author: POPE, Presiding Judge.

text:
    A97A0651.
    BRANTLEY v. THE STATE.
    (487 SE2d 412)
   POPE, Presiding Judge.

Defendant Damon Brantley, charged with trafficking in cocaine and driving without a license, appeals the denial of his motion to suppress evidence seized when he and his vehicle were searched during a traffic stop. Concluding that defendant consented to the search of his car and that the search of his person was incident to his lawful arrest, we affirm.

Trooper Wyn Gregory testified that he stopped defendant on I-75, intending to give him a warning for driving 73 mph in a 65 mph zone. Defendant acted very nervous, could not produce a driver’s license (giving two versions of where it was), and told an implausible story about having to rush to the hospital where his wife was having a baby. At that point Trooper Gregory patted him down for weapons, finding nothing. Gregory asked defendant if he had any weapons in his car, and defendant said, “No. You can check it if you want to.” Before starting the search, the officer asked, ‘You don’t care if I check the car then, do you?”; and defendant responded, “Naw, I don’t care.”

When Trooper Gregory began his search of the car, he noticed that parts of the steering column and dashboard had been removed, and began to think defendant might have been driving a stolen car. And in the back seat, in an open bag, Trooper Gregory found scales with a white powdery substance on them. Based on the scales with the white substance, defendant’s lack of a driver’s license, and the possibly stolen vehicle, Trooper Gregory handcuffed defendant and waited for back-up.

Trooper Gregory’s back-up was Deputy Scott WTiitwell, who watched defendant as Trooper Gregory finished his search. Deputy Whitwell noticed that defendant kept turning from side to side, moving his handcuffed hands as if he were trying to grab or adjust something in his waistband. Deputy WTiitwell then pulled up defendant’s shirt, revealing a plastic bag containing cocaine tucked into his waistband.

1. Defendant first argues that the initial stop was illegal because it was pretextual. The United States Supreme Court has held, however, that when an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop, and even if a reasonable officer would not have made the stop under the same circumstances. See Whren v. United States, 517 U. S. _ (116 SC 1769, 135 LE2d 89) (1996). In other words, if the driver of a stopped car has broken a traffic law, no matter how relatively minor, a motion to suppress evidence can no longer be based on the argument that the stop was pretextual — at least under federal law. See Jackson v. State, 267 Ga. 130 (5) (a) (475 SE2d 637) (1996); Freeland v. State, 223 Ga. App. 326 (1) (477 SE2d 633) (1996) (both relying on Whren to hold that a stop was permissible under the Fourth Amendment if the person stopped had broken the law, regardless of the officer’s subjective intent or the-objective reasonableness of the stop). In this case, defendant was speeding, so his stop was not illegal under the Fourth Amendment.

Defendant argues that we should construe the search and seizure clause of the Georgia Constitution to prohibit pretextual stops even though they are not prohibited by the Fourth Amendment. Cf. Gary v. State, 262 Ga. 573, 574 (422 SE2d 426) (1992) (noting that the State may impose higher standards on searches and seizures than those required by the federal constitution, and holding that the good faith exception to the exclusionary rule recognized by the United States Supreme Court does not apply under Georgia law). This is a question of constitutional construction which will have to be decided by the Supreme Court of Georgia. The issue is not properly presented for appellate review in this case, however, as it was not explicitly argued and ruled on below. Cf. Marr v. Ga. Dept. of Ed., 264 Ga. 841 (452 SE2d 112) (1995) (party must elicit specific ruling on constitutional question to preserve it for appellate review).

2. Defendant next contends that even if the initial stop was valid, the subsequent search of defendant and his vehicle was not.

(a) In denying the motion to suppress, the trial court implicitly found that defendant had consented to the search of his vehicle. When reviewing a ruling on a motion to suppress, the appellate court will accept the trial court’s findings unless they are clearly erroneous; and this deference to the trial court’s findings applies to implicit as well as explicit findings. See Garcia v. State, 207 Ga. App. 653 (1) (a) (428 SE2d 666) (1993).

Trooper Gregory testified that defendant consented to the search of his car; defendant testified that he did not remember doing so. There is a videotape of the stop, and while parts of it are inaudible, it does show that defendant told the officer at least twice that he could check his car. Although the better practice is to advise the driver of his right to disallow the search, and to have him sign a written consent form if possible (neither of which was done in this case), these procedures are not absolutely necessary to a valid consent if all the circumstances show the oral consent was freely and voluntarily given. See State v. McBride, 261 Ga. 60 (1) (401 SE2d 484) (1991); Code v. State, 234 Ga. 90, 95, n. 1 (214 SE2d 873) (1975); Garcia, 207 Ga. App. at 654-656 (1) (b). The videotape in this case shows that defendant was an adult; that even though he was nervous, he was articulate and alert; that he gave Trooper Gregory permission to search the car within five minutes of stopping; and that his permission was not the product of coercion or deceit. Under these circumstances, the trial court did not err in finding defendant validly consented to the search of his vehicle.

(b) After Trooper Gregory found the scales with apparent cocaine residue on them, he handcuffed defendant. A person is under arrest if he is not free to leave and a reasonable person in his position would not think that the detention was temporary. See Scretchen v. State, 192 Ga. App. 436 (1) (385 SE2d 115) (1989). Although the officer told defendant he was not under arrest at that time, we conclude that he was; a reasonable suspect, knowing that the officer had found the scales, would not believe that he was free to leave or that his detention was only going to be temporary.

And this arrest was lawful. An officer may make a warrantless arrest (and search) if, at the time of the arrest, he has probable cause to believe the accused has committed or is committing an offense. See Johnson v. State, 258 Ga. 506, 507 (2) (371 SE2d 396) (1988). In this case, at the time of the arrest Trooper Gregory knew that defendant was driving without his license; that defendant was driving a car damaged in a way which suggested it was stolen; and most importantly, that defendant had scales with a white substance on them that looked like cocaine. This information was sufficient to cause a prudent person to believe defendant had committed or was committing a crime. See Bright v. State, 265 Ga. 265, 279 (5) (a) (455 SE2d 37) (1995); Holmes v. State, 222 Ga. App. 642 (476 SE2d 37) (1996). Thus, the arrest of defendant was authorized, and the cocaine seized during the second officer’s subsequent search of defendant did not need to be suppressed. See Ridgeway v. State, 205 Ga. App. 218 (422 SE2d 4) (1992).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Decided May 30, 1997

Reconsideration denied June 18, 1997

Before Judge Craig.

Dwight L. Thomas, for appellant.

Tommy K. Floyd, District Attorney, Gail M. Travillian, Assistant District Attorney, for appellee.

       Indeed, the trial court simply denied the motion to suppress without explanation, and from comments made by the court at the hearing on the motion, it appears the court found as a matter of fact that the stop was not pretextual. And this finding was not clearly erroneous. See Allenbrand v. State, 217 Ga. App. 609 (1) (458 SE2d 382) (1995) (trial court’s findings are accepted unless they are clearly erroneous). The hearing on defendant’s motion to suppress took place prior to the United States Supreme Court’s decision in Whren, but the order denying defendant’s motion was issued a month after Whren.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A97A0042.
    BULLOCK v. JEON.
    (487 SE2d 692)
   Beasley, Judge.

Robert Bullock and Yeong Jeon own competing liquor stores located near each other in Marietta, Georgia. In October 1994, Bullock had one of his employees enter and check the prices at Jeon’s store, in response to which Jeon later that same day went to Bullock’s store and confronted11 Bullock as to the purpose for this price-checking. Bullock responded that Jeon was free to check prices at Bullock’s store.

Bullock deposed that Jeon, who speaks English poorly, then called Bullock “a s_o_b_,” an “a_h_,” and “crazy” in front of Bullock’s customers, employees, and distributors. Bullock asked Jeon to leave, but Jeon refused. Bullock threatened to call police, went to the phone, picked up the receiver, and started dialing 911. Jeon then exited the store and stated as he approached the door, “you m_-f_, you m_-f_.” The entire incident lasted between two and five minutes.

Bullock admitted at his deposition that (a) Jeon was free to enter Bullock’s store, (b) Jeon did not cause any physical damage to Bullock’s store or the merchandise therein, (c) Jeon did not threaten or attempt violently to injure Bullock, (d) Jeon never touched or attempted to touch Bullock, and (e) Bullock has not lost any customers or suppliers nor experienced any other financial loss as a result of the incident.

Bullock sued Jeon in four counts: trespass, slander, tortious interference with business relations, and assault. Following discovery, Jeon moved for summary judgment and Bullock moved for sanctions for the failure of Jeon and his counsel to cooperate at his deposition to such a degree that it constituted a failure to make discovery. The court, in a detailed order of explanation, granted summary judgment and declined to consider the motion for sanctions, apparently finding it moot. Bullock’s appeal yields reversal on the trespass count only.

1. Bullock claims that Jeon’s failure to leave the store premises immediately upon being asked to leave gives rise to a cause of action for trespass (Count 1). OCGA § 51-9-1 provides that “every act of another which unlawfully interferes” with the right of enjoyment of private property “is a tort for which an action shall lie.” OCGA § 16-7-21 defines unlawful trespass in part as when a person “knowingly and without authority . . . [r]emains upon the land or premises of another person . . . after receiving notice from the owner ... to depart.”

Evidence that a defendant refused to leave a store after he was asked to leave is sufficient to sustain a conviction for criminal trespass under OCGA § 16-7-21 (b) (3). Johnson v. State, 172 Ga. App. 333, 334 (2) (323 SE2d 255) (1984); Amason v. Kroger Co., 204 Ga. App. 695, 697 (420 SE2d 314) (1992). See Nash v. State, 222 Ga. App. 766, 767 (2) (476 SE2d 69) (1996) (“Evidence that [defendant] remained at the residence after being notified by [one in authority] to depart was sufficient to support his conviction for criminal trespass”); Rembert v. Arthur Schneider Sales, 208 Ga. App. 903, 905 (432 SE2d 809) (1993) (“Once [defendant] refused to leave after being told to go by the owner, she became a criminal trespasser”). In Reid v. State, 224 Ga. App. 524, 525 (1) (481 SE2d 259) (1997), a security guard of a hospital “testified he told [defendant] to leave the room '. . . but he refused. This alone was sufficient evidence of criminal trespass.” But “[e]ven a trespasser, where he is rightfully ordered to leave a building by one having the premises in charge, is entitled to be allowed such a period of time as is necessary to enable him to make his exit from the room or building he is ordered to vacate. The amount of time reasonably necessary to enable such a trespasser to effect his departure may be varied by circumstances, and is a question of fact for determination by the jury.” Hollis v. State, 13 Ga. App. 307, 308 (3) (79 SE 85) (1913). See Reid v. State, supra at 525 (“The statute requires that a person advised to leave must do so within a reasonable time in the circumstances, which is a question for the factfinder”).

