                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS
                                                                              FILED
                            FOR THE ELEVENTH CIRCUIT                 U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                             ________________________                   DECEMBER 13, 2011
                                                                            JOHN LEY
                                    No. 11-10317                             CLERK
                              ________________________

                      D. C. Docket No. 5:08-cv-00098-LGW-JEG

GOWEN OIL COMPANY, INC.,

                                                                          Plaintiff-Appellant,

                                            versus

GREENBERG TRAURIG, LLP,
GREENBERG TRAURIG, P.A., et al.,

                                                                      Defendants-Appellees.

                              ________________________

                      Appeal from the United States District Court
                         for the Southern District of Georgia
                           _________________________

                                    (December 13, 2011)

Before EDMONDSON and ANDERSON, Circuit Judges, and LAWSON,* District
Judge.

PER CURIAM:

_____________________
*Honorable Hugh Lawson, United States District Judge for the Middle District of Georgia, sitting
by designation.
      This is an unusual case to which we have devoted considerable study. We

have also had the benefit of oral argument. Plaintiff Gowen had a right of first

refusal to buy three stations from United, owned by Sekhon. Personal troubles

caused Sekhon to want to sell the stations without delay. Abraham, through his

company Global (hereinafter referred to collectively as Abraham), became

interested in purchasing the stations at about the same time, in December 2007.

Abraham engaged financial consultant Weingard, and attorney Williams, who

subsequently associated Greenberg Traurig, to implement his desire to accomplish

a rapid purchase of the stations. The purchase was completed on January 18, 2008.

A decision was made not to comply with the Georgia Bulk Sales Act, and no

notification of the impending sale was given to Plaintiff or to other creditors of

United. Thus, Plaintiff and any other creditor had a cause of action in rem against

the transferred assets in the hands of transferee Abraham. O.C.G.A. § 11-6-104

(2002); Johnson v. Mid States Screw & Bolt, 733 F.2d 1535, 1536 (11th Cir.

1984).

      Plaintiff sued Abraham and obtained a judgment in the amount of

approximately $1.7 million. Thereafter, in the instant suit, Plaintiff sued

Defendants, Abraham‘s attorneys, and financial consultant with respect to the

transaction. Plaintiff claims that Defendants conspired with Abraham to defraud

                                          2
Plaintiff and to tortiously interfere with Plaintiff’s contractual right of first refusal.

The district court entered summary judgment for the Defendants. On appeal,

Plaintiff challenges the district court’s ruling as to Plaintiff’s claim of fraud and

Plaintiff’s claim of tortious interference with contractual relations.

      We turn first to Plaintiff’s fraud claim. We agree with Defendants that

Plaintiff failed to adduce sufficient evidence to create a genuine issue of material

fact with respect to fraud. The only evidence of fraud to which Plaintiff points is

that neither Defendants nor Abraham gave Plaintiff notice of the impending sale, as

would have been required had they decided to pursue the procedures provided for in

the Georgia Bulk Sales Act.     Plaintiff’s fraud claim is foreclosed by the opinion of

the Georgia Supreme Court in Boss v. Bassett Furniture Ind. of N.C., Inc., 288 S.E.

2d 535, 559 (Ga. 1982). There, the Supreme Court of Georgia held that violations

of the notice provisions of Georgia’s Bulk Sales Act cannot constitute the basis for

a fraud claim against the transferee. Although the Georgia Supreme Court held that

the Bulk Sales Act did not preclude a fraud claim against the transferee, the Court

held that any such claim had to rely on conduct other than violations of the Bulk

Sales Act. Here, Plaintiff points to no evidence of fraud other than the failure of

Abraham and the Defendants to give Plaintiff notice of the impending sale.

Accordingly, the district court properly granted summary judgment to Defendants

                                            3
on Plaintiff’s fraud claim.

      We turn now to Plaintiff’s claim of tortious interference with contractual

relations. Under Georgia law, the following are the elements which a plaintiff must

prove:

      (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; and (4) the defendant’s tortious conduct proximately
      caused damage to the plaintiff.

