DocketNumber: 59980
Citation Numbers: 275 S.E.2d 737, 156 Ga. App. 663
Judges: Banke, Birdsong, Carley, McMurray, Quillian, Shulman, Smith, Sognier
Filed Date: 12/3/1980
Status: Precedential
Modified Date: 8/21/2023
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
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
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
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,
Judgment affirmed.