Wilkes & Mchugh, P.A. v. LTC Consulting, L.P.

• Citation: 306 Ga. 252,830 S.E.2d 119
• Decision Date: 24 June 2019
• Docket Number: S19A0146
• Court: Supreme Court of Georgia
• Parties: WILKES & MCHUGH, P.A. et al. v. LTC CONSULTING, L.P. et al.

306 Ga. 252

830 S.E.2d 119

WILKES & MCHUGH, P.A. et al.

v.LTC CONSULTING, L.P. et al.

S19A0146

Supreme Court of Georgia.

Decided: June 24, 2019

Sidney Leighton Moore, III, THE MOORE LAW FIRM, P.C., 1201 Peachtree Street, NE, Suite 2000, Atlanta, Georgia 30361, Meredith Stein Watts, THE WATTS FIRM LLC, 2675 Paces Ferry Road SE, Suite 260, Atlanta, Georgia 30339, for Appellant.

Jason Edward Bring, Kara Gordon Silverman, ARNALL GOLDEN GREGORY LLP, 171 17th Street, N.W., Suite 2100, Atlanta, Georgia 30363-1031, for Appellee.

Boggs, Justice.

This case presents the first opportunity for this Court to consider the effects of the General Assembly’s wholesale revision in 2016 of the anti-SLAPP statute, OCGA § 9-11-11.1, which now substantially mirrors California Code of Civil Procedure § 425.16. We vacate the trial court’s denial of the defendants’ anti-SLAPP motion at issue in this case, and we remand the case with direction to reconsider the motion under the proper standards.

LTC Consulting, L.P. and two affiliated entities sued law firm Wilkes & McHugh, P.A. and one of its attorneys for violations of OCGA § 31-7-3.2 (j), deceptive trade practices, and false advertising after the defendants ran full-page advertisements in local newspapers targeting patients of nursing homes owned by the plaintiffs. The defendants filed a Motion to Dismiss or to Strike Pursuant to OCGA §§ 9-11-11.1 and 9-11-12 (b) (6), arguing among other things that OCGA § 31-7-3.2 (j), which was enacted in 2015, violates the First Amendment. See Ga. L. 2015, p. 1315. The motion was filed the day before a previously scheduled injunction hearing, but the trial court considered the defendants’ motion and denied it. The defendants appealed to the Court of Appeals, which properly transferred the case to this Court.

We conclude that the defendants met their burden under OCGA § 9-11-11.1 to show that the plaintiffs’ claims are ones arising from acts that could reasonably be construed as acts in furtherance of the defendants’ right of free speech under the United States Constitution in connection with an issue of public interest or concern, thereby triggering the application of OCGA § 9-11-11.1. The burden then shifted to the plaintiffs to establish that there was a probability that they would prevail on their claims. However, in analyzing these claims, the parties did not argue, and the trial court did not properly apply, the new standards for anti-SLAPP motions explained in more detail below. In particular, the parties and the trial court overlooked certain preliminary questions, which also have not been adequately briefed here. We are reluctant to address these questions in the first instance without affording the trial court an opportunity to consider them with adequate briefing from the parties. Accordingly, we vacate the trial court’s denial of the defendants’ anti-SLAPP motion, and we remand the case with direction to reconsider the anti-SLAPP motion under the proper standards.

1. The defendants in this lawsuit are Wilkes & McHugh, P.A., a Florida-based law firm that focuses on suing nursing homes, and Gary Wimbish, an attorney with the firm who is licensed to practice law in Georgia. On October 11, 2017, the defendants ran a full-page advertisement in a Cobb County newspaper concerning a local nursing home, Bonterra Transitional Care and Rehabilitation ("Bonterra"). On October 12, 2017, they ran a similar ad in a Cobb County newspaper about another local nursing home, Powder Springs Transitional Care and Rehabilitation ("Powder Springs"). And on October 18, 2017, they ran a similar ad in a Rockdale County newspaper concerning a local nursing home, Rockdale Healthcare Center ("Rockdale Healthcare"), which is owned by LTC Consulting, L.P. Each ad referred to the results of one or more government "surveys," or inspections, of the nursing home named in the ad.¹

(a) The Ads

All three ads had the same format. Each ad stated across the top in a large font and all capital letters, "THIS IS A LEGAL ADVERTISEMENT,"² followed by a larger, reverse-background stripe stretching all the way across the page and containing the contrasting words "IMPORTANT NOTICE" in a still larger font. This stripe and the stripe described below are the most visually prominent features of the ads.

