FIFTH DIVISION
                               MCFADDEN, P. J.,
                             RAY and RICKMAN, 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 21, 2018




In the Court of Appeals of Georgia
 A18A0374. STAPLER v. BOLING et al.
 A18A0375. WITCHER et al. v. BOLING et al.

      MCFADDEN, Presiding Judge.

      These appeals challenge a trial court order denying motions to dismiss

professional negligence and other claims brought against Evan Stapler, and abusive

litigation claims brought against Jack Witcher and Witcher, Inc. Because the claims

filed against Stapler were barred by the doctrine of res judicata and the abusive

litigation claims brought against Witcher and Witcher, Inc. failed to comply with

mandatory notice provisions for such claims, we reverse.

             A motion to dismiss for failure to state a claim upon which relief
      may be granted should not be sustained unless (1) the allegations of the
      complaint disclose with certainty that the claimant would not be entitled
      to relief under any state of provable facts asserted in support thereof;
      and (2) the movant establishes that the claimant could not possibly
      introduce evidence within the framework of the complaint sufficient to
      warrant a grant of the relief sought. In deciding a motion to dismiss, all
      pleadings are to be construed most favorably to the party who filed
      them, and all doubts regarding such pleadings must be resolved in the
      filing party’s favor. On appeal, we review a trial court’s decision to
      grant or deny a motion to dismiss de novo.

Best Jewelry Mfg. Co. v. Reed Elsevier Inc., 334 Ga. App. 826, 826-827 (780 SE2d

689) (2015) (citations omitted).

      So construed, the pleadings show that Anna Smith gave birth to M. I. S. on

October 9, 2013. A few weeks later, Smith informally transferred custody and care

of M. I. S. to the child’s maternal grandmother, Judy Boling. Smith named attorney

Evan Stapler and his wife as the child’s godparents. Stapler had represented both

Smith and Boling in prior legal matters, including Smith’s divorce action, Boling’s

adoption of two of Smith’s other children, and a custody matter concerning M. I. S.

      On June 8, 2015, Stapler and his wife, with the assistance of attorney Witcher,

filed a petition to adopt M. I. S. The trial court issued an ex parte order granting

temporary custody of M. I. S. to the Staplers. Smith and Boling both opposed the

adoption petition. Boling filed a motion to vacate the ex parte temporary custody

order and to dismiss the petition for adoption, claiming that Stapler had breached

various duties and state bar rules. A hearing was held on July 8, 2015, and two days

later, on July 10, 2015, the trial court issued an order vacating the temporary custody

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order and dismissing the adoption petition. The court’s order further provided that the

Staplers must pay $2,500 in attorney fees in resolution of all claims and

counterclaims in the case:

      The Petitioners shall cause to [be paid] over to counsel for Respondent
      . . . an award in attorney’s fee, per agreement between the parties, of the
      sum of $2,500.00, [i]nstanter, in resolution of the claims and
      counterclaims in this case, and in full settlement of any and all other
      post-judgment motions which could or might have been brought as a
      result of this action.

The Staplers promptly made the $2,500 payment. There were no further proceedings

in the adoption action and the court’s final order of July 10, 2015 was not appealed.

      Over a year later, on November 15, 2016, Smith and Boling filed a complaint,

which they later amended, against Stapler, Witcher, and Witcher, Inc. The complaint

asserted various causes of action against Stapler arising out of his attempt to adopt

M. I. S., including claims for professional negligence, negligence, and breach of

fiduciary duties. The complaint further alleged that Witcher had participated in a civil

conspiracy with Stapler, based on his conduct in representing the Staplers in the

adoption action. Stapler and the Witcher defendants each moved to dismiss the claims

against them. The trial court denied the motions, but granted certificates of immediate

review. This court granted applications for interlocutory review and these appeals


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followed, with Stapler appealing in Case No. A18A0374 and the Witcher defendants

appealing in Case No. A18A0375.

                                 Case No. A18A0374

      1. Res judicata.

      Stapler contends that the claims brought against him are barred by the doctrine

of res judicata. We agree.

