Defendant-appellant Barton B. Ostroff appeals from a verdict and judgment for actual and punitive damages awarded to plaintiffappellee Doug Coyner in an action for malicious abuse of process, and from orders for sanctions for failure to comply with post-judgment discovery procedures. The litigation upon which the instant action was based was commenced on March 30, 1981, when suit was filed in the State Court of Cobb County by Gold Coast Marketing, Inc., a corporation of which Ostroff was the sole shareholder, against Doug Coyner d/b/a Rock Shrimp International (RSI), alleging that the defendant owed the plaintiff $4,880.80 plus interest and costs on open account as shown by attached documents. Coyner answered, contending that the complaint failed to state a claim upon which relief could be granted because the indebtedness sued upon, if incurred, was owed by RSI, a Florida corporation which was at all times during the date of the alleged transactions validly organized and existing in good standing; that the plaintiff openly and knowingly at all times did business with the corporation and not with Coyner individually; that Coyner was thus not a proper party to the action; that RSI had as its place of business in the state of Georgia an address located in DeKalb County and had not conducted any business since the time of the *110 transactions alleged in the complaint; and that therefore the court did not have jurisdiction of the corporation or the subject matter of the complaint, the captioned defendant was not a proper party to the action, and the suit should be dismissed.
Gold Coast pursued no discovery. Although Ostroff was given notice on August 24, 1983, that his deposition would be taken on September 2, he failed to appear or give notice that he would not be appearing, and a motion to compel was filed by Coyner/RSI. The case was set for trial on September 12, 1983. On the Friday before the Monday trial date, the attorney then representing Gold Coast made an unsolicited telephone call to Coyner’s lawyer offering to accept $2,000 from Coyner to settle the case. When this was refused, Gold Coast’s attorney telephoned Coyner’s lawyer again on the Sunday before trial, offering to accept $500 from Coyner in return for dismissing the suit. This offer was also refused as Coyner was prepared for trial and had incurred substantial costs. Ostroff failed to appear in court for trial and his attorney did not move for a continuance or offer any explanation for his client’s non-appearance, but dismissed the case, which was never refiled.
Based upon these facts, on June 20, 1984, Coyner filed a complaint against Ostroff and Gold Coast, alleging that the action against him had been carried on maliciously and without probable cause, for which he had incurred enumerated costs in defense thereof and was entitled to actual and punitive damages. Coyner’s suit was grounded upon the theories of both malicious use and malicious abuse of process. Gold Coast/Ostroff sought to have the action dismissed by a motion for judgment on the pleadings and motions for directed verdict argued on at least three occasions during the trial. At the conclusion of the plaintiff’s case, the trial court directed a verdict in Ostroff’s favor on the malicious use of process issue, but allowed the case to go before the jury on the basis of malicious abuse of process. The court found that evidence of abuse of process existed beyond the mere maintenance of the action in Ostroff’s failure to attend depositions or to “legitimately pursue the action once it was filed to a reasonable bona fide determination . . . and the attempt to extract a last minute settlement of the case.” The jury awarded a verdict of the total amount of damages sought by Coyner, plus an additional $10,000 in punitive damages.
