Forehand v. Perlis Realty Co.

• Decision Date: 21 November 1990
• Docket Number: BELK-HAGINS,Nos. A90A0959,A90A1213,s. A90A0959
• Citation: 400 S.E.2d 644,198 Ga.App. 165
• Parties: FOREHAND v. PERLIS REALTY COMPANY, et al.COMPANY OF AMERICUS, GEORGIA, INC. v. FOREHAND.
• Court: Georgia Court of Appeals

Page 644

400 S.E.2d 644

198 Ga.App. 165

FOREHAND v. PERLIS REALTY COMPANY, et al.

BELK-HAGINS COMPANY OF AMERICUS, GEORGIA, INC. v. FOREHAND.

Nos. A90A0959, A90A1213.

Court of Appeals of Georgia.

Nov. 21, 1990.

Rehearing Denied Dec. 20, 1990.

Certiorari Denied Jan. 31, 1991 in No. A90A1213.

Benjamin F. Easterlin IV, Americus, for Forehand.

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, Atlanta, and Walters, Davis, Smith, Meeks & Pittman, W. Emory Walters, and C. David Smith, Ocilla, for Perlis.

Crisp, Oxford, McKelvey & Jones, Howard S. McKelvey, Jr., Americus, for Belk-Hagins.

COOPER, Judge.

W.F. Forehand, Jr. ("Forehand") is the successor in title to a shopping center in which Belk-Hagins Company ("Belk-Hagins") is the principal tenant under a 20-year lease signed in 1975. Under the lease, Belk-Hagins was to pay annual rent in the amount of $40,000 plus 2.5 percent of all annual gross sales over 1.6 million dollars.

The record reflects that during the summer of 1986, Larry Perlis, owner of Perlis Realty Company ("Perlis"), approached representatives of Belk-Hagins about the possibility of Belk-Hagins moving its location from Forehand's shopping center to a shopping center owned by Perlis. The representatives of Belk-Hagins were interested in moving into a better shopping center and felt that the Perlis shopping center was a better location for their business than the one owned by Forehand. Belk-Hagins together with Belk Stores Services, Inc. ("BSS"), an independent corporation existing to provide advice to individual Belk stores, began negotiating with Perlis about changing locations. Belk-Hagins and BSS informed Perlis about the 1975 lease, and Perlis agreed to assume all of Belk-Hagins' obligations under that lease if Belk-Hagins moved its store to Perlis' shopping center. In May 1987, Belk-Hagins executed a lease with Perlis Realty Company ("Perlis") and subsequently moved from Forehand's shopping center to the shopping center owned by Perlis. Belk-Hagins continued to pay Forehand the minimum annual rent of $40,000 and deducted that amount from its rental payment made under the Perlis lease; however, no percentage rentals were paid to Forehand. In February 1989, Forehand filed a ten-count complaint alleging breach of contract by Belk-Hagins in abandoning Forehand's shopping center and in assigning the lease to Perlis in violation of the 1975 lease, and tortious interference with contractual relations by Perlis and BSS. Subsequently, Belk-Hagins terminated the 1975 lease and ceased making the minimum annual payments to Forehand. Belk-Hagins answered the complaint, denying that it breached the lease, and filed a counterclaim contending that Forehand committed several breaches of the lease. Forehand then amended his complaint, seeking damages for monthly rental payments and ad valorem taxes due through the end of the lease, and also attorney fees and expenses of litigation. Belk-Hagins, Perlis, and BSS moved for partial summary judgment on Forehand's original complaint. The trial court denied the motion on the breach of contract counts of the complaint but granted it on the tortious interference counts. Subsequently, Belk-Hagins filed a motion for summary judgment on Forehand's amended complaint and a motion for partial summary judgment on its counterclaim against Forehand. Forehand also filed a motion for summary judgment on Belk-Hagins' counterclaim. The trial court denied both of Belk-Hagins' motions and granted Forehand's motion.

In Case No. A90A0959 Forehand appeals the trial court's grant of summary judgment to Perlis and BSS on the tortious interference of contract claim. In Case No. A90A1213 Belk-Hagins appeals (1) the trial court's denial of both of its motions for summary judgment on Forehand's complaint, (2) the denial of Belk-Hagins' motion for summary judgment on its counterclaim against Forehand and (3) the grant of summary judgment to Forehand on Belk-Hagins' counterclaim.

