Defending the Abusive Litigation Claim

Kim Jackson
Georgia ICLE Seminar

Under the common law, abusive litigation was a tort action, brought as a separate lawsuit. The claim sounded in malicious use of process or malicious abuse of process, and had to be made within two years of the final termination of the underlying proceeding. Daniel v. Georgia R.R. Bank & Trust Co., 255 Ga. 29, 31, 334 S.E.2d 659, 661 (1985). The focus of the common law claim was narrow: (1) did the defendant in the abusive litigation claim have probable cause to initiate civil process in the underlying lawsuit; and (2) did the defendant in the abusive litigation claim use civil process for an improper purpose. Yost v. Torok, 256 Ga. 92, 93, 344 S.E.2d 414, 415 (1986) (citing Ferguson v. Atlantic Land & Dev. Corp., 248 Ga. 69, 71, 281 S.E.2d 545 (1981)).

In 1986, Georgia’s legislature enacted O.C.G.A. § 9‑15‑14 (“9-15-14”). This procedure provided a new remedy to combat the abusive litigant, but it created a slightly different standard, as explained earlier in this program, and limited damages to attorneys’ fees.

The Georgia Supreme Court then adjusted the common law abusive litigation claim to sound similar to the newly enacted legislation. Adopting the same terms used in section 9-15-14(b), the Georgia Supreme Court merged common law malicious use of process and malicious abuse of process claims into the following claim:

Any party who shall assert a claim, defense, or other position with respect to which there exists such a complete absence of any justiciable issue of law or fact that it reasonably could not be believed that a court would accept the asserted claim, defense or other position; or any person who shall bring or defend an action, or any part thereof, that lacks substantial justification, or is interposed for delay or harassment; or any party who unnecessarily expands the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures, shall be liable in tort to an opposing party who suffers damage thereby.

Yost, 256 Ga. at 96, 344 S.E.2d at 417. A Yost common law abusive litigation claim and a 9-15-14 motion remained alternative procedures, though from 1986 to 1989 the common law claim and the statutory remedy had very similar elements.