(Code 1981, §51-7-84, enacted by Ga. L. 1989, p. 408, § 2; Ga. L. 2000, p. 1589, § 3.)
Editor's notes.- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.
Law reviews.- For annual survey article on legal ethics, see 52 Mercer L. Rev. 323 (2000). For survey article on wills, trusts, guardianships, and fiduciary administration for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003). For survey article on local government law, see 60 Mercer L. Rev. 263 (2008). For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008).
JUDICIAL DECISIONS
Persons entitled to notice.
- Insurer which took an active part in the continuation of proceedings against its insured in an automobile negligence case could be named as a 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).
An abusive litigation letter sent to the insurer's attorney, an agent and representative of the defendant law firm, and plainly naming the insurer provided sufficient notice. Owens v. Generali-United States Branch, 224 Ga. App. 290, 480 S.E.2d 863 (1997).
Summary judgment should not have been granted to a litigant asserting an abusive litigation claim against the brother of a woman who had sued the litigant and others for alleged fraud concerning a domestic relations matter, since the litigant had not provided the notice required under subsection (a) of O.C.G.A. § 51-7-84, even though the litigant contended that the litigant had not been aware of the brother's role in the original fraud action as the statute makes no exception to the notice requirement. Payne v. Kanes, 234 Ga. App. 524, 507 S.E.2d 266 (1998).
Letter sent to a defendant in the plaintiff's action for abusive litigation through that defendant's attorney was not sufficient to put the attorney and the professional corporation on notice because it failed to identify them as defendants. Carroll County Water Auth. v. Bunch, 240 Ga. App. 533, 523 S.E.2d 412 (1999).
Failure to give notice.
- Since there was no evidence that the notice requirement as a condition precedent had ever been satisfied, summary judgment in favor of the defendant was properly granted. Davis v. Butler, 240 Ga. App. 72, 522 S.E.2d 548 (1999).
Purchaser's abuse of litigation claim against the lender was properly dismissed under O.C.G.A. § 9-11-12(b)(6), because the purchaser failed to give written notice to the lender as was required by O.C.G.A. § 51-7-84(a). LaSonde v. Chase Mortg. Co., 259 Ga. App. 772, 577 S.E.2d 822 (2003).
When a construction company's counterclaims alleging abusive litigation under O.C.G.A. §§ 9-15-14 and51-7-80 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).
The trial court properly dismissed the tenants' tort claims based on the tenants' failure to comply with the notice requirements of O.C.G.A. § 51-7-84, applying to parties alleging abusive litigation; the tenants could not avoid the notice requirements merely by characterizing their claims arising from an allegedly abusive lawsuit as conspiracy, perjury, forgery, or theft. Slone v. Myers, 288 Ga. App. 8, 653 S.E.2d 323 (2007), cert. denied, 555 U.S. 881, 129 S. Ct. 196, 172 L. Ed. 2d 140 (2008).
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).
O.C.G.A. § 51-7-82(a) had no application because a photographer never supplied an ante-litem notice and city council members, an assistant chief of police, and a law firm never voluntarily withdrew, abandoned, discontinued, or dismissed any action against the photographer, and they were entitled to point to the photographer's failure to comply with O.C.G.A. § 51-7-84 in defending against the photographer's claims; the statutory framework does not prohibit the assertion of a defense based upon the lack of ante-litem notice in an abusive litigation case alleging interference with property and special damages, but to the contrary, the notice requirement is expressly made a condition precedent in every claim for abusive litigation, under § 51-7-84. Davis v. Wallace, 310 Ga. App. 340, 713 S.E.2d 446 (2011).
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).
City council members, an assistant chief of police, and a law firm, did not waive the members right to an ante-litem notice defense to a photographer's abusive litigation claims by failing to raise the issue as an affirmative defense in a timely responsive pleading because O.C.G.A. § 51-7-84(a) expressly described the notice as a "condition precedent" to an abusive litigation claim, which placed the burden upon the photographer to provide such notice in order to assert the claims; although a defendant may point to the absence of notice in defending an abusive litigation claim, nothing in the statutory framework makes this an affirmative defense that must be pled in a responsive pleading or waived. Davis v. Wallace, 310 Ga. App. 340, 713 S.E.2d 446 (2011).