The evidence in favor of Bullock is that Bullock asked Jeon to leave the store premises three or four times, and Jeon expressly refused to do so. Jeon remained on the premises for upwards of four and a half minutes after being asked to leave and after he had announced that he would not. Only after Bullock threatened to call the police did Jeon leave. The jury must decide whether Jeon left within a reasonable time. The trial court erred in granting summary judgment on Count 1.

2. Bullock claims that Jeon committed slander per se by addressing Bullock with the words identified earlier and “crazy” (Count 2). Arguing that these terms impute that Bullock committed a crime punishable by law (i.e., necrophilia, fornication, and incest), Bullock claims such amounts to slander per se, thus negating the OCGA § 51-5-4 requirement of showing special damages.

Disparaging terms are slanderous per se only if the terms convey “the impression that the crime in question is being charged, [and also are] couched in such language as might reasonably be expected to convey that meaning to any one who happened to hear the utterance.” Anderson v. Fussell, 75 Ga. App. 866, 869 (44 SE2d 694) (1947). If a statement’s meaning is not ambiguous and can reasonably have but one interpretation, the question is one of law for the court. Morrison v. Hayes, 176 Ga. App. 128 (335 SE2d 596) (1985). Absent a sexual connotation, disparaging words allegedly imputing a sexual crime will not constitute slander per se. Meyer v. Ledford, 170 Ga. App. 245 (1) (316 SE2d 804) (1984); Brooks v. Stone, 170 Ga. App. 457 (317 SE2d 277) (1984).

The words Jeon used do not impute a violation of any criminal law by Bullock. See, e.g., Connell v. Houser, 189 Ga. App. 158 (4) (375 SE2d 136) (1988). While no Georgia appellate court has determined whether the term “m_-f_” amounts to slander per se, it generally communicates an obscenity reflecting the speaker’s agitated and angry state of mind. It is a degrading insult, but it has not been interpreted as an actual accusation that the object of the remark has committed an illegal sexual act. See Duckworth v. State, 223 Ga. App. 250 (1) (477 SE2d 336) (1996); Carter v. State, 222 Ga. App. 397 (1) (474 SE2d 228) (1996); Bolden v. State, 148 Ga. App. 315 (4) (251 SE2d 165) (1978); see also Smith v. State, 266 Ga. 827, 828, n. 2 (470 SE2d 674) (1996).

Other jurisdictions are in accord. Holding that “fat, f_ing, disgusting bitch” did not amount to slander, a Massachusetts court reasoned: “The word “f_ing” as it is all too commonly used in modern parlance, is a word of emphasis meaning nothing more . . . than ‘wretched,’ ‘rotten,’ or ‘accursed.’ ... It has no sexual connotation at all.” Travers v. Shane, 1995 WL 809549 (Mass. Super., July 10, 1995). The Supreme Court of Virginia similarly concluded that “calling a person a ‘m_-f_’ . . . [does not] convey the false impression that someone committed incest.” Crawford v. United Steelworkers, AFL-CIO, 335 SE2d 828, 839 (Va. 1985).

No reasonable person exposed to Jeon’s invective, uttered as a parting shot after he had been ordered off the premises and immediately following an argument unrelated to sex, could have concluded that Jeon was accusing Bullock of having sexual intercourse with his own mother. Any reasonable hearer would have concluded that Jeon was expressing disgust for Bullock, albeit in a particularly obnoxious fashion. “ ‘The mere cursing of another (not amounting to slander) is not a violation of a legal right or duty capable of enforcement by process of law. . . . The defendant owes the plaintiff the formal obligation not to curse [him], but this is too delicate and subtle an obligation to be enforced in the rude way of getting money compensation for a violation of this mere moral obligation.’ [Cit.]” Miller v. Friedman’s Jewelers, 107 Ga. App. 841, 843 (131 SE2d 663) (1963). See Tuggle v. Wilson, 248 Ga. 335, 337 (282 SE2d 110) (1981) (“In Georgia, there is no tort of obscenity”); Bekele v. Ryals, 177 Ga. App. 445, 446 (339 SE2d 655) (1986) (“Georgia law does not recognize ‘name-calling’ as a tort”).

Although not slander per se, Jeon’s statements could be characterized as derogatory name-calling, but then special damages would have to be shown. OCGA § 51-5-4; Connell v. Houser, 189 Ga. App. 158 (4) (375 SE2d 136) (1988). Bullock has admitted that he suffered no special damages.

3. An essential element of Bullock’s claim of tortious interference with business relations (Count 3) is a showing of financial injury resulting from the alleged interference. Jenkins v. General Hosp. of Humana, 196 Ga. App. 150, 151 (395 SE2d 396) (1990). Bullock admitted the absence of any such injury.

4. Bullock’s assault claim (Count 4) fails because “an assault occurs when ‘all the apparent circumstances, reasonably viewed, are such as to lead a person reasonably to apprehend a violent injury from the unlawful act of another.’ [Cit.]” Hallford v. Kelley, 184 Ga. App. 90, 92 (360 SE2d 644) (1987). A reasonable person in the cir-' cumstances presented would not have apprehended violent injury. Id. at 92-93. Bullock admitted at his deposition that Jeon did not threaten or attempt violently to injure him and that Jeon never touched or attempted to touch him.

5. Bullock enumerates as error the court’s decision not to rule on his motion for sanctions. He cites no authority for the proposition that either it was not moot or he was entitled to any of the sanctions sought. In his motion, he requested that defendant’s answer be stricken and plaintiff be awarded a default judgment or, alterna-, tively, that the expenses of the deposition, including attorney fees, be assessed against defendant. He based the motion on OCGA § 9-11-37 (d) (1). Bullock’s argument on appeal consists only of two rhetorical questions.

Defendant did not fail to appear for, or submit to, deposition but instead objected to some of the questions. OCGA § 9-11-37 (d) (1), allowing immediate sanctions for failure to appear, thus does not apply. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 437 (2) (254 SE2d 825) (1979); General Motors Corp. v. Conkle, 226 Ga. App. 34 (486 SE2d 180) (1997); Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 589 (3) (452 SE2d 159) (1994). Moreover, a denial of the motion (if it had been construed to be a motion to compel) would have been proper in view of Bullock’s failure to file a certificate of a good faith attempt to resolve the discovery dispute as required by USCR 6.4 (B).

Decided June 18, 1997.

Before Judge Ingram.

Ted H. Reed, for appellant.

Drew, Eckl & Farnham, Stevan A. Miller, Julianne Swilley, for appellee.

Judgment affirmed in part and reversed in part.

Senior Appellate Judge Harold R. Banke concurs. McMurray, R J., concurs in judgment only.


author: Pope, Presiding Judge.

text:
    A97A0792.
    HOLEMAN v. THE STATE.
    (487 SE2d 700)
   Pope, Presiding Judge.

Defendant Dwight Boyce Holeman was convicted following a jury trial of three counts of aggravated assault upon a peace officer, possession of a firearm by a convicted felon, and simple battery. The trial court also found defendant to be a habitual felon under OCGA § 17-10-7 (a). Defendant appeals following the denial of his motion for new trial.

1. Defendant first contends the trial court erred in failing to give his requested charge on felony obstruction of a police officer as a lesser included offense of aggravated assault on a police officer. Under OCGA § 16-1-6 an offense may be included within another offense if “(1) [i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) [i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” “In determining whether a lesser included offense charge is necessary under a given indictment, this Court is required to follow the most recent Supreme Court cases of Edwards v. State, 264 Ga. 131 (442 SE2d 444) (1994), and [State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990)].” Strickland v. State, 223 Ga. App. 772, 776 (1) (b) (479 SE2d 125) (1996).

The indictments in this case alleged that defendant “did make an assault upon [a] person . . . , knowing said person was a peace officer engaged in the performance of his official duties, said assault being with a deadly weapon, to wit: a .357 magnum pistol, by moving said deadly weapon to point in the direction of said peace officer.. . .” The offense of felony obstruction is committed when a person “knowingly and willfully resists, obstructs, or opposes any law enforcement officer, ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer. . . .” OCGA § 16-10-24 (b).

Decided June 18, 1997

Before Judge Pannell.

Michael A. Corbin, for appellant.

Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.

We agree with the defendant that the indictment in this case was sufficient to put defendant on notice that he might be convicted of the “lesser” offense of felony obstruction of a law enforcement officer, and that the evidence presented at trial would support such a charge. Cf. Strickland, 223 Ga. App. at 776-777 (1) (b). Under these circumstances, the trial court erred by refusing, upon written request, to charge the jury on the lesser included crime.

It does not follow, however, that reversal is required. Our review of the record shows that the evidence that defendant committed the aggravated assaults was overwhelming, and that, therefore, it is highly probable that the failure to give the requested charge did not contribute to the verdict in this case. Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994); Young v. State, 217 Ga. App. 144, 146 (1) (456 SE2d 733) (1995). Thus, the error was harmless. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976); Howard v. State, 220 Ga. App. 579, 583 (2) (469 SE2d 746) (1996).

2. Defendant argues the trial court erred in admitting similar transaction evidence involving the defendant and the battery victim because the prior and present offenses were not sufficiently similar. Our review of the record shows this contention to be meritless. Both offenses were perpetrated against the same victim. Both offenses involved a domestic dispute in which the defendant argued with and repeatedly struck his girl friend. A firearm was used in both crimes, and in addition to the victim, defendant either shot or threatened to shoot others at the scene. The trial court did not err in admitting the evidence of the prior crime under the facts of this case. Richards v. State, 222 Ga. App. 853, 855 (2) (476 SE2d 598) (1996); see also Malone v. State, 226 Ga. App. 185 (486 SE2d 57) (1997).

