Richard E. Hyer, Jr. (“plaintiff”) brought an action against the Citizens & Southern National Bank in Macon (“C & S”) to recover damages for “breach of contract” and, alternatively, “conversion,” alleging that C & S wrongfully distributed funds from plaintiff’s savings account to his then wife, Mary M. Hyer. C & S admitted that it disbursed $8,500 to Ms. Hyer from a “market investment account” which provided “that only the Plaintiff could withdraw funds from the account,” but denied liability for the alleged wrongful distribution, asserting ratification and “estoppel” based on a divorce settlement agreement entered into between plaintiff and his then wife, Mary M. Hyer, wherein the parties resolved disposition of their assets, including the funds which were the subject of C & S’s alleged unauthorized distribution. C & S then asserted a counterclaim, seeking damages under OCGA § 9-11-14 for plaintiff’s alleged “frivolous and groundless” complaint. Simultaneously, C & S filed a third-party complaint against Ms. Hyer for indemnification of “all sums that may be adjudged against [C & S] in favor of the Plaintiff. ...” Ms. Hyer answered and admitted that she withdrew $8,500 from plaintiff’s savings account, “but for clarification [she alleged] that she was entitled to withdraw this money . . . because the account and the money therein belonged to her as well as to [plaintiff].” Ms. Hyer further defended, alleging that she “was not unjustly enriched because . . . [plaintiff] ratified her actions in withdrawing the money by virtue of the [divorce settlement] agreement entered into between the parties. . . .”
Ms. Hyer, as third-party defendant, then asserted a “crossclaim” in four counts against plaintiff, seeking in Counts 1 and 2 “compensatory damages,” “exemplary damages,” “attorney’s fees and costs” based on what appears to be an action for “abusive litigation.” 1 In Count 3, Ms. Hyer seeks indemnification “for all sums that may be adjudged against [her] in favor of [C & S]”; and, in Count 4, she contends that plaintiff “is in willful and intentional contempt . . .” of their final decree of divorce, alleging that “plaintiff is interfering, molesting, and harassing [her] by attempting to indirectly obtain money from her by suing [C & S] for monies which have been determined to belong to [Ms. Hyer], knowing that [C & S] would seek payment from her and make her a party to the lawsuit. ...”
Plaintiff filed a motion for summary judgment in his favor as to
After considering “the briefs, affidavits and arguments of counsel,” the trial court denied plaintiff’s motion for summary judgment and motion to dismiss third-party defendant’s (Ms. Hyer’s) claim against plaintiff and granted C & S’s motion for summary judgment. Plaintiff now appeals. Held:
1. Plaintiff first contends the trial court erred in granting C & S’s motion for summary judgment, arguing that C & S is liable to him for deducting $8,500 from his savings account and disbursing this amount to his former wife.
“[A] bank has a duty to exercise due care and diligence in making payments from a savings account and may be held liable for failure to comply with that duty. Annot. 60 ALR2d 721.”
First Nat. Bank of Atlanta v. Stephens,
“A ratification by the principal relates back to the act ratified, and takes effect as if originally authorized. Civil Code (1910), § 3591 [now OCGA § 10-6-52];
Todd v. German-American Insurance Co.,
In the case sub judice, there is no question that plaintiff had full knowledge of his former wife’s unauthorized withdrawal of $8,500 from his “money market account” at the time he entered into the divorce settlement agreement with her on July 22, 1986. It is also undisputed that plaintiff and Ms. Hyer agreed in their property settlement agreement that “all personal property in [Ms. Hyer’s] possession and control or in [her] name was to be and become [her] sole and separate property, free and clear of any claims of [plaintiff] whatso
2. In his second enumeration of error, plaintiff contends the trial court erred in denying his motion to dismiss Ms. Hyer’s third-party “counterclaim” for failure to state a claim.
“ ‘(A) pleading should not be dismissed for failure to state a claim unless it appears beyond a doubt that the pleader can prove no set of facts in support of his claim which would entitle him to relief.’
Skelton v. Skelton,
Although we find no cases in Georgia which address this issue, we find that the claimant’s liability for “abusive litigation” to persons not sued by the claimant is measured by the scope of the risk of damage stemming from the claimant’s alleged negligent conduct, i.e., frivolous litigation. See Harper, James & Gray, The Law of Torts 2d § 18.2. In other words, does Ms. Hyer state sufficient facts to support a finding that she was a foreseeable victim of plaintiff’s alleged “abusive litigation” against C & S. We find that she does. A jury could reasonably infer that plaintiff’s action against C & S for the $8,500 was “substantially frivolous, substantially groundless, or substantially vexatious” litigation and that any damage Ms. Hyer may have sustained in defending C & S’s third-party complaint was the proximate result of plaintiff’s alleged tortious conduct. Consequently, the trial
3. As plaintiff has not supported Enumeration of Error No. 3 by argument or citation of authority, it is deemed abandoned pursuant to Georgia Court of Appeals Rule 15 (c) (2).
Schwartz v. Rennie,
4. Lastly, plaintiff contends the trial court erred in failing to dismiss C & S’s third-party complaint against Ms. Hyer. This argument is rendered moot in light of our holding in Division 1 of this opinion.
Judgment affirmed in part and reversed in part.
Notes
See
Yost v. Torok,