concurring in part and dissenting in part.
While in full accord with Division 1 of the majority opinion, I am compelled to dissent from Division 2 due to its rejection of a good faith defense to a claim based upon the Supreme Court’s decision in Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986).
The trial court granted summary judgment to Ferguson on the Yost and OCGA § 9-15-14 counterclaims after concluding that “plaintiff was raising justiciable issues in good faith.” The majority surmises that the trial court applied OCGA § 9-15-14 (c) and, while acknowledging that pursuance of the case by Ferguson’s counsel “has been characterized by good faith in a subjective sense,” holds that the good faith concept contained in OCGA § 9-15-14 (c) is not applicable to a Yost suit. The majority goes on to distinguish the case at bar from the cases cited by Ferguson’s counsel, and concludes that Ferguson did not present “arguable support” for his claim.
In Yost v. Torok, supra, the Supreme Court adopted the legislative language of OCGA § 9-15-14 to define the single cause of action now called abusive litigation. The Supreme Court “re-define[d] the elements of the common-law claim” by liberally borrowing from OCGA § 9-15-14 (a) and (b). Its failure to include language from § 9-15-14 (c) should not be read as a rejection of the concepts contained therein, but recognized as logical since subsection (c) does not contain terms defining the substance of the tort of abusive litigation. Instead, it contains what can only be termed a defense: should it be determined by the court that a claim or defense was asserted by an attorney or a party “in a good faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized precedential or persuasive authority,” attorney fees will not be assessed. Following the lead of the Supreme Court, I would adopt the legislative language of OCGA § 9-15-14 (c) and hold that potential tort liability for abusive litigation is negated if the factfinder determines the claim or defense was asserted in a good faith attempt to establish a new theory of law in Georgia if such new theory is based on some recognized precedential or persuasive authority.
The failure to recognize a “good faith defense” to a Yost claim, a claim which exposes its defendants to potential liability greater than that under OCGA § 9-15-14, creates an atmosphere of stagnation within the law by inhibiting attorneys from taking a case that requires the presentation of a novel approach to the law in Georgia. The studied development of the law will be stymied should counsel fear to suggest change because the shadow of a Yost claim looms over them. Without establishing good faith as a defense to a Yost claim, development of the law will grind to a halt, and the State of Georgia will be the worse for it.
After holding that OCGA § 9-15-14 (c) is not applicable to a Yost *439claim, the majority goes on to distinguish each of the several foreign authorities cited by Ferguson in support of his position, and concludes that they “do not provide arguable support for his claim.” Majority opinion, p. 435. Ferguson’s inability to present a previously-decided case factually identical to the one at bar should not expose him to liability for abusive litigation. The fact that Ferguson, in good faith (as recognized by the majority), presented case law establishing a springboard from which a court of this State could leap should it choose to extend the existing law of Georgia should insulate Ferguson from Yost liability. The ability of the court to distinguish Ferguson’s authority should not vitiate his good faith. If that authority can be seen as stepping stones leading toward recognition of Ferguson’s theory, it should be accepted as “precedential or persuasive authority” (OCGA § 9-15-14 (c)), insulating the proponent from abusive litigation rather than rejected as distinguishable and subjecting the party to a penalty for proposing a novel approach. While I agree with the majority that Ferguson’s claims against the City of Doraville and Lt. Riffe cannot withstand motions for summary judgment under Georgia law as it presently stands, I am not willing to condemn Ferguson or his counsel for filing the suit recognized as having been brought in good faith.
Had a position such as that now espoused by the majority been taken by the state and federal appellate courts at an earlier time, we might still be grappling with notions such as “separate but equal” (Brown v. Bd. of Education, 347 U. S. 483 (74 SC 686, 98 LE 873) (1954)); the husband as the head of the household (Orr v. Orr, 440 U. S. 268 (99 SC 1102, 59 LE2d 306) (1979)); the imposition of the death penalty for armed robbery (Gregg v. Ga., 428 U. S. 153 (96 SC 2909, 49 LE2d 859) (1976)); unlimited sovereign immunity (McCafferty v. Medical College of Ga., 249 Ga. 62 (287 SE2d 171) (1982)); as well as malicious use of process and malicious abuse of process (Yost v. Tor ok, supra). These notions have fallen to the wayside as the law evolved, championed by attorneys who were willing to take on an uphill struggle in pursuit of an ideal whose time had come but had not yet been recognized. While it has been acknowledged that “zealous favoring of abusive litigation allegations can create a bar to access to the courts for civil litigants” (Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790 (4) (359 SE2d 920) (1987)), we must do more than recognize danger — we must establish its parameters. The trial courts of this State have been the Yost battlefield up to this point. They, as exemplified by the judge in the case at bar, have attempted to curb abusive litigation while giving parties and counsel the latitude necessary to foster an atmosphere in which the law progresses due to the presentation of novel positions. I propose that we, as an appellate court, ease the collective mind of the bench and bar by applying the *440legislative language of OCGA § 9-15-14 (c) to Yost claims.
Decided January 13, 1988 Rehearing denied March 18, 1988 Michael L. Wetzel, for Ferguson. James C. Watkins, Edward E. Carter, for City of Doraville. Edward W. McCrimmon, for Riffe.