3. Contrary to defendant’s final enumeration of error, the evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


author: Birdsong, Presiding Judge.

text:
    A97A1128.
    DANA AUGUSTINE, INC. v. PARKMAN et al.
    (487 SE2d 697)
   Birdsong, Presiding Judge.

Appellant Dana Augustine, Inc. (DAI), a Georgia corporation engaged in the wholesale jewelry business, sued Andrea Parkman and Philip Coulter, who were salespersons hired by DAI, for damages arising from the theft of DATs jewelry while it was in Parkman’s and Coulter’s care in New York state. Contrary to their express undertakings and instructions in their employment contracts and employee manual, Parkman and Coulter left the jewelry in their car unattended; therefore, DATs insurance did not cover the theft.

Parkman and Coulter filed motions to dismiss based on lack of personal jurisdiction, contending they are not Georgia residents, as they reside in New York and South Carolina, that their sales area did not include Georgia, and that at no time did they engage in the business of selling or servicing jewelry while they were in Georgia. DAI responded that Parkman and Coulter were properly served under the long-arm statute (OCGA § 9-10-91) because they had significant contacts with the state, including but not limited to the fact that they sought employment at DATs only office, which is in Kennesaw, Georgia; they received their salary from the Georgia office and DAI paid unemployment tax to the State of Georgia on appellees’ behalf; they signed a receipt and acknowledgment of DAI’s “employee manual” in Georgia; they came to Georgia to pick up the jewelry, the theft of which is the subject of this action; they came to Georgia to pick up the van from which the jewelry was stolen; they came to Georgia regularly and at least seven or eight times on business on behalf of DAI, to attend meetings relating to their employment or to pick up items to be sold for DAI, and during those visits they stayed at hotels in Georgia; that while appellees were on the road selling jewelry for DAI, they were in daily telephone contact with DAI in Georgia.

The trial court granted appellees’ motion to dismiss and DAI appeals. Held-.

The trial court erred in holding that Georgia did not have long-arm jurisdiction over Parkman and Coulter for the purpose of this suit.

The Georgia long-arm statute provides: “A court of this state may exercise personal jurisdiction over any nonresident ... if in person or through an agent, he: (1) Transacts any business within this state; [or] ... (3) Commits a*tortious injury in this state caused by an act or omission outside this state if the tort-feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state.” OCGA § 9-10-91.

Three rules determine the power of this state to exercise jurisdiction over a nonresident: (1) The nonresident must purposefully avail himself of the privilege of doing some act or consummating some transaction with or in the forum; (2) the plaintiff must have a legal cause of action against the nonresident which arises out of or results from the activity or activities of the defendant within the forum; and (3) a “minimum contact” between the nonresident and the forum must exist, and the assumption of jurisdiction must be consonant with due process notions of fair play and substantial justice, that is, it must be reasonable. Smith v. Smith, 254 Ga. 450, 453 (330 SE2d 706). The evidence shows without question that the elements of these three rules are present in this case. Parkman and Coulter clearly transacted business in this state. They regularly did business and engaged in a persistent course of conduct in this state, and they derived substantial revenue from goods which they came to Georgia to obtain with the specific purpose of removing those goods from this state in furtherance of their business; DAI’s cause of action arises from these activities; and the assumption of jurisdiction of appellees on account of the loss of goods they took from this state in the circumstances described is consonant with due process and is reasonable.

Appellees sought employment in Georgia with a Georgia corporation whose only office is in Georgia; they came into Georgia specifically for the purpose of entering employment contracts in Georgia which gave them substantial benefits including unemployment compensation paid for by DAI’s payment of an assessment to the State of Georgia, and which, among other things, required them to take particular actions with regard to safety of DAI’s jewelry in their care and custody. Execution of a contract in Georgia may give jurisdiction to Georgia for breach of that contract even if the breach occurred outside the state. Davis Metals v. Allen, 230 Ga. 623, 625 (198 SE2d 285). Compare Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892, 893 (1) (380 SE2d 303) and Beverage Mgmt. &c. v. Yankee Spirits, 218 Ga. App. 95, 97 (460 SE2d 564), which involved distinctly different facts. The facts that Parkman and Coulter resided in other states and the jewelry they obtained from DAI was intended to be sold in other states obviously do not control the inquiry as to whether they had sufficient contacts with this state. Their acquisition of DATs jewelry as well as DATs vehicle occurred entirely in Georgia. They physically came into the state on a regular basis and obtained goods in Georgia from a Georgia corporation so as to enable themselves to sell those goods in other states and to derive “substantial revenue” therefrom. OCGA § 9-10-91. Thus they purposefully availed themselves of the privilege of doing business in this state (Dora-Clayton Agency v. Forjay Broadcasting Corp., 193 Ga. App. 340, 341 (387 SE2d 617)) including executing an employment contract in this state, for the purpose of getting DAI’s van and DAI’s jewelry. As to those pertinent circumstances in this case, which establish the requisite minimum contacts, it is fairly immaterial where Coulter and Parkman resided, where they intended to sell DAI’s goods, or where the jewelry was stolen.

Having established that appellees committed and performed acts in this state which would subject them to jurisdiction in Georgia, we find that exercise of jurisdiction does not offend traditional notions of fairness and substantial justice. McDonnell v. Roy E. Beatty &c., 203 Ga. App. 807, 808-809 (418 SE2d 95); Dora-Clayton Agency, supra. There is, as we have found, a sufficient connection between Parkman and Coulter and this state to make it fair to require them to defend the action in this state. They came to Georgia to obtain employment, and upon the contract of employment (including its requirements of safekeeping) they obtained goods in Georgia from a Georgia corporation, which they then took outside the state to sell. DATs injury by the theft of the jewelry directly arose from the contracts of employment which Parkman and Coulter entered into in Georgia, and their conduct and connection with Georgia are such that they should reasonably anticipate being haled into court in Georgia if those goods were stolen by their negligence or breach of contract. Showa Denko K.K. v. Pangle, 202 Ga. App. 245, 248 (414 SE2d 658). Moreover, it would be manifestly unfair and would constitute an impediment to the fair conduct of national and international business by any Georgia corporation involved in the sale of goods and services to say that, having parted with its property in Georgia to persons who came here to get it pursuant to a contract entered in Georgia, the Georgia corporation which owns the property must then follow those persons over their travels to wherever they might commit an act resulting in the loss of the property which those persons took from DAI into another state. The fact that DAI would have benefited from the arrangement if the property had not been stolen is beside the point of inquiry. Nor is it unfair to require Parkman and Coulter to respond to suit in Georgia, since they physically came to Georgia to obtain goods from a Georgia corporation which they then lost, and, as well, they obtained from Georgia law the benefits and privileges of conducting their business.

The constitutional touchstone is whether the defendant purposefully established minimum contacts in the forum state, and their conduct and connection with the forum state are such that they should reasonably anticipate being haled into court here. Burger King Corp. v. Rudzewicz, 471 U. S. 462 (105 SC 2174, 85 LE2d 528); Eastlawn Corp. v. Bankers Equip. &c., 211 Ga. App. 551, 553 (439 SE2d 753); Drennen v. First Home Savings Bank, 204 Ga. App. 714, 715 (420 SE2d 376). Parkman and Coulter had such contacts with the forum state that maintenance of the suit against them here “‘does not offend traditional notions of fair play and substantial justice.’ ” Intl. Shoe Co. v. Washington, 326 U. S. 310, 316 (66 SC 154, 90 LE 95), quoted in Riggio v. Lawson, 204 Ga. App. 774, 775 (420 SE2d 613). Accordingly, the trial court erred in granting appellees’ motion to dismiss for lack of personal jurisdiction.

Decided June 18, 1997.

Before Judge Kreeger.

Holland & Knight, Frank O. Brown, Jr., Mary J. Schrade, for appellant.

Patrick D. Peering, for appellees.

Judgments reversed.

Eldridge, J., and Senior Appellate Judge Harold R. Banke concur.


author: Eldridge, Judge.

text:
    A97A1268.
    WILMER et al. v. FULTON COUNTY SCHOOL DISTRICT.
    (487 SE2d 709)
   Eldridge, Judge.

The Fulton County School District (“School District”) condemned 14.998 (“15”) acres of land owned by J. Grant Wilmer, Jr., Catherine W. de Ladoucette, Knox Randolph Wilmer, and Charles Wilmer (the “Wilmers”) as of November 3, 1994 when the award of a special master was entered by consent order.

The Wilmers filed a notice of appeal and except to the award on October 28, 1994.

The Wilmers and other members of their family owned a tract of land containing 176 acres, out of which the 15 condemned acres were taken. The real estate appraisal witnesses for the condemnor and the condemnees considered the highest and best use of the 15 acre parcel as a part of the larger 176 acre tract of land.

Pursuant to a separate consent order filed July 25,1996, the parties agreed that the only issue to be decided by the jury was the value of the 15 acre parcel. All claims of consequential damages to the remaining larger property were voluntarily dismissed.

At trial of the damages, all of the School District appraisers testified that they did not perform an appraisal of the 15 acres condemned, but they based their appraisal solely upon the valuation of the larger parcels of either 98 acres or 126 acres that were part of the 176 acre tract; they then applied a pro rata average value of the larger parcel to the 15 acre tract that was condemned.

Mr. Dennis Carr, a School District appraiser, testified that he considered the 15 acre condemned parcel as part of the 176 acres. He used a sales comparison approach to analyze the sales of similar properties; however, he primarily looked for comparables to the 176 acre tract, which were large tracts of acreage. Using 126 acres of land that lay outside the flood plain, Mr. Carr reached an opinion as to the fair market value of such large tract of acreage and then he applied the exact per acre price of the larger tract to calculate the fair market value of the 15 acre tract condemned. Mr. Carr admitted that smaller parcels of land tend to sell for more per acre than larger parcels; notwithstanding this, he distinguished the price per acre for the 15 acre condemned parcel with the price per acre for the larger 126 acre parcel. Mr. Carr testified that “pro rata average is the way to do it these days.” Mr. Carr testified that he valued the 15 acre condemned parcel as part of the whole tract rather than as a separate free standing 15 acre parcel. Mr. Carr admitted that he used the “pro rata average valuation method” to make his appraisal.

