Se. Ceramics, Inc. v. Klem, 271 S.E.2d 199 (Ga. 1980). · Go Syfert
Se. Ceramics, Inc. v. Klem, 271 S.E.2d 199 (Ga. 1980). Cases Citing This Book View Copy Cite
“wlhen a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court.”
350 citation events (146 in the last 25 years) across 3 distinct courts.
Strongest positive: Universal Industrial Gases, Inc. v. Action Industries, Inc. (gactapp, 2021-01-19) · Strongest negative: Gulf Oil Co. v. Mantegna (gactapp, 1983-09-09)
Treatment trajectory · 1980 → 2026 · click a year to view as-of
1980 2003 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited "but see" Gulf Oil Co. v. Mantegna (2×)
Ga. Ct. App. · 1983 · signal: but see · confidence high
But see the effect of Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ), upon Walter E.
examined Cited as authority (quoted) Universal Industrial Gases, Inc. v. Action Industries, Inc. (2×) also: Cited "see, e.g."
Ga. Ct. App. · 2021 · signal: see also · quote attribution · 1 verbatim quote · confidence low
hen a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court.
examined Cited as authority (quoted) Stephens v. ALAN v. MOCK CONST. CO., INC. (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2010 · quote attribution · 1 verbatim quote · confidence low
wlhen a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court.
cited Cited as authority (rule) In the Interest of R. C., a Child (Mother)
Ga. Ct. App. · 2025 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Robert D. Foreman v. Janice Mae Lowe
Ga. Ct. App. · 2025 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Stoker Development, LLC v. Parkland Homebuilders, LLC
Ga. Ct. App. · 2024 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
discussed Cited as authority (rule) Ayla King v. State (2×)
Ga. Ct. App. · 2024 · confidence medium
OCGA § 5-6-34 (d) generally allows for pendent appellate jurisdiction and provides in pertinent part: Where an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provisi…
cited Cited as authority (rule) Nehad S. Memon v. Mountain Express Oil Company
Ga. Ct. App. · 2024 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Southeast Centerline, Inc. v. Patty Howze
Ga. Ct. App. · 2023 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
discussed Cited as authority (rule) MERCY HOUSING GEORGIA, III L.P. v. MICHAEL JOHN KAAPA
Ga. Ct. App. · 2023 · confidence medium
OCGA §§ 9-11-56 (h) (authorizing a direct appeal from an order granting partial summary judgment), 5-6-34 (d) (when a direct appeal is authorized, “all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court”); Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980) (authorizing review of the denial of summary judgment “when it is tied to the appeal of an appealable order or judgment”). 6 (a) Without specific citation to the record, defendant…
cited Cited as authority (rule) Thomas A. Oldroyd v. Edward C. Williams
Ga. Ct. App. · 2023 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Nationwide Agribusiness Insurance Company v. the Onionman Company, LLC
Ga. Ct. App. · 2023 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Dekalb County School District v. Dekalb Agriculture Technology and Environment, Inc.
Ga. Ct. App. · 2022 · confidence medium
Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980); see OCGA § 5-6-34 (d).
cited Cited as authority (rule) City of Woodstock, Ga v. Brandon Hunt
Ga. Ct. App. · 2022 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Janine Robinson v. Eagle West, LLC
Ga. Ct. App. · 2020 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Allstate Property and Casualty Insurance Company v. Laura Cochran Nay
Ga. Ct. App. · 2020 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
discussed Cited as authority (rule) Donna Andrews, as the Administrator of the Estate of Johnny L. Fleak v. Blue Ridge Nh Associates, LLC
Ga. Ct. App. · 2019 · confidence medium
In their brief filed in support of their Motion to Dismiss Improper Parties filed in the court below, Chatsworth LP and Blue Ridge HC noted that the complaint alleged that they managed Chatsworth Health Care Center during the time that the decedent suffered his injuries, but they asserted that those “allegations [were] factually inaccurate,” that neither company “has ever operated, controlled, or otherwise managed[ ] Chatsworth Health Care Center,” and that they “lack[ed] . . . involvement with the allegations at issue.” Chatsworth LP asserted that it was a land 7 Southeast Ceramic…
cited Cited as authority (rule) The Preservationist's Guild, LLC v. Anyelina Bendiks
Ga. Ct. App. · 2019 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
discussed Cited as authority (rule) Charles Alexander Peterson v. Cleveland Calhoun Peterson
Ga. Ct. App. · 2019 · confidence medium
See Headrick v. Stonepark of Dunwoody Unit Owners Assn., 331 Ga. App. 772, 774-775 (1) (a) ( 771 SE2d 382 ) (2015); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980); see also OCGA § 5-6-34 (d).
cited Cited as authority (rule) Cat Daddy Corner Condominium Association, Inc. v. La Mara II, Inc., D/B/A Los Arcos
Ga. Ct. App. · 2018 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) GEORGEAN BURTON v. ECI MANAGEMENT CORPORATION D/B/A THE COLUMNS OF WHITE OAKS APARTMENTS
Ga. Ct. App. · 2018 · confidence medium
See OCGA § 5-6-34 (a) (1), (d); Southeast Ceramics v. Klem, 246 Ga. 294, 294-295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Southern Trust Insurance Company v. Mountain Express Oil Company
Ga. Ct. App. · 2018 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Restored Church Association of Georgia, LLC v. New Faith Christian Church, Inc.
Ga. Ct. App. · 2017 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Franchesa Favors v. Atlanta Independent School System
Ga. Ct. App. · 2017 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Daniel Ellyson v. Livingston Properties Management, Inc.
Ga. Ct. App. · 2017 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Homelife on Glynco, LLC v. Gateway Center Commercial Association, Inc.
Ga. Ct. App. · 2017 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Gregory Levin v. State
