O.C.G.A.

O.C.G.A. § 51-7-82 (2019)

Defenses

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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(a) It shall be a complete defense to any claim for abusive litigation that the person against whom a claim of abusive litigation is asserted has voluntarily withdrawn, abandoned, discontinued, or dismissed the civil proceeding, claim, defense, motion, appeal, civil process, or other position which the injured person claims constitutes abusive litigation within 30 days after the mailing of the notice required by subsection (a) of Code Section 51-7-84 or prior to a ruling by the court relative to the civil proceeding, claim, defense, motion, appeal, civil process, or other position, whichever shall first occur; provided, however, that this defense shall not apply where the alleged act of abusive litigation involves the seizure or interference with the use of the injured person’s property by process of attachment, execution, garnishment, writ of possession, lis pendens, injunction, restraining order, or similar process which results in special damage to the injured person.

(b) It 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.

(c) It shall be a complete defense to any claim for abusive litigation that the person against whom a claim of abusive litigation is asserted was substantially successful on the issue forming the basis for the claim of abusive litigation in the underlying civil proceeding.

History

(Code 1981, § 51-7-82, enacted by Ga. L. 1989, p. 408, § 2.)

Annotations

JUDICIAL DECISIONS Attorney not liable. - An attorney who filed an adultery counterclaim in a divorce proceeding based on information provided to the attorney by the client acted reasonably, established a good faith defense, and was not liable on an abusive

litigation claim. Kluge v. Renn, 226 Ga. App. 898, 487 S.E.2d 391 (1997). Summary judgment should not have been granted to financial advisor asserting an abusive litigation claim against a client’s former wife who had

sued the advisor and others for alleged fraud in causing her to terminate a trust that was to fund her alimony obligation after the former husband died since there was evidence that the advisor made misrepresentations to the former wife’s attorney. Payne v. Kanes, 234 Ga. App. 524, 507 S.E.2d 266 (1998). Complete defense offered to abuse of litigation claim. - Purchaser’s abuse of litigation claim was properly dismissed under O.C.G.A. § 9-11-12(b)(6) because the lender’s dispossessory claim against the purchaser and seller, the subject of the abuse of litigation claim, succeeded, which was a complete defense under O.C.G.A. § 51-7-82(c). LaSonde v. Chase Mortg. Co., 259 Ga. App. 772, 577 S.E.2d 822 (2003).

Lack of ante-litem notice an affirmative defense. - Abusive litigation statutes are silent as to any requirement that a defense based upon the ante-litem notice be affirmatively pled and proven by a defendant; thus, the legislature never intended to make the lack of ante-litem notice an affirmative defense. Davis v. Wallace, 310 Ga. App. 340, 713 S.E.2d 446 (2011). Cited in Woodall v. Hayt, Hayt & Landau, 198 Ga. App. 624, 402 S.E.2d 359 (1991); Kirsch v. Jones, 219 Ga. App. 50, 464 S.E.2d 4 (1995); Great W. Bank v. Southeastern Bank, 234 Ga. App. 420, 507 S.E.2d 191 (1998); Bacon v. Volvo Serv. Ctr., Inc., 288 Ga. App. 399, 654 S.E.2d 225 (2007).

Notes of Decisions

Cited in 19 cases (4 in the last 5 years), 1991–2024 · leading case: Davis v. Wallace, 713 S.E.2d 446 (Ga. Ct. App. 2011).

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Davis v. Wallace, 713 S.E.2d 446 (Ga. Ct. App. 2011). · cites it 4× “If the General Assembly had intended to shift the burden to Defendants on this issue by making the omission of an ante litem notice an affirmative defense, it would have expressly done so as it did with the defense of good faith.”

LaSonde v. Chase Mortg. Co., 577 S.E.2d 822 (Ga. Ct. App. 2003). · cites it 2× “OCGA § 51-7-82 (c) provides that it is a complete defense to any claim for abusive litigation that the person against whom the claim is asserted was substantially successful on the issue forming the basis for the claim of abusive litigation in the underlying civil proceeding.”

Coen v. Aptean, Inc., 838 S.E.2d 860 (Ga. 2020). · cites it 2× “The statutory tort also has several complete defenses, including voluntarily discontinuing the proceeding within 30 days after notice, see OCGA § 51-7-82 (a), that did not exist in the Yost tort, see 256 Ga.”

Slone v. Myers, 653 S.E.2d 323 (Ga. Ct. App. 2007). · cites it 2× “11 We find no basis either in the statute itself or in case law for Slone and Ebron’s assertion that OCGA § 51-7-82 (b) “specifically exempts actions for writs of possession from this notice requirement.”

Kluge v. Renn, 487 S.E.2d 391 (Ga. Ct. App. 1997). · cites it 4× “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 *903 good faith shall be an affirmative defense…”

O'NEAL v. Home Town Bank of Villa Rica, 514 S.E.2d 669 (Ga. Ct. App. 1999). · cites it 2× “33 See also OCGA § 51-7-82 (it is a defense to withdraw the “civil proceeding, claim, defense, motion, appeal, civil process, or other position.”

Bacon v. Volvo Serv. Ctr., Inc., 654 S.E.2d 225 (Ga. Ct. App. 2007). · cites it 2× “OCGA§ 51-7-82 (h); Kirsch v. Jones, 219 Ga.”

Johnson v. Lomas Mortg. USA, Inc., 411 S.E.2d 731 (Ga. Ct. App. 1991). · cites it 2× “Lomas also asserts that it has a defense to Johnson’s abusive litigation claim under OCGA § 51-7-82 (c) since it was “substantially successful on the issue forming the basis for the claim of abusive litigation in the underlying *564 civil proceeding.”

Talbert v. Allstate Ins. Co., 408 S.E.2d 125 (Ga. Ct. App. 1991). · cites it 2× “” Here, Allstate as one who took “an active part” but was not an actual party, was entitled to be particularly specified in the letter as the one against whom Talbert would seek damages if the position of lack of negligence were not withdrawn or dismissed.”

Williams v. Binion, 490 S.E.2d 217 (Ga. Ct. App. 1997). · cites it 2× “OCGA § 51-7-82. 2. An award under O.CGA § 51-7-81 is not authorized in this case, however, and Binion has not asserted such a claim.”

Ackerman & Co. v. Lostocco, 454 S.E.2d 792 (Ga. Ct. App. 1995). · cites it 2× “Although Ackerman appears to concede that OCGA § 51-7-82 is not applicable to this suit, see Woodall v.”

Woodall v. Hayt, Hayt & Landau, 402 S.E.2d 359 (Ga. Ct. App. 1991). · cites it 2× “OCGA § 51-7-82 (a), which was enacted as part of Article 5 of Title 51, Chapter 7 (Ga.”

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