Mr. David Childers, the other real estate appraiser for the School District, also appraised the entire tract of 176 acres as one economic unit of which the 15 acre parcel was a part. Mr. Childers reached the opinion that 98.3 acres of the property was suitable for apartment development, and he searched for sales that were similar in size to the 98.3 acres. The sales that Mr. Childers found comparable were for smaller acreage than 98 acres; he reduced the value per acre for the larger tract. His downward adjustment was 1.7 percent. He testified that a discount of as much as 11 percent could also be justified on the same reasoning. Although Mr. Childers admitted in testimony that smaller tracts of land sell for more per acre than large tracts of acreage, he applied the price per acre for the entire 98.3 acres that he appraised to the smaller 15 acre parcel condemned. Mr. Childers justified his actions by stating that he did not consider sales that would be comparable in size to the 15 acre parcel, “because what we are concerned with is a tract that is a total of 176 acres. Smaller land tracts typically sell for more per acre. That’s a typical pattern, so to do a proper appraisal of 176 acres you want to go find large land tracts that have sold.”

Since neither Mr. Carr nor Mr. Childers had done an appraisal of the 15 acre tract condemned, but instead used a pro rata method of appraisal of the entire tract, the condemnees moved to strike their opinions of value as an illegal method of evaluation.

The School District waived by not objecting to the motion to strike the experts’ valuation testimony; instead the School District sought to bolster the experts’ opinion testimony regarding the appraisal method used. The trial court denied the motion to strike.

In response to the pro rata average evaluations of Mr. Carr and Mr. Childers, the condemnees submitted their written request to charge number 26. The trial court refused to give charge number 26 and condemnees timely excepted to such failure.

Some 53 acres of the larger tract fell within the 100 year flood plain, 24.7 acres was road frontage, and the Big Creek formed one boundary, requiring an undisturbed buffer zone along the creek. The remaining 96 acres have extremes in topography, i.e., high hills and deep valleys in some areas of this tract which would require extensive grading. This difference in acreage prevents a unitary evaluation approach from being proper.

Mr. James Pritchett and Mr. William Stripling were real estate appraisers who testified for the condemnees. Each appraiser gave his opinion as to the fair market value for the 15 acres condemned. Each stated that in his opinion the highest and best use of the 15 acres as being in conjunction with the larger tract.

The jury returned a verdict on September 11, 1996 which followed the testimony of the School District’s experts’ opinion of fair market value. Final judgment was entered on September 13, 1996. The notice of appeal was filed October 11, 1996. Held:

1. Appellants’ first enumeration of error is that the trial court erred in failing to exclude the opinion testimony of David Childers and Dennis Carr.

The evidence showed that there were 53 acres of flood plain, 24.7 acres minimum of road frontage, and that 96 acres have some areas with high hills and deep valleys which would require extensive grading. Thus, a pro rata averaging of the fair market value to the 15 acres condemned from the larger tract would not be appropriate to reflect actual fair market value of such condemned land as a proper method of appraisal to obtain the fair market value of the usable 15 acres for a school site carved out from the whole acreage, even when the 96 acres are treated as a unit, because there remain the extremes in topography in such untaken portion of the 96 acres that requires extensive grading for development.

“A pro rata method of ascertaining the value of a partial taking is not necessarily proper because the value of the part taken is not dependent on the size of the whole. If, for example, the 15-acre strip was taken from 105 acres (1/7 of the whole) rather than from 75 acres (1/5 of the whole), the pro rata method could result in a lower value simply because of the size of the whole. There was evidence that pro rata value would be greater for. smaller tracts of land. The county even points out . . . that the smaller tracts sell for more money per acre than larger tracts. In other words, selling 15 acres would not necessarily be at the same per-acre price as selling 75 acres. Yet it is only the 15 acres that is being ‘sold’ through condemnation.” Bland v. Bulloch County, 205 Ga. App. 317, 319 (2) (422 SE2d 223) (1992).

“In addition, the pro rata method does not accommodate variations in the value of different parts of a tract; a frontage strip may have more value than a back strip, or a pond may have a different value than a hill on the same tract. The pro rata method averages the value of whatever the condemnee happens to own, rather [than] measuring the value of the taken portion as it is, with its unique characteristics and particular setting. Even if the whole tract is constant and has no varying features upon it, the fair market value of the whole if it were sold (wholesale) may be less than the fair market value of a number of equal pieces sold individually to separate buyers (retail).” Id.

“The value of the part taken is not automatically measured by the size of the parcel from which it is taken, although the value of the part taken may be derived in part by the nature of the land around it because the setting affects the highest and best use of the taken property.” Id.

“We find no authority in Georgia for the proposition that the value of the land taken is a pro rata value of the whole from which it is taken.” Id.; see also Chastain v. Fayette County, 221 Ga. App. 118, 119 (1) (470 SE2d 513) (1996); Dunaway v. Columbia County, 213 Ga. App. 840, 841-843 (3) (447 SE2d 31) (1994).

“An expert opinion valuing the part taken by applying the average per acre value of the entire tract has given a reason for the value opinion that is entirely speculative or conjectural in the absence of an evidentiary foundation for such a conclusion.” Chastain v. Fayette County, supra at 119-120. “This valuation [pro rata] is illegal, and appellant did not waive his objections to this illegal and unconstitutional evidence by allowing one expert to state his answer to the question. This evidence was prejudicial because it deprived the condemnee of just and adequate compensation for the value of the property taken at the time of the taking.” Dunaway v. Columbia County, supra at 843; see Dept. of Transp. v. Gunnels, 255 Ga. 495, 496-497 (340 SE2d 12) (1986). The jury is to make its award on the property taken based upon “the market value of the property actually taken.” Reed v. City of Atlanta, 136 Ga. App. 193, 195 (5) (220 SE2d 492) (1975); see also Bland v. Bulloch County, supra at 320. Thus, the expert opinion testimony about which appellant complains was improper, inadmissible, and caused a taking without “just and adequate compensation.”

In the case sub judice, the appellants made no objections to the illegal expert opinions as to value, but at the close of all the evidence made a motion to strike such illegal opinion evidence, which the trial court denied; the trial court allowed additional testimony by such expert witnesses to justify their use of pro rata average acreage valuation. However, this case involves illegal opinion testimony which unconstitutionally denied just and adequate compensation. As such, the issue is not waived, and the case before us is distinguishable from Sharpe v. Dept. of Transp., 267 Ga. 267 (476 SE2d 722) (1996).

Decided June 18, 1997

Before Judge Long.

Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., for appellants.

Sutherland, Asbill & Brennan, Judith A. O’Brien, Dulaney L. O’Roark III, Cecil F. Whitaker III, for appellee.

The case sub judice was tried to verdict on September 11, 1996, and Sharpe was not decided until October 7, 1996. In Sharpe, the Supreme Court overruled cases permitting the motion to strike, except in criminal cases where there has been an unconstitutional obtaining of evidence, and disallowed use of such a motion. Therefore, appellants’ claim of error may be reached because under Sharpe: such disallowance is prospective only, allowing a motion to strike (1) in all pending appeals, although no party has a vested right in any procedure; (2) appellants suffered an unconstitutional taking and deprivation of property without just and adequate compensation, because the experts’ opinion as to value was illegal under the facts sub judice; or (3) this Court will treat such motion to strike, procedurally, as a timely objection which would preserve the issue, thereby, avoiding the “unconstitutional deprivation” issue and allow this Court to find that the trial court committed harmful error and to reverse.

2. For the reasons set forth in Division 1, the trial court erred in failing to give the appellants’ charge number 26. Appellants complied fully with OCGA § 9-10-5 and excepted timely under OCGA § 5-5-24 (a). Failure to give this charge, which was a complete and accurate statement of the law, is reversible error. Foster v. Ramsey, 102 Ga. App. 523 (116 SE2d 617) (1960). Under the facts and circumstances of this case, the failure to give such charge was harmful error requiring reversal and a new trial.

Judgment reversed.

Birdsong, P. J., concurs. Ruffin, J., concurs in judgment only.


text:
    A97A1381, A97A1382.
    NATIONSBANK, N.A. v. SOUTHTRUST BANK OF GEORGIA, N.A. (two cases).
    (487 SE2d 701)
   Eldridge, Judge.

Appellant NationsBank received a promissory note dated October 21,1991, from M.O.D.E., Inc., in the amount of $170,000 and subsequently received a second note, dated December 22, 1994, in the original amount of $800,000; this second note was modified on May 15, 1995', by written agreement. In the October 21, 1991 agreement and in a separate security agreement, M.O.D.E., Inc., gave appellant collateral in one Komo Router, type VR508, serial number 1573, pursuant to a security agreement of such date, as well as any funds, balance, or credits in the hands of the appellant. A security agreement, dated December 22, 1992, for a December 22, 1992 note and any renewals, extensions, or substitutions for such note, listed as collateral an “x” mark beside each printed category, with a strike through for inclusion of specific items: accounts receivable, contract rights, chattel paper, or other rights to payment of money, as well as cash, all goods and merchandise, all proceeds and products of inventory, all equipment, machinery, tools, motor vehicles, supplies, furniture, and general intangibles. A security agreement dated September 23,1994, was entered into by appellant and M.O.D.E., Inc., which covered accounts, inventory, and equipment. On January 14, 1993, appellant and Enterprise Financial Corporation (which received its financing from SouthTrust, was subordinated to SouthTrust, and loaned to the M.O.D.E. entities) entered into a debt subordination agreement with M.O.D.E., Inc., which M.O.D.E. Acquisition Corporation approved.

On January 13, 1993, appellant made a UCC filing to perfect its security interest against M.O.D.E., Inc., in Clayton County.

