310 Ga. 279 FINAL COPY
S19G1265. GEER v. PHOEBE PUTNEY HEALTH SYSTEM, INC.
BETHEL, Justice.
In Geer v. Phoebe Putney Health System, 350 Ga. App. 127, 128
(828 SE2d 108) (2019), the Court of Appeals held that Georgia’s anti-
SLAPP statute, OCGA § 9-11-11.1, could not be invoked to strike a
counterclaim for attorney fees brought under OCGA § 50-18-73 (b)
in response to a suit to enforce a request under Georgia’s Open
Records Act. We granted certiorari to consider whether the Court of
Appeals erred in that determination. For the reasons set forth below,
we affirm the judgment of the Court of Appeals.
1. Factual background and procedural history.
The facts underlying this case are largely undisputed. In
December 2017, Claude Wilson Geer IV filed a request with Phoebe
Putney Health System, Inc.,1 under the Open Records Act seeking
1 According to Geer’s pleadings, the Hospital Authority of Albany- the release of minutes of its board meetings held between January
2008 and December 2017. The following day, Phoebe Putney denied
the request, asserting that it is not subject to the Open Records Act
and that its minutes and other documents and records are not
“public records” within the meaning of the Act.
Following the denial of his request, Geer filed suit against
Phoebe Putney in superior court seeking an injunction compelling
the release of the records he had requested and other relief. Phoebe
Putney answered the complaint and asserted multiple defenses to
Geer’s claims, including that it is not subject to the Open Records
Act. Along with its answer, Phoebe Putney also filed a counterclaim
for attorney fees under OCGA § 50-18-73 (b), which provides:
In any action brought to enforce the provisions of [the Open Records Act] in which the court determines that either party acted without substantial justification either in not complying with [the Open Records Act] or in instituting the litigation, the court shall, unless it finds that special circumstances exist, assess in favor of the
Dougherty County owns Phoebe Putney Memorial Hospital. In 1990, the Authority entered into a lease and transfer agreement with Phoebe Putney Memorial Hospital, Inc. (“PPMH”), a non-profit corporation, under which PPMH operates the hospital. PPMH is a wholly owned subsidiary of Phoebe Putney Health System, Inc. 2 complaining party reasonable attorney’s fees and other litigation costs reasonably incurred. Whether the position of the complaining party was substantially justified shall be determined on the basis of the record as a whole which is made in the proceeding for which fees and other expenses are sought.
In response, Geer filed a motion to strike Phoebe Putney’s
counterclaim for attorney fees under Georgia’s anti-SLAPP statute,
OCGA § 9-11-11.1, asserting that the counterclaim was nothing
more than an effort to chill his rights to petition the government and
to free speech. Following a hearing, the trial court denied Geer’s
motion to strike, concluding that he had not made a prima facie
showing that the anti-SLAPP statute applied to the counterclaim.
The trial court did not consider the merits of Phoebe Putney’s claim
for attorney fees.
Geer appealed the trial court’s order to the Court of Appeals
pursuant to OCGA § 9-11-11.1 (e). The Court of Appeals later
affirmed the trial court’s judgment, concluding that the anti-SLAPP
statute does not apply to an Open Records Act defendant’s claim for
attorney fees because the anti-SLAPP statute “does not preclude a
3 party defending a lawsuit from preserving its right to seek attorney
fees and expenses if the lawsuit later is determined to lack
substantial justification.” Geer, 350 Ga. App. at 128 (punctuation
omitted) (quoting Paulding County Bd. of Commrs. v. Morrison, 316
Ga. App. 806, 810-811 (II) (728 SE2d 921) (2012)). The Court of
Appeals concluded that, although the request for attorney fees in
Morrison had not been styled as a counterclaim, for purposes of the
anti-SLAPP statute, it makes no difference whether the request for
attorney fees “is styled as a counterclaim or as a separate motion”
as long as the defendant relies “on an alleged lack of substantial
justification” for the plaintiff’s claims as its basis for relief. Geer, 350
Ga. App. at 128. Citing this Court’s decision in EarthResources v.
Morgan County, 281 Ga. 396, 400 (4) (638 SE2d 325) (2006), the
Court of Appeals went on to note that “[t]he anti-SLAPP statute was
not intended to immunize parties from the consequences of abusive
litigation[,] and it plainly does not extend to protecting those who
abuse the judicial process.” (Punctuation omitted.) Geer, 350 Ga.