Kirkland v. Tamplin, 285 Ga. App. 241, 243, 645 S.E.2d 653 (2007). Although the

Defendants assert several other grounds upon which the judgment of the district

court might be affirmed with respect to this tortious interference claim,1 we need not

address those, because we agree with Defendants that Plaintiff has not adduced

sufficient evidence to create a genuine issue of material fact with respect to the first

element, wrongful conduct. Georgia courts have described the element of wrongful

conduct in the following manner:

      Plaintiff must show more than that the defendant simply persuaded a
      person to break a contract. . . . Indeed, the plaintiff must adduce
      evidence of improper action or wrongful conduct, which our courts
      have defined as constituting conduct wrongful in itself; thus, improper
      conduct means wrongful action that generally involves predatory


         1
                 Thus, we need not address the following issues: 1) whether Plaintiff adduced
sufficient facts to create a genuine issue of fact as to the inducement element; and 2) whether the
Plaintiff is judicially estopped.

                                                 4
      tactics such as physical violence, fraud or misrepresentation,
      defamation, use of confidential information, abusive civil suits, and
      unwarranted criminal prosecutions.

Kirkland, 645 S.E.2d at 656 (quotations and citations omitted). The primary fact

upon which Plaintiff relies, in its effort to satisfy the wrongful conduct element, is

the fact that Defendants and Abraham did not give Plaintiff notice of the impending

sale as would have been required had they chosen to comply with the notice

provisions of the Bulk Sales Act. Although a failure to provide such notice will

subject the transferred goods in the hands of the transferee to an in rem suit, the

Georgia law is clear that the Bulk Sales Act provides for no in personam action

against the transferee. And we noted above that the Georgia Supreme Court in Boss

held that a failure to provide such notice does not constitute fraud. For the same

reasons, we believe that the failure to provide such notice does not constitute

wrongful conduct to satisfy the first element of Plaintiff’s tortious interference

claim.2 See also Tate v. Kia Autosport of Stone Mountain, 61 S.E. 2d 112, 113

(Ga.App. 2005) (rejecting plaintiff’s attempt to hold a transferee liable for a tort

claim when the transferee acquired assets of a transferor who had committed the tort



       2
                The Supreme Court of Georgia held that the remedies provided by the Bulk Sales
Act are not exclusive, and thus do not preclude common law causes of action. However, the
Supreme Court held that a plaintiff pursuing such a common law action cannot rely upon
violations of the Bulk Sales Act. Boss, 288 S.E.2d at 562.

                                               5
against plaintiff and when the sale to transferee was subject to the Bulk Sales Act,

but there was no notice to creditors as required by the Act. The court held that there

was no tort claim against the transferee personally in the absence of a tort claim

against the transferee which was “independent from the Bulk Transfer Act”).

      Because Plaintiff points to no other evidence which could constitute wrongful

conduct satisfying the first element,3 we conclude that the district court properly

granted Defendant’s summary judgment on Plaintiff’s claim of tortious interference

with contractual relations.

      For the foregoing reasons,4 the judgment of the district court is

      AFFIRMED.




       3
                 Plaintiff suggests vaguely that the mere fact that Defendants and Abraham
induced Sekhon and United to breach their contractual obligation to Plaintiff is sufficient to
establish this claim. We need not decide whether we agree with the district court that Plaintiffs
also failed to adduce sufficient facts to create a jury issue on the inducement element, because we
reject Plaintiff’s argument that inducement alone is sufficient to establish the tortious
interference claim. Under Georgia law, such inducement is merely one element. Georgia law
clearly requires – in addition to the inducement element – the other elements listed above,
including the element of wrongful conduct. None of the cases cited by Plaintiff support the
proposition that inducement alone is sufficient to establish the tortious interference claim without
regard to the other listed elements.
       4
                Plaintiff argues that these Defendants are also responsible for the damages
Plaintiff claims on account of Plaintiff’s claim that Abraham defrauded Plaintiff after the sale by
fraudulently using the access card and code (which had belonged to Abraham’s predecessor,
United) to obtain fuel from Plaintiff on credit. We reject this argument summarily; Plaintiff has
woefully failed to adduce any evidence that Defendants were aware of any such fraud.

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