M.O.D.E., Inc. (borrower) and Burr Warne, H. Barton Hahn, John Patterson Raley, and Thomas Olmstead (guarantors) were given notices of default and demands that all checks, drafts, cash, and other remittances be deposited to an account with appellant and that the Komo Router, goods, merchandise, personalty, equipment, tools, motor vehicles, furniture, office supplies, and fixtures be turned over to appellant under the October 21, 1991, December 22, 1992, and September 23, 1994 security agreements; such demands were made by letters dated November 13, 1995 and April 24, 1996.

Three other related and intertwined corporate entities shared officers, directors, employees, and operated out of the same business premises as did M.O.D.E., Inc., which caused the assets of all corporations to be commingled. The parent corporation was M.O.D.E. Group, Inc., and the other corporations were S.P.W., Inc., and International Sign Acquisition Company, Inc. (“M.O.D.E., Sign”).

Appellee SouthTrust Bank of Georgia (“SouthTrust”) had outstanding loans and security agreements with M.O.D.E. Group, Inc., S.P.W., Inc., and M.O.D.E., Sign, which security interest covered substantially all of such corporations’ assets. As to M.O.D.E., Inc., appellee had priority over appellant as to the general intangibles, because general intangibles were not covered in any of appellant’s security agreements. Appellee filed its UCC financing statements. Appellant had a recorded priority as to all the assets of M.O.D.E., Inc. with the exception of general intangibles, while appellee had recorded priorities as to the assets of M.O.D.E. Group, Inc., S.P.W., Inc., and M.O.D.E., Sign. When Enterprise Financial Corporation got into financial difficulty, it turned over to SouthTrust all its rights against M.O.D.E., Inc.

On April 24, 1996, NationsBank discussed and entered into an arrangement with Burr Warne, M.O.D.E., Inc.’s president and guarantor, in which he would have M.O.D.E., Inc. surrender all of the commingled assets of all the corporations to appellant, and appellant would, in turn, sell the assets to Impact Fixtures Company (“Impact”), a newly formed corporation, which appellee believed was controlled by Mr. Warne, allowing such assets to escape security interests held by appellee. In consideration flowing to Mr. Warne, not to the corporations, NationsBank promised to forbear enforcement of a personal judgment against Mr. Warne.

SouthTrust became concerned that the commingled assets might be transferred without regard to its security interest in the assets of the other corporations and that it would not receive any surplus proceeds from any purported sale to Impact by appellant. Consequently, SouthTrust’s attorney, on April 25, 1996, informed Mr. Warne’s attorney that SouthTrust intended to assert its rights as a secured creditor and would carefully investigate any facts surrounding a voluntary surrender of assets. Mr. Warne’s attorneys, in turn, advised Mr. Warne and only then contacted NationsBank’s attorney and informed NationsBank’s counsel that Mr. Warne now refused to transfer the commingled assets. When asked why the refusal, Mr. Warne’s attorneys gave their impressions as to what Mr. Warne understood the position of SouthTrust to be: that at bankruptcy Mr. Warne’s discharge would be. opposed by SouthTrust. Subsequently, appellant’s counsel interpreted Mr. Warne’s refusal to transfer the assets to NationsBank: under this second interpretation, SouthTrust would oppose Mr. Warne’s discharge in bankruptcy based upon such possible grounds as “criminal conversion charges or something like that.”

On May 10, 1996, appellant filed a complaint against appellee, alleging tortious interference with the agreement of M.O.D.E., Inc., and Mr. Warne to surrender the assets of the corporation. Service was acknowledged on May 20, 1996. Appellee filed its answer on June 19, 1996.

On May 23, 1996, SouthTrust filed an involuntary petition in bankruptcy against M.O.D.E., Inc.

On October 24, 1996, SouthTrust filed its motion for summary judgment. On November 26, 1996, NationsBank filed an amendment to its complaint adding claims for tortious interference with business relations.

Appellant took the depositions of counsel for appellee, South-Trust, who objected to certain questions as a violation of attorney-client privilege and refused to answer. On December 5, 1996, appellant moved to compel answers to the questions which were objected to and to strike the affidavits filed by appellee’s counsel. On December 13, 1996, appellant moved to extend discovery so that discovery could be completed in regard to the newly asserted claims; appellant’s counsel did not file their affidavit under OCGA § 9-11-56 (f) stating that they needed more time to obtain affidavits to oppose the motion for summary judgment.

On December 17, 1996, oral argument was held on the motion for summary judgment, and the trial court, from the bench, ruled in favor of the appellee. At no time during the oral argument on the motion for summary judgment did appellant’s counsel object to proceeding prior to the trial-court having ruled on its motion to compel and to extend discovery. On December 23, 1996, the trial court entered its written order granting summary judgment on the claim of tortious interference with contractual relations, as well as the claim of tortious interference with business relations, before ruling on appellant’s motion to compel and to extend discovery.

On January 17, 1997, appellant filed its notice of appeal of the December 23, 1996 order granting summary judgment. On January 16, 1997, the trial court executed a final judgment.

Case No. A97A1381

1. The first enumeration of error is that the trial court erroneously granted summary judgment on the theories of tortious interference with contractual relations and business relations. We do not agree..

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In the case sub judice, appellee successfully shifted the burden to appellant, which failed to present evidence to create a material issue of fact as to its claims.

Tortious interference with business or contractual relations has four common essential elements necessary for liability, i.e., the defendant: (1) acted improperly and without privilege; (2) acted purposefully and maliciously with the intent to injure; (3) induced a third party not to enter into or continue a business relationship with the plaintiff; and (4) caused the plaintiff some financial injury. See Choice Hotels Intl. v. Ocmulgee Fields, 222 Ga. App. 185, 188 (2) (474 SE2d 56) (1996); accord Employing Printers Club v. Doctor Blosser Co., 122 Ga. 509 (50 SE 353) (1905); Valdez v. Power Indus. Consultants, 215 Ga. App. 444, 447 (451 SE2d 87) (1994); Renden, Inc. v. Liberty Real Estate &c., 213 Ga. App. 333, 334 (444 SE2d 814) (1994); Green v. Johnston Realty, 212 Ga. App. 656, 659-660 (442 SE2d 843) (1994); Artford v. Blalock, 199 Ga. App. 434, 440 (13) (405 SE2d 698) (1991); Bodge v. Salesworld, 154 Ga. App. 65, 66 (267 SE2d 505) (1980); Dale v. City Plumbing &c. Co., 112 Ga. App. 723 (2) (146 SE2d 349) (1965); Restatement, Second, Torts, p. 11, § 766, h.

A. (1) Privilege and Wrongful Interference.

“The particular privilege applicable here is the protection of the speaker’s interest under OCGA § 51-5-7 (3). This privilege, while primarily applicable to claims of libel or slander, may also be asserted as a defense to a claim for tortious interference with contractual relations. See Kitchen Hardware [Ltd. v. Kuehne & Nagel, Inc., 205 Ga. App. 94, 97 (3) (421 SE2d 550) (1992)]. ‘(Statements made with a good faith intent on the part of the speaker to protect his interest in a matter in which he is concerned are privileged. OCGA § 51-5-7 (3).’ Id. at 96. ‘To make the defense of privilege complete . . . good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons must all appear. [Cit.]’ Sherwood v. Boshears, 157 Ga. App. 542, 543 (278 SE2d 124) (1981) .” Choice Hotels Intl. v. Ocmulgee Fields, supra at 188; see also Southern Business Machines &c. v. Norwest Financial Leasing Co., 194 Ga. App. 253, 258-260 (3), (4) (390 SE2d 402) (1990); see also as to privilege on summary judgment, Thomas v. Hillson, 184 Ga. App. 302, 303-304 (361 SE2d 278) (1987).

(2) In the case sub judice, SouthTrust has shown that the statement complained of was made in good faith under OCGA § 51-5-7 (3) and (7); that an interest was shown in appellee; that the statement was made on a proper occasion; and that the publication was made to persons who also had a proper interest, i.e., Mr. Warne’s attorneys. Thus, privilege was shown.

SouthTrust stood in the shoes of Enterprise Financial Corporation, which had a subordination agreement with appellant and M.O.D.E., Inc., separate and apart from any other direct security and collateral agreements with the other M.O.D.E. entities independently giving priority over appellant. Thus, SouthTrust was not a stranger to any new or modified security agreement or surrender of assets between appellant and M.O.D.E., Inc., because SouthTrust had a right to ensure that the Enterprise Financial Corporation’s subordination agreement was not violated by such new agreement between appellant and M.O.D.E., Inc. By entering into the subordination agreement with Enterprise Financial Corporation, Nations-Bank made SouthTrust the third-party beneficiary of any subsequent agreement with M.O.D.E., Inc., to the extent that any subsequent agreement did not breach the terms of the earlier agreement to the detriment of SouthTrust’s subordinated interests on legal and equitable grounds, and which gave SouthTrust standing to contest any violation of the subordination agreement by the new agreement on legal or equitable grounds, if such agreement, in fact, ever came into legal existence. OCGA § 9-2-20 (b); see Whitley v. Bryant, 198 Ga. 328, 336-337 (31 SE2d 701) (1944); Harris v. Jos. B. English Co., 83 Ga. App. 281, 282 (63 SE2d 346) (1951).

“The tortfeasor must be a ‘stranger’ to the business relationship at issue; a party, under appropriate circumstances, can be a non-signer of a particular contract and yet not be a stranger to the contract itself or to the business relationship giving rise thereto and underpinning it. See Lake Tightsqueeze v. Chrysler First Financial Svcs. Corp., 210 Ga. App. 178, 181 (4) (435 SE2d 486) [(1993)]; Jefferson-Pilot &c. Co. v. Phoenix City Broadcasting &c., 205 Ga. App. 57, 61 (1) (421 SE2d 295) [(1992)].” Renden v. Liberty Real Estate &c., supra at 336. In the case sub judice, appellee had been negotiating with appellant and M.O.D.E., Inc., to come to an asset work-out agreement, which would have protected all the parties’ security interests, when appellant unilaterally abandoned such efforts in order to prefer its own interests over appellee, regardless of the subordination agreement and appellee’s security interest in the commingled assets. Appellee was no stranger to the underlying transactions, i.e., “agreement with M.O.D.E., Inc.,” but had been an essential party thereto.

