Aрpellant/plaintiff Dr. Hugh Johnson Phillips appeals the superior court’s grant of summary judgment to appellees/defendants Dan MacDougald, Jr. et al. Appellant filed notice of direct appeal with the Supreme Court of Georgia asserting that a certain constitutional provision was in issue. The Supreme Court trаnsferred the case to this court for lack of jurisdiction.
This suit is for damages for tortious interference with contract, intentional infliction of emotional distress, and abusive litigation. Appellant Dr. Hugh Johnson Phillips was a professor and chairman of the Criminal Justice Department and director of the Criminal Justice Institute of Albany State College. The Dougherty County Commission hired appellant and his co-researcher to make an evaluation of a certain
Appellant enumerates three errors asserting that the trial court erred in granting summary judgment as to his claims for tortious interference with contract, intentional inflictiоn of emotional distress, and abusive litigation, respectively. Held:
1. The applicable summary judgment standard is that of
Lau’s Corp. v. Haskins,
2. The trial court erred in part in granting summary judgment to appellees as to the tortious interference with contract claim.
(a) Appellees contend that appellant’s contract of employment was unenforceable having been proсured by fraud. Fraud renders a contract voidable at the election of the injured party (OCGA § 13-5-5), but fraud does not render a contract void per se. To allow appellees to prevail in their contention would in effect give the third-party appellees the power of treating the employment contraсt as being void, notwithstanding that the injured party, Albany State College, had not declared the employment contract void. In fact, Albany State College elected for reasons of policy to continue to treat the employment contract valid and binding while MacDougald’s quo warranto suit was pending. Clearly appellees, not being injured parties to the employment contract, lacked the power to void the contract directly. OCGA § 13-5-5. One cannot do indirectly what the law does not allow to be done directly.
Kingsmill Village &c. v. Homebanc &c. Bank,
(b) An intentional and non-privileged interference by a third party with existing contract rights and relations constitutes a tort fоr which an action shall lie.
Southern Business Machines &c. v. Norwest Financial &c.,
The record establishes without contradiction that an investigation was being conducted, regarding appellant’s prior criminal recоrd, before the letter sent by appellee Dan MacDougald, Jr., was received by the Executive Secretary of the Board of Regents. However, during appellees’ taking of the deposition of Dr. Billy Black, President, Albany State College, the following testimonial colloquy occurred: “[APPELLEES’ COUNSEL]: Dr. Phillips alleges in this lawsuit that Dan MacDougald, Jr., and June MacDougald have caused him to lose his job. You’re the guy who makes the decisions about his job. What do you say about that? [DR. BLACK]: I’ve already testified that, when you raised the question did it have anything to do with it, I answered that yes but it was not the determining factor. . . . But I’ll answer it here again to be absolutely sure. The answer is still the same. This was not the determining factor in making the decision to non-renew Dr. Phillips. . . . [APPELLEES’ COUNSEL]: Did the Board of Regents or any member of its staff have any input in your decision not to renew Phillips’ contract? [DR. BLACK]: No.” There does not exist in this case plain, palpable, and undisputed facts establishing that the conduct of appellees played nо part in the non-renewal of appellant’s employment contract. Accordingly, we see no basis to depart from the general rule of
Southern Business Machines,
supra, that it is for the jury to determine whether a defendant has played a material and substantial part in causing plaintiff’s loss of any benefits of the contract at issue by sending correspondence regarding Dr. Phillips’ criminal record to the Executive Secretary of the Board of Regents. The trial court erred to the limited extent that it inherently granted partial summary judgment on a tortious interference of contract claim based solely upon the sending of this correspondence to the Executive Secretary of the Board of Regents. Whether that act played a material and substantial part in causing plaintiff’s loss of any benefit from the non-renewal of his contract of employment presented a question for jury determination. Moreover,
Medlin v. Carpenter,
(c) Any statements attributed to appellee Dan MacDougald, Jr. by the press, which were taken from quotes within official court documents, cannot provide a basis for a claim of tortious interference with contract. “All charges, allegations, and averments contained in regular pleadings filed in a court of сompetent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged.” OCGA § 51-5-8. The interference required to support a claim of tortious interference must be both intentional and non-privileged. Southern Business Machines, supra at 258. To the extent the trial court inherently granted pаrtial summary judgment as to any privileged statements contained in court documents filed by MacDougald and thereafter reported by the news media, it did not err.
