Lost Access Part 3: Lost Cases In Point

Case No. S09A1543, 2010 Ga. LEXIS 215 (March 15, 2010)

Art. I, Sec. I, Par. XII of the Georgia Constitution provides:

Paragraph XII. Right to the courts. No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the courts of this state.

The majority and concurrence discuss none of the cases interpreting this provision earlier than Bloomfield v. Liggett & Myers, 230 Ga. 484 (1973). Going by their presentation, a casual reader would get the impression that the provision was an obscure text that had been forgetten for nearly a century after passage in 1877, that addressed only the issue of a party's right to choose to go it alone in court, and that had never spoken to the issue of imposing damages against a party presenting its claims in good faith in the courts. Would that impression be correct?

Emphatically not. On numerous occasions, the Supreme Court addressed the issue of a party's right to present its claims in good faith in the courts without fear of being tagged with the opposing party's attorney's fees, and it universally held the the constitution prohibited such awards. On this occasion, however, the Supreme Court simply ignored those cases. The cases were brought to the Court's attention, but they were ignored. Ignoring such cases, the majority's discussion of stare decisis (at p. 4) is somewhat ironic. Even more ironic is the first case disregarded by the majority, discussed below.

Here are the prior decisions of the Supreme Court of Georgia that the current Supreme Court's majority could or would not find, even with the aid of briefs pointing to them. All bold emphasis is added by this author.

___________________

Tift v. Towns

63 Ga. 237 (1879)

Although this case does not mention the constitution by name, it involves one of the most remarkable coincidences I have ever found. The defendant in this case, and the person who was spared from having to pay fees by the application of the Smith v. Salone Baptiste dissent's position, appears to be none other than the same Mr. Nelson Tift on whose single statement the current majority opinion rests. He is clearly a prominent businessman from Dougherty County (Albany) as stated in n.2 of the concurrence, and as identified in the acts in this case and in the prior appeal (53 Ga. 47). This case involves the plaintiff's claim for (inter alia) attorney fees against him in a retrial that occurred after the 1877 constitutional convention. The Supreme Court per Justice Logan Bleckley rejected it on grounds that sum up the American rule:

No counsel fees ought to have been allowed by way of damages. The case is one fairly open to controversy in all its branches. The plaintiff commenced by insisting upon too high a standard both of liability and compensation. The defendant has had to resort to this court for protection in a previous instance, (53 Ga. 47) and again on the present occasion. No man is bound to forego litigation at the expense of yielding rights apparently well founded, much less those which prove to be so founded in the end. Where there is a bona fide controversy for the tribunals to settle, and the parties cannot adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation.

Id. at 242. In fairness, I do not know whether the Court's opinion was informed by the constitution or not. It was informed at least by then Code § 2943, which was then and now situated among rules for contracts, existing currently as OCGA § 13-6-11. This clearly states the American Rule in the context of contract claims. Tift v. Towns was a tort claim, so the concept of the code section was extended to torts for some reason, possibly the ethos that has been recognized as an inherent right of freemen and a part of our constitution for a century.

___________________

Traders' Ins. Co. v. Mann

118 Ga. 381 (1903)

The Supreme Court rejected an award of attorneys fees against a defendant which was sought under the predecessor of O.C.G.A. § 13-6-11 on the sole basis that the defendant refused to pay a loss on a fire insurance policy. The Court held that a party could be assessed the opposing party's attorney's fees based on bad faith in the underlying transaction or on bad faith in litigating, but absent such circumstances, the constitution prohibited an award of fees.

The provisions of the Civil Code, § 5701 [currently Ga. Const. Art. I, Sec. I, Par. XII], that "no person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney, or both," is a privilege granted the defendant, as well as the plaintiff. And if the original contract was made in good faith, if there is an ordinary breach, if the cause of action itself is not colored or poisoned by bad faith on the part of the defendant, he will not be mulcted with additional damages because he refuses to pay. Some defendants fail to pay because they are not able, others because they are not willing, and many because they dispute the liability. The costs which are taxed against the losing party, and the interest allowed for the failure to pay promptly, are the only damages which the law imposes in such cases. . . . But it has long been the policy of Georgia not to require the defendant to pay the expense of obtaining a judgment against himself.

Id. at 386-87. The headnote summarizes this holding:

The constitutional right to be heard in the courts is granted defendants as well as plaintiffs; and a defendant will not be charged with expenses of litigation except in cases where he has acted in bad faith.

If the Baptiste majority were right about their understanding of the constitution, the headnote and discussion would make no sense. Nobody claimed that the defendant insurance company was trying to represent itself in court, but was being saddled with a lawyer. Indeed, under current law, a corporation simply cannot represent itself at all in a court of record. Eckles v. Atlanta Tech. Group, 267 Ga. 801 (1997). The insurer was definitely not trying to rid itself of a lawyer. Yet the Supreme Court read the constitution as being not just relevant, but controlling on the very point of the defendant's liability for attorney's fees. It did not see the provision as having a "sole purpose" to protect a right to choose pro se status.

___________________

Georgia R. & B. Co. v. Gardner

118 Ga. 723 (1903)

Here, the defendant trespassed upon the plaintiff's land, but in the honest, good faith belief that it owned the land. The plaintiff sought damages and attorney's fees, and obtained an award of fees, which the Supreme Court reversed, explaining:

Expenses of litigation are not allowed except in cases where the defendant has been guilty of bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. Civil Code, § 3796. "The constitutional right to be heard in the courts is granted defendants as well as plaintiffs, and a defendant will not be charged with expenses of litigation except where he has acted in bad faith. This refers to 'bad faith' in the transaction out of which the cause of action arose, rather than the motive with which the defense is being made." Traders' Ins. Co. v. Mann, 118 Ga. 381. And, as was said by Chief Justice Bleckley in Tift v. Towns, 63 Ga. 237, "No man is bound to forego litigation at the expense of yielding rights apparently well founded, much less those which prove to be so founded in the end. Where there is a bona fide controversy for the tribunals to settle, and the parties can not adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation."

