Davis v. Butler9/15/1999
This abusive litigation action arose from an underlying legal malpractice action by James P. McDonnell against Dock H. Davis, his former lawyer, which former action was based upon Davis' representation in the estate of Roy Allison Jones, McDonnell's father and a deceased Louisiana citizen. On October 16, 1992, Larry Kent Butler, Frank R. Seigel, and John J. Lindsay, as members of the law firm of Cofer, Beauchamp, and Butler, filed the legal malpractice action on behalf of McDonnell against Davis in Fulton Superior Court in Civil Action No. E-7406. As a professional malpractice action, the suit was supported by an affidavit which stated, in the expert's opinion, that Davis had deviated from the standard of care and had violated several provisions of the Code of Professional Conduct. March 18, 1994, Civil Action No. E-7406 was transferred to Heard Superior Court, where it was re-designated as Civil Action File No. 94V79-A. On April 14, 1994, in Civil Action File No. 94V79-A (E-7406), Davis as defendant moved for summary judgment as to all theories of liability against him. In such motion, Davis contended that McDonnell acted with malice and without substantial justification in bringing suit against Davis. However, in a thirteen page order, the trial court denied the motion for summary judgment on all theories of liability. The trial court specifically found that there was a conflict of material evidence which created a jury question as to such issues. Further, the order stated that there were disputed material issues of fact for jury determination as to Davis' alleged acts or omissions of conversion, mismanagement of funds, failure to account, excessive fees, fraud, and usury on loans to McDonnell. Davis advanced funds to McDonnell five times, charged interest twice, and failed to advise the client that such interest-free loans could affect Davis' independent judgment.
On March 14, 1996, McDonnell dismissed the civil action without prejudice.
On March 12, 1997, Davis sued McDonnell and Cofer, Beauchamp, and Butler, the defendants herein for abusive litigation under OCGA § 51-7-81 et seq. On July 31, 1997, the lawyer defendants moved for summary judgment. On November 21, 1997, a hearing was held on the motion. On November 24, 1997, the trial court granted summary judgment to the lawyer defendants.
Case No. A99A1674.
1. Davis contends that the trial court erred in granting summary judgment, because the underlying action lacked substantial justification and was brought with malice. We do not agree.
OCGA § 51-7-81 provides that a right of action for abusive litigation exists when
ny person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation if such person acts: (1) ith malice; and (2) ithout substantial justification." OCGA § 51-7-80 (5) defines "malice" to mean "acting with ill will or for a wrongful purpose[.]" OCGA § 51-7-80 (7) defines "without substantial justification" as " rivolous," " roundless in fact or in law," or " exatious." OCGA § 51-7-80 (8) defines "wrongful purpose" as " ttempting to unjustifiably harass or intimidate another party or witness to the proceeding" or " ttempting to unjustifiably accomplish some ulterior or collateral purpose other than resolving the subject controversy on its merits.
(a) As a threshold issue, compliance with the notice requirement as a condition precedent under OCGA § 51-7-84 (a) must be satisfied, because this statute is in derogation of common law and must be strictly construed against the party asserting the right of action under such Act. Owens v. Generali-U. S. Branch, 224 Ga. Ap
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