App. at 128.
4 Geer filed a timely petition for certiorari in this Court, which
we granted, directing the parties to address a single question:
whether the Court of Appeals erred in holding that the anti-SLAPP
statute does not apply to Phoebe Putney’s counterclaim for attorney
fees under the Open Records Act. After considering the parties’
arguments on that issue, including at oral argument held virtually
on May 21, 2020, we conclude that the Court of Appeals did not err
in affirming the trial court’s denial of Geer’s motion to strike.
However, as we explain below, we reach that conclusion based on a
somewhat different rationale than that set forth by the Court of
Appeals.
2. The Open Records Act and the anti-SLAPP statute.
As we have previously noted, among the purposes of Georgia’s
Open Records Act is fostering confidence in government through
openness to the public. See City of Atlanta v. Corey Entertainment,
278 Ga. 474, 476 (1) (604 SE2d 140) (2004). To that end, the Act
provides broadly for access to “public records” prepared, maintained,
or received by any “agency” covered by the Act. OCGA § 50-18-70 (b).
5 The Act allows members of the public to inspect and copy these
records, provides certain disclosure exceptions, and prescribes civil
and criminal penalties for Act violations. See OCGA §§ 50-18-71, -
50-18-72, 50-18--74 (a). The Act gives superior courts jurisdiction
over actions brought to enforce the provisions of the Act. See OCGA
§ 50-18-73 (a). It also empowers the trial court to assess attorney
fees and reasonable litigation costs against a record holder if the
court determines that it acted without substantial justification in
not complying with the Open Records Act or against a person
requesting records if the court determines that it acted without
substantial justification in instituting litigation. See OCGA § 50-18-
73 (b). Critically, a claim for attorney fees under the Act is evaluated
by the court “on the basis of the record as a whole which is made in
the proceeding for which fees and other expenses are sought.” Id.
As Phoebe Putney concedes, because requests under the Open
Records Act, by their very nature, pertain to public entities and
records regarding matters of public interest or concern, issues
regarding the protection of requestors’ constitutional rights to free
6 speech and petition may arise any time a request for records is
denied. Such rights may also be threatened when a party sues to
enforce a records request under the Open Records Act and the party
defending the suit files a counterclaim or initiates separate
litigation intended solely to harass the party requesting records
under the Act. Suits initiated for that purpose or to otherwise
impede participation in public affairs are known as “strategic
lawsuits against public participation” or “SLAPPs.” See Wilkes &
McHugh, P.A. v. LTC Consulting, 306 Ga. 252, 257 (2) (803 SE2d
119) (2019).
As the Court of Appeals has articulated, a SLAPP is “a lawsuit
intended to silence and intimidate critics or opponents by
overwhelming them with the cost of a legal defense until they
abandon that criticism or opposition.” Rogers v. Dupree, 340 Ga.
App. 811, 814 (2) (799 SE2d 1) (2017). SLAPPs are “meritless
lawsuits brought not to vindicate legally cognizable rights, but
instead to deter or punish the exercise of constitutional rights of
petition and free speech by tying up their target’s resources and
7 driving up the costs of litigation.” Wilkes, 306 Ga. at 257 (2). Many
states, including Georgia, have enacted statutes designed to curtail
SLAPPs. See Jubilee Dev. Partners v. Strategic Jubilee Holdings,
344 Ga. App. 204, 207 (809 SE2d 542) (2018). Those statutes,
including Georgia’s, give a person or entity who believes they have
been subjected to a SLAPP an avenue for ending the suit quickly,
summarily, and at minimal expense.
Codified at OCGA § 9-11-11.1, Georgia’s anti-SLAPP statute
was, according to the General Assembly, enacted to
. . . encourage participation by the citizens of Georgia in matters of public significance and public interest through the exercise of their constitutional rights of petition and freedom of speech. The General Assembly of Georgia further finds and declares that the valid exercise of the constitutional rights of petition and freedom of speech should not be chilled through abuse of the judicial process. ...
OCGA § 9-11-11.1 (a). To advance this goal, the anti-SLAPP statute
covers any
. . . claim for relief against a person or entity arising from any act of such person or entity which could reasonably be construed as an act in furtherance of the person’s or entity’s right of petition or free speech under the
8 Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern[.]