             OCGA § 9-12-40 represents a codification of the common law
      doctrine of res judicata, and provides: “A judgment of a court of
      competent jurisdiction shall be conclusive between the same parties and
      their privies as to all matters put in issue or which under the rules of law
      might have been put in issue in the cause wherein the judgment was
      rendered until the judgment is reversed or set aside.” The purpose of the
      doctrine is to prevent the re-litigation of claims which have already been
      adjudicated, or which could have been adjudicated, between identical
      parties or their privies in identical causes of action. These prerequisites
      must be satisfied before res judicata acts as a bar to subsequent litigation
      – identity of the cause of action, identity of the parties or their privies,
      and a previous adjudication on the merits by a court of competent
      jurisdiction.

Crowe v. Elder, 290 Ga. 686, 687-688 (723 SE2d 428) (2012) (citations omitted).

      As Smith and Boling have conceded, both in the trial court and on appeal,

identity of the parties in the actions between them and Stapler is satisfied. As for

identity of the claims, the question is whether they “arose from the same set of facts.

To determine that question, we must examine the subject-matter and the issues as

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raised by the pleadings in the two cases. Further, res judicata bars subsequent actions

as to all matter put in issue or which could have been put in issue.” QoS Networks

Ltd. v. Warburg Pincus & Co., 294 Ga. App. 528, 532 (1) (b) (669 SE2d 536) (2008)

(citations and punctuation omitted). In the pleadings filed in opposition to the

adoption petition, the plaintiffs made similar claims and raised the issues of Stapler’s

alleged misconduct and violation of bar rules that are alleged as the basis for the

current lawsuit. The instant case is effectively

      based on the identical set of facts alleged in [opposition to the adoption
      petition] with the only difference being that [Smith and Boling] now
      [have] characterized those allegations as constituting [tort claims for]
      simple negligence[,] professional negligence[, and breach of fiduciary
      duties]. And while [appellees] argue[] that [they are] not prohibited from
      [bringing their] complaint in such a manner, the doctrine of res judicata
      bars subsequent actions as to all matters put in issue or which could
      have been put in issue.

Dove v. Ty Cobb Healthcare Systems, 316 Ga. App. 7, 9-10 (1) (729 SE2d 58) (2012)

(citations and punctuation omitted).

      Finally, for an adjudication on the merits,

      [i]t is sufficient that the status of the action was such that the parties
      might have had their suit thus disposed of, if they had properly presented
      and managed their respective cases. Thus, it is only where the merits
      were not and could not have been determined under a proper
      presentation and management of the case that res judicata is not a viable


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      defense. If, pursuant to an appropriate handling of the case, the merits
      were or could have been determined, then the defense is valid.

QoS Networks Ltd., supra at 533 (1) (c) (citation omitted). Here, the court’s final

order in the prior proceeding expressly disposed of all claims, counterclaims, and

post-judgment claims that were or could have been brought in that case. Accordingly,

because Stapler has shown “sufficient identity of parties, identity of issues, and an

adjudication on the merits by a court of competent jurisdiction, the trial court [should

have granted the motion to dismiss the] claims.” Id.

                                 Case No. A18A0375

      2. Abusive litigation claims.

      Witcher and Witcher, Inc., contend that the claims brought against them are in

substance abusive litigation claims that must be dismissed because the notice

requirements for such claims were not met. We agree.

      Georgia’s statutory scheme governing abusive litigation claims is set out at

OCGA § 51-7-80 et seq. It provides, in part, that “[t]his article is the exclusive

remedy for abusive litigation.” OCGA § 51-7-85. It further provides: “Any person

who takes an active part in the initiation, continuation, or procurement of civil

proceedings against another shall be liable for abusive litigation if such person acts:


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(1) With malice; and (2) Without substantial justification.” OCGA § 51-7-81.