Ostroff moved for judgment notwithstanding the verdict or for a new trial, which was denied. After Ostroff filed this notice of appeal, Coyner filed a motion to require him to post a supersedeas bond, which was granted. When no supersedeas bond was posted, Coyner sought enforcement through the post-judgment discovery procedures of OCGA § 9-11-69. The court’s orders for Ostroff to appear for the taking of a deposition and to produce documents were resisted by re *111 peated motions for protective orders and for reconsideration which, after two hearings on the matter, culminated in an order entered September 17, 1987, finding Ostroff in wilful contempt of court for failure to abide by the discovery process as ordered. The order further provided that Ostroff could purge himself of contempt and avoid incarceration if he appeared for deposition and produced all documents requested within 20 days. Coyner was awarded attorney fees and costs in either event; the court also ordered at the final hearing that Ostroff be arrested and jailed until he complied, if jurisdiction of him could be obtained. Although Coyner offered to go to North Carolina, where Ostroff was residing, to take his deposition, to date Ostroff has failed to obey any of these orders. He lists eight enumerations of error on appeal. Held:
1. On the day scheduled for trial, Ostroff sought to modify the pretrial order so as to allow his new counsel to file a motion to dismiss for failure to state a claim and a motion in limine, and to have these motions considered prior to trial. After hearing arguments, the trial court denied Ostroffs motion to modify the pretrial order, but advised his attorney that Ostroff’s rights could be reasserted in a subsequent motion for directed verdict. Ostroff argues on appeal that because the complaint failed to state a claim either as to malicious use of process or malicious abuse of process, his motion to dismiss should have been granted. Since a verdict was directed in his favor on the claim of malicious use of process, we will consider only Coyner’s alleged failure to state a claim for malicious abuse of process.
“ ‘The principal distinction between “malicious abuse of process” and “malicious use of process” is that malicious abuse lies for “wrongfully and unlawfully using legally and properly issued process for a purpose the law never intended it to effect, while the latter action lies for maliciously suing out civil process without probable cause.’ ” “ ‘ “Two elements are necessary to an action for the malicious abuse of legal process: first, the existence of an ulterior purpose; and, second, an act in the use of the process not proper in the regular prosecution of the proceeding. Regular and legitimate use of process, though with a bad intention, is not malicious abuse of process.” ’ ”
Ferguson v. Atlantic Land &c. Corp.,
Coyner’s claim of abuse of process was alternately and cumulatively premised upon the assertion, supported by uncontroverted evidence, that Ostroff caused his wholly owned corporation to file suit against Coyner individually, rather than derivatively or as an alter ego, when Ostroff knew that the indebtedness sued upon was actually owed by RSI, a corporation in which Coyner had been one of two shareholders. Coyner denied any liability for the corporate debt and proved that Ostroff was fully aware of the truth of this assertion in *112 the trial of the instant case. However, Ostroff caused his suit to remain pending against Coyner without any further action for two and a half years until he attempted to extract a settlement from Coyner. When even a nuisance settlement of $500 was rejected, Ostroff dismissed the case immediately and never refiled.
Ostroff relies primarily upon
Medoc Corp. v. Keel,
The misapplication of the
Medoc
ruling to the situation here is readily apparent. First, Ostroff not only misused the process by knowingly causing the suit to be filed against an improper party, he further perverted its issuance by failing to pursue discovery or otherwise litigate the case, by attempting to solicit a settlement at the eleventh hour before trial, and then by dismissing the suit after failing to appear in court. Second, Coyner brought the instant action as a separate suit, not as a counterclaim to recover damages in the trial of the same action. In such circumstances, we find the reasoning of the Supreme Court of Nevada in a decision based upon similar procedural facts to be much more persuasive. The plaintiff in
Bull v. McCuskey,
We think that Ostroff’s failure to regularly and legitimately pursue the litigation in the suit against Coyner likewise authorized the jury verdict in the instant case on the theory of malicious abuse of process. It follows that the trial court correctly denied appellant’s mo *113 tions to dismiss, for directed verdict, and for judgment notwithstanding the verdict based on the same grounds.
