Joe Rogers, Jr. v. Hylton B. Dupree

824 S.E.2d 823

• Court: Court of Appeals of Georgia
• Decided: March 15, 2019
• Docket: A16A1714; A16A1715; A16A1716; A16A1717
• Status: Published

Opinions

Mercier, Judge.

These related appeals arise from a lawsuit brought by Joe Rogers, Jr., against David M. Cohen, Complex Law Group, LLC, and D. M. Cohen, Inc. (collectively, "Cohen"); Hylton B. Dupree, Jr., Dupree & Kimbrough LLP, and Hylton B. Dupree, Jr., P.C. (collectively, "Dupree"); and John C. Butters ("Butters"). Cohen, Butters, and Dupree moved to strike or dismiss Rogers's claims on two grounds: (1) failure to state a claim upon which relief can be granted; and (2) pursuant to OCGA § 9-11-11.1 (2015),¹ Georgia's anti-SLAPP ("Strategic Litigation Against Public Participation") statute. The trial court denied the motions to dismiss for failure to state a claim as to all claims except a general negligence allegation. It also denied Cohen and Butters's anti-SLAPP motion. As to Dupree, however, it determined that Rogers's claims against him were subject to strike or dismissal under the anti-SLAPP statute.

In Case No. A16A1714, Rogers challenges the dismissal of his claims against Dupree on anti-SLAPP grounds. Dupree cross-appeals in Case No. A16A1715, asserting that the trial court erred in denying his motion to dismiss for failure to state a claim. Finally, Cohen and Butters challenge the denial of their motions to dismiss and/or strike in Case Nos. A16A1716 and A16A1717. For reasons that follow, we reverse the trial court's judgment in Case No. A16A1714, and we affirm in part and reverse in part the judgments in Case Nos. A16A1715, A16A1716, and A16A1717.²

We review the grant or denial of a motion to dismiss de novo, construing "the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff's favor." Emory Univ. v. Metro Atlanta Task Force for the Homeless , 320 Ga. App. 442, 443, 740 S.E.2d 219 (2013) (punctuation and footnote omitted). See also Ikomoni v. Bank of America , 330 Ga. App. 776, 769 S.E.2d 527 (2015). So viewed, the record shows that Cohen, Butters, and Dupree are attorneys who represented Mye Brindle ("Brindle"), Rogers's former housekeeper.

*827Brindle worked for Rogers over a ten-year period. Without dispute, she engaged in sexual activity with Rogers during her employment. She also made various audio recordings of their activity without Rogers's consent.

In June 2012, while still employed by Rogers, Brindle engaged Cohen and Butters to represent her in a sexual harassment claim against Rogers. After consulting with Cohen and Butters, she took a "spy" camera to work, which she used to video-record a sexual encounter between Rogers and herself. Rogers was not aware that he was being recorded and did not consent to the video recording. Brindle resigned from her job at the end of June.

On July 16, 2012, Cohen sent a settlement demand letter to Rogers, asserting that Rogers had engaged in a "long history of unwelcome sexual demands and other sexual harassment and abuse toward [Brindle] as a condition of her employment," which was "well documented by numerous audio and video recordings of the acts." The letter indicated that Brindle was prepared to proceed with a lawsuit and further stated:

It is my experience that these sensitive type matters involving claims of a sexual nature are always best resolved early and outside of public litigation. I have been involved in numerous matters where defendants engaged in a scorched earth strategy of counteraccusations, denial, attempted delay, obfuscation and refusal to address the core issues promptly and properly. Never have I seen that strategy successful. Whether through their own arrogance or "filtered" information and poor advice of defense counsel who seemed more interested in billing and protracted litigation than the best interests of their clients and that of their clients' families, the results were ultimately the same.