Further, appellant has failed to show that the statement was improper. The persons who heard the alleged “tortious statement” and the person who made the alleged “tortious statement” deny that the words alleged by appellant were ever spoken. Therefore, the improper “threat” has not been proven and there exists no probative and admissible evidence of the alleged “tortious statement.” The suit has been based entirely upon double or triple hearsay: a statement made by appellee’s counsel to Mr. Warne’s counsel, who then told Mr. Warne; Mr. Warne, upon advice of counsel, then refused to go forward with appellant’s agreement based upon what Mr. Warne was told was said; what Mr. Warne’s counsel told appellant’s counsel what Mr. Warne said; the statement of appellee’s now was republished with interpretation, editorialization, and comment by the original recipient, Mr. Warne’s counsel, who now denies ever having republished the statement in the “tortious statement” form; and the alleged “tortious statement” related by appellant’s counsel. All of the weaknesses of hearsay evidence are present; hearsay cannot establish any essential element of the “tortious statement,” because appellant’s counsel’s testimony regarding the original statement of appellee’s counsel was not made in her presence and lacks probative value, since it is hearsay. See Southern Business Machines v. Norwest Financial Leasing Co., supra at 256; Skinner v. Humble Oil &c. Co., 145 Ga. App. 372, 374 (243 SE2d 732) (1978). Further, in the face of the affidavits of Gregory D. Ellis and B. Knox Dobbins who both deny that the alleged statement was ever made, appellant has failed to carry the shifted burden to show that there exists a material dispute as to such essential element of the theories of recovery. See Lau’s Corp. v. Haskins, supra.

Appellant confuses proof of the first element, wrongful interference, with proof of causation, i.e., why Mr. Warne backed out of the agreement. OCGA § 24-3-2 (course of conduct or state of mind) can be used to place into evidence the alleged “tortious statement” as testified to by appellant’s counsel in order to explain Mr. Warne’s state of mind and why he acted as he did; however, such evidence cannot also serve to prove the “tortious” nature of the statement; that such “tortious statement” was, in fact, made; or that it was spoken using such language. The admissibility of evidence to prove conduct or state of mind is admitted for the limited purpose of explaining conduct or state of mind only and remains hearsay for purposes of proof as to any essential element of the cause of action. Bundrage v. State, 265 Ga. 813, 814 (2) (462 SE2d 719) (1995); Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982); Echols v. State, 174 Ga. App. 829, 830 (1) (331 SE2d 619) (1985); Davis v. State, 168 Ga. App. 272, 274 (4) (308 SE2d 602) (1983); Thompson v. Thompson, 153 Ga. App. 80 (264 SE2d 558) (1980); Clayton County Bd. of Ed. v. Hooper, 128 Ga. App. 817 (198 SE2d 373) (1973); Liberty Mut. Ins. Co. v. Meeks, 81 Ga. App. 800 (60 SE2d 258) (1950). Therefore, appellant failed to prove an essential element, the tortious statement that served as an impermissible interference with the contract or business relationship.

B. The second element, malice, falls as well. “The term ‘malicious’ or ‘maliciously’ means any unauthorized interference, or any interference without legal justification or excuse. Personal ill will or animosity is not essential.” (Citations and punctuation omitted.) Arford v. Blalock, supra at 441; see also Valdez v. Power Indus. Consultants, supra at 447; Forehand v. Perlis Realty Co., 198 Ga. App. 165, 166 (400 SE2d 644) (1990). Appellee had legal justification because: the assets of the four corporations had been commingled so that appellee’s security agreement would be impaired by the transfer; the appellee would not be protected in any sale that produced a surplus; the transfer, without consideration to M.O.D.E., Inc. to benefit Mr. Warne appeared to be a preference; any sale to Impact apparently was intended to wrongfully avoid and impair appellee’s security interest and the subordination agreement; and any surrender of all the assets rendered the corporations insolvent. Therefore, there was no malicious intent shown.

C. Since the appellee pierced the pleadings on one or more essential elements of appellant’s theories of liability, then the burden of proof shifted to appellant to come forward with evidence to create a dispute as to material fact, which appellant has failed to do as to the foregoing essential elements. Therefore, as a matter of law, appellee was entitled to the grant of summary judgment, and the remaining issues as to other elements of the theory of liability are moot. Lau’s Corp. v. Haskins, supra at 493-494.

2. Appellant’s second enumeration of error is that the trial court erred in refusing to consider and to rule on appellant’s motion to compel under Uniform Superior Court Rule 5.1, prior to ruling on appellee’s motion for summary judgment.

When faced with a motion for summary judgment and the unavailability of evidence to rebut such motion, OCGA § 9-11-56 (f) provides, “[s]hould it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavits facts essential to justify his opposition, the court may refuse the application for judgment, or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had, or may make such other order as is just.” See Kiker v. Pinson, 120 Ga. App. 784 (172 SE2d 333) (1969). “If appellant needed additional discovery so as to make a response to appellee’s motion, [it] should have invoked OCGA § 9-11-56 (f) rather than make [a request for extension of discovery under Uniform Superior Court Rule 5.1 which does not provide for a continuance of the motion for summary judgment].” Thompson v. Tom Harvey Ford Mercury, 193 Ga. App. 64 (387 SE2d 28) (1989). Appellant failed to file the appropriate motion for continuance.

However, even if we treat appellant’s motion as one under OCGA § 9-11-56 (f), which requires appellant to set forth the reasons for a continuance and to show that if the motion to compel were successful, then what relevant and material evidence would be produced in opposition to the motion for summary judgment, such deposition questions were prohibited by the attorney-client privilege. Appellant failed to make a proper showing to the trial court to constitute a meritorious motion.

The granting or denial of a motion under OCGA § 9-11-56 (f) lies in the sound discretion of the trial judge and will not be reversed absent a showing of clear abuse of discretion. Wilson v. Tara Ford, 200 Ga. App. 98, 101-102 (3) (406 SE2d 807) (1991); Hall v. Scott USA, 198 Ga. App. 197, 201-202 (3) (400 SE2d 700) (1990); Gray v. Gober, 185 Ga. App. 624, 627-628 (2) (365 SE2d 279) (1988); Herring v. R. L. Mathis &c. Co., 121 Ga. App. 373, 377 (2) (173 SE2d 716) (1970).

Under the common law of Georgia, as codified in OCGA §§ 24-9-21 (2), 24-9-24, and 24-9-25, the attorney-client privilege bars revelation, discovery, and testimony of a lawyer except when waived by the client or in very limited circumstances. Buffington v. McClelland, 130 Ga. App. 460 (203 SE2d 575) (1973). These prohibitions are not a matter of legal ethics under the Code of Professional Responsibility (238 Ga. 747-832; 241 Ga. 651-743; 249 Ga. 889-902; 252 Ga. 581-655), but are the mandates of the common law of Georgia as an expression of public policy, which the lawyer has no power to waive. Southern Guaranty Ins. Co. v. Ash, 192 Ga. App. 24 (383 SE2d 579) (1989); Associated Grocers Cooperative v. Trust Co. of Columbus, 158 Ga. App. 115 (279 SE2d 248) (1981); Marriott Corp. v. American Academy of Psychotherapists, 157 Ga. App. 497 (277 SE2d 785) (1981); Atlantic Coast Line R. v. Daugherty, 111 Ga. App. 144 (141 SE2d 112) (1965). The trial court did not abuse its discretion in not ruling on the motion to compel discovery prior to ruling on the motion for summary judgment, because the questions sought to clearly invade the attorney-client privilege. Further, there was no proffer of proof that would show to the trial court and this Court the relevance, materiality, and admissibility of the answers in opposition to the motion for summary judgment had such answers been compelled; appellant has failed to show any harm.

Case No. A97A1382

3. Appellant’s second appeal and enumerations of error are the same as Divisions 1 and 2 herein and are governed thereby.

Decided June 18, 1997

Before Judge Etheridge.

Wilson, Strickland & Benson, Mary M. Brockington, Fred R. Slotkin, Jr., Sara L. Doyle, for appellant.

Sutherland, Asbill & Brennan, Steven L. Polk, for appellee.

Judgment affirmed.

Birdsong, P. J, concurs. Ruffin, J., concurs in judgment only.

       The judgment, dated January 16, 1997, with a filing stamp of January 17, 1997, was mailed to appellant and they relied upon it in filing a notice of appeal on January 29, 1997, which contained a copy. Subsequently, the January 16, 1997 judgment received a second filing stamp of January 22, 1997, which was never delivered to appellant and which appears on the docket for January 22, 1997; no docket entry for January 17, 1997 was ever made, notwithstanding the filing stamp containing the earlier date of filing. It appears that the clerk’s office marked the judgment of January 16, 1997, as filed on January 17, 1997, without placing it immediately upon the docket and thereafter lost it so that an unstamped copy had to be refiled and in fact was marked entered on January 22, 1997, but a copy was not transmitted to appellant as required bylaw. OCGA § 15-6-21 (c). Appellee had to be aware of such multiple filings of the judgment, because appellant mailed the earlier copy to appellant and attached a later stamped copy to its motion for attorney fees. The parties and this Court will treat the notice of appeal as being timely filed. See OCGA § 5-6-48; Brumby v. State, 264 Ga. 215 (443 SE2d 613) (1994); Bethsaida Dev. v. Charter Land &c. Corp., 232 Ga. 641 (208 SE2d 462) (1974); Bagwell v. Henson, 124 Ga. App. 92 (183 SE2d 485) (1971); Franklin v. Sea Island Bank, 120 Ga. App. 654 (171 SE2d 866) (1969).


author: Judge Harold R. Banke.

text:
    A97A1475.
    VEAL v. THE STATE.
    (487 SE2d 696)
   Judge Harold R. Banke.

Ulonzo Tamayo Veal was convicted of misdemeanor obstruction of an officer. On appeal, he challenges the sufficiency of the evidence and the denial of his motion for new trial which also raised the sufficiency issue.

