                                 FOURTH DIVISION
                                  DILLARD, P. J.,
                                 RAY and SELF, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                       June 6, 2017




In the Court of Appeals of Georgia
 A17A0091. SLOSBERG v. GILLER et al.
 A17A0092. GILLER et al. v. SLOSBERG.

      RAY, Judge.

      This contentious case involves a dispute between the parties which arose after

their elderly father revoked an existing power of attorney, executed a new power of

attorney, and made changes to certain financial accounts relating to his estate-

planning strategy. The son, Robert Slosberg, filed suit against his sisters, Suzanne

Giller and Lynne Amy Seidner, seeking injunctive relief and asserting various claims

against Giller and Seidner based on allegations that the father’s actions were the

product of diminished mental capacity and undue influence. In response, Giller and

Seidner asserted counterclaims against Slosberg for defamation, tortious interference,

declaratory judgment, and equitable relief. On the parties’ cross-motions for summary
judgment, the trial court granted summary judgment to Giller and Seidner on the

parties’ respective claims pertaining to the validity and enforceability of the

documents at issue, finding that there was “no evidence of mental incapacity on the

part of [the father] or that he was under any undue influence at or near any of the

pertinent times the operative documents . . . were signed by [the father].” However,

the trial court granted summary judgment to Slosberg on Giller and Seidner’s

counterclaims for tortious interference and defamation. These cross-appeals ensued,

and we consolidate the appeals for the purposes of review. For the reasons that

follow, we reverse the portion of the judgment challenged in Case No. A17A0091,

and we affirm in part and reverse in part the portion of the judgment challenged in

Case No. A17A0092.

                               Case No. A17A0091

      1. In related enumerations of error, Slosberg contends that the trial court

improperly weighed the evidence and applied an incorrect legal standard when it

disposed of his undue influence claim on summary judgment. Specifically, he argues

that the trial court usurped the role of the finder of fact when it discredited his

evidence bearing upon the issue of undue influence and limited its consideration of



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the evidence to the facts and circumstances that existed at or near the time the father

signed the documents. We agree.

      “Undue influence which overturns an otherwise legal contract [or Will] is the

exercise of sufficient control over the person, the validity of whose act is brought into

question, to destroy his free agency and constrain him to do what he would not have

done if such control had not been exercised.” (Citation and punctuation omitted.)

Cobb v. Garner, 158 Ga. App. 110, 111 (1) (279 SE2d 280) (1981). To maintain a

claim of undue influence, the requisite control must operate on the mind of the person

at the time he or she is executing the document in question. See Simmons v. Norton,

290 Ga. 223, 224 (719 SE2d 421) (2011). However, a claim of undue influence “may

be supported by a wide range of testimony, since such influence can seldom be shown

except by circumstantial evidence.” (Citation and punctuation omitted.) Skelton v.

Skelton, 251 Ga. 631, 634 (5) (308 SE2d 838) (1983). Furthermore, as our Supreme

Court has acknowledged, evidence as to the facts and circumstances that occurred

before and after the execution of the documents at issue may be considered by the

trier of fact when determining whether undue influence existed at the time the

documents were executed. See Knox v. Knox, 213 Ga. 677, 679-680 (2) (101 SE2d

89) (1957).

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      Although there is sufficient evidence in the record to show that the father’s

actions in executing the documents may have been the logical result of Slosberg’s

litigiousness regarding his father’s financial affairs and his increasing animosity

towards Giller and Seidner, there is also evidence to show that the father was

suffering from memory impairment, mental confusion, and susceptibility to influence

in the months leading up to the time he executed the documents at issue. In addition

to these factors, Slosberg presented evidence that Giller and Seidner made at least

some efforts to control the father and isolate him from Slosberg, that Giller and

Seidner took actions on behalf of the father that he did not authorize or understand,

and that the father made statements to certain witnesses indicating that he felt like he

was being brainwashed.

      Upon our review of the transcript of the hearing on the cross-motions for

summary judgment, it appears that the trial court discredited Slosberg’s evidence of

undue influence, adopted Giller and Seidner’s theory of the case, and limited the

scope of evidence to the time periods in which the father executed the challenged

documents. Given that claims of undue influence can be supported by a wide range

of evidence regarding the circumstances that existed both before and after the

execution of the documents in question, see Skelton, supra, and Knox, supra, and

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because the trier of fact has the duty of resolving any conflicts in the evidence,

determining the credibility of witnesses, and drawing the ultimate conclusion as to

the facts, see Smith v. Tenet HealthSystem Spalding, Inc., 327 Ga. App. 878, 879 (1)

(761 SE2d 409) (2014), the question of whether undue influence existed at the time

the challenged documents were executed in this particular case is a question for the

trier of fact. See Mathis v. Hammond, 268 Ga. 158, 160 (3) (486 SE2d 356) (1997).

