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Rogers v. Dupree
Citations: 340 Ga. App. 811; 799 S.E.2d 1Docket: A16A1714; A16A1715; A16A1716; A16A1717
Court: Court of Appeals of Georgia; March 16, 2017; Georgia; State Appellate Court
Joseph Rogers, Jr. filed a suit in Cobb County Superior Court against David M. Cohen, Complex Law Group, LLC, D.M. Cohen, Inc., Hylton B. Dupree, Jr., Dupree Kimbrough LLP, Hylton B. Dupree, Jr. PC, and John C. Butters. The defendants sought to dismiss Rogers’s claims based on two grounds: (1) failure to state a claim under OCGA 9-11-12(b)(6) and (2) the anti-SLAPP statute (OCGA 9-11-11.1). The trial court granted the Dupree defendants’ anti-SLAPP motion but denied their motion to dismiss for failure to state a claim, except for one alleged predicate act related to a RICO claim. The court denied the motions from Butters and the Cohen defendants under both the anti-SLAPP statute and for failure to state a claim, as well as their request to impose sanctions against Rogers for purportedly breaching a mediation agreement. On appeal, Rogers argues that the court erred by granting the Dupree defendants' anti-SLAPP motion. The Dupree defendants counter that the court wrongly denied their motion to dismiss for failure to state a claim, asserting that Rogers's claims are barred by OCGA 51-7-80 and that he failed to establish a tort claim due to the absence of a duty owed to him. Butters and the Cohen defendants contend the court erred in not dismissing Rogers's claims based on the Noerr-Pennington doctrine, not dismissing claims under the anti-SLAPP statute due to alleged falsities in Rogers's verifications, and not imposing sanctions for Rogers's breach of the mediation agreement. They also argue that Georgia’s abusive litigation statute does not bar Rogers's claims. The court's decision resulted in reversing the trial court's grant of the Dupree defendants' anti-SLAPP motion while affirming the denial of their motion to dismiss for failure to state a claim. Additionally, the court affirmed the denial of the motions from Butters and the Cohen defendants regarding both failure to state a claim and anti-SLAPP grounds, as well as the denial of sanctions related to the mediation agreement. Background details include that Dupree, Cohen, and Butters are attorneys representing Mye Brindle, who had been employed as a housekeeper by Rogers. Brindle had a sexual relationship with Rogers during her employment, which continued after she was rehired following an injury that led to her initial termination. During her employment, Brindle recorded sexual encounters with Rogers without his consent. In June 2012, Brindle retained Butters and Cohen for legal representation. Shortly after, on June 20, she recorded a sexual encounter with Rogers without his knowledge or consent. Following her resignation, Rogers received a letter from Cohen accusing him of a history of sexual harassment towards Brindle, with claims supported by various recordings. The letter indicated Brindle's intent to file a lawsuit and an EEOC complaint, advocating for early resolution to avoid public litigation and its adverse consequences, which the author argued often lead to extensive fallout, including legal repercussions and personal turmoil. Dupree subsequently joined Brindle's legal team; his exact engagement date is unclear, but he was involved by August 2, 2012. On that date, he and other counsel met with Rogers's attorney, and on August 6, he sent a segment of the video to Rogers's legal team. Mediation occurred on September 14, 2012, which ended without resolution, despite a signed nondisclosure agreement. Rogers filed a complaint on the same day seeking an injunction against Brindle regarding the video, later amending it to include their names. Brindle initiated her own suit in Fulton County on September 19, 2012, related to her interactions with Rogers, and filed a police report on September 28, 2012. This case was sealed, and Brindle dismissed her Fulton County action on October 11, 2012, opting to incorporate her claims as counterclaims in Rogers's initial complaint. On May 30, 2014, Rogers filed a new lawsuit in Cobb County (Cobb 2), alleging multiple claims against all defendants, including invasion of privacy, civil conspiracy, intentional infliction of emotional distress, and violations of the Georgia RICO Act, among others. The court reviews de novo the trial court's denial of Cohen and Butters's motion to dismiss and the grant of Dupree’s motion. When evaluating the trial court’s order, the court construes pleadings favorably toward the plaintiff. A SLAPP (strategic lawsuit against public participation) is intended to intimidate critics through costly legal defenses. Georgia's anti-SLAPP statute, codified at OCGA 9-11-11.1, aims to protect individuals speaking on public matters and prevent chilling of constitutional rights to petition and free speech. It requires detailed verification for claims that may infringe on these rights. The statute defines acts in furtherance of free speech broadly, including statements made in official proceedings. For anti-SLAPP protections to apply, claims must be connected to actual official proceedings. The trial court deemed Rogers’s lawsuit a SLAPP suit but denied Cohen and Butters’s motions, finding Rogers's verifications sufficient. However, it ruled Dupree's verification false, stating Rogers’s claims were not well-grounded. The court concludes that the anti-SLAPP statute does not apply to Rogers’s lawsuit, asserting it is not a SLAPP suit, and therefore, the trial court did not need to assess the truthfulness of the verification. Rogers did not need to raise the issue in a cross-appeal for the Court