This case arose after a police officer noticed a car speeding behind him. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). The officer pulled over to let the car pass. Instead, it stopped behind the patrol car. When the officer started to turn his car around, the other car began to turn too. The officer activated his lights and pulled in close behind the car. Then three men, including one later identified as Veal, jumped out and ran into nearby woods. The officer found several car radios in the vehicle, which Veal’s brother admitted to stealing. Held:

We reject Veal’s contention that the evidence, viewed in the light most favorable to the verdict, was insufficient to support his conviction. The essential elements of misdemeanor obstruction are a knowing and wilful act obstructing or hindering an officer who is lawfully discharging his duties. OCGA § 16-10-24 (a); Weidmann v. State, 222 Ga. App. 796, 797 (2) (476 SE2d 18) (1996). Flight from police apprehension has been held to constitute sufficient opposition to support an obstruction charge. Id.; Brown v. State, 224 Ga. App. 42, 43 (2) (479 SE2d 454) (1996). Because the obstruction must be “knowing and wilful,” the State was required to prove that Veal knew or should have known that he was being pursued by a police officer. O’Neal v. State, 211 Ga. App. 741, 742 (2) (440 SE2d 513) (1994). The State satisfied the wilfulness element with proof that the patrol car pulled close behind Veal’s car with its emergency lights flashing just before Veal took flight. At that, Veal knew or should have known that the officer sought him. Veal’s post-arrest statement that he ran because he “didn’t want to go to jail” confirms that knowledge.

Decided June 18, 1997.

Before Judge Prior.

Martin L. Fierman, for appellant.

Fredric D. Bright, District Attorney, Paul L. Groth, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


author: Andrews, Chief Judge.

text:
    A97A0148.
    A97A0505.
    A97A0506.
    KLUGE v. RENN. DANIELS et al. v. KLUGE. TAYLOR v. KLUGE.
    (487 SE2d 391)
   Andrews, Chief Judge.

Mary Kluge’s divorce action against Stephen Renn concluded with the entry of a consent divorce decree setting forth a settlement agreement between the parties. Thereafter, Kluge brought the present abusive litigation action pursuant to OCGA § 51-7-80 et seq. against Renn, Tony Taylor (Renn’s attorney in the divorce action), Jerry A. Daniels, P. C. (the law firm that employed Taylor), and Jerry A. Daniels, individually (a member of the law firm of Jerry A. Daniels, P. C.). Kluge asserted that Renn’s counterclaim against her in the divorce action alleging adultery was false and was brought with malice and without substantial justification. The trial court granted Renn’s motion for summary judgment and denied summary judgment motions brought by Taylor, Jerry A. Daniels, P. C., and Daniels, individually. In Case No. A97A0148, Kluge appeals from the grant of summary judgment in favor of Renn. We granted interlocutory appeals to consider the trial court’s denial of summary judgment to the remaining defendants. In Case No. A97A0505, Daniels, individually, and Jerry A. Daniels, P. C., appeal from the denial of their motions for summary judgment. In Case No. A97A0506, Taylor appeals from the denial of his motion for summary judgment.

Case No. A97A0148

1. Kluge contends the trial court erred by ruling that the settlement she entered into with Renn in the divorce action precluded her subsequent abusive litigation claim against Renn.

On March 3, 1995, during the pendency of the divorce action, Kluge sent a letter to Taylor providing notice pursuant to OCGA § 51-7-84 (a) to Taylor and his client, Renn, that she considered the adultery counterclaim to constitute abusive litigation and that, unless it was withdrawn, she intended to assert a claim for abusive litigation against both of them after final termination of the divorce action. See Owens v. Generali US. Branch, 224 Ga. App. 290, 292 (480 SE2d 863) (1997). Renn later withdrew the adultery allegation in an amendment to his counterclaim filed on April 28, 1995. The divorce case was set for trial in June 1995.

The trial court’s summary judgment order in the present case shows that, on the day the divorce case was set for trial, the parties settled all the issues in the case, except for certain contract issues which were submitted to the jury, and except for the issue of attorney fees sought by both parties in their original pleadings, which was reserved for later resolution by the trial court. After the contract issues were resolved by trial, a consent decree signed and approved by counsel for both parties was entered by the trial court on June 16, 1995. The consent decree incorporated all the terms of the divorce and recited that it was entered pursuant to “an agreement among [the parties] to settle all issues in reference to this case.” As to the only issue reserved for later resolution, the consent decree gave the parties 15 days to submit any request for attorney fees sought in the original pleadings.

We agree with the trial court that entry of the consent decree incorporating the parties’ settlement of the case barred Kluge’s subsequent action against Renn for abusive litigation pursuant to OCGA § 51-7-80 et seq. As the trial court noted in its order granting summary judgment, we reached this conclusion in similar cases where a party sought attorney fees and expenses for frivolous litigation under OCGA § 9-15-14 after the case giving rise to the claim was settled.

In Hunter v. Schroeder, 186 Ga. App. 799 (368 SE2d 561) (1988), we held that a consent order dismissing an action with prejudice and reciting that the dismissal embodied the parties “settlement of all claims in this action” barred a subsequent frivolous litigation claim pursuant to OCGA § 9-15-14. We held that, after final termination of a case, the legislature did not intend to authorize one party to seek recovery of frivolous litigation expenses under § 9-15-14 against another party where the party seeking the recovery had induced the final termination by entering into a settlement of all claims in the case. Id. at 800. We concluded that the settlement, “include[d] any possible claim that might otherwise have been allowed under OCGA § 9-15-14 on the basis that [a claim or defense by a party in the prior case] lacked substantial justification.” Id. at 800-801. Similarly, in Ingram v. Star Touch Communications, 215 Ga. App. 329 (450 SE2d 334) (1994), the party seeking attorney fees under OCGA § 9-15-14 after final termination of the case had induced a dismissal with prejudice by entering into a settlement of the case. We found that, in the absence of any indication that the § 9-15-14 claim had been reserved by the settling parties, the settlement eliminated a party’s subsequent claim for frivolous litigation expenses under § 9-15-14. Id. at 330. Compare Forest Lakes Home Owners Assn. v. Green Indus., 218 Ga. App. 890 (463 SE2d 723) (1995).

The abusive litigation remedy created in OCGA § 51-7-80 et seq. serves a purpose similar to the procedures in OCGA § 9-15-14 for the collection of attorney fees and expenses of litigation for frivolous actions and defenses. See Hutchison v. Divorce & Custody Law Center &c., P. C., 207 Ga. App. 421, 423 (427 SE2d 784) (1993). Accordingly, we find that the rationale applied to recovery under § 9-15-14 after a case has been settled also applies to recovery under § 51-7-80 et seq. after settlement. Since the consent decree embodied a settlement of the case by the parties, and there is nothing indicating reservation of the claim for abusive litigation, the trial court correctly concluded that thé settlement barred Kluge’s abusive litigation claim against Renn.

Case No. A97A0506

2. Taylor contends the trial court erred by denying his motion for summary judgment because the adultery counterclaim against Kluge that he filed on behalf of Renn was privileged under OCGA § 51-5-8.

OCGA § 51-5-8 provides that pleadings filed in a case, which are pertinent and material to the relief sought, even if they are not legally sufficient to obtain the relief sought, and even if they are false and malicious, are not subject to a claim for libel. Stewart v. Walton, 254 Ga. 81, 82 (326 SE2d 738) (1985). The privilege established under OCGA § 51-5-8 does not bar a claim for abusive litigation pursuant to OCGA § 51-7-80 et seq. Phillips v. MacDougald, 219 Ga. App. 152 (464 SE2d 390) (1995); see Alcovy Properties v. MTW Investment Co., 212 Ga. App. 102 (441 SE2d 288) (1994).

3. There is no merit to Taylor’s contention that he was entitled to summary judgment solely because Kluge failed to file a written response to his motion within the time required by Superior Court Rule 6.2. By failing to file a timely response, Kluge waived her right to present evidence in opposition to Taylor’s motion, but this did not necessarily entitle Taylor to summary judgment. Ackerman & Co. v. Lostocco, 216 Ga. App. 242, 244 (454 SE2d 792) (1995). Summary judgment is granted only when it affirmatively appears from the pleadings and the evidence that the movant is entitled to prevail. Id. Moreover, even if the trial court considered evidence which was not timely filed, Taylor did not object, so this provides no basis for reversal. Wilson v. Valentine, 199 Ga. App. 244, 245 (404 SE2d 600) (1991).

4. Taylor contends the facts demonstrate that he did not engage in abusive litigation as Renn’s attorney pursuant to OCGA § 51-7-80 et seq. because he acted without malice, with substantial justification, and in good faith in filing the adultery counterclaim based on facts supplied by Renn, in pursuing discovery in further support of the claim, and in subsequently withdrawing the adultery allegation after receiving responses to the discovery.

To establish a claim by a spouse for divorce on the ground of adultery requires evidence that, during the marriage, the spouse against whom the allegation is made voluntarily had sexual intercourse with a person other than his or her spouse. OCGA §§ 19-5-3 (6); 16-6-19. The record reflects that the adultery counterclaim was filed by Taylor on behalf of Renn after Renn told Taylor, during the pendency of the divorce action, that he suspected Kluge was having an affair with another man. Taylor stated by affidavit in support of his motion for summary judgment that Renn told him he was suspicious because he and Kluge had separated after only three months of marriage, that Kluge had discontinued sexual relations with him after six weeks of marriage, that during the marriage Kluge continued a close relationship at work with a man who had sent her flowers and a diamond tennis bracelet during the time he (Renn) and Kluge were engaged to be married, that he had received reports that Kluge and the man spent an unusual amount of time together, that during the marriage Kluge went on two weekend trips refusing to tell him where she was going or how to contact her, and that when she got back from one of the trips he found a negligee he had never seen before in the trunk of her car in a “Frederick’s of Hollywood” bag and she refused to discuss it.

Taylor stated that he relied on these statements by Renn as support for filing the adultery counterclaim and accompanying discovery regarding the counterclaim. In a deposition taken during the pendency of the divorce action and in another deposition taken in the present action, Renn confirmed that, sometime after his initial answer and counterclaim in the divorce action had been filed, he told Taylor about the events that raised his suspicions that Kluge was having an affair. He also confirmed that he had no personal knowledge nor had anyone told him that Kluge had engaged in an adulterous or romantic relationship with someone else during the marriage.