Accordingly, the trial court erred in disposing of Slosberg’s claim of undue influence

by summary judgment.

      2. Slosberg also contends that the trial court erred in granting summary

judgment to Giller and Seidner on their counterclaims for declaratory judgment,

which sought a declaration that the documents at issue were not the product of mental

incapacity or undue influence and were, therefore, valid and enforceable. As an initial

matter, we note that “[t]he object of a declaratory judgment is to permit determination

of a controversy before obligations are repudiated or rights are violated[,] . . . [and]

declaratory judgment is not available to a party merely to test the viability of that

party’s defenses.” (Citations and punctuation omitted.) Atlanta Nat. League Baseball

Club, Inc. v. F. F., 328 Ga. App. 217, 220-221 (761 SE2d 613) (2014). Furthermore,

the trial court’s declaratory judgment regarding the validity and enforceability of

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documents at issue was based on its erroneous finding that there was no genuine issue

of material fact with regard to Slosberg’s claim of undue influence. See Division 1,

infra. Accordingly, the trial court’s declaratory judgment must also be reversed.




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                                Case No. A17A0092

      3. In their cross-appeal, Giller and Seidner contend that the trial court erred in

awarding summary judgment to Slosberg on their counterclaims for tortious

interference.

      The elements of a tortious interference claim are:

      (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 parties to discontinue or fail to
      enter into an anticipated business relationship with the plaintiff[s]; and
      (4) the defendant’s tortious conduct proximately caused damage to the
      plaintiff[s].


(Footnote omitted.) Tribeca Homes, LLC v. Marathon Inv. Corp., 322 Ga. App. 596,

598 (2) (745 SE2d 806) (2013). As to the first element of a tortious interference

claim, to be “without privilege” means that the defendant is a stranger to the contract

or business relationship. See Cox v. City of Atlanta, 266 Ga. App. 329, 332 (1) (596

SE2d 785) (2004). As to the second element, the term “malice” encompasses any act

on the part of the defendant which constitutes unauthorized interference or

interference without legal justification or excuse. See Renden, Inc. v. Liberty Real

Estate Limited Partnership III, 213 Ga. App. 333, 334 (2) (444 SE2d 814) (1994).

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      (a) In regard to Giller and Seidner’s claims that Slosberg tortiously interfered

with the administration of the father’s IRA and trust accounts, the issue of whether

Slosberg acted without privilege and with malice in challenging the administration

of the accounts depends upon the ultimate determination as to whether the father’s

changes in the beneficiaries of those accounts were the product of undue influence,

which in this case is an issue for the trier of fact. As the validity and enforceability

of the father’s changes to his IRA and trust accounts have yet to be determined by the

trier of fact, summary judgment as to these tortious interference claims was improper.

      (b) In regard to Giller and Seidner’s claim that Slosberg tortiously interfered

with the administration of the father’s agency account, the record shows that Slosberg

is a beneficiary and, thus, cannot be liable for tortious interference. See generally

Atlanta Mkt. Ctr. Mgmt. Co. v. McLane, 269 Ga. 604, 608-609 (2) (503 SE2d 278)

(1998) (one who would benefit from a contract cannot be liable for tortious

interference because he is not a stranger to the contract); Lake Tightsqueeze, Inc. v.

Chrysler First Financial Svs. Corp., 210 Ga. App. 178, 181 (5) (435 SE2d 486)

(1993) (same). Accordingly, the trial court did not err in granting summary judgment

to Slosberg on this tortious interference claim.

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      (c) Giller and Seidner also argue on appeal that Slosberg tortiously interfered

with the performance of their duties under their powers of attorney and tortiously

interfered with Seidner’s employment.

However, Giller and Seidner did not assert such claims below, nor did the trial court

address such claims in its ruling on summary judgment. Accordingly, we cannot

consider these claims on appeal. See Nash v. Studdard, 294 Ga. App. 845, 849 (2)

(670 SE2d 508) (2008).

      Judgment reversed in Case No. A17A0091; judgment affirmed in part and

reversed in part in Case No. A17A0092. Dillard, P. J., and Self, J., concur.




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