*1 Bumgartner, appellee. E. John et al. OF DORAVILLE FERGUSON v. CITY
75378. v. FERGUSON. OF DORAVILLE 75379. CITY v. FERGUSON. RIFFE 75380. (367 SE2d Presiding Judge. Banke, against brought Ferguson of Doraville suit H. William per- police yet officer to recover Doraville and an as sonal unidentified injuries he an automo- when was struck which he sustained night highway attempting across a seven-lane
bile to walk while complaint Ferguson highly his later amended intoxicated condition. police Riffe for the unidenti- lieutenant Robert to substitute Doraville complaint. Both defendants fied “John Doe” defendant named and Yost counterclaimed Ga. 92 claim was stantially to 414) (1986), Ferguson’s allegations that based on substantially substantially groundless, frivolous, and sub- responded Ferguson to these counterclaims vexatious. his amending to assert abusive thereby prompting to defendants, Riffe to amend his counterclaim against Ferguson. claim assert an additional abusive respect summary granted with trial court to to the defendants summary judgment Ferguson’s personal injury granted claim but ap- Ferguson These to the defendants’ counterclaims. peals followed. approxi- undisputed. part, are, At The relevant for the most facts Ferguson
mately 2, 1986, Lt. Riffe observed 12:25 a.m. on March premises asleep parked “fast- of a behind the wheel of a car on pulled highway. Ferguson alongside had food” restaurant located attempting sleep parking into the drive home from a bar and lot of this restaurant realizing words, was, drunk” he “too opened approached Ferguson’s door, vehicle, to do so. Lt. Riffe license. After deter- and asked for and obtained driver’s mining stolen, instructed that the vehicle was not he then specific attempt recollection not to what Lt. Riffe told him to drive the car. something to the as follows: “He said somebody phone get to come effect that I get call and had better make anybody baby-sit going me. He said could me because he wasn’t you opened just did; this damn door; have I better not move Ferguson was some- car.” of his instructions to Lt. Riffe’s recollection it would be “fine” what different. He testified that he told he stay sleep roll the doors and car and but to “lock wished to up get mugged.” partially wouldn’t the windows so he encounter, immediately having Lt. Riffe left the scene after this attempt custody keys made no take or to secure the to his vehicle. his vehicle and walked to Ferguson subsequently left the other highway, bar/lounge side of the where he entered called inside, her telephoned Lemon Peel. While he his wife to ask come pick up him two more drinks while and consumed at least *2 waiting ultimately waiting, for her. He left the bar and grew tired of attempted he highway. process, to walk back across the In the was severely struck and injured by an unidentified hit-and-run motorist. a.m., The accident occurred two-and- approximately at 2:50 or about a-half hours after his encounter with Lt. Riffe. blood-alco- hol content his arrival hospital following at the treatment for. percent. accident was .29 alleged prox- that his injuries were imate “mandatory result of Lt. Riffe’s breach of a duty to arrest one operated who has a motor vehicle while under the influence of an in- toxicant.” He sought City to hold the of Doraville liable under the doctrine of respondeat superior, asserting that the defense of sover- eign immunity had been waived to the extent of certain in- purchased surance city. The trial court did not reach the im- munity issue but granted summary judgment to the defendants based on a conclusion that no duty actionable breach of On had occurred. appeal, Ferguson longer no legal contends that Lt. Riffe breached a duty to arrest him but instead contends that the officer’s instructions to him imposed a sufficient restraint on his freedom that he could be considered to have been under the officer’s constructive care and cus- tody at the time of the accident. Held-.
