DILLARD, P. J., RAY and SELF, JJ.
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.
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 the evidence
to the facts and circumstances that existed at or near the
time the father signed the documents. We agree.
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 S.E.2d 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 S.E.2d 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 S.E.2d 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 S.E.2d 89) (1957).
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.
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
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 S.E.2d 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 S.E.2d 356) (1997).
Accordingly, the trial court erred in disposing of
Slosberg's claim of undue influence by summary judgment.
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 S.E.2d 613) (2014).
Furthermore, the trial court's declaratory judgment
regarding the validity and enforceability of 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
their cross-appeal, Giller and Seidner contend that the trial
court erred in awarding summary judgment to Slosberg on their
counterclaims for tortious interference.
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
(Footnote omitted.) Tribeca Homes, LLC v. Marathon Inv.
Corp., 322 Ga.App. 596, 598 (2) (745 S.E.2d 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 S.E.2d 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 ...