In virtually all of those situations, the documents, facts, witnesses and other matters that came to light through protracted litigation and media attention drew other private litigation, shareholder derivative demands for immediate removal of those individuals, intrusive governmental investigations, Department of Justice, Attorneys General or SEC involvement, as well as civil and criminal charges that resulted in disgorgement, forfeiture, lengthy incarceration periods in several instances, divorce and the destruction of families.

...

My point here is simply to attempt to convey my belief that it is in the best interest of all involved to avoid this type of protracted litigation, injurious publicity to all parties, etc.

At some point, Dupree joined Brindle's legal team. Although the timing is unclear, he became involved in the matter no later than August 2, 2012, when Rogers's counsel met with Cohen, Butters, and Dupree in Dupree's office to view portions of the video recording made by Brindle.

On September 14, 2012, Rogers and his counsel participated in a mediation with Brindle and her attorneys, but the parties were unable to resolve the dispute. That same day, Rogers sued Brindle in the Superior Court of Cobb County for injunctive and other relief, seeking to prevent Brindle from disseminating the video recording. A few days later, Brindle filed a competing suit in the State Court of Fulton County, asserting that Rogers had, among other things, battered and sexually harassed her by requiring her to engage in sexual activities with him as a condition of her employment. Although the records in both suits were sealed, several news outlets reported information about the litigation and underlying claims.

On May 30, 2014, Rogers filed the instant action in Cobb County against Cohen, Butters, and Dupree, alleging that Brindle's attorneys conspired with her to illegally obtain video evidence of the sexual encounters and to extort money from Rogers by threatening in the demand letter to file frivolous and false claims regarding his private activities. With respect to the video recording, he asserted that Brindle's attorneys convinced Brindle to make the recording, advised her how to do it, and procured the spy camera for her. Rogers asserted claims for: (1) invasion of privacy - intrusion upon seclusion, solitude and private affairs; (2) invasion of privacy - public disclosure of private facts; (3) civil conspiracy; (4) intentional infliction of emotional distress; (5) conspiracy to violate the Georgia RICO Act; (6) violation of the *828Georgia RICO Act; (7) aiding and abetting breach of a confidential relationship; (8) general negligence/negligence per se; and (9) litigation expenses.

In response, Cohen, Butters, and Dupree filed motions to dismiss for failure to state a claim and motions to strike or dismiss pursuant to the anti-SLAPP statute, OCGA § 9-11-11.1. The trial court found that the complaint failed to state a claim for general negligence. It thus dismissed the general negligence allegation, but denied the motions to dismiss for failure to state a claim as to the remaining counts, including negligence per se.³ The trial court also denied Cohen and Butters's anti-SLAPP motion. It ruled differently as to Dupree, however, determining that the claims against him were subject to strike or dismissal on anti-SLAPP grounds. These appeals followed.

Case No. A16A1715

1. For ease of discussion, we will first address Dupree's appeal in Case No. A16A1715, which challenges the denial of his motion to dismiss for failure to state a claim upon which relief can be granted. A trial court should only grant a motion to dismiss for failure to state a claim when "it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim." Ikomoni , supra at 777, 769 S.E.2d 527. A complaint survives dismissal "[i]f, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff." Id.

In his sole enumeration of error, Dupree asserts that all of Rogers's claims are barred by OCGA § 51-7-80 et seq, Georgia's statutory scheme governing abusive litigation.⁴ Under the scheme, "[a]ny person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation if such person acts: (1) [w]ith malice; and (2) [w]ithout substantial justification." OCGA § 51-7-81. The legislation establishes a procedural framework for such claims, requiring, among other things, that the claimant provide detailed, pre-suit notice of the claim to the opposing party. OCGA § 51-7-84 (a). This statutory scheme offers "the exclusive remedy for abusive litigation." OCGA § 51-7-85. No other tort claims for malicious use of civil proceedings, malicious abuse of civil process, or abusive litigation are allowed. Id.

