plaintiffs “did triumph so far as forcing” the plaintiffs to defend a groundless and malicious action calculated to interfere with their right to follow their professions. The plaintiffs have a cause of action for this injury. Georgia law provides that the law presumes that damages flow from any tortious act. Code § 105-2006; Flanders v. Daley, 124 Ga. 714 (52 SE 687) (8 EGL Damages, § 7-8 (1978 Rev.)). In Ellington v. Bennett, 59 Ga. 286, 287 (1), it is pointed out that Code § 85-1803 provides that “ ‘for every injury done by another to person or property, the law gives a right to recover, and a remedy to enforce it.’ ” In all suits based on a contract, where there is no bona fide controversy or reasonable cause for the defense or if the defense was conducted in bad faith, the plaintiff may recover the expense of the litigation he was forced to bring. Code Ann. § 20-1404; Third World Ltd. v. Brewmasters, 155 Ga. App. 352 (270 SE2d 891) (1980); Georgia-Carolina Brick &c. Co. v. Brown, 153 Ga. App. 747, 753-755 (266 SE2d 531); and see Ken-Mar Construction Co. v. Bowen, 245 Ga. 676 (266 SE2d 796). Why should a defendant in a suit which was not only groundless but malicious to boot, and which was brought against him precisely to cause him at least the trouble of defending it, not only be without recompense for this injury, but be unable even to recover the general damages which the law presumes flow from any tortious act? Accordingly, we hold that questions of fact remain and that the defendant appellant was not entitled to summary judgment in the case, and the trial court was correct in so ruling.

Argued June 2, 1980 Decided December 3, 1980 James S. Owens, Jr., Robert L. Goldstucker, Ross Arnold, for appellant. Morton P. Levine, Stephen H. Block, for appellees.

Judgment affirmed.

Quillian, P. J., McMurray, P. J., Shulman, Banke and Carley, JJ., concur. Sognier and Smith, JJ., dissent. Deen, C. J., concurs in the judgment only of the dissent.