Mabra v. SF, Inc.

• Decision Date: 25 May 2012
• Docket Number: No. A12A0471.,A12A0471.
• Citation: 728 S.E.2d 737,316 Ga.App. 62,12 FCDR 1800
• Parties: MABRA et al. v. SF, INC. et al.
• Court: Georgia Court of Appeals

316 Ga.App. 62

728 S.E.2d 737

12 FCDR 1800

MABRA et al.

v.SF, INC. et al.

No. A12A0471.

Court of Appeals of Georgia.

May 25, 2012.

John David Hadden, for Mabra.

Joseph C. Chancey, David A. Dial, Atlanta, Gary David Beelen, Lindsay McGinnis Gatling, for SF, Inc.

ANDREWS, Judge.

Ronald E. Mabra, Sr. and All–Pro Foodservice, Inc. filed suit against various defendants asserting claims for tortious interference with existing and prospective business and contractual relations, and conspiracy to tortiously interfere with those relations. Mabra and All–Pro appeal from the trial court's order dismissing their complaint pursuant to OCGA § 9–11–12(b)(6) for failure to state a claim. For the following reasons, we affirm.

Under OCGA § 9–11–12(b)(6),

[a] motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor.

Stendahl v. Cobb County, 284 Ga. 525, 668 S.E.2d 723 (2008) (punctuation and citation omitted). Applying these standards, we find that the trial court properly granted motions by all the named defendants to dismiss the complaint, as amended, for failure to state a claim because the tortious interference and conspiracy claims were predicated on allegations showing that the defendants were engaged in privileged business activity and were not liable as a matter of law.

The three-count complaint (a renewal of a previously filed action) alleged in counts one and two that defendant Host International, Inc. tortiously interfered with existing and prospective business and contractual relations arising from a contract that Mabra and All–Pro had with Avendra, LLC, under which Mabra and All–Pro distributed fresh produce to various businesses including to Host for Atlanta airport concessionaires. Although the complaint alleged that Host was not a party to Mabra and All–Pro's distributioncontract with Avendra, it alleged that Host interfered with the contract when Host stopped ordering produce for distribution from Mabra and All–Pro and instead ordered produce for distribution from the other named defendants, SF, Inc., d/b/a Collins Wholesale Produce; Collins Brothers Corporation, d/b/a Collins Brothers Produce; and Future Management Corporation., d/b/a Phoenix Wholesale Foodservice (collectively referred to as the Collins defendants). According to the complaint, when Host did this, it unfairly took Avendra's distribution business away from Mabra and All–Pro and gave it to the Collins defendants. The complaint alleged that Mabra and All–Pro received written notice from Host on November 4, 2005, “that their distribution services at the Airport were being terminated within thirty (30) days”; that Host offered no explanation “for unilaterally terminating their distribution services at the Airport without prior authorization, permission or approval from Avendra as the other party to the distribution contract at issue”; and that “[o]n December 6, 2005, [Host] stopped ordering fresh produce from [Mabra and All–Pro] for Airport concessionaires despite the fact that [Mabra/All–Pro] was still under contract with Avendra and performing in good faith.” The complaint further alleged that within a month Host began using the Collins defendants to distribute produce to its airport concessionaires, and that the Collins defendants did not qualify as minority-owned businesses to distribute produce at the airport under the City of Atlanta's Equal Business Opportunity program. According to the complaint, Host “conspir[ed] with [the Collins defendants] to steal Airport produce business derived from [Mabra and All–Pro's] distribution contract with Avendra ... without legal justification or excuse.” Count three of the complaint alleged that the decision by Host to order produce to be distributed by the Collins defendants instead of by Mabra and All–Pro was a conspiracy undertaken “in concert with the [Collins defendants] and constitutes a common scheme among all defendants to tortiously interfere with [Mabra and All–Pro's] contractual business relationship with Avendra.”

Asserting that the complaint alleged privileged business activity which provided no basis for the tortious interference and conspiracy claims, Host and the Collins defendants moved to dismiss the complaint for failure to state a claim. In response to the motions to dismiss, Mabra and All–Pro amended the complaint. The amended complaint similarly alleged that “[o]n or about November 4, 2005, [Host] induced Avendra to terminate its [produce] distribution contract with [Mabra and All–Pro]” when Host stopped ordering produce from Mabra and All–Pro for distribution to airport concessionaires and within a month started placing produce orders with the Collins defendants in violation of the City of Atlanta's Equal Business Opportunity program. According to the three-count amended complaint, this constituted tortious interference by Host and the Collins defendants with Mabra and All–Pro's actual and prospective contractual relations with Avendra (counts one and two), and a conspiracy between Host and the Collins defendants to steal Mabra and All–Pro's distribution business with Avendra and tortiously interfere with their actual and prospective contractual relations with Avendra (count three). In an apparent attempt to counter claims that the alleged tortious interference was predicated on allegations of privileged business activity, the amended complaint added the following allegations:

[N]one of the named defendants were parties to a pre-existing network of business relationships that gave rise to Plaintiffs' distribution contract with Avendra. Moreover, none of the named defendants were either actual parties to Plaintiffs' distribution contract with Avendra or third-party beneficiaries of the same. Finally, none of the named defendants had any economic interest in Plaintiffs' distribution contract with Avendra.

In response, Host and the Collins defendants asserted that the factual allegations in the amended complaint still showed that the tortious interference claims were predicated on privileged business activity and again moved to dismiss for failure to state a claim.

To recover on a claim of tortious interference with contract or business relations, a plaintiff must prove the following elements:

(1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of contractual obligations or caused a party or third part[y] to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) the defendant's tortious conduct proximately caused damage to the plaintiff.

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