1. Even accepting as accurate Ferguson’s version of what Lt. Riffe told him during encounter, apparent their it is the officer placed him under greater no operation restrictions with of his automobile than he already under general virtue of the prohibition criminal against driving a motor vehicle while under the influence of (a). alcohol. See By OCGA 40-6-391 no reasonable § stretch of the imagination could it be inferred from evi- dence in this case that Ferguson was under po- actual or constructive lice custody time relevant proceedings. to these regard
With to Ferguson’s original theory liability, i.e., that Lt. Riffe breached a mandatory duty arrest, to make an observe it is no means evident that Lt. Riffe was authorized to make an arrest under the merely circumstances. It is no crime to be intoxi- cated, see OCGA merely occupy nor is it a crime parked automobile while generally under the influence of alcohol. See State, Carr v. (a); (314 694) App. 169 Ga. 679 SE2d (1984). Thus, certainly it is conceivable that had Lt. Riffe in fact ar- Ferguson, rested thereby he would have subjected himself to suit for 432 As ob imprisonment negligence. rather than
false arrest false Ray, Pierson v. S. U. 386 by former Justice Warren served Chief 288) (87 (1967), LE2d 555 SC 18 overruled (102 2727, 73 Fitzgerald, v. in Harlow grounds U. S. 800 SC 457 396) (1982), he must unhappy “A is not so policeman’s LE2d lot duty if he does charged with dereliction being choose between probable being arrest when he cause and mulcted has he does.” evi- being apparent dispute
It from the uncontroverted without Fer- nothing dence record that Lt. did to restrict this case Riffe guson’s liberty, expose greater danger, him to or otherwise position, the trial affect his we must court consequences acquired legal duty protect no him either from generally his own behavior from the of others. See negligence Co., (151 Ficken v. Southern Cotton Oil App. 841 SE 40 Ga. McCarthy, (3) (151 Handiboe v. (1929); App. 543 1985); Burlingham, v. 905) (1966). (R.I. Barratt 492 A2d 1219 Accord v. 1985). Cox, v. Hostetler (Iowa Hildenbrand 411 369 NW2d Cf. Ward, v. 1193) (1985); Trautman App. Wash. P2d Thomas 782) (1975). Stamford, Conn.Sup. Compare A2d Williams, 409) (1962). (3) (124 We Ga. *3 summary hold accordingly granting that the trial court did not err in- judgment respect Ferguson’s personal with defendants jury claim. summary
2. issue in granting The of whether the court erred trial prob- on the counterclaims is more defendants’ lematical, with thrusting unavoidably mind-numbing us battle many-headed the law. hydra litigation” of “abusive
(a) (a) Subsection of OCGA 9-15-14 mandates that “reasonable § shall be necessary attorney’s expenses fees of litigation any party against party awarded to whom another has asserted claim, defense, position respect or there existed other with complete it justiciable of issue of or fact that absence could not be the as- reasonably accept believed that a court would claim, defense, position.” (Emphasis serted Sub- supplied.) or other may assess (b), hand, provides section other court “[t]he necessary attorney’s expenses litigation reasonable and of fees and if, itself, upon ... the motion court it finds of or the attorney action, any part an or party brought or defended an or thereof, that . -”1 justification. lacked substantial . in appear
It Supreme would from the Court’s decision (b) by justification” to mean The term “lacked substantial is defined § frivolous, “substantially substantially groundless, substantially or vexatious.” 92, supra, specified types 256 Ga. that either of the above of litigation support recovery abuse will in tort. Id. at also of (13). However, entirely recovery the elements of such a are differ- ent. provides solely Whereas the Code section for the assessment of necessary attorney’s expenses litigation,” “reasonable fees and “special damages damages recoverable under consist of than attorney dis- expenses litigation; damages fees and for mental tress, wilfulness, where there is and reckless disre- either or wanton gard [cit.]; of consequences equivalent which is the of wilfulness (10).2 pursuant nominal damages to OCGA 51-12-4.” Id. at 95 § remedy available under the Code section also differs from that available under Yost least important regards. two other Yost, First, precepts pre being founded the ruins existing torts of held to process, malicious use and abuse of have been Guernsey Corp., Gen. Corp. Petroleum v. Data be retroactive. See 920) (1987). App. by remedy created section, hand, “any Code respect on the other is available claim, defense, or other which is first raised in an action on 1591, July pp. L. regard 1986.” Ga. 3. With § 1, 1986, prior July Supreme abusive arising in Yost that “the specified recoverability attorney Court fees and expenses of litigation [pre-] existing principles must be determined (17). However, of law.” pre-existing Id. at 96 law avails the defend little, very ants prior case because to the effective date of OCGA general recoverability expenses § fees) (including in civil OCGA 13- governed actions was § 6-11, which was not available to a in the absence of a “via defendant independent ble inde asserting for relief counterclaim[ ] [a] claim[ ] pendent of harassment, [plaintiff’s] litigiousness assertion of the Smith, Fla. Rock Indus. v. and bad . . . bringing suit[ ].” (3) (294 553) (1982). Ga.
