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Civil vs. Criminal? Hard To Tell Sometimes.

When is a case civil and when is it criminal? The answer is, it depends.

In the case of Gooch v. Tudor, the Court dealt with this issue in a fence case. Tudor needed a fence around her property. She contacted Gooch to build the fence at a cost per foot. As often happens, the project grew in size as the Tudor added more and more stuff, like gates and interior fencing. At the end, Gooch pfenceresented Tudor with a bill for $27,277.50. Tudor offered to pay Gooch $10,000 and then get with her bank to see what else she could do. Gooch declined and demanded the full amount. Gooch claims that Tudor said she didn’t have the money to pay the bill, Tudor denied saying that. She did insist that Gooch failed to give her requested estimates so she could have the money on hand. Tudor sent Gooch a $10,000 check to go towards the materials and labor, with the balance to follow. Gooch decided to use his extensive legal knowledge gained on the bench seat of his truck while listening to talk radio to prosecute Tudor for “theft by deception.”

Gooch went to the magistrate judge who told Gooch not to cash the check as he could not then collect the balance and to have no further contact with Tudor. Gooch sent Tudor a letter saying she had 10 days to pay or “the magistrate judge will set up an appointment for you and me to meet at his office to discuss this matter.” Gooch obviously heard that from somewhere, but Tudor was not impressed and failed to show. Gooch then applied for a warrant for Tudor and the magistrate did conduct a hearing. This time Tudor showed. After allowing the parties to mediate the matter, the magistrate said he “would take care of it” and issued a warrant for Tudor. She was arrested and spent two nights in jail before bonding out.

The district attorney declined to prosecute, saying the case was a civil case, and even told the magistrate as much before the warrant hearing. So then Gooch sued Tudor, who countersued Gooch for malicious prosecution and asked for punitive damages. The trial court gave Gooch his $27,277.50 but nothing more. The court gave Tudor $21,615 in compensatory damages and $2,500 in punitive damages, a total of $24,115.

What is malicious prosecution? The court said it is: “The malice contemplated by law in an action for malicious prosecution is the same as in an action for malicious arrest, and may consist in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual.” 296 Ga. App. 414.

So Gooch was determined to have committed malicious prosecution by using the criminal process to get a civil debt collected. He netted $3,162 for his fence. Morale of the story: It’s better to have a lawyer on your side than the judge.

Next week, I’ll address the judge’s misconduct in this case.

Kelly Burke, master attorney, former district attorney and magistrate judge, is engaged in private practice. He focuses on personal injury cases and corporate litigation. These articles are not designed to give legal advice, but are designed to inform the public about how the law affects their daily lives. Contact Kelly at to comment on this article or suggest articles about the law that you’d like to see.

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