Settles Bridge Farm, LLC v. Masino

734 S.E.2d 456, 318 Ga. App. 576, 2012 Fulton County D. Rep. 3785, 2012 Ga. App. LEXIS 963
CourtCourt of Appeals of Georgia
DecidedNovember 16, 2012
DocketA12A0898
StatusPublished
Cited by6 cases

This text of 734 S.E.2d 456 (Settles Bridge Farm, LLC v. Masino) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Settles Bridge Farm, LLC v. Masino, 734 S.E.2d 456, 318 Ga. App. 576, 2012 Fulton County D. Rep. 3785, 2012 Ga. App. LEXIS 963 (Ga. Ct. App. 2012).

Opinion

McFadden, Judge.

This appeal is from a trial court order dismissing a complaint pursuant to Georgia’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, OCGA § 9-11-11.1. Because the trial court correctly found that the alleged statements which form the basis for the complaint were privileged under that statute, we affirm.

Settles Bridge Farm, LLC filed a complaint against Nick Masino and the Gwinnett Chamber of Commerce, Inc., claiming tortious interference with business and contractual relations. Settles Bridge complains about a telephone call from chamber vice president Masino to a city manager, which purportedly acted as the catalyst for zoning changes that interfered with Settles Bridge’s ability to sell certain property. The complaint alleges that Settles Bridge had agreed to sell 36.5 acres of land located in a residential area of the City of Suwanee to Notre Dame Academy, which planned to build a school on the property. The city confirmed to representatives of both Settles Bridge and Notre Dame that under the zoning code, construction of a school on the property was permitted as a “by-right use.” In February 2008, Notre Dame’s president, Debra Orr, attended a chamber of commerce meeting. During a break in the meeting, chamber vice president Masino heard Orr discussing the relocation of Notre Dame to the property. Masino later called City Manager Marty Allen to inquire about the property’s zoning and was informed that a school was permissible as a “by-right use.” Thereafter, Allen sent an e-mail to the mayor and city council advising that the zoning ordinance should be [577]*577amended to prevent Notre Dame’s relocation to the property. The mayor and city council subsequently adopted a moratorium on large projects within residential districts, which precluded the application for or issuance of a building permit for the property. In May 2008, the city approved an amendment to the zoning ordinance, which required a special use permit to develop the property. Unable to develop the property for its school, Notre Dame terminated the contract to buy the property. According to the complaint, the city never would have acted to impede the Notre Dame project and purchase of the property without Masino’s conduct.

Masino and the chamber of commerce moved to dismiss the complaint based on Georgia’s anti-SLAPP statute. After a hearing, the trial court granted the motion to dismiss the complaint pursuant to OCGA § 9-11-11.1, finding that Masino’s alleged statements to the city manager were privileged because they related to matters of public concern. The trial court also dismissed as moot Settles Bridge’s motion to lift the automatic stay for limited discovery. Settles Bridge appeals.

1. Georgia’s anti-SLAPP statute.

The purposes of the anti-SLAPP statute “are to encourage citizen participation in matters of public significance through the exercise of the right of free speech and the right to petition the government for redress of grievances, and to prevent their valid exercise from being chilled through abuse of judicial process.” Atlanta Humane Society v. Harkins, 278 Ga. 451, 452 (1) (603 SE2d 289) (2004) (Paraphrasing OCGA § 9-11-11.1 (a)). To those ends, OCGA § 9-11-11.1 (b) provides that a claimant and its attorney must file a verification, certifying that to the best of their knowledge the claim

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 paragraph (4) of Code Section 51-5-7; 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.

But the filing of the verification does not end the matter because the trial court can ultimately reject the verification and dismiss the claim. Atlanta Humane Society, supra at 453 (1). “If a claim is verified in violation of this Code section, the court, upon motion or upon its [578]*578own initiative, shall impose upon the persons who signed the verification, a represented party, or both an appropriate sanction which may include dismissal of the claim[.]” OCGA § 9-11-11.1 (b). Thus, if the trial court finds that the claim infringes on the rights of free speech or petition, it may dismiss the claim. Atlanta Humane Society, supra at 454 (1).

2. Confidentiality agreement.

Settles Bridge argues that the trial court erred in finding that the anti-SLAPP statute applies to its claims based on Masino’s statements to the city manager because they violated an agreement that Masino had with the chamber not to divulge confidential information to anyone outside the chamber. As an initial matter, to the extent Settles Bridge is arguing that the anti-SLAPP statute is inapplicable to its complaint, such an argument is inconsistent since Settles Bridge filed the verification as required by that statute and, in its response to the motion to dismiss, expressly conceded that “the claims against Masino and The Chamber are governed by O.C.G.A. § 9-11-11.1.” See Hindu Temple &c. v. Raghunathan, 311 Ga. App. 109, 115 (1) (714 SE2d 628) (2011) (argument that trial court erred in finding anti-SLAPP statute applicable particularly disingenuous in light of filings made pursuant to OCGA § 9-11-11.1 (b) showing that plaintiffs were obviously under the impression that the statute did in fact govern their claims).

Regardless, Settles Bridge’s reliance on the confidentiality agreement between Masino and the chamber is completely misplaced. There is no evidence that such an agreement was intended for Settles Bridge’s benefit. “In order for a third party to have standing to enforce a contract, it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient.” (Citation and punctuation omitted.) Graham v. Cobb County, 316 Ga.App. 738, 743 (2) (730 SE2d 439) (2012). The contract in this case provided that as a condition of Masino’s employment he may have access to various confidential documents and he agreed not to divulge such proprietary information to anyone outside of the chamber. There is nothing in the employment confidentiality agreement between Masino and the chamber to indicate that it was intended for the benefit of Settles Bridge.

Furthermore, even if the agreement were relevant, Masino did not violate it by divulging confidential information.

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Bluebook (online)
734 S.E.2d 456, 318 Ga. App. 576, 2012 Fulton County D. Rep. 3785, 2012 Ga. App. LEXIS 963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/settles-bridge-farm-llc-v-masino-gactapp-2012.