A remedy final in which the created 9-15-14 differs in Yost lies remedy procedure adjudi- announced cating claims thereunder. Claims asserted to the Code sec- adjudicated by jury, tion are to be the trial court without a see OCGA Yost are to be (f), adjudi- whereas claims asserted under *4 immediately disposition underlying “by cated the action — the same is, by underlying judge jury factfinder that (15).3 action.” Id. at 96 “[p]unitive foregoing language, Supreme specified In a footnote to the Court that
damages designed fn. . . . are excluded as as deterrent. Id. at 3. the tort itself is [Cits.]” where, Presumably, here, adjudi underlying is this does not mean that as action summary judgment, plaintiff by judge cated to the trial on motion for plaintiff thereby right by jury loses the to a trial on the defendant’s claim.
(b) 6, 1986, original complaint in this case was filed on June not to those of precepts but subject was thus neither the defendants is entitled OCGA 9-15-14. It follows that attorney expenses to a claim fees and assert However, complaint. basis of the Lt. Riffe was not identified original July until after original complaint, name and it was not identify the as Ferguson pleadings amended his to complaint. the John Since it original Doe defendant referred to suit, was not until then that Lt. Riffe was to defend the called sought personally an assessment of him in ex- $6,750,000, cess of in filing Fergu- conclude that this amendment son “position” against asserted a “first Lt. Riffe which was raised July action on or after Accordingly, 1986.” we hold that Lt. Riffe was entitled to assert a counterclaim 9-15-14 for litigation expenses attorney respond- reasonably fees incurred ing to Ferguson’s personal city was original injury claim but that However, not entitled to seek recovery. we hold that both de- may fendants seek recovery litigation expenses fees reasonably in responding incurred abusive claims, were, defendants, since those to both first asserted subsequent July amendments filed 1986. question We now turn to the of whether the trial court was authorized to as conclude a matter of law from the evidence of record could not be in damages litiga- held liable for abusive tion.
This court has previously favoring cautioned that “zealous abusive litigation allegations can create a bar to access to the courts litigants.” Guernsey civil Corp. Petroleum v. Data Gen. Corp., supra, at 796. Such particu- overzealousness could be larly discouraging litigants compelled who are to argue change for a in existing law in order to obtain just redress for their grievances. Abusive-litigation litigation subject abuse, is itself and we must constantly guard be on our not to allow it to stag- become a source of nation or inflexibility i.e., in our jurisprudence, to become the “tail wags the dog.” hand, On the other these remedies were created in response need, to very real and we should not shrink from enforc- ing them application where their appropriate.
With
mind,
these
considerations
we ask ourselves whether the
record,
evidence of
construed in
favorably
this instance most
towards
the defendants
respondents
summary judgment,
motion for
see
Ford,
Burnette
Inc. v. Hayes,
(1971),
Considerations of cause Riffe with the mately question charging the reasonableness of is There duty breach in the first instance. Ferguson of owed to basis clearly statutory, no common law existing constitutional or v. Blackwell Georgia for the be arrested. Cf. right assertion of a (1976). (3) (228 State, Even with App. 139 Ga. suf- persons injuries to recover for brought by to claims third lawbreakers, spe- held “the generally fered at the hands of it is that duty preserve peace cific is one which the owes individuals, public and that generally, particular and not duty liability part breach on the of accordingly of such creates no con- damaged by officer to an individual the lawbreaker’s who was Suf- Liability Injury duct.” Anno.: Personal of Policeman [etc.] Lawbreaker, 41 Arrest fered as a Result of Failure to Enforce Law or p; ALR3d 2.§ summary
In ruling that was entitled to counterclaims, actually did not determine defendants’ the trial court Fergu- existed for justification reasonable basis or substantial this action “Although son’s but instead reasoned as follows: unusual, bizarre, plaintiff if highly is the extensive research any Georgia into the jurisdictions law other absence point plaintiff raising justici- on was leads this court to conclude that good good concluding able issues in faith.” In the exercise liability bringing from a frivolous would insulate (c) of OCGA evidently relying the trial court was on subsection attorney party shall be provides as follows: “No or the court attorney’s assessed fees as to claim or defense which in a faith at- said determines was asserted theory such new theory tempt Georgia to establish a new of law persuasive au- recognized precedential law based on some is thority(Emphasis supplied.) insulate operates cannot We First, ap- case, reasons. the subsection for two ex- attorney fees and not to plicable on its face to claims for Yost v. penses types available under or to by Ferguson do not Secondly, Tor ok. authorities cited foreign Kingston, In Parvi v. his claim. provide arguable support for 960) (1977), claim example, plaintiff’s NE2d NY2d 553 him police had taken upheld on the basis of evidence transported him custody condition, he was an inebriated while deposited city his will at a location limits, him outside try superhighway, to find forced to he had been from whence near a emphasized, previously way there is no similar on foot. As home suggest af- that Lt. Riffe case to evidence way. Compare Williams, Thomas fected ap- 409). Thus, contention peal between his situation of substance” that “there is no difference *6 transparently plaintiff without merit. Parvi is that of the in and FSupp. Village Nyack, Endy Ferguson’s reliance on (SD 1984), similarly misplaced. was The decision there NY merely ruling by appellate a a trial but was not issued an court judge denying failure to state a claim. motion to dismiss for a present com- whether issue case is not before us (i.e., granted plaint whether claim on which relief could be stated a supported might a have state of facts which there was conceivable complaint) recovery there but whether within the framework of the liability any justification charging for his the defendants with for they actually injuries complaint Whereas the the basis of the facts as existed. on municipality’s police Endy alleged custody” that the defendant plaintiff’s by appropriating his officers“took car automobile to dispute of the decedent keys helpless leaving him in his he in a condition and while was present
die,
without
the evidence in the
case reveals
responding
ques-
plaintiff
capable
that the
was lucid and
spoke
sick,
him,
tions at the time the
wounded,
that he was not
attention,
or otherwise in need of immediate medical
any way by
his encoun-
that his
was not
affected
police.