(a) Asserting that Rogers's claims allege abusive litigation, Dupree argues that the complaint must be dismissed because Rogers failed to comply with the procedural requirements of OCGA § 51-7-80 et seq. We agree with Dupree as to Count 2 - invasion of privacy through the public disclosure of private facts. With respect to this claim, Rogers alleged that Dupree and the other defendants "made a public disclosure of private facts of Rogers by causing the disclosure to the public that he was having a sexual relationship with Brindle." Specifically, he asserted that the defendants "disclosed [the sexual relationship] in the public record" by filing the Fulton County complaint, which contained "frivolous claims" and "false allegations." He further claimed that they placed litigation-related documents in the "public domain" while seeking appellate review of an issue in the Fulton County action. And he asserted that Dupree and Brindle's other attorneys leaked information to the press by sending the Fulton County complaint to a news outlet.

The conduct underlying Count 2 relates entirely to the defendants' initiation, continuation, and procurement of litigation against Rogers on behalf of Brindle. Although Rogers couched Count 2 as an invasion of privacy claim, "we look to the substance and not the style of a particular claim to determine whether it amounts to a claim for abusive litigation."

*829Meadow Springs Recovery v. Wofford , 319 Ga. App. 79, 82 (1), 734 S.E.2d 100 (2012). Because Count 2 centers on the defendants' litigation-related conduct - i.e., filing a civil complaint, seeking appellate review of an issue, and disclosing the litigation to the press - the invasion of privacy allegations fall within the abusive litigation statute.

As to Count 2, therefore, Rogers needed to comply with the statutory prerequisites for an abusive litigation claim. The record, however, reveals no indication of compliance. In particular, Rogers does not contend that he provided the statutory notice required by OCGA § 51-7-84 (a). Accordingly, the trial court erred in refusing to dismiss Count 2 for failure to state a claim. See Slone v. Myers , 288 Ga. App. 8, 11 (2), 653 S.E.2d 323 (2007), overruled in part on other grounds by Reeves v. Upson Regional Medical Ctr. , 315 Ga. App. 582, 726 S.E.2d 544 (2012) ; LaSonde v. Chase Mortgage Co. , 259 Ga. App. 772, 774 (2), 577 S.E.2d 822 (2003).

(b) We reach a different conclusion as to Rogers's claims in Counts 1 and 3 through 9. Rogers asserted in Count 1 that "[b]y working together and in concert to have Rogers filmed and recorded while engaging in sexual encounters in the privacy of his bedroom without his knowledge or consent, Defendants invaded [Rogers's] right to privacy." He further claimed that the video recording violated OCGA § 16-11-62 (2), which makes it unlawful for "[a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view."⁵ Counts 3 through 9 similarly asserted causes of action based on Dupree's alleged participation, through a conspiracy with the other defendants, in (1) the illegal video-recording of Rogers, and (2) an extortion scheme relating to the demand letter.

These claims do not involve the "initiation, continuation, or procurement of civil proceedings." OCGA § 51-7-81. Rogers alleged that well before any legal action commenced, the defendants conspired to illegally video-record his private activities and extort money from him by threatening to file false claims regarding the video and his sex life. Although Dupree characterizes the attorneys' actions as "pre- and inter-litigation conduct," the activities underlying the claims stand apart from - and do not depend upon - the litigation brought by Brindle. Under these circumstances, Counts 1 and 3 through 9 do not fall within the abusive litigation paradigm. See Ward v. Coastal Lumber Co. , 196 Ga. App. 249, 251 (3), 395 S.E.2d 601 (1990) (pre-litigation activities do not give rise to viable abusive litigation claim). Thus, although we reverse the denial of Dupree's motion to dismiss Count 2 of Rogers's complaint for failure to state a claim, we affirm the trial court's judgment as to Counts 1 and 3 through 9.

Case No. A16A1714

2. In Case No. A16A1714, Rogers challenges the trial court's order dismissing/striking his claims against Dupree on anti-SLAPP grounds. Because we have already determined that Count 2 of Rogers's complaint should have been dismissed for failure to state a claim, we need only consider whether the trial court properly granted Dupree's anti-SLAPP motion as to Counts 1 and 3 through 9.

