O.C.G.A. § 51-7-80 (2019)

Statute text

As used in this article, the term:

(1) "Civil proceeding" includes any action, suit, proceeding, counterclaim, cross-claim, third-party claim, or other claim at law or in equity.

(2) "Claim" includes any allegation or contention of fact or law asserted in support of or in opposition to any civil proceeding, defense, motion, or appeal.

(3) "Defense" includes any denial of allegations made by another party in any pleading, motion, or other paper submitted to the court for the purpose of seeking affirmative or negative relief, and any affirmative defense or matter asserted in confession or avoidance.

(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.

(5) "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.

(6) "Person" means an individual, corporation, company, association, firm, partnership, society, joint-stock company, or any other entity, including any governmental entity or unincorporated association of persons with capacity to sue or be sued.

(7) "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.

(8) "Wrongful purpose" when used with reference to any civil proceeding, claim, defense, motion, appeal, or other position results in or has the effect of:

(A) Attempting to unjustifiably harass or intimidate another party or witness to the proceeding; or

(B) Attempting to unjustifiably accomplish some ulterior or collateral purpose other than resolving the subject controversy on its merits.

History

(Code 1981, § 51-7-80, enacted by Ga. L. 1989, p. 408, § 2.)

Annotations

Law reviews. - For article, "Appeals, Interlocutory and Discretionary Applications, and Post-Judgment Motions in the Georgia Courts: The Current Practice and the Need for Reform Legislation," see 44 Mercer L. Rev. 17 (1992). For annual survey article discussing trial practice and procedure, see 52 Mercer L. Rev. 447 (2000). For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008). For article, "A Constitutional Counterpunch to Georgia's Anti-SLAPP Statute," see 69 Mercer L. Rev. 407 (2019).

JUDICIAL DECISIONS

Overbroad restrictions on right of access to courts unconstitutional. - The legislature has provided remedies for hapless defendants hauled into court for the purpose of harassment, but overbroad restrictions on the right of access to the courts will not pass constitutional muster. In re Carter, 235 Ga. App. 551, 510 S.E.2d 91 (1998).

What constitutes "civil proceeding." - Allegations relating solely to prelitigation actions did not state a viable claim for abusive litigation under O.C.G.A. § 51-7-80. Ward v. Coastal Lumber Co., 196 Ga. App. 249, 395 S.E.2d 601 (1990).

Malice not established. - Trial court did not err in granting a judgment in favor of a company on a debtor's abusive litigation claim because the debtor failed to present any evidence that the company pursued the company's claim against the debtor to recover the amount due on a loan with malice pursuant to O.C.G.A. § 51-7-80(5). Sevostiyanova v. Tempest Recovery Servs., 307 Ga. App. 868, 705 S.E.2d 878 (2011).

Persons entitled to notice. - Insurer which took an active part in the continuation of proceedings against an insured in an automobile negligence case could be named as the defendant in an abusive litigation claim, and was entitled to specific written notice by registered or certified mail or other means evidencing receipt by the "addressee." Talbert v. Allstate Ins. Co., 200 Ga. App. 312, 408 S.E.2d 125, cert. denied, 200 Ga. App. 897, 408 S.E.2d 125 (1991).

Notice required prior to suit. - When a construction company's counterclaims alleging abusive litigation under O.C.G.A. §§ 9-15-14 and 51-7-80 et seq., alleged in the pleading that the claims constituted "notice" to assert such claims under O.C.G.A. § 51-7-81, the trial court properly determined that they were not counterclaims and, accordingly, dismissed them for want of subject matter jurisdiction under O.C.G.A. § 9-11-12(h)(3); it was also found that the required notice provided in O.C.G.A. § 51-7-84(b) was not provided prior to the filing of a claim, nor was the prior litigation ended in the defendants' favor, both of which were requirements in order to bring such a claim, and disposing of the claim under a summary judgment analysis, pursuant to O.C.G.A. § 9-11-56, was proper. Langley v. Nat'l Labor Group, Inc., 262 Ga. App. 749, 586 S.E.2d 418 (2003).