Claims against the attorney failed because, while styled as claims for civil conspiracy, in substance the claims were claims for abusive litigation and the notice requirements were not met. Stapler v. Boling, 347 Ga. App. 79, 815 S.E.2d 602 (2018).
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 a claim as required by O.C.G.A. § 51-7-84(a). Rogers v. Dupree, 349 Ga. App. 777, 824 S.E.2d 823 (2019), cert. denied, No. S19C1170, 2019 Ga. LEXIS 880 (Ga. 2019), cert. denied, No. S19C1132, 2019 Ga. LEXIS 889 (Ga. 2019).
Dismissal of action not final termination.
- A client's voluntary dismissal of a legal malpractice action was not a "final termination" for purposes of the attorney's abusive litigation claim. Stocks v. Glover, 220 Ga. App. 557, 469 S.E.2d 677 (1996).
Premature claim.
- Defendant's assertion of an abusive litigation claim in the counterclaim was premature since it was brought before the termination of the plaintiff's action. Jacobs v. Littleton, 241 Ga. App. 403, 525 S.E.2d 433 (1999).
A declaratory judgment suit did not constitute abusive litigation under O.C.G.A. § 51-7-84(b) because the action had not terminated. Hagemann v. City of Marietta, 287 Ga. App. 1, 650 S.E.2d 363 (2007), cert. denied, 2008 Ga. LEXIS 128 (Ga. 2008).
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 timely brought.
- Creditor's motion to amend its claim for sanctions against 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, Bankr. (Bankr. N.D. Ga. July 10, 2006).
Abusive litigation claim dismissed.- Because there was no evidence that the one asserting a claim for abusive litigation had sent a notice of the claim to the other party, any claim for abusive litigation must be dismissed. Westinghouse Credit Corp. v. Hall, 144 Bankr. 568 (S.D. Ga. 1992).
Failure to given written notice results in dismissal.
- Plaintiff's action for abusive litigation was properly dismissed for failure to give written notice to the attorneys that the plaintiff intended to sue the attorneys personally. Merchant v. Mitchell, 241 Ga. App. 173, 525 S.E.2d 710 (1999).
Notice insufficient as to lessee's managing partner in individual capacity.
- Although a landlord's abusive litigation notice letter under O.C.G.A. § 51-7-84(a) was insufficient to give notice to the lessee's managing partner individually, the trial court erred in awarding attorney's fees to the partner under O.C.G.A. § 9-15-14 because under the circumstances of the case there was a justiciable issue as to whether the notice letters were served properly. Dunwoody Plaza Partners, LLC v. Markowitz, 346 Ga. App. 516, 816 S.E.2d 450 (2018).
Statute of limitations prohibited action.
- Parent's claim for abusive litigation, which was brought one year and one day after the litigation that was the subject of the claim was terminated by the appellate court's decision that went unchallenged, was not timely as Georgia statutory law was not met because the claim was not filed within the required one year of the final termination of the earlier proceeding. Wilson v. Hinely, 259 Ga. App. 615, 578 S.E.2d 254 (2003).
Filing of the abusive litigation suit was justified and proper given the absence of any clear authority under Georgia law as to precisely when the statute of limitations commenced, following the dismissal of an anti-SLAPP action, under O.C.G.A § 51-7-84(b). Land v. Boone, 265 Ga. App. 551, 594 S.E.2d 741 (2004).
Renewal action was timely.- Former employee's renewal action for abusive litigation was not time-barred because the causes of action in the employee's original action and the employee's renewal action were substantially the same and, thus, the current suit was a good renewal of the original suit so as to suspend the one-year statute of limitation applicable in abusive litigation suits. Coen v. Aptean, Inc., Ga. App. , S.E.2d (Aug. 25, 2020).
Cited in Jones v. Bienert, 197 Ga. App. 554, 398 S.E.2d 830 (1990); Paino v. Connell, 207 Ga. App. 553, 428 S.E.2d 446 (1993); Fortson v. Hotard, 299 Ga. App. 800, 684 S.E.2d 18 (2009).