A SLAPP action is a lawsuit filed with the intent to silence and intimidate a party's critics or opponents by overwhelming them with the cost of a legal defense until they abandon their criticism or opposition. See Neff v. McGee , 346 Ga. App. 522, 524, 816 S.E.2d 486 (2018). To combat these lawsuits, Georgia has adopted an anti-SLAPP statute that "encourage[s] participation by the citizens of Georgia in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances." OCGA § 9-11-11.1 (a). The statute requires that a detailed verification *830accompany causes of action that might be reasonably construed as SLAPP claims. The verification must certify:

that the party and his or her attorney of record, if any, have read the claim; that to the best of their knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; that the act forming the basis for the claim is not a privileged communication under [ OCGA § 51-5-7 (4) ]; and that the claim is not interposed for any improper purpose such as to suppress a person's or entity's right of free speech or right to petition government, or to harass, or to cause unnecessary delay or needless increase in the cost of litigation.

OCGA § 9-11-11.1 (b).

The anti-SLAPP statute, however, only protects activities that "could reasonably be construed as ... act[s] in furtherance of the right of free speech or the right to petition government for a redress of grievances 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." OCGA § 9-11-11.1 (b). Ultimately, the statute "afford[s] a procedural protection to acts of communication on public issues." Denton v. Browns Mill Dev. Co. , 275 Ga. 2, 6, 561 S.E.2d 431 (2002). Claims based on other conduct fall outside the statute's protection and "do not need to be verified." Id.

The record shows that Rogers filed an anti-SLAPP verification pursuant to OCGA § 9-11-11.1 (b). Questioning whether Dupree was involved in the alleged extortion scheme, however, the trial court determined that Rogers falsely verified the claims against him. It thus concluded that the anti-SLAPP statute required dismissal of those claims. We disagree. Undoubtedly, a trial court may reject an anti-SLAPP verification that it deems insufficient. See Settles Bridge Farm v. Masino , 318 Ga. App. 576, 577 (1), 734 S.E.2d 456 (2012). A plain reading of the complaint, however, demonstrates that Counts 1 and 3 through 9 are not subject to the anti-SLAPP statute or its verification requirement.

As an initial matter, OCGA § 9-11-11.1 only applies to communications (i.e., written or oral statements, writings, or petitions) "made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or ... in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law." OCGA § 9-11-11.1 (c) (emphasis supplied). The statute clearly contemplates that protected communication be made to, before, or in connection with some official proceeding. In other words, "there must be a threshold showing that the claims could reasonably be construed as a statement or petition made in relation to or in connection with an actual official proceeding ." Emory University , supra at 445 (1), 740 S.E.2d 219 (emphasis supplied).

Dupree cannot make this threshold showing. The conduct alleged in Counts 1 and 3 through 9 - making a video recording and attempting to extort a settlement through a demand letter - occurred before any official proceeding or legal action began. Given the plain language of OCGA § 9-11-11.1 (c), we find no basis for extending the statute to the private, pre-litigation activities alleged here. See Emory University , supra 445-446 (1), 740 S.E.2d 219 ; In re Whittle , 339 Ga. App. 83, 86 (1), 793 S.E.2d 123 (2016) ("[I]n considering the meaning of a statute, our charge as an appellate court is to presume that the General Assembly meant what it said and said what it meant.") (footnote and punctuation omitted).