2. Ostroff argues that the trial court erred in refusing to modify the pretrial order so as to allow his motion in limine to be heard prior to trial. In this motion he sought to preclude evidence or argument in regard to witnesses available to both parties who were not called in his defense, and any evidence of expenses incurred by Coyner in defending the lawsuit on the debt. The consolidated pretrial order prepared and agreed upon by the parties had been entered on October 23, 1985. The trial was noticed for January 10, 1986, at which time OstrofFs present counsel appeared and asked for a continuance; however, no motion to open the pretrial order or for modification was made until January 31, 1986, the date then set for trial. OstrofFs attorney was permitted to make all the objections and argue all the theories during the course of the trial that he sought to have injected in the pretrial order and, indeed, prevailed on his motion for judgment on the pleadings in regard to the count of malicious use of process. See
Georgia Power Co. v. Bishop,
Under OCGA § 9-11-15 (a), “once a pretrial order has been entered, a party may not amend without leave of court or consent of the opposite party . . . [and] ‘such order when entered controls the subsequent course of the action, unless modified at trial to prevent manifest injustice.’ ”
Gaul v. Kennedy,
3. Ostroff contends the trial court erred “in not considering [his] motion for judgment notwithstanding the verdict or for new trial in light oF’
Yost v. Torok,
Appellant argues we must apply the law as it exists at the time of
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our judgment, rather than applying the law prevailing at the time of the trial court’s judgment. We agree — in part. See
Guernsey Petroleum Corp. v. Data Gen. Corp.,
(a) We cannot agree that retroactive application of
Yost
is required as to appellant’s compulsory counterclaim argument.
Yost
was decided June 25, 1986. The action by Gold Coast was dismissed on September 12, 1983. Because
Yost
requires that a claim for abusive litigation be brought as a compulsory counterclaim in the original suit by the plaintiff, and that action was dismissed in 1983 before
Yost
was conceived, such procedure could not have been utilized and the procedure extant was proper. At that time, an action for malicious abuse of process could be filed as a counterclaim — subject only to the presentation of sufficient evidence to sustain his burden of proof.
Medoc,
supra at 685. However, an allegation “that a plaintiff wrongfully brought and continued a suit will not, without more, state a claim for malicious abuse of process.”
Woolbright v. Hensley,
(b) We will “apply the precepts of Yost” as to whether the evidence is sufficient to support a claim of abusive litigation. Guernsey Petroleum, supra at (4). Yost held, in pertinent part, that “any party who shall bring ... an action, or any part thereof, that lacks substantial justification, or is interposed for . . . harassment; or any party who unnecessarily expands the proceeding by improper conduct, including, but not limited to, abuses of discovery procedures, shall be *115 liable in tort to an opposing party who suffers damage thereby.
“The term lacks substantial justification’ shall mean . . . substantially groundless, or substantially vexatious.”
Yost,
supra at'96. The facts recited above, when construed in favor of upholding the jury’s verdict
(Felton v. Mercer,
4. Upon cross-examination, Ostroff was asked if he instructed the attorney representing him in the action against Coyner to assert the attorney-client privilege when questioned by deposition for the present case as to how it was decided to sue Coyner rather than RSI. Ostroff first denied giving such instructions, but later responded that he could not recall any conversation in that regard. Over vigorous objection by appellant, the trial court allowed Coyner to have read to the jury that portion of the former attorney’s deposition in which he declined to answer whether he had correspondence from Ostroff identifying Coyner as the defendant in the suit on the debt by stating: “I specifically spoke to my client [Ostroff] before coming here, and my client has elected to exercise his privilege and asked me to assert it.”
Ostroff objected at trial, and now contends, that this was a prima facie contravention of the attorney-client privilege provided by OCGA §§ 24-9-24 and 24-9-25, even if the intent was to impeach his motive in pursuing the case against Coyner. The trial court ruled that the pertinent deposition testimony was admissible because the witness was unavailable to be present at trial; and that it was not violative of the attorney-client privilege because the identity of the defendant subsequently became a matter of public record for which no privilege could be asserted or sought. We agree.
“In determining whether the statements are to have protection under [OCGA §§ 24-9-24 or 24-9-25] we should approach the matter by confining the attorney-client privilege to ‘its narrowest permissible limits under the statute of its creation,’ [cit.]. . .”