The record shows that on March 3, 1995, the same day the adultery counterclaim was filed, Taylor also filed interrogatories, requests for admissions, and requests for production seeking information and admissions to support the adultery allegation, including Kluge’s whereabouts on one of the weekend trips. Kluge responded to the interrogatories and requests for admissions in about a week, admitting that she knew the man at issue through a business relationship but denying that she had any kind of adulterous or romantic relationship with him. Kluge also provided the name and location of a girl friend with whom she stayed on the weekend at issue. On March 3, 1995, at the time she received the counterclaim and responded to the discovery, Kluge also sent Renn and Taylor the notice required pursuant to OCGA § 51-7-84 (a) stating that she considered the adultery counterclaim to be abusive litigation and that, unless it was withdrawn, she would bring an abusive litigation claim against both of them after the divorce action was terminated. Kluge responded to Renn’s production request related to the adultery allegation at Renn’s deposition taken on April 14, 1995. After Renn testified during the deposition that he had discovered no further support for the adultery allegation, Taylor stated on the deposition record that he and his client did not intend to further pursue the adultery allegation and that an amendment would be filed to the counterclaim deleting the adultery claim. On April 28, 1995, Taylor filed an amendment to Renn’s counterclaim deleting the allegation of adultery.

OCGA § 51-7-81 provides as follows: “Any person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation if such person acts: (1) With malice; and (2) Without substantial justification.” In this context, a “ Tcjivil proceeding’ includes any action, suit, proceeding, counterclaim, cross-claim, third-party claim, or other claim at law or in equity.” OCGA § 51-7-80 (1). “ ‘Malice’ means acting with ill will or for a wrongful purpose and may be inferred in an action if the party initiated, continued, or procured civil proceedings or process in a harassing manner or used process for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.” OCGA § 51-7-80 (5). “ ‘Without substantial justification,’ when used with reference to any civil proceeding, claim, defense, motion, appeal, or other position, means that such civil proceeding, claim, defense, motion, appeal, or other position is: (A) Frivolous; (B) Groundless in fact or in law; or (C) Vexatious.” OCGA § 51-7-80 (7).

As Renn’s attorney in the divorce action, Taylor is a person within the meaning of OCGA §§ 51-7-81 and 51-7-80 (6) who could be liable for abusive litigation for taking an active part in the initiation, continuation, or procurement of the adultery counterclaim filed on behalf of Renn against Kluge if in so doing Taylor acted with malice and without substantial justification. See Ibrahim v. Talley & Assoc., P. C., 214 Ga. App. 609, 611-612 (448 SE2d 707) (1994); Kirsch v. Meredith, 211 Ga. App. 823 (440 SE2d 702) (1994). OCGA § 51-7-82 (b) provides, however, that “[i]t shall be a complete defense to any claim for abusive litigation that the person against whom a claim of abusive litigation is asserted acted in good faith; provided, however, that good faith shall be an affirmative defense and the burden of proof shall be on the person asserting the actions were taken in good faith.” Pursuant to OCGA § 51-7-80 (4) “ ‘Good faith,’ when used with reference to any civil proceeding, claim, defense, motion, appeal, or other position, means that to the best of a person’s or his or her attorney’s knowledge, information, and belief, formed honestly after reasonable inquiry, that such civil proceeding, claim, defense, motion, appeal, or other position is well grounded in fact and is either warranted by existing law or by reasonable grounds to believe that an argument for the extension, modification, or reversal of existing law may be successful.”

In response to Kluge’s abusive litigation claim, Taylor asserted the affirmative defense of good faith in his answer and in his motion for summary judgment. Taylor contends that, based on the information given to him by Renn, he acted in good faith as Renn’s attorney in initiating the adultery counterclaim, in continuing the counterclaim while pursuing discovery related to it, and in subsequently withdrawing the adultery allegation after discovery developed nothing further in support of the claim. As defined under OCGA § 51-7-80 (4), the “good faith” defense asserted by Taylor in reference to the adultery counterclaim “means that to the best of [Taylor’s] knowledge, information, and belief, formed honestly after reasonable inquiry, [the adultery counterclaim was] well grounded in fact and [thus] warranted by existing law. . . .” Although good faith is defined in subjective terms to the extent it refers “to the best of a person’s or his or her attorney’s knowledge, information, and belief, formed honestly . . .” an attorney cannot establish that he or she acted in good faith by simply asserting a subjective, honest belief that a claim was well grounded in fact and warranted by existing law or by reasonable grounds to believe that an argument for changing the law may be successful. The “reasonable inquiry” requirement of § 51-7-80 (4) is an objective good faith requirement which qualifies the definition and imposes a duty on attorneys to conduct a reasonable inquiry into the facts and law prior to initiating, continuing, or procuring a claim on behalf of a client. Accordingly, the applicable standard is what would be objectively reasonable for a competent attorney under the circumstances. See 5A C. Wright & A. Miller, Federal Practice & Procedure, § 1335 (2nd ed. 1990) (discussing the standard of “reasonableness under the circumstances” used to measure attorneys’ complianee with similar statutory language in Rule 11 of the Federal Rules of Civil Procedure).

The fact that the adultery counterclaim, when filed, was not supported by facts sufficient to establish the claim does not demand a finding that Kluge has a viable abusive litigation claim against Taylor for filing it as Renn’s attorney. An attorney need not under all circumstances have enough facts to establish a claim prior to filing. The goal of OCGA § 51-7-80 et seq. is to deter and compensate for damages caused by the initiation, continuation, or procurement of abusive, frivolous, or groundless claims, not to penalize claims which have some arguable support but need discovery or investigation to be developed. Compare Ferguson v. City of Doraville, 186 Ga. App. 430, 434-437 (367 SE2d 551) (1988). It may be reasonable under the circumstances for an attorney^after satisfying the reasonable inquiry requirement, to file a claim on behalf of a client based on facts which may not be sufficient to establish a triable issue, but do supply at least a colorable inference in support of the claim, and then pursue discovery or investigation to confirm whether or not a factual basis can be developed for continuing the claim. See Donaldson v. Clark, 819 F2d 1551, 1561 (11th Cir. 1987) (the requirement of Rule 11 of the Federal Rules of Civil Procedure, which imposes a similar requirement that attorneys make a “reasonable inquiry” into the facts and law prior to filing a pleading, “does not preclude plaintiffs from establishing the merits of claims through discovery” and is not intended to discourage an attorney’s pursuit of arguable factual or legal theories). Under such circumstances, the attorney’s continuing duty under the reasonable inquiry requirement is to pursue discovery or investigation, and, if sufficient support is not developed after a reasonable opportunity for discovery or investigation, then dismiss, withdraw, abandon, or discontinue the claim. Of course, an abusive litigation claim would be appropriate where an attorney files a claim on behalf of a client without any factual or legal support or supported only by guess or sheer speculation, or in cases where a claim having arguable factual or legal support is filed in good faith for the purpose of pursuing discovery, but continued by the attorney after discovery reveals there is no basis for the claim.

In the present case, the facts relied upon by Taylor for filing the adultery counterclaim were provided to him by his client during the pendency of the divorce litigation initiated by Kluge. There is nothing in the record showing that Taylor had any reason to question the truth of the facts. Although the facts clearly did not establish the adultery allegation, they were sufficient for a reasonable attorney to conclude that a colorable inference existed in support of the adultery claim which required investigation or discovery to be developed. Given the time constraints imposed during the pendency of the litigation, and the nature of the claim, it was not feasible for Taylor to conduct a pre-filing investigation. It was reasonable inquiry under the circumstances for Taylor to rely on the facts he obtained from his client, file the adultery counterclaim, and immediately pursue discovery to develop the claim. The record shows that, along with the adultery counterclaim filed on March 3, 1995, Taylor also filed discovery in relation to the counterclaim. Upon receiving Kluge’s final discovery response at Renn’s deposition on April 14, 1995, and concluding that discovery had generated no additional support for the adultery claim, Taylor announced on the record at the deposition that Renn was abandoning the claim. No further action was taken on the adultery claim, and it was withdrawn on April 28, 1995, by amendment to the pending counterclaim.

Decided May 27, 1997

Reconsideration denied June 19, 1997

Before Judge Stark.

Charles A. Mullinax, Glynn R. Stepp, for Kluge.

Larry L. Duttweiler, for Renn.

Based on this record, we conclude that Taylor acted reasonably under the circumstances, established a good faith defense, and was not liable on the abusive litigation claim. OCGA § 51-7-82 (b). “Although ‘the question of reasonableness and unreasonableness is most often a jury issue, in plain and palpable cases the determination may be made by the court.’ [Cit.]” Pakwood Indus, v. John Galt Assoc., 219 Ga. App. 527, 529 (466 SE2d 226) (1995). The trial court erred in denying Taylor’s motion for summary judgment. See Ibrahim, supra at 610-612; compare Kirsch v. Jones, 219 Ga. App. 50, 52-53 (464 SE2d 4) (1995).

Case No. A97A0505

5. Based on our conclusion in Case No. A97A0506 that Kluge had no viable claim for abusive litigation, there was no basis for concluding that Jerry A. Daniels, R C. and Jerry A. Daniels, individually were liable. We need not address the specific enumerations of error raised by these parties.

Judgment affirmed in Case No. A97A0148. Judgment reversed in Case Nos. A97A0505 and A97A0506.

McMurray, P. J., and Smith, J., concur.

Daniels & Taylor, Jerry A. Daniels, pro se.

Wayne A. Bailey, for Daniels.

Daniels & Taylor, Tony A. Taylor, pro se.

       Although Taylor’s enumeration of error and argument assert he took these actions without malice and with substantial justification, it is apparent from a review of the record that the essence of Taylor’s contention is that he was entitled to summary judgment for acting in good faith. Where the error sought to be asserted is apparent from a review of the record, we will consider it even though it is not clearly enumerated. OCGA § 5-6-48 (f).

       Because Taylor did not raise the issue, we do not address whether or not he could have asserted the settlement between Renn and Kluge in the divorce action as a defense to the abusive litigation claim against him.