Nationwide Advertising Service, Inc. v. Thompson Recruitment Advertising, Inc.

• Court: Georgia Court of Appeals
• Writing for the Court: POPE; BIRDSONG
• Citation: Nationwide Advertising Service, Inc. v. Thompson Recruitment Advertising, Inc., 359 S.E.2d 737, 183 Ga.App. 678 (Ga. App. 1987)
• Decision Date: 14 July 1987
• Docket Number: No. 73952,73952
• Parties: NATIONWIDE ADVERTISING SERVICE, INC. v. THOMPSON RECRUITMENT ADVERTISING, INC. et al.

Page 737

359 S.E.2d 737

183 Ga.App. 678

NATIONWIDE ADVERTISING SERVICE, INC. v. THOMPSON RECRUITMENT ADVERTISING, INC. et al.

No. 73952.

Court of Appeals of Georgia.

July 14, 1987.

James E. Goodman, F. Clay Bush, Atlanta, for appellant.

Robert M. Martin, John G. Parker, Atlanta, for appellees.

POPE, Judge.

Defendant Linda Pierce was employed as a customer service director by plaintiff Nationwide Advertising Service, Inc., from February 16, 1981 to October 14, 1983. Pierce's duties as a customer service director included receiving advertisements over the telephone and making sure the customers' ads were properly placed. On October 17, 1983 Pierce began working in a similar position for a direct competitor of plaintiff, defendant Thompson Recruitment Advertising, Inc. Although Pierce was a terminable-at-will employee of plaintiff, she had signed an employment agreement which contained certain non-competition, non-disclosure and non-solicitation covenants.

Plaintiff filed suit against the defendants on November 17, 1983 alleging, inter alia, tortious interference with various business, property, fiduciary and proprietary rights; breach of contract; breach of fiduciary duty; tortious interference with legitimate business interests; and the use of unfair methods of competition. Defendants answered, denying plaintiff's claims against them and, following discovery, moved for summary judgment on May 10, 1985. On October 16, 1985 plaintiff filed its response to defendants' motion for summary judgment and an amended complaint, in which it substituted the phrase "business relations" for the phrase "business interests" as used in Count 4 of its complaint. On April 22, 1986 the trial court entered an order granting summary judgment to both defendants and plaintiff appeals.

1. In its first two enumerations of error, plaintiff challenges the portion of the trial court's order granting summary judgment on Count 4 of its amended complaint. The record shows that on November 14, 1985, after plaintiff amended Count 4 of its complaint, defendants filed a reply brief to plaintiff's response to their summary judgment motion, in which defendants asserted the defense of privilege as to Count 4 of the complaint and in which they argued that the record contained no evidence to support plaintiff's claim. In this reply brief, however, defendants employed the term "business interests" as used in the original complaint, as well as the term "business relationships." Thus, plaintiff argues, defendants have failed timely to address the issues raised by its amended complaint. We disagree. The record shows that plaintiff amended its complaint following the filing of numerous extensions of time in which to file its response to defendants' motion for summary judgment. Thereafter, the parties requested that the trial court delay ruling on defendants' motion while the parties proceeded with settlement negotiations; the parties also requested that the motion be decided on the briefs without oral argument. Negotiation efforts apparently having failed, plaintiff filed a "letter brief" in open court on November 14, 1985, in which it again presented its position as to defendants' summary judgment motion. On that same date, and also in open court, defendants filed their reply brief. Under these facts, we decline to find that defendants failed to timely present their arguments as to plaintiff's amended Count 4. We also decline to find that the issues contained therein have never been briefed or argued by defendants simply because defendants did not employ the term "business relations" throughout its argument in response to Count 4. Likewise, we find no merit to plaintiff's argument that summary judgment should be denied because defendants failed to amend their motion for summary judgment after plaintiff amended its complaint, since defendants' original motion contained only a general statement that defendants were entitled to judgment as a matter of law. ¹

Turning now to the substance of Count 4, we note first that " '[i]n establishing a cause of action for malicious (or tortious) interference with business relations, a plaintiff (here, [Nationwide] ) must demonstrate that the [defendants] (here, [Pierce and Thompson] (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury.' [Cits.]" Integrated Micro Systems v. NEC Home Electronics, 174 Ga.App. 197, 200, 329 S.E.2d 554 (1985).