Ga. Ct. App. · 2017 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 295 ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Gregory A. Levin v. State
Ga. Ct. App. · 2017 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 295 ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Robert L. Lafontaine v. Mark S. Alexander
Ga. Ct. App. · 2016 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Muriel Montia v. Sand Canyon Corp Fka Option One Mtg Company
Ga. Ct. App. · 2016 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Courtney Thomas v. Bahia Bleu Condominium
Ga. Ct. App. · 2016 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) American Safety Indemnity Company v. Sto Corp.
Ga. Ct. App. · 2016 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) James Argo v. G-Tec Services, LLC
Ga. Ct. App. · 2015 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
discussed Cited as authority (rule) Rtt Associates, Inc. v. Georgia Department of Labor (2×)
Ga. Ct. App. · 2015 · confidence medium
See OCGA §§ 5-6-34 (d) (Where a direct appeal is taken under any provision of OCGA § 5-6-34 (a), (b), or (c), “all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in [OCGA § 5-6-34], or elsewhere.”); 9-11-56 (h) (“An order …
discussed Cited as authority (rule) Alan Headrick v. Stonepark of Dunwoody Unit Owners Associations Inc.
Ga. Ct. App. · 2015 · confidence medium
The *775 general rule is that “when a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court.” Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Brandsmart USA of Ga, LLC v. Michael Denny as Administrator of the Estate of Jason Denny
Ga. Ct. App. · 2015 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Atlanta Independent School System v. Michael Rogers
Ga. Ct. App. · 2014 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
discussed Cited as authority (rule) Cancel v. Sewell
Ga. Ct. App. · 2013 · confidence medium
(Emphasis supplied.) See, however, Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980) (in direct appeal from final judgment a party may enumerate as error prior or contemporaneous rulings); Cates v. Cates, 225 Ga. 612 (2) ( 170 SE2d 416 ) (1969) (appellant’s challenge to ruling could not be considered on review where order had been entered after filing of notice of appeal).
discussed Cited as authority (rule) Jay Diamond v. Department of Transportation
Ga. Ct. App. · 2013 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980) (“This Court will grant a timely application for interlocutory review if the order complained of is subject to direct appeal and the applicants have not otherwise filed a notice of appeal.” Spivey v. Hembree, 268 Ga. App. 485, 486, n.1 ( 602 SE2d 246 ) (2004).
discussed Cited as authority (rule) Christy Diamond v. Department of Transportation
Ga. Ct. App. · 2013 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980) (“This Court will grant a timely application for interlocutory review if the order complained of is subject to direct appeal and the applicants have not otherwise filed a notice of appeal.” Spivey v. Hembree, 268 Ga. App. 485, 486, n.1 ( 602 SE2d 246 ) (2004).
cited Cited as authority (rule) Allstate Insurance v. Linda Willis
Ga. Ct. App. · 2012 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Linda Willis v. Allstate Insurance
Ga. Ct. App. · 2012 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Deborah Bonds v. Reginald Charles Nesbitt
Ga. Ct. App. · 2012 · confidence medium
See OCGA § 5-6-34(d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
discussed Cited as authority (rule) SOTTER v. Stephens
Ga. · 2012 · confidence medium
Moreover, “when a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court.” Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Stamey v. Policemen's Pension Fund Board of Trustees
Ga. · 2011 · confidence medium
See OCGA § 5-6-34 (d); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980). 2 OCGA § 9-11-12 (a) reads: When answer presented.
discussed Cited as authority (rule) Malcom v. Morgan County Board of Tax Assessors
Ga. Ct. App. · 2011 · confidence medium
The Malcoms are correct that “when a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court.” Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980); see OCGA § 5-6-34 (d).
cited Cited as authority (rule) Payless Car Rental System, Inc. v. Elkik
Ga. Ct. App. · 2010 · confidence medium
See OCGA § 9-11-56 (h); Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980). 3 (Citations omitted.) Woody’s Steaks v. Pastoria, 261 Ga. App. 815, 816 ( 584 SE2d 41 ) (2003).
discussed Cited as authority (rule) Barnaby v. Scott
Ga. Ct. App. · 2009 · confidence medium
Motion for reconsideration denied. 1 Barnaby, who is pro se, has not filed a response. 2 (Citation and punctuation omitted.) Rhymes v. East Atlanta Church of God, 284 Ga. 145, 146 ( 663 SE2d 670 ) (2008) (although trial court’s order adopting special'master’s report was denominated “Final Judgment and Order,” it was not final for purpose of appeal because a separate claim remained pending below). 3 Compare Duke v. MARTA, 166 Ga. App. 773, 774 ( 305 SE2d 404 ) (1983) (notice of appeal filed more than 30 days after judgment on jury’s verdict held untimely, even though it was filed with…
discussed Cited as authority (rule) Davis v. Deutsche Bank National Trust Co.
Ga. · 2009 · confidence medium
And, “when a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court.” Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
cited Cited as authority (rule) Patterson v. Bristol Timber Co.
Ga. Ct. App. · 2007 · confidence medium
Co. v. Lenox Pines, 262 Ga. App. 457, 459 (1) (a) ( 585 SE2d 643 ) (2003), citing Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) ( 271 SE2d 199 ) (1980).
Southeast Ceramics, Inc.
v.
Klem
36315.
Supreme Court of Georgia.
Sep 9, 1980.
271 S.E.2d 199
Neil L. Heimanson, for appellant., Joseph H. King, Jr., for appellee.
Clarke.
Cited by 161 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: #32,085 of 633,719
Citer courts: Court of Appeals of Georgia (2)
Clarke, Justice.

