Renden, Inc. v. Liberty Real Estate Ltd. Partnership III

• Decision Date: 09 May 1994
• Docket Number: No. A94A1064,A94A1064
• Citation: 444 S.E.2d 814,213 Ga.App. 333
• Parties: RENDEN, INC. v. LIBERTY REAL ESTATE LIMITED PARTNERSHIP III et al.
• Court: Georgia Court of Appeals

Page 814

444 S.E.2d 814

213 Ga.App. 333

RENDEN, INC. v. LIBERTY REAL ESTATE LIMITED PARTNERSHIP III et al.

No. A94A1064.

Court of Appeals of Georgia.

May 9, 1994.

Reconsideration Denied May 27, 1994.

Certiorari Denied Sept. 8, 1994.

Carr & Kessler, James C. Carr, Jr., Atlanta, for appellant.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Donna C. Sloan, Atlanta, for appellees.

BIRDSONG, Presiding Judge.

This is an appeal from a grant of summary judgment. Appellant/plaintiff Renden, Inc. (Renden) brought suit for tortious interference with a business relationship against appellee/defendants Liberty Real Estate Limited Partnership III et al. (Liberty). Liberty currently owns the East Lake Shopping Center. Originally, a lease agreement was entered between Cobb Properties, Ltd., as landlord, and Colonial Stores, Inc., as tenant, for lease of certain premises located in the East Lake Shopping Center. This lease has been amended several times with Liberty ultimately becoming the landlord and Grand Union Company d/b/a Big Star becoming the tenant. Big Star quit conducting business on the leased premises and entered negotiations with Renden to sublease its interests. Renden's proposed business concept was to open a family-type entertainment center in the leased space. Renden contends that, although Liberty had leased a portion of the shopping center to a predecessor of Big Star with a lease clause which in effect granted Big Star the right to transfer and assign its lease or to sublet the premises or any part thereof without permission of the landlord, Liberty thereafter declared Renden a prohibited tenant and threatened to close ("go dark") and to take other action, thereby causing Big Star to refuse to execute a sublease with Renden. Subsequently, Liberty and Grand Union executed a mutual release and settlement agreement; after termination of the lease by mutual consent of the parties, Liberty relet the space to a new anchor tenant deemed suitable for the purpose underlying the shopping center development plan. The trial court granted Liberty's motion for summary judgment; appellee/defendants' counterclaim for attorney fees remains pending. Held:

1. At summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party's case. Summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau's Corp. v. Haskins, 261 Ga. 491, 495, 405 S.E.2d 474. A movant for summary judgment who is a defendant may discharge his burden by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support the non-moving party's case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Id. at 491, 405 S.E.2d 474. Further, hearsay evidence has no probative value in a summary judgment proceeding, except when part of the res gestae. Southern Business Machines of Savannah v. Norwest Financial, etc., 194 Ga.App. 253, 256(2), 390 S.E.2d 402.

2. Examination of appellant's complaint, under the Civil Practice Act standards of Wade v. Polytech Indus., 202 Ga.App. 18, 21(2), 413 S.E.2d 468, reveals that a cause of action has been adequately averred of tortious interference with business relations. Tortious interference with business relations is a distinct and separate tort from that of tortious interference with contractual relations, although some of the elements of the two torts are similar. Compare Integrated Micro Systems v. NEC Home Electronics, 174 Ga.App. 197, 329 S.E.2d 554. Proof of a valid and enforceable contract is not required as an element of a cause of action for intentional tortious interference with business relations. Nilan's Alley v. Ginsburg, 208 Ga.App. 145, 146(2), 430 S.E.2d 368; Integrated Micro Systems, supra 174 Ga.App. at 200(3), 329 S.E.2d 554. Appellees' contention that appellant must establish that a contract existed as the basis for the averred interference is without merit. To recover under a theory of tortious interference with business relations, a plaintiff must show defendant: (1) acted improperly and without privilege, (2) acted 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) caused plaintiff financial injury. Integrated Micro Systems, supra at 200(3), 329 S.E.2d 554. Malice, as herein used, is a term to be given a liberal meaning; malicious or maliciously means any unauthorized interference, or any interference without legal justification or excuse. Arford v. Blalock, 199 Ga.App. 434, 441(13), 405 S.E.2d 698; Forehand v. Perlis Realty Co., 198 Ga.App. 165, 166, 400 S.E.2d 644.

A cause of action for tortious interference with business relations encompasses interference with a prospective business relationship as well as existing ones, and liability results not only from disruption of the relationship but also from elimination of the injured party's ability to perform. But to establish a cause of action for interference with prospective business relations, plaintiff must demonstrate that absent the interference, those relations were reasonably likely to develop in fact. Perry & Co. v. New South Ins. Brokers, 182 Ga.App. 84, 89(4), 354 S.E.2d 852. The trial court did not err in granting summary judgment to appellees for each of the following reasons:

(a) Liberty carried its burden, under Lau's Corp., supra, by showing that the evidence failed to create a triable issue as to the element of malice with intent to injure. Liberty, as landlord, had a legal right to compete for the...