Moreover, the mere act of making a video recording cannot be viewed as a communication on a public issue. See Metzler v. Rowell , 248 Ga. App. 596, 599 (2), 547 S.E.2d 311 (2001) (non-communicative acts such as "trespass by pulling up land markers, defacing property, or blocking ingress and egress (without more) [are] not covered by the [anti-SLAPP] statute as none of these actions constitutes a 'written or oral statement.' ") (citation omitted). Although the resulting video might ultimately be shown to others or used as evidence in a lawsuit, recording a video is "not an act in furtherance of the exercise of the right of free speech; [the *831recording] is completed before any act of communication occurs." Denton , supra at 6, 561 S.E.2d 431. Perhaps more importantly, the right to speak freely or petition the government does not authorize an individual to illegally record another person or to arrange for an illegal recording to be made. See generally id. ("[T]he right of free speech does not include the right to trespass onto another's land."). Such alleged criminal conduct falls outside the purview of OCGA § 9-11-11.1. See generally id.

Similarly, Rogers's extortion allegations do not involve protected conduct. According to Rogers, Dupree and the other defendants conspired to extort money from him via the July 2012 demand letter. A demand letter that merely threatens a lawsuit generally enjoys First Amendment protection and will not support an extortion claim. See Cohen , supra at 623-624 & n.9, 807 S.E.2d 861. But "[t]his is not to say that a charge of extortion could not be based on intentional falsehoods or on knowingly frivolous claims." Id. at 624 n.9, 807 S.E.2d 861 (citation and punctuation omitted). And in this case, Rogers alleged that the litigation threatened by Brindle and her attorneys was false and frivolous.

Construed favorably to Rogers, Counts 1 and 3 through 9 assert claims based on a purported illegal scheme to video-record his private activities and extort money from him in connection with those activities. As alleged, the acts underlying this scheme are not protected by the First Amendment or the anti-SLAPP statute. See id. ; Denton , supra. The trial court, therefore, erred in dismissing these claims against Dupree pursuant to OCGA § 9-11-11.1.⁶

Case Nos. A16A1716 and A16A1717

3. Like Dupree, Cohen and Butters argue that Georgia's abusive litigation statute bars Rogers's claims. For the reasons outlined in Division 1, the trial court properly rejected this argument as to Counts 1 and 3 through 9 of the complaint. Count 2, however, should have been dismissed on this basis. We thus reverse the trial court's determination on Count 2, but affirm as to the other counts.

4. In three claims of error, Cohen and Butters assert that the trial court erred in denying their motion to dismiss pursuant to the anti-SLAPP statute. As discussed in Division 2, however, OCGA § 9-11-11.1 does not apply to Counts 1 and 3 through 9, the only claims remaining after the dismissal of Count 2. Accordingly, the trial court properly denied Cohen and Butters's motion to dismiss or strike on anti-SLAPP grounds.

5. Cohen and Butters also contend that Rogers breached a mediation confidentiality agreement by revealing information about the parties' mediation in the complaint. Citing this alleged breach, they assert that Rogers falsely verified his complaint under OCGA § 9-11-11.1 (b). As noted above, however, Counts 1 and 3 through 9 are not subject to the anti-SLAPP procedures and did not need to be verified. Moreover, the trial court found that information about the mediation had already been publicly disclosed by the time Rogers sued Cohen, Butters, and Dupree. Given these circumstances, the trial court properly refused to dismiss the complaint based on the alleged breach.

6. Finally, Cohen and Butters argue that Rogers's complaint should have been dismissed for failure to state a claim pursuant to the Noerr - Pennington⁷ doctrine, a federal doctrine that, like the anti-SLAPP statute, safeguards a party's First Amendment right to petition the government for a redress of grievances. See Consumer Financial Protection Bureau v. Frederick J. Hanna & Assocs. , 114 F.Supp.3d 1342, 1359 (III) (B) (1) (N.D. Ga. 2015). As we explained in Division 2, however, the First Amendment does not protect illegal conduct such as that alleged here. See Cohen , supra at 624 n.9, 807 S.E.2d 861 ; Denton , supra at 6, 561 S.E.2d 431.