Klem sued Southeast Ceramics, Inc. for breach of contract and Southeast responded with a counterclaim for malicious use of process. Each of the parties moved for summary judgment with Southeast seeking a holding of no liability on Klem’s complaint and Klem seeking a holding of no liability on Southeast’s counterclaim. Southeast’s motion was denied and Klem’s was granted. The net result was that Southeast was twice the loser and found itself with a suit pending against it and no counterclaim remaining against Klem.

Southeast took a direct appeal to the Court of Appeals pursuant to Code Ann. § 81A-156 (h). The notice of appeal specifically referred to the grant of Klem’s motion for summary judgment but made no reference to the denial of Southeast’s motion for summary judgment. However, Southeast’s enumerations of error did assign error to the denial of its motion.

Southeast also filed a separate application for interlocutory review of the denial of its motion. The Court of Appeals denied the application.

In addressing the direct appeal, the Court of Appeals affirmed the trial court’s grant of summary judgment to Klem on Southeast’s counterclaim and dismissed the portion of Southeast’s appeal which dealt with the denial of its motion for summary judgment as to the main claim. Southeast Ceramics, Inc. v. Klem, 154 Ga. App. 149 (267 SE2d 756) (1980). This court granted certiorari.

We are considering whether the denial of the summary judgment was properly before the Court of Appeals and whether Southeast’s counterclaim alleged damages cognizable in an action for malicious use of process.