(d) To the extent that appellees assert defenses based on interpretations of constitutional provisions of the Georgia Constitution of 1983, we conclude thаt such contentions are without merit. By the transfer of this appeal to this court, the Supreme Court implicitly has ruled there exist no valid contentions by either party that are grounded upon an unsettled interpretation of the constitution of this state. See
Johnston v. Atlanta Humane Society,
(e) We decline to hold that appellant’s contract of еmployment with Albany State College was void as against public policy. See generally OCGA § 13-8-2 (a). Further, this Court lacks jurisdiction to construe, particularly as to questions of first impression, the scope of Georgia Constitution of 1983, Art. II, Sec. II, Par. III, and its application to the facts of this case. Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1);
(f)
Medlin,
supra at 53 (5), cited by appellees, which involved, inter alia, slander and defamation claims, is distinguishable and not controlling as to appellant’s tortious interference with contract claim. Also distinguishable is
Stern v. United States Gypsum,
547 F2d 1329, 1342-1343 (7th Cir.) involving a First Amendment defense in a Civil Rights Act suit alleging conspiracy to prevent plaintiff from performing his official federal duties. Moreover, the United States Supreme Court is the only federal court whose opinions this court is bound to follow.
Hilton Constr. Co. v. Martin &c. Contractors,
(g) Further, we hold that, as a matter of law, “a claim for tortious interference with contractual relations cannot be predicated upon an allegedly improper filing of a lawsuit.”
Jacobsen v. Garzo,
In Jacobsen, supra, the Supreme Court оf Vermont observed that tortious interference is a right of action arising from the recognition of broad social policies protecting a citizen’s legitimate interests in reasonable expectations of economic advantage and of the right to pursue one’s business free from undue interference or molestation. The court then acknowledged the existence of a strong public counter-policy, backed by a general state constitutional provision, in favor of free access to the courts. Balancing these rights, the Jacobsen court recognized that to curb the more serious abuses of lawsuit filing, two carefully rеstricted torts were recognized, that is, abuse of process and malicious prosecution. The Jacobsen court then concluded: “If the well-reasoned balance thereby struck between free access and remedy for serious abuse ‘is really to mean anything then we must not permit . . . circumvention by affording an . . . unrestricted action under a different label.’ [Cit.] . . . [A]s a matter of law, the filing of a lawsuit alone cannot constitute tortious interference with contractual relations.” Id. at 268 (3). In Georgia, there exist the same broad social policies giving rise to recognition of the tort of tortious interference; there also exists, inter alia, the same strong counter-policy, backed by a state constitutional provision (see generally Ga. Const. of 1983, Art. I, Sec. I, Par. XII), giving a general right of access to the courts to prosecute or defend one’s own cause therein. Also, in Georgia, a plaintiff is provided with reasonable access to the courts for serious abuses of lawsuit filing through utilization of the carefully developed torts of malicious prosecution (see generally OCGA § 51-7-40 et seq.) and abusive litigation (see generally OCGA § 51-7-85 et seq.). Also OCGA § 51-7-85 provides: “This article is the exclusive remedy for abusive litigation.” Clearly, the tortious interference claim in the case sub judice is grounded on a contention that the lawsuit at issue was improperly filed being without legitimate legal foundation.
A citizen of this state is not guaranteed any
particular
form or method of state procedure. Due process is satisfied if the citizen “ ‘has reasonable notice and opportunity to be heard, and to present his claim or defense, due regard being had to the
nature
of the proceeding and the
character
of the rights which may bе affected by it. [Cit.]’ ” (Emphasis supplied.)
Dept. of Transp. v. Del-Cook Timber Co.,
To the extent that the trial court’s grant of summary judgment inherently included therein a grant оf partial summary judgment to appellees on the issue whether a claim of tortious interference can be predicated upon the filing of a lawsuit (whether or not it be meritorious), such a grant of partial summary judgment was not error.
3. Likewise, “the mere filing of a lawsuit is not the type of humiliating, insulting or terrifying conduct which will give rise to a claim for the intentional infliction of emotional distress.”
Rolleston v. Huie,
4. Appellees presented evidence that appellant failed to deliver a letter demanding that appellees’ defamation action suit, Dougherty Cоunty Superior Court Civil Action File No. 90-V-1612, be withdrawn; appellant offered no evidence establishing such a demand. The written notice required by OCGA § 51-7-84 (a) is a condition precedent to any claim for abusive litigation. Appellant failed to carry his burden under Lau’s Corp., supra, to establish compliance with the condition.
We find, as a matter of law, that at the time the quo warranto suit was prosecutеd before the trial court, it was not substantially groundless; the prosecution of this civil action was not “[wjithout substantial justification” within the meaning of OCGA § 51-7-81. The ultimate holding of the Supreme Court in
MacDougald,
Judgment affirmed in part and reversed in part.