Case No. A90A0959

Forehand contends that because the trial court found that questions of fact existed for a jury's determination on the breach of contract claim, the trial court's grant of summary judgment on the tortious interference with contract claim was erroneous. Forehand erroneously argues that in order for the trial court to grant summary judgment on the tortious interference with contract claim, it was necessary for the court to determine that there had been no breach of the lease.

"The intentional and non-privileged interference by a third party with existing contractual rights and relations constitutes a tort for which an action shall lie. [Cits.] Furthermore, the courts of this state have recognized that such interference with a contractual right or relationship need not result in a breach of the contract to be actionable. It is sufficient if the invasion retards performance of the duties under the contract or makes the performance more difficult or expensive. [Cits.]" (Emphasis supplied.) McDaniel v. Green, 156 Ga.App. 549(1), 275 S.E.2d 124 (1980). Furthermore, to recover for wrongful interference with contract, a " 'malicious intent to cause the result must be shown.' [Cit.]" Singleton v. Itson, 192 Ga.App. 78, 79, 383 S.E.2d 598 (1989). "The terms 'malicious' and 'maliciously' mean ' "any unauthorized interference or any interference without legal justification or excuse...." ' [Cit.]" (emphasis in original). Id. " 'The exercise of an absolute right or privilege is recognized as being closely akin to the question of justification, but it is inherently different therefrom in that such a right can be exercised without incurring liability regardless of the motive for so doing. It is generally held that no liability for procuring a breach of contract exists where the breach is caused by the exercise of an absolute right--that is, an act which a man has a definite legal right to do without any qualification.' [Cits.]" Campbell v. Carroll, 121 Ga.App. 497(1), 174 S.E.2d 375 (1970). Our review of the record shows that Perlis and BSS' actions were neither "non-privileged" nor "malicious." Perlis and Forehand were both in the business of leasing space to commercial businesses such as Belk-Hagins. Perlis' actions consisted of nothing more than making a sales pitch for Belk-Hagins to relocate their business and providing an alternative which was more attractive to Belk-Hagins than the situation they were currently operating under. There is no evidence that Perlis, by pursuing Belk-Hagins, was creating or continuing an illegal restraint of trade or that Perlis was motivated by a desire to injure Forehand. Rather, it appears that Perlis was interested only in fair competition. See Orkin Exterminating Co. v. Martin Co., 240 Ga. 662, 666, 242 S.E.2d 135 (1978); Nationwide Advertising Svc. v. Thompson Recruitment Advertising, 183 Ga.App. 678(1), 359 S.E.2d 737 (1987); Architectural Mfg. Co. v. Airotec, Inc., 119 Ga.App. 245(1), 166 S.E.2d 744 (1969). Therefore, we conclude that the trial court properly granted summary judgment on Forehand's claim of tortious interference with contract. Although the trial court did not indicate in its order its reasons for granting summary judgment, "a judgment of the trial court will be affirmed if it is right for any reason." Chitwood v. Southern Gen. Ins. Co., 189 Ga.App. 697, 699(2), 377 S.E.2d 210 (1988).

Case No. A90A1213

1. In the cross-appeal, Belk-Hagins enumerates as error the trial court's denial of summary judgment on the breach of contract counts of Forehand's complaint. Belk-Hagins contends that no breach occurred because there was no assignment of the lease to Perlis and because the 1975 lease did not require that Belk-Hagins continue to operate at Forehand's shopping center.

Forehand argues that upon entering into the Perlis lease which provided that "as additional consideration for tenant's leasing of the demised premises from landlord as herein provided, landlord agrees (1) to assume, and does hereby assume ... all of tenant's obligations, duties, responsibilities and rights in, to and under [the 1975 lease]," Belk-Hagins breached paragraph 36 of the 1975 lease, which provided: "Tenant shall not assign or sublet these premises in whole or in part without first obtaining the consent of Landlord." Belk-Hagins argues that no prohibited assignment took place because Perlis only assumed Belk-Hagins' obligations under the lease. "Black's Law Dictionary ... defines assignment as '(a) transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein. It includes transfers of all kinds of property.... The transfer by a party of all its rights...