We will first address defendants' argument that the record contains no evidence to support plaintiff's claim as it relates to defendant Pierce. Plaintiff contends that the following facts demonstrate the existence of genuine issues of material fact as to said claim: "(1) the means by which Daniel Construction Company, a major account of plaintiff and whose account Pierce served while employed by plaintiff was induced to switch its business to Thompson; (2) confidential documents prepared by Pierce while plaintiff's employee appeared in Thompson's file; and (3) Pierce rewrote and cut plaintiff's advertising forms for use by Thompson." However, our review of the rather, voluminous record in the present case does not support plaintiff's claim; rather the unrebutted affidavit and deposition testimony of defendants shows the following: Prior to Pierce's employment with Thompson, Thompson was actively pursuing the Daniel account; while Pierce was still employed by plaintiff, she was informed by one of Daniel's representatives that it was placing some of its business with Thompson and Pierce relayed this information to plaintiff; Pierce did not participate in any cost comparisons produced for Daniel by Thompson; Pierce informed Daniel (as well as the other accounts she handled) only that she was leaving her position with plaintiff; she specifically did not notify Daniel (or the other accounts) that she was going to work for a competitor; Pierce was not hired to solicit new business for Thompson, and she was specifically instructed not to solicit former contacts or provide information to Thompson concerning her contacts; Thompson's reworking or reduction of Daniel's ad, which was originally produced by plaintiff, was done prior to Pierce's employment with Thompson; Pierce learned that Thompson reworked the ad from her Daniel customer contact while she was still employed by plaintiff. Accordingly, we agree with defendants that plaintiff has failed to support its claim for tortious interference with business relations against Pierce; hence, the trial court did not err in granting summary judgment as to that defendant on Count 4 of plaintiff's complaint. See generally Davis v. Aetna Cas. etc. Co., 180 Ga.App. 567, 349 S.E.2d 525 (1986); Buffington v. Gold Kist, 179 Ga.App. 393, 346 S.E.2d 577 (1986).

In order to determine whether summary adjudication was also proper as to defendant Thompson, however, we must consider whether its activities in pursuing plaintiff's customers, including the Daniel account, were privileged, thereby negating an essential element of plaintiff's tortious interference claim. To establish a claim of privilege, Thompson must show that "(1) the relation concerns a matter involved in the competition between the actor and the competitor; (2) the actor does not use improper means; (3) the actor does not intend thereby to create or continue an illegal restraint of competition; and (4) the actor's purpose is at least in part to advance its interests in competition with the other." Sofate of America, Inc. v. Brown, 171 Ga.App. 39, 40, 318 S.E.2d 771 (1984); Orkin Exterminating Co. v. Martin Co., 240 Ga. 662, 666, 242 S.E.2d 135 (1978).

In the present case there is no doubt that plaintiff and Thompson are competitors and that obtaining advertising accounts concerns a matter which lies at the heart of their competitive activities. Conversely, however, there is no evidence that Thompson intended to monopolize or otherwise create an illegal restraint of trade in the advertising arena, or stated differently, sought to prevent plaintiff or others from participating in the advertising field. Additionally, it cannot be disputed that Thompson's purpose was to advance its position vis-a-vis plaintiff and its other competitors. Thus, the only issue remaining for our consideration is whether Thompson sought to achieve its goals by the use of improper means. In this regard we are again persuaded by the unrebutted deposition and affidavit testimony of both Dick Kirksey (Thompson's representative) and Pierce that Pierce did not supply Thompson with any information concerning her previous customer accounts or otherwise assist Thompson in gaining said accounts. Further, the record shows that Daniel, whom plaintiff insists decided to give Thompson some of its advertising business on a trial basis solely because Pierce was to be employed there, actually made that decision prior to Pierce terminating her employment relationship with plaintiff and, according to Pierce's unrebutted testimony, she informed her employer of Daniel's intentions. Indeed, contrary to plaintiff's assertion, there is no evidence that any account "followed" Pierce to her new employer; rather, the evidence shows that Thompson instructed Pierce not to inform the accounts she serviced that she would be working for a competitor. Based on the above, we find no evidence that Thompson employed Pierce to lure plaintiff's clients to it or that Thompson otherwise employed improper means in its competitive efforts against plaintiff. There being nothing in the record to rebut Thompson's contention that its activities were privileged, we find that the trial court also did not err in granting summary judgment as to it on Count 4 of plaintiff's complaint. See Orkin, supra at (1); see also Kem Mfg....