309 Ga. App. 279
Ga. Ct. App.2011Background
- Executive, Fritts, and Sterling Trust owned the 15-acre tract and a separate 4-acre tract held by Sterling Trust as custodian for Fritts.
- Contracts to Sund Enterprises for both tracts were assigned to Southern Tradition and Martin Brothers, with zoning contingencies to obtain rezoning (Oakwood C-2/Hall County HB).
- The contracts set an April 1, 2007 deadline to obtain final rezoning determinations; if not met, either party could rescind with notice.
- Fritts executed an owner authorization for Southern Tradition but not for Martin Brothers; Sterling Trust did not authorize the Martin Brothers contract, and Sterling Trust did not approve the deal.
- Southern Tradition and Martin Brothers removed the zoning contingency unilaterally, failed to obtain final rezolution by the deadline, and contracts were rescinded; lis pendens were filed and later litigated, leading to counterclaims for slander of title and related attorney-fee requests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the slander of title counterclaims were proper. | Sellers contend lis pendens and statements violated title rights. | Buyers assert lis pendens privilege and statements were not actionable as slander of title. | Summary judgment on slander of title was proper; lis pendens privileged and statements not actionable. |
| Whether the attorney-fee awards under OCGA 9-15-14 were proper. | Buyers claim fees awarded due to lack of substantial justification. | Sellers argue some claims were substantial and justified; fees justified. | Partial reversal; attorney-fee award reversed as to some claims and remanded for allocation. |
| Whether the cross-appeal on attorney fees by sellers was proper. | Sellers argue fees were improperly awarded for viable claims. | Buyers contend fees were proper for frivolous claims. | Fees upheld for privileged lis pendens and May 2007 slander, but reversed for April/October 2007 slander claims; remand for fee allocation. |
Key Cases Cited
- Premier Cabinets v. Bulat, 261 Ga.App. 578, 583 S.E.2d 235 (Ga. Ct. App. 2003) (elements of slander of title require publication, falsity, damages, and estate in land)
- Alcovy Properties v. MTW Investment Co., 212 Ga.App. 102, 441 S.E.2d 288 (Ga. Ct. App. 1994) (lis pendens privilege protects legitimate notices filed in litigation)
- Panfel v. Boyd, 187 Ga.App. 639, 371 S.E.2d 222 (Ga. Ct. App. 1988) (lis pendens remains privileged unless statutorily indicated otherwise)
- Vance v. Lomas Mtg. USA, 263 Ga. 33, 426 S.E.2d 873 (Ga. 1993) (definition and duration of lis pendens notice)