Atlantic Coast Line R. Co. v. Daugherty, 111
Ga. App. 144, 150 (1) (
Moreover, “it is [not] impermissible to draw an unfavorable inference in a civil case from the privileged refusal to testify in that case. . . . [Although a person does have a right to invoke the privilege in a civil case in order to protect himself, when he does so, an inference against his interest may be drawn by the factfinder. ‘Since the inference is irresistible and logical in such circumstances, the court may as a matter of law draw the inference. Such an inference is based upon an implied admission that a truthful answer would tend to prove that the witness had committed the . . . act. . . . The administration of justice and the search for truth demands that an inference may be drawn that [the] witness’ testimony would be unfavorable to him in a civil action in which the privilege is invoked to protect himself. . . .’ [Cit.]”
Simpson v. Simpson,
5. Appellant contends that the trial court allowed Coyner to improperly testify as to the offers of settlement made by his attorney immediately prior to trial in violation of OCGA § 24-3-37. The court overruled Ostroff’s objection to this testimony because it was not sought “to prove an admission of liability or anything of that nature,” and instructed the jury that they “would be unauthorized to consider it for such a purpose.” The thrust of Coyner’s suit was that while RSI owed a debt on account in a liquidated amount, he personally owed nothing; and thus Ostroff’s offers to accept payment from him personally of lesser amounts showed the ulterior purpose of extracting a nuisance settlement upon a debt owed by the corporation as a part of his continuing bad faith litigation.
We find no grounds for reversal in the admission of this evidence. First, the settlement offers were not made during the course of the litigation in which they were offered in evidence, but in the context of settling another suit. Second, the underlying purpose in proposing to accept such lesser amounts was an offer to settle and not a proposition to compromise. It is controlled by the principles laid down in
Teasley v. Bradley,
6. Appellant’s enumerations of error concerning the trial court’s post judgment discovery orders and sanctions are without merit. The purpose of OCGA § 9-11-69 is to allow post judgment discovery to aid a litigant to recover on a liability which has been established by a judgment, in the manner provided for such discovery measures prior to judgment.
Miller v. U. S. Shelter Corp.,
Ostroff’s arguments that because he does not reside in Georgia nor possess any property here, the court should not have required him to appear here, are not cited to the record to establish these alleged facts. Furthermore, Coyner offered to go to North Carolina at his own expense to depose Ostroff, and the court gave Ostroff the opportunity to purge himself of contempt by appearing in Cobb County for the ordered deposition within 20 days of the entry of the order imposing sanctions. To date the appellant has not appeared for the taking of his deposition and has remained in wilful contempt of the court order requiring him to do so, while at the same time availing himself of the right to appeal the entire case.
“ ‘The trial court’s discretion in dealing with discovery matters is very broad, and this court has stated on numerous occasions that it will not interfere with the exercise of that discretion absent a clear abuse. [Cits.]’ [Cit.] Moreover, the trial court’s discretion in discovery
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matters is particularly broad when it is dealing with a party’s failure to obey a discovery order that it has previously entered in the case. Pursuant to OCGA § 9-11-37 (b) (2), a wide range of options is available to the trial court in such a situation and, in addition, that code section specifies that ‘the court shall require the party failing to obey the order or the attorney advising him, or both, to pay the reasonable expenses, including attorney fees,
caused by the failure,
unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. (Emphasis supplied.)’ ... In the present case, there can be no doubt that appellant was, at the very least, in violation ... of the trial court’s [order of September 17, 1987, compelling his appearance for post judgment deposition and production of documents]. The record also provides ample support for the trial court’s determination that appellant’s conduct was characterized by [his] deliberate intent to evade [his] discovery obligations and thereby to frustrate appellee’s right to prosecute his case. The trial court did not err in finding appellant’s conduct to evince a wilful failure to obey the discovery order[s].”
Tandy Corp. v. McCrimmon,
7. We have carefully examined the remaining enumerations of error and find them to be without substantial merit.
Judgment affirmed.