Furthermore, not all litigation-related conduct is protected by the Noerr -*832Pennington doctrine. "To receive immunity, the conduct at issue cannot fall within the 'sham exception' to the Noerr doctrine. In other words, the litigation activity must be genuine." Orange Lake Country Club v. Reed Hein & Assocs. , 2018 WL 5279135, at *6 (III) (C), 2018 U.S. Dist. LEXIS 182131, at *17 (III) (C) (M.D. Fla. 2018) (citation omitted). Rogers alleged that the litigation activity engaged in by the defendants was frivolous, grounded in false claims, and part of an extortion scheme. Accordingly, because he pled sufficient facts to suggest that the defendants' activities fell within the "sham exception" to the Noerr - Pennington doctrine, the trial court properly denied the motion to dismiss. See id. at *6, 2018 U.S. Dist. LEXIS 182131 at *17-18.

Judgments in Case Nos. A16A1715, A16A1716, and A16A1717 affirmed in part and reversed in part. Judgment in Case No. A16A1714 reversed.

Miller, P. J., McMillian, Mercier, Reese, Brown, Goss and Markle, J., concur. Barnes, P. J., and McFadden, P. J., concur in part and dissent in part.

1 The legislature significantly revised OCGA § 9-11-11.1 in 2016. See Ga. L. 2016, p. 341, 342-344, § 2. The prior version of the statute, however, applies to this case, which was filed several years before the 2016 amendment. See Atlanta Humane Society v. Harkins , 278 Ga. 451, 454 (1), 603 S.E.2d 289 (2004) (noting the "substantive" nature of the anti-SLAPP statute); Stock Building Supply v. Platte River Ins. Co. , 336 Ga. App. 113, 118 (2) (a) (i), 783 S.E.2d 708 (2016) ("[L]egislation that affects substantive rights will only apply prospectively.") (citation and punctuation omitted). Unless otherwise indicated, any reference to OCGA § 9-11-11.1 in this opinion is to the pre-2016 version of the statute.

2 We originally considered these appeals in March 2017. See Rogers v. Dupree , 340 Ga. App. 811, 799 S.E.2d 1 (2017). The Supreme Court of Georgia subsequently vacated our judgments and remanded the cases to us for reconsideration in light of its decision in State v. Cohen , 302 Ga. 616, 807 S.E.2d 861 (2017), a criminal appeal arising out of the same factual scenario involved here. See Cohen v. Rogers , 2018 Ga. LEXIS 260 (2018).

3 Although the trial court did not dismiss Rogers's RICO allegations for failure to state a claim, it dismissed one of the nine predicate acts underlying those allegations. Neither that dismissal, nor the dismissal of the general negligence claim, is at issue in these appeals.

4 To the extent Dupree argues in his appellate brief that Rogers's complaint failed to state a claim for other reasons, we cannot consider those arguments. See Riggs v. State , 319 Ga. App. 189, 198 (5), 733 S.E.2d 832 (2012) ("A party cannot expand his enumerations of error through argument or citation in his brief.") (citation and punctuation omitted).

5 In State v. Cohen , our Supreme Court noted that "because video recording someone [without consent using a hidden spy camera] falls into the category of surveillance activities covered by OCGA § 16-11-62 (2), and because Brindle and her attorneys allegedly took actions to agree to make a secret video and actually video record others without the consent of all of the persons being recorded, the defendants' actions fall within the purview of OCGA § 16-11-62 (2) and any alleged conspiracy to violate that statute[.]" Supra at 627 (2) (a), 807 S.E.2d 861.

6 We express no opinion on the merit of Rogers's claims against Dupree or the other defendants. We find only that Counts 1 and 3 through 9 are not subject to strike or dismissal under the anti-SLAPP statute.

7 See Eastern Railroad Presidents Conference v. Noerr Motor Freight , 365 U.S. 127, 139-140, (81 S.Ct. 523, 5 L.Ed.2d 464) (1961) ; United Mine Workers v. Pennington , 381 U.S. 657, 669-670, 85 S.Ct. 1585, 14 L.Ed.2d 626 1965.