Trial court erred by failing to dismiss an invasion of privacy claim through public disclosure of private facts because the plaintiff failed to comply with the procedural requirements of O.C.G.A. § 51-7-80 et seq., by not providing statutory notice of the claim as required by O.C.G.A. § 51-7-84(a). Rogers v. Dupree, Ga. App. , 824 S.E.2d 823 (2019).

Punitive damages are excluded from the tort of abusive litigation. Snellings v. Sheppard, 229 Ga. App. 753, 494 S.E.2d 583 (1998).

Claim lacked substance. - Claim that creditor maliciously used the process of the bankruptcy court to obtain ownership of a partnership's motel business lacked substance when the partnership omitted from its allegations the guaranty contract which gave the creditor the legal right to pursue an action against the partnership as well as the factual disparity that the partnership was still in bankruptcy. Westinghouse Credit Corp. v. Hall, 144 Bankr. 568 (S.D. Ga. 1992).

Abusive litigation not found. - Dismissal of an action involving an employment dispute without prejudice was not a final termination of the case as required for an abusive litigation action. Hallman v. Emory Univ., 225 Ga. App. 247, 483 S.E.2d 362 (1997).

Because the Court of Appeals of Georgia merely found in a prior action between the parties that an employer failed to prove its claims against its former employee at trial, and that holding did not amount to a binding determination that those claims were without substantial justification or that the employer engaged in abusive litigation, the trial court properly granted summary judgment to the employer as to the former employee's abusive litigation claims; moreover, although questions of reasonableness were generally for the jury, given that the employer was successful at every stage of the litigation prior to the appeal, the trial court was authorized to determine as a matter of law that the company acted in good faith in filing and pursuing its claims. Bacon v. Volvo Serv. Ctr., Inc., 288 Ga. App. 399, 654 S.E.2d 225 (2007).

Strategic lawsuits against public participation. - There is no requirement that a party first seek to invoke O.C.G.A. § 9-15-14 or O.C.G.A. § 51-7-80 before seeking the protections of O.C.G.A. § 9-11-11.1. Hagemann v. City of Marietta, 287 Ga. App. 1, 650 S.E.2d 363 (2007), cert. denied, 2008 Ga. LEXIS 128 (Ga. 2008).

Relevancy found. - Evidence of the defendants' financial condition was relevant to the plaintiffs' abusive litigation claim against the defendants. Snellings v. Sheppard, 229 Ga. App. 753, 494 S.E.2d 583 (1998).

Award of attorney's fees premature. - An award of attorney fees to the purchaser of building supplies in a supplier's action to recover sums allegedly due for the supplies was in error because the underlying litigation had not yet been concluded when the attorney fee award was made. Cox Interior, Inc. v. Bayland Props., LLC, 293 Ga. App. 612, 667 S.E.2d 452 (2008).

Claim not "without substantial justification." - Trial court did not err in granting a realty company's motion to dismiss a limited liability company's (LLC) complaint for abusive litigation because it could not establish that a realty company acted without substantial justification as required by O.C.G.A. § 51-7-81; the realty company's failure to withdraw the notices of lis pendens based upon the non-final dismissal of its clients' specific performance claim did not demonstrate that it continued the notices of lis pendens without substantial justification. Petroleum Realty II v. Morris, Manning & Martin, 317 Ga. App. 102, 728 S.E.2d 896 (2012).

Cited in Johnson v. Lomas Mtg. USA, Inc., 201 Ga. App. 562, 411 S.E.2d 731 (1991); Ibrahim v. Talley & Assocs., 214 Ga. App. 609, 448 S.E.2d 707 (1994); Kirsch v. Jones, 219 Ga. App. 50, 464 S.E.2d 4 (1995); Owens v. Generali-United States Branch, 224 Ga. App. 290, 480 S.E.2d 863 (1997); Swafford v. Bradford, 225 Ga. App. 486, 484 S.E.2d 300 (1997); Kendrick v. Funderburk, 230 Ga. App. 860, 498 S.E.2d 147 (1998); Davis v. Butler, 240 Ga. App. 72, 522 S.E.2d 548 (1999); Land v. Boone, 265 Ga. App. 551, 594 S.E.2d 741 (2004); Fortson v. Hotard, 299 Ga. App. 800, 684 S.E.2d 18 (2009).