FIRST DIVISION ELLINGTON, C. J., PHIPPS, P.J. and MCFADDEN, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
November 16, 2012
In the Court of Appeals of Georgia A12A0898. SETTLES BRIDGE FARM, LLC v. MASINO et al.
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 email to the
mayor and city council advising that the zoning ordinance should be amended 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.
2 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
3 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. Alanta Humane Society,
supra at 453 (1). “If a claim is verified in violation of this Code section, the court,
upon motion or upon its own 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 Farm filed the verification
as required by that statute and, in its response to the motion to dismiss, expressly
4 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
Free access — add to your briefcase to read the full text and ask questions with AI
FIRST DIVISION ELLINGTON, C. J., PHIPPS, P.J. and MCFADDEN, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
November 16, 2012
In the Court of Appeals of Georgia A12A0898. SETTLES BRIDGE FARM, LLC v. MASINO et al.
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 email to the
mayor and city council advising that the zoning ordinance should be amended 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.
2 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
3 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. Alanta Humane Society,
supra at 453 (1). “If a claim is verified in violation of this Code section, the court,
upon motion or upon its own 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 Farm filed the verification
as required by that statute and, in its response to the motion to dismiss, expressly
4 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 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.
5 Furthermore, even if the agreement were relevant, Masino did not violate it by
divulging confidential information. Pretermitting the issue of whether this public
zoning issue could constitute confidential information, as indicated in Settles
Bridge’s complaint, before Masino ever contacted the city manager, representatives
from both Settles Bridge and Notre Dame had already approached the city regarding
the property’s zoning classification and development of the school on that property.
As the trial court found, the information “had already been communicated to the City
by both the plaintiff and non-party Notre Dame prior to the alleged telephone call by
Defendant Masino.” Thus, Masino’s similar statements about the property’s zoning
simply did not concern any proprietary, confidential matter. Accordingly, Settles
Bridges’ arguments premised on the confidentiality agreement are without merit.
3. Privileged statements.
Settles Bridge contends that the trial court erroneously determined that the
statements made by Masino were privileged. We disagree.
The plain language of OCGA § 9-11-11.1 (b) authorizes dismissal of a claim
if the statements in question are privileged under paragraph OCGA § 51-5-7 (4).
Atlanta Humane Society, supra at 454 (1). Pursuant to OCGA § 51-5-7 (4), statements
are privileged if they are “made in good faith as part of an act in furtherance of the
6 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, as defined in subsection (c)
of Code Section 9-11-11.1.” The definition set forth in OCGA § 9-11-11.1 (c)
includes statements 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. “Such protected statements even include those that initiate a
proceeding to address matters of public concern. [Cit.]” Harkins v. Atlanta Humane
Society, 264 Ga. App. 356, 361 (2) (590 SE2d 737) (2003), reversed in part on other
grounds, 278 Ga. supra at 456 (2). See also Hawks v. Hinely, 252 Ga. App. 510, 513
(1) (a) (556 SE2d 547) (2001) (statements made in application before beginning of
recall proceeding included in scope of anti-SLAPP statute).
In this case, Masino’s alleged statements to the city manager, concerning a
zoning matter that had already been communicated to the city and which allegedly
initiated the city’s adoption of a moratorium and special permit requirement,
constituted statements made in connection with an issue of public interest or concern.
See Metzler v. Rowell, 248 Ga. App. 596, 599 (1) (547 SE2d 311) (2001) (anti-
SLAPP statute applied to letter concerning development and zoning issue);
7 Providence Const. Co. v. Bauer, 229 Ga. App. 679, 680 (1) (494 SE2d 527) (1997)
(letters to county officials concerning development covered by anti-SLAPP).
Compare Georgia Community Support &c. v. Berryhill, 275 Ga. App. 189, 192 (1)
(620 SE2d 178) (2005) (anti-SLAPP statute did not apply where there was no
evidence that any official proceeding was ever involved, “either before or after [the
defendant’s] statements”).
In addition, Settles Bridge has made no showing that Masino did not act in
good faith. On the contrary, affidavits in the record show that Masino did not coerce
or pressure the city to interfere with Notre Dame’s relocation to the property, and
instead simply made good faith statements because he was familiar with the property
Notre Dame sought to purchase and believed it was zoned for residential
development. Accordingly, such good faith statements concerning a matter of public
concern, which purportedly led to official zoning decisions, was “privileged as a
matter of law, and [the] lawsuit initiated in response to the protected statements [was
properly] dismissed.” (Citations omitted.) Harkins v. Atlanta Humane Society, 273
Ga. App. 489, 491 (618 SE2d 16) (2005).
4. Request to lift stay and extend discovery under OCGA § 9-11-11.1 (d).
8 Settles Bridge contends that the trial court erred in denying its request to lift
the automatic stay on all discovery imposed by the anti-Slapp statute and to extend
discovery for 60 days. The contention is without merit.
OCGA § 9-11-11.1 (d) provides:
All 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. 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.
The requirement that the motion to dismiss be heard within 30 days effectuates
the anti-SLAPP statute’s purpose of providing “an early means of testing the bona
fides of the plaintiff’s claim.” Atlanta Humane Society, supra, 278 Ga. at 452 (1).
“The purpose of the anti-SLAPP statute is to quickly end oppressive and speech-
chilling litigation against those who attempt to participate in discussions on matters
of public importance.” Id. at 457 (Fletcher, C.J., concurring in part and dissenting in
part). Although subsection (d) gives the trial court the discretion to order specified
discovery for good cause shown, the sole possible reason for such limited discovery
“is to obtain evidence for use in resolving a motion to dismiss pursuant to OCGA §
9-11-11.1 (b).” (Citation omitted.) Id. at 453 (1).
9 Settles Bridge has not made a good cause showing that there was other
evidence necessary for resolution of the motion to dismiss. It claims that the hearing
should have been delayed to allow discovery of Masino’s motives for disclosing
confidential information that derailed the development. However, it made no showing
as to why it could not have already discovered such information and, as discussed
above, the very premise of the claim is flawed since Masino did not disclose
confidential information. “A trial court has wide discretion to shorten, extend, or
reopen the time for discovery, and its decision will not be reversed unless a clear
abuse of that discretion is shown.” (Citations and punctuation omitted.) Zywiciel v.
Historic Westside Village Partners, 313 Ga. App. 397, 403 (6) (721 SE2d 617)
(2011). Here, the trial court did not abuse its discretion in refusing the request to lift
the stay and extend discovery.
Judgment affirmed. Ellington, C. J., and Phipps, P. J, concur.