dissenting..
Because I believe that there was a jury issue as to defendant’s counterclaim for damages based upon the rationale of Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), I cannot agree with the majority’s affirmance of the grant of summary judgment on this issue and must, respectfully, dissent. The majority relies upon the affidavit of appellee’s employee Williams which, in conclusory terms, states that said employee “inadvertently, unintentionally, and without any willfulness whatsoever, mistakenly failed to see the documentation in our file” that clearly showed that the present suit was without any substantial justification whatsoever. It is undisputed that in the very file reviewed by Mr. Williams were all documents necessary to show the appellant’s previous payment and satisfaction of any obligation owed by her to the bank.
The majority mistakenly states that this conclusory affidavit pierces the allegations of appellant that appellee had acted “willfully.” I disagree. As was held by the Supreme Court in the very case cited by the majority, “reckless and wanton disregard of consequences may evince an intention to inflict injury. [Cit.] ‘(I)t is equally well established that . . . for a reckless disregard of the rights of others, equivalent to an intentional tort by the [plaintiff], the injured party may recover for the mental pain and anguish suffered therefrom.’ [Cit.]” Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149, 150 (311 SE2d 818) (1984). In this case, it is my opinion that a jury could clearly find that a conscious disregard of the rights of appellant was manifested by the conduct of appellee’s employee in referring the matter for litigation, notwithstanding the admitted presence of docu*29mentation revealing satisfaction of the debt which was the subject of the litigation. Accordingly I believe that the trial court erroneously granted summary judgment in favor of appellee, and I respectfully dissent.
Decided June 19, 1990. McCamy, Phillips, Tuggle, Rollins & Fordham, Stephen A. Williams, Frederick L. Hooper III, for appellant. James E. Toland, Jr., for appellee.I am authorized to state that Presiding Judge Deen joins in this dissent.