Davis v. Wallace
310 Ga. App. 340
| Ga. Ct. App. | 2011Background
- Davis appeals summary judgment for Wallace, Bruce, Patterson, and Cruser & Mitchell on abusive litigation and false imprisonment, and denial of his motions for reconsideration and default.
- Wallace and Bruce, Riverdale city council members, were involved with police and a temporary protective order (TPO) against Davis after reports of threats in November 2005.
- TPO issued December 9, 2005; Davis attended a council meeting December 10, 2005 and was asked to leave; January 10, 2006 TPO hearing denied Wallace’s petition as untimely, Wallace refiled January 11, 2006 and the court later denied the petition for lack of evidence of stalking.
- Davis filed a damages complaint December 10, 2007; removed to federal court, then remanded when Davis asserted abusive-litigation claims under OCGA § 51-7-85, not federal law.
- On remand, Patterson and C&M were granted summary judgment on defamation; later, Davis’s abusive-litigation and false-imprisonment claims were granted summary judgment based on lack of ante-litem notice.
- Wallace and Bruce obtained summary judgment on their own abusive-litigation/false-imprisonment defenses in December 2009; Davis sought reconsideration and default, which were denied, prompting this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Default defense viability | Davis contends defendants defaulted for failing to answer timely. | Wallace and Bruce filed timely federal answers; Patterson and C&M had timely federal pleading actions; default was improper. | No default; timely answers/subsequent actions prevented default. |
| Ante-litem notice requirement | Davis argues defendants waived lack of ante-litem notice by not raising it timely as an affirmative defense. | Absent ante-litem notice, abusive-litigation claims barred; defense need not be pled as affirmative defense. | Ante-litem notice is a condition precedent; lack of notice can be raised without pleading as an affirmative defense; defense not waived. |
| Effect of lack of ante-litem notice on abusive-litigation claim | Davis claims lack of notice bars his abusive-litigation claims. | Defendants may rely on lack of notice to defend against abusive-litigation claims. | Lack of ante-litem notice bars abusive-litigation claims; however court upholds absence of notice as failure by Davis, not a waiver issue, and uphold dismissal on merits. |
| False imprisonment claim viability | Patterson’s removal of Davis from the meeting violated the TPO and Davis’s liberty. | Patterson acted under a valid TPO; no detention occurred; no false imprisonment. | No false imprisonment; action taken under valid TPO resulted in no detention or arrest. |
Key Cases Cited
- Draper v. Reynolds, 278 Ga.App. 401 (Ga. App. 2006) (timely answer after removal prevents default in state court)
- Cotton v. Federal Land Bank of Columbia, 246 Ga. 188 (Ga. 1980) (jurisdiction suspension upon removal)
- Ward v. Swartz, 285 Ga. App. 788 (Ga. App. 2007) (implied waiver of default by litigation conduct)
- Sevostiyanova v. Tempest Recovery Svcs., 307 Ga.App. 868 (Ga. App. 2011) (strict construction of abusive-litigation statute; ante-litem notice not an affirmative defense)
- Joseph v. Home Depot, 246 Ga.App. 868 (Ga. App. 2000) (valid process defeats false imprisonment claim)