OCGA § 9-11-11.1 (b) (1). OCGA § 9-11-11.1 (c) further defines the
coverage of the anti-SLAPP statute. Subsection (c) provides:
As used in this Code section, the term “act in furtherance of the person’s or entity’s right of petition or free speech under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern” shall include: (1) Any written or oral statement or writing or petition made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) Any written or oral statement or writing or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) Any written or oral statement or writing or petition made in a place open to the public or a public forum in connection with an issue of public interest or concern; or (4) Any other conduct in furtherance of the exercise of the constitutional right of petition or free speech in connection with a public issue or an issue of public concern.
As we have previously noted, the coverage of the anti-SLAPP statute
extends to abusive litigation that seeks to chill exercise of
9 constitutional rights to free speech and petition based upon claims
such as defamation, invasion of privacy, breach of contract, and
intentional interference with contractual rights and opportunities
arising from speech and petition of government. EarthResources,
281 Ga. at 400 (4).
As we discussed in Wilkes, the anti-SLAPP statute sets forth a
procedure for challenging alleged SLAPPs at the outset of litigation.
See 306 Ga. at 259 (2) (a). The first paragraph of OCGA § 9-11-11.1
(b) provides that any claim covered by the statute “shall be subject
to a motion to strike unless the court determines that the nonmoving
party has established that there is a probability that the nonmoving
party will prevail on the claim.” OCGA § 9-11-11.1 (b) (1). The second
paragraph provides: “In making the determination as provided for
in paragraph (1) of this subsection, the court shall consider the
pleadings and supporting and opposing affidavits stating the facts
upon which the liability or defense is based[.]” OCGA § 9-11-11.1 (b)
(2).
The anti-SLAPP statute provides for prompt resolution of a
10 motion to strike. Under OCGA § 9-11-11.1 (d),
[a]ll discovery and any pending hearings or motions in the action shall be stayed upon the filing of a motion to dismiss or a motion to strike made pursuant to subsection (b) of this Code section until a final decision on the motion. The motion shall be heard not more than 30 days after service unless the emergency matters before the court require a later hearing. The court, on noticed motion and for good cause shown, may order that specified discovery or other hearings or motions be conducted notwithstanding this subsection.
Upon the filing of a motion to strike under the anti-SLAPP
statute, the trial court must first determine whether the claim
against which the motion is brought is subject to the anti-SLAPP
statute. If it is not, the trial court’s analysis ends. However, if the
claim is subject to the anti-SLAPP statute, the court proceeds to
analyze the motion under OCGA § 9-11-11.1 (b) (1). As we discussed
in Wilkes,
the court must [first] decide whether the party filing the anti-SLAPP motion . . . has made a threshold showing that the challenged claim is one arising from protected activity. It is not enough to show that the claim was filed after protected activity took place or arguably may have been triggered by protected activity. The critical consideration is whether the cause of action is based on
11 the defendant’s protected free speech or petitioning activity. A defendant meets its burden by demonstrating that the act underlying the challenged claim could reasonably be construed as fitting within one of the categories spelled out in [OCGA § 9-11-11.1 (c)]. If a court concludes that this threshold showing has been made, it must proceed to the second step of the analysis and decide whether the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. To meet this burden, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. . . . Only a claim that satisfies both prongs of the anti-SLAPP statute — i.e., that arises from protected activity and lacks even minimal merit — is a SLAPP that is subject to being stricken. Appellate review of an order granting or denying an anti-SLAPP motion is de novo.
(Citations, punctuation and emphasis omitted.) 306 Ga. at 261-263
(2) (b).