Moreover, “OCGA § 51-7-84 (a) requires that the party alleging abusive litigation

give written notice to those against whom the claim of abusive litigation is made

before bringing suit.” Slone v. Myers, 288 Ga. App. 8, 11 (2) (653 SE2d 323) (2007)

(footnote omitted), overruled in part on other grounds, Reeves v. Upson Regional

Medical Center, 315 Ga. App. 582 (726 SE2d 544) (2012).

      As a condition precedent to any claim for abusive litigation, the person
      injured by such act shall give written notice by registered or certified
      mail or statutory overnight delivery or some other means evidencing
      receipt by the addressee to any person against whom such injured person
      intends to assert a claim for abusive litigation and shall thereby give the
      person against whom an abusive litigation claim is contemplated an
      opportunity to voluntarily withdraw, abandon, discontinue, or dismiss
      the civil proceeding, claim, defense, motion, appeal, civil process, or
      other position. Such notice shall identify the civil proceeding, claim,
      defense, motion, appeal, civil process, or other position which the
      injured person claims constitutes abusive litigation.

OCGA § 51-7-84 (a).

      In this case, Smith and Boling did not style their claims against Witcher and

Witcher, Inc., as abusive litigation claims and instead called them claims for civil

conspiracy. However, “we look to the substance and not the style of a particular claim

to determine whether it amounts to a claim for abusive litigation. . . . [Plaintiffs] may

not avoid the requirements of the statute merely by characterizing their claims arising

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from the allegedly abusive lawsuit as some other cause of action.” Meadow Springs

Recovery v. Wofford, 319 Ga. App. 79, 82 (1) (734 SE2d 100) (2012) (citations and

punctuation omitted). It is apparent from a review of the complaint that the claims

against Witcher and Witcher, Inc., are based on Witcher’s actions taken during the

course of representing the Staplers in the adoption proceeding. Specifically, the initial

complaint alleged that Witcher had committed an “abuse of civil process” in filing the

petition for adoption and in obtaining the ex parte temporary custody order, and the

amended complaint likewise alleged that Witcher had used “improper legalistic

means and methods” in filing the petition for adoption, obtaining the ex parte order,

and litigating the ensuing adoption proceeding. These allegations are “the essence of

an abusive litigation claim.” Slone, supra (citations omitted). Because the substance

of the claims against Witcher and Witcher, Inc. are abusive litigation claims, the

appellees “may not avoid the application of the abusive litigation statutes [merely] by

characterizing [their] claims founded in the initiation, continuation, or procurement

of civil proceedings as [civil conspiracy claims].” Meadow Springs Recovery, supra

(punctuation and footnote omitted).

      In so applying the abusive litigation statutes to this case, as explained above,

OCGA § 51-7-84 (a) requires as a condition precedent to bringing suit that the party

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alleging abusive litigation give written notice to the opposing party by registered or

certified mail or statutory overnight delivery or some other means evidencing receipt

of the notice. It is undisputed that no such written notice was given to Witcher or

Witcher, Inc. “Accordingly, we conclude that the superior court [erred in refusing to]

dismiss[] attorney [Witcher and Witcher, Inc.] as defendants in the instant action

[because of the appellees’] failure to give written notice that [they] intended to sue

them for abusive litigation[.]” Merchant v. Mitchell, 241 Ga. App. 173, 174 (1) (525

SE2d 710) (1999) (citations omitted). Accord Baylis v. Daryani, 294 Ga. App. 729,

731-732 (2) (669 SE2d 674) (2008) (trial court did not err in dismissing abusive

litigation claim where the notice requirement of OCGA § 51-7-84 (a) was not met);

Slone, supra; LaSonde v. Chase Mtg. Co., 259 Ga. App. 772, 774 (2) (577 SE2d 822)

(2003) (affirming dismissal of abusive litigation claim where no written notice given

to defendant).

      3. Remaining arguments.

      Because of our holdings above in Divisions 1 and 2, we need not address the

appellants’ additional arguments.

      Judgments reversed in both Case No. A18A0374 and Case No. A18A0375. Ray

and Rickman, JJ., concur in the judgment only.

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    THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF

APPEALS RULE 33.2




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