ter with the
(NH
Weldy
Kingston,
holding
v. Town
1986), recovery similarly under the facts of establishes no basis for present police stopped teenagers There, case. had a car full of they go, having and then let them after determined that were unlaw fully beverages. Concluding transporting consuming on alcoholic Hampshire the basis of New law that the officershad breached a stat utory duty crime common law to make an arrest for a committed presence, occupants in their vehicle the court held that the of the they municipality injuries could recover later for sustained when in an due to the their vehicle was involved accident holding represents perhaps then driver’s intoxication. This the most example tendency jurisdictions extreme to hold of a nascent some municipalities gent persons negli injuries caused liable third police failure of officers to remove from the streets drivers who e.g., Ware, See, are 392 Irwin v. Town under the influence of alcohol. 1292) (1984); Restrain Mass. 745 NE2d Anno.: Failure to Liability Drunk Driver as Ground of of State or Local Government Officer, Unit 345-348, However, 48 ALR 4th 11 & 12. even §§ theory adopted Georgia, were it would avail the plaintiff for, present nothing, previously case indicated in 1, supra, Division Riffe it is far from evident that Lt. would have been during authorized to arrest time their encounter. See 17-4-20; State, generally OCGA Croker v. 846) (1966). re- jurisdiction We know of no which would
quire police expose officer to to suit false arrest or false himself imprisonment by More- making an arrest under such circumstances. over, Ferguson injure did not result of his ine- another traveler as the If injured anyone, briation. he it was himself.
In summary, appear while it would conducted research by Ferguson’s thorough, counsel has been have no rea- and while we son to doubt that pursuance has been char- action sense, acterized subjective the end we are left at with nothing which could be said to establish as a matter of law reasonable or justification substantial claims. Conse- quently, we are in grant- constrained to hold that the trial court erred ing summary judgment respect with to the defendants’ However, previously counterclaims. inasmuch as have concluded city right recovery pursuant has no to OCGA 9-15-14 claim, will, based Ferguson’s personal city injury to that recovery be elements pursue entitled to those *7 by Torok, authorized Yost v. supra. being sug- There no gestion city that the any special damages has incurred as the result of fees, this litigation litigation expenses than and and it appearing corporate body incapable suffering obvious that a is distress, mental will, this means its cause city that the claim, of action for abusive litigation arising Ferguson’s original from (10). be limited recovery to a of nominal Id. damages. at 95 Judgment Judgment in Case No. 75378. reversed in affirmed J., Case Nos. Birdsong, Carley, Sognier, 75379 and 75380. C. Pope, JJ., J., and Beasley, McMurray, concur. P. concurs in Deen, only. J.,- Benham, J., P. and part concur in and dissent in part.