3. The anti-SLAPP statute cannot be used to strike claims for attorney fees under OCGA § 50-18-73 (b).
Geer has asserted that Phoebe Putney’s counterclaim to his
Open Records Act action should be stricken pursuant to the anti-
SLAPP statute. To come under the protection of the statute, Geer
asserts that his suit against Phoebe Putney to enforce his records
12 request is both a petition in a judicial proceeding and conduct in
furtherance of his right to free speech, as those terms are used in
OCGA § 9-11-11.1 (c), such that his conduct should be deemed an
“act in furtherance of [his] right of petition or free speech under the
Constitution of the United States or the Constitution of the State of
Georgia in connection with an issue of public concern” under OCGA
§ 9-11-11.1 (c). Geer then asserts that Phoebe Putney’s counterclaim
for attorney fees under OCGA § 50-18-73 (b) is meritless and
intended solely to chill those rights by driving up the cost of
litigating his dispute under the Open Records Act and that the
counterclaim should therefore be stricken pursuant to OCGA § 9-11-
11.1 (b) (1). As part of this argument, Geer asserts that, because
Phoebe Putney brought its request for fees as a counterclaim rather
than making the request after the merits of his Open Records Act
claim has been litigated, the trial court erred by not considering
Phoebe Putney’s claim for attorney fees under the two-prong
analysis outlined in OCGA § 9-11-11.1 (b) (1) that we discussed at
length in Wilkes. Geer also argues that, because Phoebe Putney’s
13 claim for fees was brought as a counterclaim near the outset of the
litigation, the trial court cannot defer a decision on his motion to
strike until the resolution of the underlying litigation because,
absent emergency circumstances, OCGA § 9-11-11.1 (d) requires the
trial court to hear a motion to strike within 30 days.
But Geer’s arguments miss the key aspect of a claim for
attorney fees brought under OCGA § 50-18-73 (b) that distinguishes
it from other types of claims that might be stricken pursuant to the
anti-SLAPP statute: a trial court must evaluate a claim for attorney
fees under the Open Records Act “on the basis of the record as a
whole which is made in the proceeding for which fees and other
expenses are sought.” This is in contrast to a claim such as
defamation which directly targets speech or another protected
activity that has already occurred at the time the suit is brought.
See, e.g., Dellinger-Allen v. O’Brien, 355 Ga. App. 811, 813-818 (1)
(846 SE2d 124) (2020) (affirming trial court’s grant of motion to
strike defamation claim). As noted above, with regard to such a
claim, the anti-SLAPP statute requires the court to “consider the
14 pleadings and supporting or opposing affidavits stating the facts
upon which the liability or defense is based[.]” OCGA § 9-11-11.1 (b)
(2). The parties are ordinarily permitted to conduct discovery under
the anti-SLAPP statute only to the extent the nonmoving party is a
public figure and wishes to pursue discovery relating to the issue of
actual malice. See OCGA § 9-11-11.1 (b) (2), (d).
In contrast, the text of OCGA § 50-18-73 (b) makes clear that
the merits of a claim for attorney fees brought under the Open
Records Act cannot be reached without an evaluation of the merits
of the underlying dispute over the plaintiff’s claim for records. In
this case, the trial court cannot evaluate Phoebe Putney’s allegation
that Geer has pursued this litigation without substantial
justification without reference to “the record as a whole which is
made in the proceeding for which fees and other expenses are
sought.” Unlike a defamation suit or other claim subject to the anti-
SLAPP statute that is to be evaluated at the pleading stage, while
proceedings in the underlying litigation remain pending and
unresolved, a claim for attorney fees under OCGA § 50-18-73 (b),
15 like the one Phoebe Putney brought here, is not yet ripe for
consideration by the trial court because it is not yet in possession of
“the record as a whole.” Thus, in this case, absent that record and a
resolution of the merits of Geer’s underlying Open Records Act
claim, Phoebe Putney would have no ability to establish that there
is a probability that it will prevail on its claim for fees, as required
by OCGA § 9-11-11.1 (b) (1), and it will have no such ability until
Geer’s claim under the Open Records Act is resolved.
The parties are before this Court largely because Phoebe
Putney styled its request for attorney fees in this case as a
counterclaim and filed that counterclaim in its responsive pleading
to Geer’s complaint. Phoebe Putney has indicated to this Court that
it did so out of concern that its claim for attorney fees might have
been deemed compulsory in nature under OCGA § 9-11-13 (a)2 and
2 OCGA § 9-11-13 (a) provides, in relevant part:
A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. . . . 16 that it filed its request as a counterclaim merely to preserve its right
to later seek an award of attorney fees at the conclusion of the
litigation. But that was unnecessary.
