THOMAS A. ROSSER, SR. v. W. GORDON CLYATT

• Court: Court of Appeals of Georgia
• Decided: June 2, 2022
• Docket: A22A0469
• Status: Published

Opinion

SECOND DIVISION RICKMAN, C. J., MILLER, P. J., PIPKIN, 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. https://www.gaappeals.us/rules

June 2, 2022

In the Court of Appeals of Georgia A22A0469. ROSSER v. CLYATT et al.

MILLER, Presiding Judge.

This is the second appearance before this Court of this dispute between

members of Grady Electric Membership Corporation (“Grady EMC”) and Grady

EMC’s former president and general manager, Thomas A. Rosser, Sr. See Rosser v.

Clyatt, 348 Ga. App. 40 (821 SE2d 140) (2018) (physical precedent only) (“Rosser

I”). Rosser seeks review of the trial court’s two orders awarding attorney fees to the

defendants pursuant to Georgia’s anti-SLAPP statute (OCGA § 9-11-11.1). On

appeal, Rosser argues that the trial court erred by (1) awarding attorney fees incurred

during the previous appeal in this case; and by (2) awarding the entirety of the fees

that the defendants requested without considering the facts and circumstances of the

case. We conclude that the anti-SLAPP statute does provide for an award of appellate fees and that the trial court did not abuse its discretion by imposing the instant fee

award, and so we affirm.

“This Court generally applies an abuse-of-discretion standard in cases

involving a claim of error in the decision to award or deny attorney fees.” (Citation

and punctuation omitted.) Brooks v. Hayden, 355 Ga. App. 171, 171-172 (843 SE2d

594) (2020); see also Hagemann v. Berkman Wynhaven Assoc., 290 Ga. App. 677,

682-683 (660 SE2d 449) (2008) (reviewing for abuse of discretion a claim that the

trial court should have awarded attorney fees under the previous version of the anti-

SLAPP statute). “Under an abuse of discretion standard of review, we are to review

the trial court’s legal holdings de novo, and we uphold the trial court’s factual

findings as long as they are not clearly erroneous, which means there is some

evidence in the record to support them.” (Citation omitted.) Brown v. Brown, 359 Ga.

App. 511, 513 (2) (a) (857 SE2d 505) (2021).

The relevant underlying facts are set out in our prior opinion in this case:

Grady EMC, like all EMCs, is a private, nonprofit, electric utility owned by the members it serves. It has the exclusive right to furnish service within its service area. Grady EMC has more than 13,000 members.

In 2014, [William Gordon] Clyatt, a member of Grady EMC, began questioning some of management’s decisions, including, among other

2 things, lending $468,000 to Rosser; hiring Rosser’s son as president and general manager of Grady EMC to succeed Rosser; and holding tens of millions of dollars in earnings instead of returning the money to the member-owners.

In April 2014, Clyatt met with Grady EMC leadership to discuss his concerns, but he was not satisfied with their response. Clyatt purchased nine advertisements in the local newspaper, the Cairo Messenger, to publicize his concerns. Other members of Grady EMC contacted Clyatt, and ultimately a group of them, including Clyatt and defendants Ronald Sellars, Seaborn Roddenberry, and Jerome Ellis, formed a committee they called “Take Back Our Grady EMC.”

In 2014, the group filed a lawsuit against Grady EMC, Rosser, his son, and other officers and directors. The parties resolved the litigation by entering a settlement agreement that, among other things, required Rosser to resign his employment and terminate any affiliation, other than as a member, with Grady EMC and its entities, and required the formation of a special committee to evaluate the claims of Take Back Our Grady EMC and advise the board. As a result, the trial court entered a consent order dismissing the case with prejudice on May 24, 2016.

Five months after the dismissal of the 2014 lawsuit, Rosser filed this action, alleging that certain statements written by Clyatt were defamatory. He sued Clyatt, Sellars, Roddenberry, Ellis, Jane and John Doe defendants, Deep South Coins and Jewelry, Inc., which is owned by Clyatt and whose Facebook page included statements about Rosser, and

3 the Messenger Publishing Company, the publisher of the local newspaper, the Cairo Messenger, which published Clyatt’s and Take Back Our Grady’s paid advertisements about Rosser. The defendants answered the complaint and moved to strike it under [the] anti-SLAPP statute. The trial court granted the motions to strike[.]

(Citations and punctuation omitted.) Rosser I, supra, 348 Ga. App. at 41-42 (1). On

appeal, we affirmed the trial court’s grant of the motions to strike, holding that the

anti-SLAPP statute applied to Rosser’s defamation claims and that the trial court was

entitled to conclude that there was not a probability that Rosser would prevail on his

claims. Id. at 42-53 (2)-(3).