1. A grant of a motion for summary judgment is subject to direct appeal while the denial of such a motion is not appealable unless certain conditions are met. Code Ann. § 81A-156 (h). When a summary judgment is denied, it may be appealed after certification by the trial judge and the granting of an application by the appropriate appellate court. Code Ann. § 6-701 (a) 2. We do not conclude that this is the exclusive means of appealing the denial of a motion for summary judgment. In fact, we have held that the denial of a motion for summary judgment may be carried up as a cross appeal to the appeal by the opposite party of the granting of a motion for summary judgment. Executive Jet Sales, Inc. v. Jet America, Inc., 242 Ga. 307 (248 SE2d 676) (1978); Marathon U. S. Realties, Inc. v. Kalb, 244 Ga. 390 (260 SE2d 85) (1979).

The first question in this case is whether the denial of a motion[*295] for summary judgment can be appealed without application when it is tied to the appeal of an appealable order or judgment. We find that an affirmative answer to this question is the logical extension of the rule pronounced in Executive Jet Sales, Inc. v. Jet America, Inc., supra, and Marathon U. S. Realties, Inc. v. Kalb, supra. These cases struck a blow for the principle of judicial economy, and the rule should be extended to meet the circumstances existing in this case. We frown upon the practice of appellate review by installment and seek to encourage appellate determination of issues in a case in the fewest possible appellate procedures. Code Ann. § 6-701 (b) provides that when an appeal is taken as authorized in Code Ann. § 6-701 (a), all judgments, rulings or orders rendered in the case which are raised on appeal, and which may affect the proceedings below, shall be reviewed and determined by the appellate court, without regard to the appealability of such judgment, ruling or order standing alone. Although the appeal of a grant of a motion for summary judgment is not one of the appeals authorized by Code Ann. § 6-701 (a), it is a judgment from which direct appeal can be taken. We hold that when a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court.

The next question to be considered is whether the denial of the motion for summary judgment was in fact raised on appeal. Klem argues that since the denial was not referred to in the notice of appeal, it should not be considered by the appellate court. We cannot agree. The failure to include the denial of the motion for summary judgment in the notice of appeal is of no consequence. “Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.” Code Ann. § 6-809 (d). Since the denial of the motion for summary judgment was included in the enumeration of errors in this case, the requirements of the law were adequately met.

It is also argued that the denial of Southeast’s application for interlocutory appeal disposed of the question of the denial of summary judgment. Here also, we disagree. The denial of the application did not preclude the review of the denial of the motion for summary judgment in the direct appeal because the application itself was superfluous. The denial of a superfluous application does not[*296] have the effect of blocking the available avenues of appeal which caused the application to be superfluous.

Argued July 9, 1980 Decided September 9, 1980. Neil L. Heimanson, for appellant. Joseph H. King, Jr., for appellee.

2. In affirming the grant of summary judgment, the Court of Appeals held that Southeast, in its counterclaim, sought no damages cognizable in an action for malicious use of process. “The prosecution of a civil action maliciously and without probable cause gives rise to a cause of action for a malicious use of process only when the person of the defendant was arrested or his property attached, or some special damage was done to him.” Jacksonville Paper Co. v. Owen, 193 Ga. 23 (17 SE2d 76) (1941). It has also been held that expenses incurred in preparing and defending a suit do not constitute any special damage or injury so as to be recoverable in an action for malicious use of process. Swain v. American Surety Co., 47 Ga. App. 501 (171 SE 217) (1933).

In the case before us here, Southeast counterclaimed on the ground of malicious use of process. There was no allegation or showing of special damages other than the cost of defending a lawsuit. It is true that Southeast also alleged $420.11 to be due to it on an unpaid account. This, however, is not a special damage which occurred as a result of the filing of the complaint against Southeast in the instant case. Therefore, the Court of Appeals did not err in finding no damages cognizable in an action for malicious use of process.

Consequently, Division 1 of the opinion of the Court of Appeals which affirmed the granting of the summary judgment to Klem on Southeast’s counterclaim is affirmed. Division 2 of the opinion of the Court of Appeals is reversed and the case is remanded for determination of the merits of the trial court’s denial of Southeast’s motion for summary judgment on the main claim.

Judgment affirmed in part; reversed in part.

All the Justices concur.