O.C.G.A. § 51-7-81 (2019)

Annotations

Law reviews. - For article, ‘‘Rule 11: Is the Cure Justified by the Disease?,’’ see 28 Ga. St. B. J. 228 (1992). For article, ‘‘Of

Frivolous Litigation and Runaway Juries: A View from the Bench,’’ see 41 Ga. L. Rev. 431 (2007).

JUDICIAL DECISIONS Georgia’s abusive litigation statutes do not apply to lawsuits in federal courts. Great W. Bank v. Southeastern Bank, 234 Ga. App. 420, 507 S.E.2d 191 (1998). Applicability to Workers’ Compensation Act. - O.C.G.A. § 51-7-81 does not authorize a claim for abusive litigation in the context of the Workers’ Compensation Act, O.C.G.A. § 34-9-1 et seq. Patterson v. Cox Enters., Inc., 201 Ga. App. 222, 411 S.E.2d 85 (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 the claims 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). Stated purpose of O.C.G.A. § 51-7-84 is to give the prospective defendant to an abusive litigation claim an opportunity to voluntarily withdraw the complaint. Even if a notice given in an earlier case complied with § 51-7-84, that notice cannot satisfy the notice requirement in a later case because the plaintiff is not given the opportunity to withdraw the complaint in the later action. Baylis v. Daryani, 294 Ga. App. 729, 669 S.E.2d 674 (2008). Defendants’ counterclaim against a business owner alleged abusive litigation in violation of O.C.G.A. § 51-7-80 et seq. Since the counterclaim did not comply with the notice provisions of O.C.G.A. § 51-7-84 and despite the fact that the defendants gave the owner such notice in a prior action between the parties this

could not constitute compliance with § 51-7-84 and, therefore, the counterclaim had to be dismissed. Baylis v. Daryani, 294 Ga. App. 729, 669 S.E.2d 674 (2008). Trial court did not err in granting judgment in favor of a company on a debtor’s abusive litigation claim because the debtor did not provide the company with the requisite advance notice of the debtor’s abusive litigation claim; O.C.G.A. § 51-7-84(a) specifically requires notice to the opposing party as a condition precedent to any claim for abusive litigation so that the party will have the opportunity to voluntarily discontinue the proceeding at issue. Sevostiyanova v. Tempest Recovery Servs., 307 Ga. App. 868, 705 S.E.2d 878 (2011). Persons against whom claim for abusive litigation may be brought. - An attorney who provided an expert affidavit in support of a legal malpractice claim was not an ‘‘active participant’’ in the malpractice litigation and, accordingly, was not liable to the attorney charged with professional malpractice under an abusive litigation theory. Kirsch v. Meredith, 211 Ga. App. 823, 440 S.E.2d 702 (1994). Claim lacked substance. - Claim that the 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). A claim for abusive litigation was not established after the plaintiff failed to give the written notice required by O.C.G.A. § 51-7-84 and when, at the time it was prosecuted, the defendant’s suit was not without substantial justification. Phillips v. MacDougald, 219 Ga. App. 152, 464 S.E.2d 390 (1995). Claim not timely brought. - Creditor’s motion to amend its claim for sanctions against the debtor under O.C.G.A.

§ 9-15-14 to state a claim under O.C.G.A. § 51-7-81 was denied, as the amendment was untimely and inequitable, being filed two years after the debtor had been granted a discharge and the time for filing claims had long since passed. In re Fowler, No. 03-92256-MGD, 2006 Bankr. LEXIS 2322 (Bankr. N.D. Ga. July 10, 2006). Claim not ‘‘without substantial justification.’’ - Because at the time it filed suit the insurer’s position with respect to insurer direct tort actions and insurer direct tort actions for medical payments was not frivolous, groundless in fact or law, or vexatious, the action was not ‘‘without substantial justification’’ so as to sustain a claim for abusive litigation. Owens v. Generali-United States Branch, 224 Ga. App. 290, 480 S.E.2d 863 (1997). 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). Malice not established in pursuing debtor. - Trial court did not err in granting 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). Plaintiff, as plaintiff in actions, could not base suit on O.C.G.A. § 51-7-81. - Plaintiff does not allege that the defendant attorney took an active part in the initiation, continuation, or procurement of civil proceedings against the plaintiff. Indeed, the plaintiff was the plaintiff in the two cases involving these parties - in the case against a contract-

ing party and the instant action involving the defendant attorney. Thus, the plaintiff has failed to state a claim for abusive litigation. Fortson v. Hotard, 299 Ga. App. 800, 684 S.E.2d 18 (2009). Summary judgment. - Issues of material fact as to whether attorneys’ action against a former client based upon a contingency agreement was abusive litigation precluded summary judgment. Kendrick v. Funderburk, 230 Ga. App. 860, 498 S.E.2d 147 (1998). Since the trial court found as a matter of law that the underlying action was brought with substantial justification, summary judgment was appropriate. Davis v. Butler, 240 Ga. App. 72, 522 S.E.2d 548 (1999). 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). Attorney’s fees improper before underlying suit terminated. - Trial court erred in charging a jury on attorney’s fees under O.C.G.A. § 51-7-81 because a claim under § 51-7-81 could not be brought as a counterclaim and was premature. The jury awarded fees against both the buyers and buyers’ counsel, which was only permitted under § 51-7-81 and not under O.C.G.A. § 13-6-11; because the jury may have based the jury’s award on an improper theory, a new trial on attorney’s fees was required. Goldsmith v. Peterson, 307 Ga. App. 26, 703 S.E.2d 694 (2010). 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); Williams v. Binion, 227 Ga. App. 893, 490 S.E.2d 217 (1997);

O’Neal v. Home Town Bank, 237 Ga. App. 325, 514 S.E.2d 669 (1999); Carroll County Water Auth. v. Bunch, 240 Ga. App. 533, 523 S.E.2d 412 (1999).

RESEARCH REFERENCES ALR. - Construction and application of Federal Tort Claims Act provision (28 USCA § 2680(h)) excepting from coverage

claims arising out of false imprisonment, false arrest, malicious prosecution, or abuse of process, 152 ALR Fed. 605.