Deen, Presiding Judge, part part. in and in concurring dissenting opinion It is difficult to in majority with all that is said “problematical, as to . . . . . . thrusting mind-numbing us battle many-headed hydra . . . . wags dog tail . . nascent ten- dency” applied counterclaims, as to abusive and with position of purpose easing dissent offered for the “the collective however, mind of the bench and I with the result and agree, bar.” do basic in in Judge part rationale advanced Benham’s concurrence in part. dissent part. part dissenting Judge, concurring
Benham, I opinion, am majority in full with Division of the While accord rejection good of a 2 due to its compelled to dissent from Division Supreme Court’s decision based faith defense to a claim (1986). Yost v. Ga. 92 granted summary judgment The trial court “plain- concluding that 9-15-14 counterclaims after and OCGA § surmises raising good majority tiff was issues faith.” The justiciable (c) and, applied while acknowl- the trial court § by counsel “has been edging pursuance case sense,” good by subjective faith in a holds good characterized (c) applicable to a concept faith in OCGA 9-15-14 is not contained § Yost suit. at bar from the majority goes distinguish on to the case counsel, did by Ferguson’s cases cited and concludes that support” his claim. “arguable Torok, supra, In Yost v. Supreme adopted legisla- Court single tive of OCGA 9-15-14 to define the cause of action language § litigation. Supreme now called abusive Court “re-define[d] liberally borrowing elements of the common-law claim” from (a) (b). OCGA 9- language Its failure to include § § (c) 15-14 rejection concepts should not be read as a contained therein, (c) but recognized logical since subsection does not contain Instead, defining litigation. terms the substance of the tort of abusive it contains what can be termed a defense: should it be deter- mined the court that a claim or defense was asserted an attor- ney good theory or a “in a attempt faith to establish a new if Georgia theory such new is recognized of law based on some precedential persuasive authority,” attorney be as- fees will not Court, sessed. I Following Supreme adopt the lead of the would legislative language potential of OCGA 9-15-14 and hold that liability tort negated for abusive is if the factfinder deter- mines the claim attempt or defense was asserted theory theory establish a new Georgia of law such new based on some recognized precedential persuasive authority.
The failure to recognize “good faith defense” to a exposes claim which potential its greater defendants than that under atmosphere OCGA creates an of stagnation *8 within by the law inhibiting attorneys taking from a case that re- quires presentation the approach of a novel The Georgia. to the law development studied stymied of the law will be fear to should counsel Yost suggest change because the shadow a claim looms over them. faith as a defense to a establishing Without good develop- halt, ment of the law will a grind Georgia to and the State of will be the worse for it.
After holding applicable is not to a
439
majority
foreign
goes
distinguish
claim, the
to
each of the several
position,
support
cited
and con
authorities
they
provide
support
arguable
for his
Ma
cludes that
“do
claim.”
not
jority
opinion,
inability
previously-de
Ferguson’s
p. 435.
a
to
factually
expose him
cided case
to
should not
identical
the one at bar
Ferguson,
good
litigation.
for abusive
The fact that
(as recognized by
establishing
majority), presented case law
the
springboard
leap
it
court of
could
should
this State
existing
Georgia
choose to extend the
from Yost
authority
law of
insulate
should
liability.
ability
distinguish Ferguson’s
of the court to
authority
should not vitiate his
faith. If that
can be
stepping
leading
recognition
seen as
stones
the
toward
ory,
accepted
“precedential
persuasive authority”
it should be
as
(OCGA
(c)), insulating
proponent
litiga
§ 9-15-14
the
from abusive
rejected
distinguishable
subjecting
tion rather than
to a
majority
as
penalty
approach.
proposing
a novel
While I
Doraville and
summary judgment
Georgia
Riffe cannot withstand motions for
under
presently
willing
stands,
I
as it
am not
condemn
filing
recognized
having
brought
his counsel for
suit
as
been
good faith.
espoused
majority
been
Had
such as that now
appellate
time,
taken
the state and
at an earlier
we
federal
courts
might
equal”
grappling
“separate
still be
with notions such as
but
(Brown
(74
873)
Education,
v. Bd.
347 U.
SC
LE
S. 483
(1954));
(Orr Orr,
the husband
as the head of the household
v.
(99
306) (1979));
imposition
U. S. 268
SC
LE2d
(96
penalty
robbery (Gregg Ga.,
death
v.
Rehearing denied March Wetzel, Ferguson. Michael L. Carter, Watkins, City Doraville.
James C. Edward E. McCrimmon, Edward for Riffe. W. CLUB,
75419. AUGUSTA TENNIS INC. v. LEGER. Judge. Beasley, Club, Inc., below,
Augusta appeals judg- Tennis defendant jury plaintiff’s ment entered it after trial on four-count com- plaint or abuse of alleging trespass, privacy, invasion of malicious use process, security deposit. and failure to return a
Augusta complex family owned the in which and his rented Leger one-year expired a townhouse on to a written lease Leger March 1983. The rent due on first of each month. filing fell resulting behind his rent the fall of rent past November 1982 of a due seeking