141 Ga. App. 151 | Ga. Ct. App. | 1977
Monumental Properties, Inc. and Wayne Carroll, the resident manager of its Woodlake Apartments development in College Park, instituted dispossessory proceedings against tenant Frances Johnson for her alleged failure to pay rent. Johnson counterclaimed on the grounds of malicious use of civil process. At trial, a directed verdict was entered against the plaintiffs on the dispossessory claim and the jury awarded $1,200 to Johnson on her counterclaim. That award was reversed by this court in Monumental Properties, Inc. v. Johnson, 136 Ga. App. 39 (220 SE2d 55), because the claim for malicious use of process failed to reflect termination of the original proceedings in Johnson’s favor. Upon retrial after proper amendment to the counterclaim, the appellees requested and received a summary judgment against Johnson on the grounds that as a matter of law there was neither malice nor want of probable cause in the initiation of the dispossessory action, and because Johnson’s allegations of damages were insufficient to support an action for malicious use of civil process. From the grant of summary judgment, Johnson appealed. Held:
1. It is well settled that the three essential elements
2. Appellee erroneously contends that Johnson made no claim for damages cognizable in an action for malicious use of civil process. It is true, as appellee contends, that the plaintiff must show either arrest, seizure of property, or other special damages as a result of the action (Pixie Broadcasting Corp. v. Rivers, 209 Ga. 98 (70 SE2d 734); Oliver v. Aetna Ins. Co., 102 Ga. App. 89 (115 SE2d 647)), and that attorney fees or other special expenses in defending the litigation do not constitute special damages. Jacksonville Paper Co. v. Owen, 193 Ga. 23 (17 SE2d 76). It is equally true, however, that attorney
Judgment reversed.