The two statutes giving trial courts the authority to award
attorney fees in this case contemplate that claims for fees may be
raised for the first time at the conclusion of the litigation. See OCGA
§§ 9-15-14 (e) (permitting parties in civil actions to request an award
of attorney fees by motion at any time during the course of the action
and up to 45 days after the final disposition of the action); 50-18-73
(b) (requiring award of attorney fees under the Open Records Act to
be “on the basis of the record as a whole”). Additionally, even in the
absence of a request for fees by either party at some point during or
after the litigation, nothing would bar the trial court from sua sponte
awarding attorney fees should the trial court determine that a party
was entitled to such fees. See OCGA §§ 9-15-14 (b) (permitting a
court to assess attorney fees “upon the motion of any party or the
court itself”); 50-18-73 (b) (“In any action brought to enforce the
provisions of this chapter in which the court determines that either
17 party acted without substantial justification either in not complying
with this chapter or in instituting the litigation, the court shall,
unless it finds that special circumstances exist, assess in favor of the
complaining party reasonable attorney’s fees and other litigation
costs reasonably incurred.”). Thus, Phoebe Putney would not have
lost its right to an award of attorney fees by waiting to bring its
request until the conclusion of the litigation. In fact, it might
eventually receive a fee award from the trial court in the complete
absence of such a request.
Even so, we must decide if Phoebe Putney’s “counterclaim” for
attorney fees nonetheless triggers the anti-SLAPP statute because
it was brought near the outset of the litigation rather than at its
conclusion. As we already decided in EarthResources, the anti-
SLAPP statute does not operate against claims for attorney fees
brought under OCGA § 9-15-14 by the defendant at the end of
litigation. See 281 Ga. at 400 (4). In deciding that case, we
essentially determined that claims for attorney fees filed at the end
of the litigation have no chilling effect on the exercise of the
18 plaintiff’s constitutional rights to free speech and petition. The
question before us is whether there is any distinction between the
claim in that case and a claim for attorney fees raised in a responsive
pleading under the Open Records Act. We conclude today that there
is not.
We recognize, as any reasonable plaintiff also would, that by
enacting OCGA § 50-18-73 (b), the General Assembly has embedded
within any lawsuit to enforce the Open Records Act the potential for
attorney fees to be awarded against the plaintiff — even if the
defendant never makes a claim or request for fees. The upshot: if, as
we implicitly determined in EarthResources, the lingering potential
for post-litigation fee awards will have no impermissible chilling
effect on a plaintiff’s rights to free speech and to petition the
government, neither can the defendant’s assertion of its right to
such fees during the litigation have such an effect.
As Geer concedes, he has never argued that the anti-SLAPP
statute could be used to bar Phoebe Putney from filing a request for
attorney fees at the conclusion of this litigation. Our decision in
19 EarthResources clearly contemplates the same. Even so, Geer has,
without asking us to reconsider our holding in EarthResources,
failed to articulate how a claim for fees brought during the litigation
somehow creates such an effect, such that recourse through the anti-
SLAPP statute is needed.
For purposes of the anti-SLAPP statute, like the Court of
Appeals, we see no difference between these two types of requests
for fees. Whether styled as a “counterclaim” and brought during the
pendency of the litigation or as a request for fees filed at its
conclusion, the anti-SLAPP statute cannot operate to strike a
defendant’s statutory request for attorney fees. See Geer, 350 Ga.
App. at 128. Moreover, because the attorney fees provisions remain
applicable at the end of the litigation, there is no need for a
defendant to invoke them in its responsive pleadings, as Phoebe
Putney did here. Phoebe Putney’s claim was, at worst, premature,
and it need not have brought a counterclaim in order to preserve its
right to later seek an award of attorney fees.
For the foregoing reasons, we conclude that Phoebe Putney’s
20 request for attorney fees under OCGA § 50-18-73 (b) is not subject
to a motion to strike under the anti-SLAPP statute. The trial court
was thus not required to analyze Geer’s motion to strike under the
two-prong test set forth in OCGA § 9-11-11.1 (b) (1). We therefore
affirm the judgment of the Court of Appeals.
Judgment affirmed. All the Justices concur, except Blackwell and Warren, JJ., not participating.
Decided October 6, 2020 —Reconsideration denied November 2, 2020.
Certiorari to the Court of Appeals of Georgia ― 350 Ga. App. 127. Kermit S. Dorough, Jr., for appellant. Watson Spence, Louis E. Hatcher, F. Faison Middleton IV, Charles K. Wainright II, Maggie L. McMichael, for appellee.