After we decided Rosser I, the Messenger Publishing Company filed an

amended motion for attorney fees under OCGA § 9-11-11.1 (b.1), seeking a total of

$89,496.38 in attorney fees incurred during the trial court proceedings and on appeal

during Rosser I. The remaining defendants (collectively, the “Take Back Our Grady

defendants”) filed a separate amended motion that also sought attorney fees under

OCGA § 9-11-11.1 (b.1) in the amount of $48,801. Following a hearing, the trial

court granted both motions, awarding $71,597.10 in attorney fees to the Messenger

Publishing Company and awarding $9,850 in attorney fees to the Take Back Our

4 Grady defendants. In its orders, the trial court specified that it awarded fees for both

the trial court proceedings and the appellate proceedings. This appeal followed.1

1. As an initial matter, the Messenger Publishing Company moves to dismiss

this appeal to the extent Rosser challenges the Company’s attorney fee award because

the parties have settled that claim. We GRANT the motion to dismiss, and this appeal

will only address the trial court’s order granting attorney fees to the Take Back Our

Grady defendants.

2. Rosser first argues that the trial court erred by awarding the attorney fees that

the defendants incurred during the first appeal in this case, arguing that the anti-

SLAPP statute does not allow for recovery of appellate fees. We conclude that the

anti-SLAPP statute does allow an award for such fees.

When we interpret a statute, we must keep in mind the familiar canons of

statutory construction, which provide that

[a] statute draws its meaning from its text. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary

1 The Take Back Our Grady defendants filed a motion for reconsideration of the trial court’s order, which apparently remains pending in the trial court.

5 speaker of the English language would. If the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end. But when the language of a statute or regulation is not obvious on its face, we should employ other tools of construction to interpret it and resolve its meaning.

(Citations and punctuation omitted.) Premier Health Care Investments, LLC v. UHS

of Anchor, LP, 310 Ga. 32, 39 (3) (b) (849 SE2d 441) (2020).

“Generally, an award of attorney fees is not available in Georgia unless

authorized by statute or contract. Thus, whether a statute that authorizes an award of

attorney fees also includes an award of appellate fees depends on the language of the

statute.” (Citations omitted.) Day v. Mason, 357 Ga. App. 836, 847 (6) (851 SE2d

825) (2020). “A party can, however, recover attorney fees incurred on appeal when

attorney fees in general are authorized by other statutes.” Springside Condo. Assn.

Inc. v. Harpagon Co. LLC, 298 Ga. App. 39, 40 (1) (679 SE2d 85) (2009).

Turning to the provision at issue, the anti-SLAPP statute provides that “[i]n any

action subject to [the anti-SLAPP statute], a prevailing moving party on a motion to

strike shall be granted the recovery of attorney’s fees and expenses of litigation

related to the action in an amount to be determined by the court based on the facts and

circumstances of the case.” OCGA § 9-11-11.1 (b.1). This provision “requires the

6 trial court to award [attorney] fees and expenses of litigation related to the action to

a moving party (usually, the defendant) who prevails on an anti-SLAPP motion[.]”

(Punctuation omitted and emphasis supplied.) Wilkes & McHugh, P. A. v. LTC

Consulting, L. P., 306 Ga. 252, 260 (2) (a) (830 SE2d 119) (2019).

We are compelled to conclude that the anti-SLAPP’s attorney fees provision

allows parties to recoup appellate fees. First, a fair reading of the statute’s broad

wording that fees “related to the action” shall be recoverable supports an inference

that appellate fees are included in its purview. We have previously interpreted the

term “action” to refer to the entire course of legal proceedings, including appellate

proceedings, and we have upheld appellate fee awards under statutes that use such

broad terminology. See In re Estate of Zeigler, 295 Ga. App. 156, 161 (2) (d) (671

SE2d 218) (2008) (holding that appellate fees are recoverable under former OCGA

§ 53-12-193 (a) (4), which allows a trial court to award “reasonable attorney’s fees

incurred by the beneficiary in bringing an action on the breach [of a trust.]”)

(emphasis supplied); Buckler v. DeKalb County Bd. of Tax Assessors, 288 Ga. App.

332, 333-334 (654 SE2d 184) (2007) (holding that appellate fees are recoverable

under OCGA § 48-5-311 (g) (4) (B), which authorizes the recovery of attorney fees

“incurred in the [taxpayer’s] action.”) (emphasis supplied); see also Kautter v.

7 Kautter, 286 Ga. 16, 19-20 (4) (c) (685 SE2d 266) (2009) (appellate fees are

recoverable under OCGA § 19-6-2, which authorizes the recovery of attorney fees “at

any time during the pendency of the litigation”).

