816 S.E.2d 64
Ga. Ct. App.2018Background
- Coen sued his former employer (CDC Software/Aptean) in 2012 for breach of contract; the trial court granted Coen partial summary judgment and awarded him attorney fees and expenses under OCGA § 9-15-14 after finding the defendants pursued a "strategy of litigation by attrition."
- Coen later filed multiple abusive-litigation suits (OCGA § 51-7-80 et seq.) against the employer, corporate officers, and the Sutherland law firm attorneys involved in the defense; those earlier suits were voluntarily dismissed.
- In 2016 Coen filed the present abusive-litigation action as a renewal, alleging the defendants acted with malice and without substantial justification and seeking mental-distress damages under OCGA § 51-12-6 and punitive damages under OCGA § 51-12-5.1; he did not seek special damages because fees had already been awarded in the prior case.
- The trial court dismissed the complaint for failure to plead special damages and because it concluded punitive damages are not available for statutory abusive-litigation claims; Coen appealed.
- The Court of Appeals held that a plaintiff asserting a statutory abusive-litigation claim need not plead special damages and may instead elect general mental-distress damages under OCGA § 51-12-6 where the defendant’s litigation conduct was malicious, willful, or wanton; but punitive damages are not available for such statutory claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether special damages must be pleaded to bring a statutory abusive-litigation claim | Coen: no; plaintiff can elect general mental-distress damages under OCGA § 51-12-6 instead of special damages | Defendants: OCGA § 51-7-83 and precedent require pleading special damages (Condon dicta) | Held: No special-damages pleading requirement; plaintiff may elect mental-distress damages under OCGA § 51-12-6 when misconduct is malicious, willful, or wanton |
| Availability of punitive damages for statutory abusive-litigation claims | Coen: sought punitive damages under OCGA § 51-12-5.1 | Defendants: punitive damages unavailable for OCGA § 51-7-80 claims | Held: Punitive damages are not available for statutory abusive-litigation claims (Sharp controlling) |
| Sufficiency of pleading as to defendant Lawrence‑Hardy | Coen: alleged she participated in malicious, unjustified defenses and attached prior order finding abusive tactics | Lawrence‑Hardy: was not personally sanctioned under OCGA § 9-15-14 and complaint lacks factual allegations specific to her | Held: Complaint and attached fee-order allegations suffice at the motion-to-dismiss stage; claim against Lawrence‑Hardy survives |
| Whether the action was a timely renewal / time-bar under OCGA § 51-7-84(b) | Coen: action is a timely renewal under OCGA § 9-2-61(a) | Defendants: action is not a proper renewal and is time-barred | Held: Court declines to consider time-bar/renewal argument because defendants did not cross-appeal the trial court’s adverse ruling on that issue |
Key Cases Cited
- RES-GA McDonough, LLC v. Taylor English Duma LLP, 302 Ga. 444 (2017) (motion-to-dismiss standard and pleading construction)
- Yost v. Torok, 256 Ga. 92 (1986) (redefining common-law abusive litigation torts into a single cause of action)
- Great Western Bank v. Southeastern Bank, 234 Ga. App. 420 (1998) (statutory abusive-litigation scheme creates independent cause of action)
- Vogtle v. Coleman, 259 Ga. 115 (1989) (plaintiff may elect general mental-distress damages when underlying tort permits them)
- Waste Mgmt. of Metro Atlanta v. Appalachian Waste Systems, 286 Ga. App. 476 (2007) (statutory language "all damages" construed broadly)
- Sharp v. Greer, Klosik & Daugherty, 256 Ga. App. 370 (2002) (punitive damages not recoverable under OCGA § 51-7-80 statutory claim)