to affirm a judgment based on the 'right for any reason' rule, which allows affirmance if the judgment is correct for any reason, irrespective of the trial court's rationale. This rule is applicable to motions for summary judgment and motions to dismiss, provided the issue was raised in the trial court and the opposing party had a fair opportunity to respond. The trial court correctly refused to dismiss Rogers's lawsuit under the anti-SLAPP statute, which does not apply to his claims. As for Dupree, the trial court found insufficient evidence regarding his involvement in the case; he may have participated as early as August 2, 2012, but specifics were unclear. Consequently, the order granting Dupree's motion to strike/dismiss under the anti-SLAPP statute was reversed. The claims against the attorneys relate to actions taken before any official proceedings, thus falling outside the anti-SLAPP statute's purview, as there was no evidence of an official proceeding. Dissenting opinions highlighted differing interpretations of the anti-SLAPP statute's application, particularly regarding its relevance to actions that were not directly connected to judicial proceedings. Furthermore, the activities complained about by Rogers were not legitimate exercises of free speech or petition rights by the attorneys involved. Georgia's anti-SLAPP statute closely mirrors California's, which has been subject to judicial interpretation in cases such as Flatley v. Mauro, where similar issues arose. The case referenced serves as a non-precedential but relevant comparison for legal analysis. In Flatley, the court determined that the anti-SLAPP statute did not apply because the actions were not constitutionally protected activities. The plaintiff in Flatley faced allegations including extortion and fraud, stemming from a demand letter that accused him of sexual assault and threatened legal action and negative publicity. The current case involves a similar demand letter referencing video evidence of alleged sexual abuse, which threatens reputational harm and legal persecution if not settled. The dissent argues that the letter cannot be deemed extortionate due to its mention of settlement under FRE 408; however, the inclusion of this phrase does not inherently grant constitutional protection. The current letter, like that in Flatley, threatens significant repercussions for Rogers, including criminal investigations and personal ruin. Under Georgia law, recording without consent is illegal, and the attorneys involved may have engaged in tortious and criminal behavior, which is not protected by the anti-SLAPP statute. The dissent's claim that the legality of the video remains unresolved is irrelevant, as Georgia law allows civil suits irrespective of criminal convictions. Rogers's claims of illegal video recording, theft, public disclosure of private facts, and extortion fall outside the anti-SLAPP protections, highlighting a critical distinction between legitimate litigation actions and those that are criminal or tortious. Thus, the anti-SLAPP statute does not apply to Rogers's claims against the defendants. The trial court's finding that the anti-SLAPP statute applies to Rogers's claims against Dupree is reversed, while the denial of Butters’s and the Cohen defendants’ motion to strike Rogers's complaint is affirmed. Consequently, Rogers's additional claims of error related to anti-SLAPP verifications and quashed subpoenas are rendered moot. The trial court correctly determined that Rogers's claims are not barred by Georgia’s abusive litigation statute, as the statute requires a showing of malice and lack of substantial justification, which was not applicable here. The defendants’ arguments that Rogers cannot circumvent the statute by framing his claims differently, and that the statute applies to pre-litigation conduct, were rejected. The court distinguished between initial investigations and the active creation of evidence, particularly illegal evidence. Regarding the Noerr-Pennington doctrine, the trial court's ruling that it does not shield Rogers’s claims was upheld. The defendants' claims that the doctrine protects their petitioning activities were found unconvincing, as Rogers's allegations involve extortion and illegal evidence, which are not protected by the First Amendment. Lastly, the trial court did not err in refusing to dismiss Rogers’s claims based on an alleged breach of a mediation agreement, clarifying that the essence of the case concerns the unlawful acquisition of evidence rather than the specifics of the mediation demand. The trial court's denial of motions to dismiss by Butters, the Cohen defendants, and Dupree is affirmed, while the court's grant of Dupree’s motion to dismiss based on the anti-SLAPP statute is reversed. Judgments are affirmed in cases A16A1715, A16A1716, and A16A1717, and reversed in A16A1714. The court confirms that a plaintiff can file a verification and still argue against the applicability of the anti-SLAPP statute, referencing Ga. Community Support Solutions v. Berryhill. The trial court erred in dismissing the plaintiff’s complaint based on verification issues when the anti-SLAPP statute was deemed inapplicable. The court upheld the order regarding Butters and Cohen under the right-for-any-reason rule, but noted the anti-SLAPP statute's applicability is critical in analyzing the case against all defendants. Rogers asserts Dupree’s liability through a conspiracy theory, explaining that under Georgia law, a conspiracy alone does not provide grounds for civil action; rather, the focus is on the tortious act and resultant damages. If the conspiracy involves legal actions, the methods used must be illegal to establish liability.