___________________

Fender v. Ramsey & Phillips

131 Ga. 440 (1908)

In this case, the closest on the facts to the Baptiste case, the plaintiff sued to enjoin the defendant's intereference with his timber, and the defendant filed a cross-action for damages on grounds that the suit was instituted without probable cause. The plaintiff appealed from the giving of instructions allowing damages to the defendant, presumably after the jury awarded them. The Supreme Court again cited this provision to reverse the erroneous instructions:

The constitutional right to appeal to the courts (Civil Code, § 5701) authorizes a fair and legitimate testing of one's bona fide claim of right. A litigant is not subject to be penalized by the award of damages whenever he loses his case. Otherwise every man would enter the doors of the court-house, no matter how honestly or with what probable cause, with the danger of damages hanging over him. The Civil Code, § 3796, declares that expenses of litigation are not generally allowed as a part of the damages; but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them. See remarks of Bleckley, J., in Tift v. Towns, 63 Ga. 237; Traders Ins. Co. v. Mann, 118 Ga. 381 (45 S.E. 426); Ga. R. Co. v. Gardner, 118 Ga. 723, 726 (45 S.E. 600). The recovery of this character of damages presupposes a right on the part of the plaintiff to bring the action, and deals with the question of the measure of damages recoverable. If the defendant in this case is seeking to recover for malicious use of legal process, commonly called malicious prosecution of a civil action, there are three essential elements in such a case: (1) malice; (2) want of probable cause; and (3) that the proceeding complained of had terminated in favor of the defendant before the suit for damages based upon it was brought. Brantley v. Rhodes-Haverty Furniture Co., ante, 276 (62 S.E. 222). There is no law by which every case brought by a plaintiff can be turned into a damage suit by the defendant against the plaintiff for bringing it, while it is still pending.

___________________

West v. Haas

191 Ga. 569 (1941)

In this case, property was sold at a tax sale improperly, and transferred to the defendants. The plaintiffs sued the defendants to recover the property and to recover their expenses of litigation. The Supreme Court affirmed the recovery of the property, but not the recovery of expenses of litigation.

In O'Neal v. Spivey, 167 Ga. 176, 180 (145 S. E. 71), where an award by the jury of attorneys' fees was upheld, they were claimed, so it is stated in the opinion, by reason of a stubborn and litigious spirit shown by the defendant in connection with the transaction. They are not asked for here on any such ground. In that case, however, it was pointed out in the opinion that the petition alleged "details and circumstances from which a jury would be authorized to infer a stubborn and litigious spirit." As observed by Mr. Justice Lamar, in Traders Insurance Co. v. Mann, 118 Ga. 381, 384 (45 S. E. 426), this court in Mosely v. Sanders, 76 Ga. 293, did not have before it a case involving bad faith, the holding there being that the sheriff was liable for expenses incurred as the result of his wrongful refusal to accept an affidavit of illegality, even though he acted in good faith. It is to be noted that the Code section quoted above contains the clause, "or has caused the plaintiff unnecessary trouble and expense." (Italics ours.) It may be assumed that every lawsuit causes the plaintiff some trouble and expense, but this is not what the statute has in mind. One of the provisions of the bill of rights contained in the constitution of this State declares that "No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney, or both." Code, § 2-104. This is a privilege granted to the defendant as well as the plaintiff. Traders Insurance Co. v. Mann, supra. "Where there is a bona fide controversy for the tribunals to settle, and the parties can not adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation." Tift v. Towns, 63 Ga. 237, 242. See also Ga. R. & Bkg. Co. v. Gardner, 118 Ga. 723 (45 S. E. 600.)

Comments similar to those made on the first two cases in this chain could be made as to the rest.

___________________

David G. Brown, P.E., Inc. v. Kent

274 Ga. 849 (2002)

Finally, and relatively recently, the Supreme Court addressed a claim that damages under OCGA § 13-6-11 (attorney's fees where the defendant has acted in bad faith, etc.) should include fees on appeal. It answered that question in the negative, and in the course of doing so, invoked this constitutional provision:

The purpose of O.C.G.A. § 13-6-11, on which Brown relies, likewise is not to ensure that the winning plaintiff is made whole. Our State Constitution gives every person the right to prosecute or defend that person's cause in the courts of this State. 1983 Ga. Const., Art. I, Sec. I, Par. XII. Accordingly, "[a] litigant is not subject to be penalized by the award of damages whenever [the litigant] loses his [or her] case. Otherwise, every [person] would enter the doors of the [courthouse], no matter how honestly or with what probable cause, with the danger of damages hanging over [the person]." Fender v. Ramsey & Phillips, 131 Ga. 440, 442 (2) (62 S.E. 527) (1908).

Let us reiterate: The Supreme Court had no difficulty at all in 2002 connecting this constitutional provision with protecting a litigant from being "penalized" by an award of attorney's fees "no matter how honestly or with what probable cause" they enter the doors of the courthouse. They did not believe that the "sole purpose" of this provision was to give the defendant attorney a right to be free of having to be represented by an attorney. That was simply not an issue. Using the language of access to the courts ("enter the doors"), and citing its Fender decision which held that this constitutional provision "authorizes a fair and legitimate testing of one's bona fide claim of right," the Supreme Court as late as 2002 adopted the position of the dissent in the Baptiste case. Of the Justices participating in both decisions, Justice Carley did not object that the decision made no sense because this wasn't a choice of counsel case. Justice Thompson did not object. Justice Hines did not object; after all, he wrote the Brown case.