Second, contrary to Rosser’s argument, the text of OCGA § 9-11-11.1 (b.1) is

readily distinguishable from other attorney fee provisions that we have held do not

allow for appellate fees. For instance, the Supreme Court of Georgia has held that

appellate fees are not recoverable under OCGA § 13-6-11 because “[t]he elements

which will authorize an award under [that statute] have consistently been found to

relate to the conduct arising from the transaction underlying the cause of action being

litigated, not conduct during the course of the litigation itself.” David G. Brown, P.E.,

Inc. v. Kent, 274 Ga. 849, 850 (561 SE2d 89) (2002). The text of OCGA § 9-11-11.1

(b.1), on the other hand, is clear that it applies to “attorney’s fees and expenses of

litigation” incurred during the course of litigating a SLAPP case. Additionally, we

have concluded that appellate fees are not recoverable under attorney fee provisions

that specifically reference trial court proceedings. See, e.g., Kautter, 286 Ga. at 19 (4)

(c) (appellate fees are not recoverable under OCGA § 9-15-14 because “implicit in

the language of that statute is that a court of record of this state may impose

reasonable and necessary attorney fees and expenses of litigation for proceedings

8 before that court, which were brought for purposes of harassment or delay or lacked

substantial justification.”) (citation and punctuation omitted; emphasis in original);

Day, supra, 357 Ga. App. at 846-848 (6) (concluding that appellate fees are not

recoverable under OCGA § 19-9-3 (g) because that statute specifically mentions and

refers to trial and pre-trial proceedings). Unlike these statutes, nothing in the language

of the anti-SLAPP statute states or implies that the recovery of attorney fees is limited

to those incurred in trial court litigation.

Finally, “permitting recovery of fees and costs incurred on appeal would further

the purpose of the [anti-SLAPP statute].” Evans County Bd. of Commrs. v. Claxton

Enterprise, 255 Ga. App. 656, 659 (3) (566 SE2d 399) (2002) (concluding that

appellate fees are recoverable under Georgia’s Open Meetings Act). As we have

mentioned before, “Georgia’s anti-SLAPP statute was 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.” (Citation omitted.) Lane Dermatology v. Smith, 360 Ga. App. 370, 378 (2)

(861 SE2d 196) (2021). “[T]he goal of an anti-SLAPP statute is to end a SLAPP

lawsuit quickly and without much cost to the defendant[.]” Rogers v. Dupree, 340 Ga.

App. 811, 815 (2) (799 SE2d 1) (2017). The current version of Georgia’s anti-SLAPP

9 statute specifically contemplates that appellate proceedings are a key part of its

protections in that the statute provides for direct appeals from any order denying or

granting a motion to dismiss or strike under the anti-SLAPP statute. OCGA § 9-11-

11.1 (e). “Because appeal is often an integral part of litigation to enforce the [anti-

SLAPP statute], recovery of attorney fees should not exclude those incurred on

appeal.” Evans, supra, 255 Ga. App. at 659 (3).

For these reasons, the trial court correctly concluded that the anti-SLAPP

statute allows for the recovery of appellate fees.

3. Rosser further argues that the trial court did not properly consider the facts

and circumstances of the case when it awarded attorney fees to the defendants. Rosser

primarily argues that the trial court did not consider the fact that the anti-SLAPP

statute had been newly amended and that many of his legal positions were arguable

and defensible. We conclude that the trial court did not abuse its discretion in

awarding attorney fees to the Take Back Our Grady defendants.

The amount of attorney fees awarded under the anti-SLAPP statute is “to be

determined by the court based on the facts and circumstances of the case.” OCGA

§ 9-11-11.1 (b.1). The anti-SLAPP statute does not limit or specify precisely which

“facts and circumstances” the trial court must consider, so long as they are “of the

10 case.” We therefore “must presume that the General Assembly meant what it said and

said what it meant,” (Citation omitted.) Deal v. Coleman, 294 Ga. 170, 172 (1) (a)

(751 SE2d 337) (2013), and that the trial court was entitled to consider any of the

“facts and circumstances of the case” and balance them accordingly in determining

the amount of fees to be awarded.

In its order, the trial court stated that it considered the facts and circumstances

of the case when reaching its decision and recited the procedural history of the case

and the amount of filings that the parties made in support of its orders. The trial court

concluded that the amount of attorney fees awarded represented a “reasonable and

necessary amount for asserting the rights of [the Defendants] in this matter and for

the time invested by [the Defendants’] attorneys and the tasks so performed.” The

trial court also stated that it considered the arguments of counsel that were presented

in both the motions and at the hearing.2 Finally, we note that the trial court did not

award the entire amount of fees that the defendants requested, and so it appears that

the trial court considered some circumstances that were favorable to Rosser.

Therefore, Rosser has not shown that the trial court abused its discretion by failing

2 The transcript of the hearing has not been included in the record on appeal, and thus we are unaware of what arguments were presented to the trial court at the hearing regarding the “facts and circumstances” of this case.

11 to consider “the facts and circumstances of the case” when it ruled on the motion for

attorney fees.

For these reasons, we conclude that the trial court did not abuse its discretion

when it awarded attorney fees to the Take Back Our Grady defendants, and we

therefore affirm its order.

Judgment affirmed. Rickman, C. J., and Pipkin, J., concur.