Sheppard v. Post
| Decision Date | 24 May 1977 |
| Docket Number | No. 1,No. 53465,53465,1 |
| Citation | 236 S.E.2d 680,142 Ga.App. 646 |
| Parties | O. N. SHEPPARD v. Mary E. POST et al |
| Court | Georgia Court of Appeals |
Louis F. McDonald, Atlanta, for appellant.
Hansell, Post, Brandon & Dorsey, Jefferson D. Kirby, III, Peek & Whaley, J. Corbett Peek, Jr., James Garland Peek, Sam C. Dettelbach, Atlanta, for appellees.
Sheppard brought this action for $488,000 actual damages in the State Court of DeKalb County. He alleged that Post, Wilson and Bernal, in conspiracy, had maliciously induced North Fulton Realty Co., Inc., to breach a contract it had with Sheppard and Post. Sheppard claims the trial court erred in entering an order sustaining the following: Wilson's motion to dismiss for failure to state a claim upon which relief can be granted, Wilson's "plea of" res judicata, Bernal's motion to dismiss because of the pendency of a suit on the same cause of action, treated as a motion for summary judgment by the trial court, and Post's motion for summary judgment. We agree with appellant and reverse.
On January 28, 1972, North Fulton Realty entered into a fifteen-year contract with Sheppard and Mrs. Post. Under this contract Sheppard and Post were to be "co-managers" of a DeKalb County branch of North Fulton Realty. The "co-managers" were to be in complete control of that branch's real estate sales affairs such as payment of all expenses, hiring of employees, distribution of commissions, etc. North Fulton was to be paid a percentage of the gross commissions earned by the branch. On February 15, 1972, to provide a means for carrying out their managerial responsibilities under their contract with North Fulton, Post and Sheppard entered into a partnership with Mrs. Bernal. The three partners managed the branch office from February 15, 1972 until October 2, 1974, when Sheppard gave notice of termination of the partnership because of the many business disputes with the two ladies. Sheppard alleged that malicious actions on part of Post, Bernal and Wilson, President and owner of North Fulton, during a time period prior to November 19, 1974 induced the company, on that date, to place Mrs. Post in sole control of the DeKalb branch in breach of the contractual provision stating that she and appellant were to be co-managers.
In the Civil Court of Fulton County on December 30, 1974, in Case No. 515664, Sheppard sued North Fulton Realty and Wilson for breach of contract. That court entered an order denying Wilson's motion to dismiss for failure to state a claim upon which relief can be granted. On November 7, 1975, the Court of Appeals, on interlocutory review, ruled that the trial court erred in failing to sustain Wilson's motion to dismiss. Sheppard filed this action for tort on November 20, 1975.
1. It was error to sustain Wilson's motion to dismiss Sheppard's complaint for failure to state a claim. In his complaint Sheppard alleged that the appellees, in conspiracy, had maliciously induced North Fulton to violate its contract by placing Mrs. Post in sole control of the DeKalb branch. Interference with contractual rights, such as inducing one to breach his contract with another, is an actionable tort. Piedmont Cotton Mills v. H. W. Ivey &c Co., 109 Ga.App. 876, 879, 137 S.E.2d 528; Luke v. Dupree, 158 Ga. 590(1), 124 S.E. 13; Code § 105-1401. Since Sheppard's averments do not disclose with certainty that he would not be entitled to recover under any state of facts which could be proved in support of his claim, the motion should have been overruled. Harper v. DeFreitas, 117 Ga.App. 236(1), 160 S.E.2d 260.
2. The trial court also erred in granting Wilson's "plea of" res judicata and in dismissing the complaint as to him therefor. Wilson offered in support of his "plea" the judgment of this court holding that he should have been dismissed from the action previously brought by Sheppard for breach of contract. Assuming arguendo that it would constitute a bar to this case, without proof of the ultimate disposition in the trial court of that matter there is no final judgment upon which to base a valid claim of res judicata. McAfee v. Martin, 211 Ga. 14(3), 83 S.E.2d 605.
3. The trial court erred in granting Bernal's motion to dismiss on the ground of the pendency in the Fulton County Civil Court of Case No. 515664, entitled "O. Nixon Sheppard v. North Fulton Realty and J. H. Wilson." Bernal was neither a party to nor in privity with any party to the aforementioned...
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