Ferguson v. Atlantic Land & Development Corp.

McMurray, Presiding Judge. Following the grant of certiorari to review one of the holdings in Division 4 of our opinion in Ferguson v. Atlantic Land &c. Corp., 158 Ga. App. 33, 37-39 (4) (279 SE2d 470), the Supreme Court of Georgia in Ferguson v. Atlantic Land &c. Corp., 248 Ga. 69, reversed our judgment of affirmance of the trial court in granting summary judgment in part as to the liability of the plaintiff Ferguson to the defendant Atlantic Land & Development Corporation as to its counterclaim against Ferguson. The Supreme Court therein held that the fraud claim in Count 1 of Atlantic’s counterclaim was not viable because it could not be said that the proximate cause of the damages for which recovery was being sought for the delay in development of the property could be the forgery of the deed by Ullman held to be ratified by Ferguson, hence, Ferguson’s motion for summary judgment should have been granted on Count 1 of Atlantic’s counterclaim. The Supreme Court also held that the trial court should have granted Ferguson’s motion for summary judgment [44] on Count 2 of Atlantic’s counterclaim insofar as Count 2 sought a recovery for malicious abuse of process. It also held that material allegations in court proceedings are privileged, which privilege extends to the filing of a notice of lis pendens, and therefore, Ferguson’s motion for summary judgment should likewise have been granted as to Count 3 (libel and slander of title) of Atlantic’s counterclaim. Therefore, our judgment of affirmance of the trial court in granting summary judgment in favor of the defendant Atlantic Land & Development Corporation is reversed insofar as it holds Ferguson liable to Atlantic as a matter of law. The Supreme Court remanded the case “for a jury trial on Atlantic’s counterclaim against Ferguson for malicious use of process,” and likewise as to the damages which this court has previously held in Ferguson v. Atlantic Land &c. Corp., 158 Ga. App. 33, 37-39 (4), supra, to present jury issues. Accordingly, the judgment is reversed and remanded with direction to the trial court that judgment be issued in accordance with the direction of the Supreme Court in Ferguson v. Atlantic Land &c. Corp., 248 Ga. 69, supra, and further, that a jury trial be held “on Atlantic’s counterclaim against Ferguson for malicious use of process and on the damages which the Court of Appeals has held to present jury issues.” Decided October 13, 1981. Henry Angel, Michael Jablonski, Austin E. Catts, for appellant. George Rountree, Julian H. Toporek, for appellee. Judgment reversed and case remanded. Quillian, C. J., and Pope, J., concur.