We granted certiorari to the Court of Appeals in Howe v. Roberts, 191 Ga. App. 143 (381 SE2d 117) (1989) to decide two questions: (1) whether the Civil Practice Act must or may be followed in a magistrate court, and (2) whether a counterclaim for abusive litigation under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986) can be sustained where the party against whom it is sought to be asserted has prevailed in magistrate court.

The facts, more fully set forth in the Court of Appeals opinion, are as follows. Howe filed a breach of warranty suit in magistrate court against Roberts, president of Roberts & Associates Corporation, from whom Howe had purchased a house. Howe later moved to amend his complaint to add the corporation as defendant. 1 The amendment was sanctioned by the magistrate court which later found in Howe's favor against the corporation, but dismissed the action against Roberts. On the defendants' de novo appeal to state court, Howe filed an amended complaint to which the defendants filed a response, and a counterclaim for abusive litigation under Yost. The state court affirmed the magistrate court's dismissal of Roberts, and granted summary judgment to the corporation, finding Howe's action against that party barred by the statute of limitation. The state court also denied Howe's motion to dismiss the Yost counterclaim. The Court of Appeals affirmed.

1. The first question for our review is the application of the Civil Practice Act in magistrate court, specifically, whether the magistrate court was authorized to allow the amendment adding the corporate defendant to relate back to the initial filing, as is authorized, under certain circumstances, by OCGA 9-11-15 (c). 2 It is uncontroverted that when the corporation was added as a defendant on March 11, 1987, the applicable 6-year statute of limitation 3 had run.

The Court of Appeals held OCGA 9-11-15 (c) is not applicable in magistrate court and the magistrate court was not otherwise authorized to allow the amendment to relate back. 4 We agree with the Court of Appeals that proceedings in magistrate court are not directly subject to the Civil Practice Act by the express language to that effect in OCGA 15-10-42. However, we disagree that the magistrate court had no authority for allowing the amendment.

Both the majority and dissent in the Court of Appeals recognize that some procedural rules, other than those limited matters set forth in OCGA 15-10-40 et seq., none of which pertain to amendments to add parties to the main claim 5 must apply to magistrate court proceedings. The Court of Appeals majority apparently determined that, other than those matters specifically addressed by OCGA 15-10-40 et seq., the "general rights" in common law practice pre-existing the Civil Practice Act are to be applied in magistrate court. Howe v. Roberts, supra at 144. Although the majority found there exists a general common law right to amend in magistrate court, it found no authority for the relation back of such an amendment. Id. However, OCGA 15-10-44 (b) provides:

The [magistrate] judge shall conduct the trial in such manner as to do substantial justice between the parties according to the rules of substantive law. All rules and regulations relating to pleading, practice, and procedure shall be liberally construed so as to administer justice.

The foregoing language provides sufficient authority for the magistrate judge's action in allowing the relation back of the amendment in this case. It would be incongruous to require in magistrate courts a practice more restrictive than that followed in state and superior courts. The former are established and operated as more casual forums, where parties frequently appear pro se, and where the magistrate himself is often not an attorney. Rather, the language of OCGA 15-10-42, that magistrate courts are not subject to the Civil Practice Act, must be read to permit, rather than require, magistrate courts to follow the provisions of the Civil Practice Act, or any other appropriate rules and regulations relating to pleading, practice, and procedure, where to do so would "administer justice" under OCGA 15-10-44. 6 Certainly such language should not be construed to preclude the magistrate's use of the Civil Practice Act where such use is consistent with OCGA 15-10-44. Therefore, the ruling to the contrary by the Court of Appeals is reversed.

2. The Court of Appeals affirmed the state court's denial of Howe's motion to dismiss the Yost counterclaim. Howe argues the magistrate court's decision in his favor shows as a matter of law his claim was not one "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" or lacked "substantial justification," precluding any liability under Yost. Id. at 96. We disagree. An appeal from a decision of a magistrate court is "a de novo investigation," OCGA 5-3-29; 15-10-41 (b), in which the magistrate court's judgment has no bearing on the merits of the main claim nor on the merits of any subsequent Yost claim.

Howe also argues the Yost claim in this case was waived by the defendants' failure to raise that claim as a compulsory counterclaim in the magistrate court. However, the Yost claim of abusive litigation is defined in full as follows:

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 party 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. [Emphasis supplied.] [Id. at 96 (13).]

See also OCGA 9-15-14. Here, the counterclaim contains an allegation, inter alia, that Howe, by his complaint as amended on de novo appeal to the state court, had unnecessarily expanded the proceedings. 7 This allegation is sufficient to state a claim for abusive litigation, and the state court properly denied Howe's motion to dismiss.

Wayne M. Purdom, amicus curiae.