After the first stripe, the ads stated, in a large, bolded font, "If your loved one has been a resident at," followed by the name of the specified nursing home in an even larger font and in all capital letters.

The nursing home’s street address appeared on the next line in a much smaller but still bolded font. Aside from the stripes, the nursing home’s name was the most prominent feature of each ad. Each ad then stated in a large font: "This facility has been cited for multiple deficiencies* including," followed by three to ten paragraphs of text in a much smaller font that appeared in two columns in the Powder Springs and Bonterra ads and in a single column in the Rockdale Healthcare ad.

Each paragraph of subsequent text began with the word "FAILURE" – bolded, underlined, and in all capital letters – followed by text in regular type in a slightly smaller font that purported to recount the deficiencies for which each nursing home had been cited in a government survey conducted on one or more dates listed.³ The text also stated the date by which each deficiency was corrected and described the level of harm from each deficiency and the number of residents affected. After the listing of "FAILURES," the ads contained a densely worded paragraph stretching across the page and preceded by an asterisk – presumably referring back to the word "deficiencies*" above – that, among other things, said that the ads were not authorized or endorsed by any government agency, provided information on the survey process and average numbers of cited deficiencies at nursing homes in Georgia and in the United States, and listed a government website where those interested could find additional information.

Next, the ads contained another large, reverse-background stripe stretching all the way across the page. This stripe stated, in a large font and in all capital letters:

POOR CARE AND UNDERSTAFFING CAN LEAD TO: BEDSORES

, CHOKING, FALLS, BROKEN BONES, DEHYDRATION, INFECTIONS/ SEPSIS, MALNUTRITION, OR UNEXPLAINED DEATH.

Below the stripe, each ad said, in a large, bolded font, "If someone you love has been a resident" of the named nursing home, "we would like to hear your story. Call or email our attorneys for a free consultation." The ads listed a telephone number, email address, and website for the law firm, included the firm’s logo underneath, and then stated the law firm’s street address in Tampa, Florida. At the end, each ad said in italics: "Gary Wimbish, Esq. is responsible for the content of this advertisement ."⁴

(b) The Trial Court Proceedings

On October 19, 2017, the owner of Powder Springs filed a Verified Complaint for Ex Parte Temporary Restraining Order and Preliminary and Permanent Injunctive Relief against the defendants, alleging that the ads violated OCGA § 31-7-3.2 ’s recently enacted subsection (j), which imposes limitations on advertisements that use or reference the results of federal or state surveys or inspections of nursing homes. The complaint also alleged violations of OCGA § 10-1-372 (a) (12), which is part of Georgia’s Uniform Deceptive Trade Practices Act, as well as two false advertising statutes, OCGA §§ 10-1-421 (a) (untrue or fraudulent statements in advertisements for goods and services, including professional services) and 10-1-427 (a) (untrue, fraudulent, deceptive, or misleading statements in advertisements for legal services). Attached to the complaint were the ad concerning Powder Springs, one of the three surveys that the ad referenced, and a Scope and Severity Matrix for Nursing Home Deficiencies from the federal Centers for Medicare and Medicaid Services.⁵ At the same time, Powder Springs’ owner filed a motion for an ex parte temporary restraining order ("TRO").

On the morning of October 20, 2017, the trial court granted the TRO. On the same day, Powder Springs’ owner filed a First Amended Complaint for Ex Parte Temporary Restraining Order and Preliminary and Permanent Injunctive Relief, adding as plaintiffs the owners of Bonterra and Rockdale Healthcare and attaching as exhibits the defendants’ ads concerning Bonterra and Rockdale Healthcare in addition to the ad concerning Powder Springs. The plaintiffs alleged that 91% of nursing homes surveyed are found to have "deficiencies" and that the defendants did not include in the ads all the information required by OCGA § 31-7-3.2 (j). The plaintiffs also alleged that each ad was false, fraudulent, deceptive, and misleading, both because each ad omitted facts necessary to make the ad not materially misleading when considered as a whole, and because each ad falsely implied that residents of the plaintiffs’ nursing homes had suffered "BEDSORES

," "BROKEN BONES," and "DEATH" from the cited deficiencies. The plaintiffs further alleged, among other things, that the Powder Springs ad falsely stated that four of the deficiencies "constituted minimal harm or the potential for actual harm," when in reality those four deficiencies were cited at the "D" level, meaning that there was no actual harm.

On the afternoon of October 20, 2017, the plaintiffs filed a motion for an expanded TRO, which the trial court granted. The expanded TRO enjoined the defendants from publishing or causing to be published in any newspaper or other media, including online: "any false, fraudulent, deceptive and misleading advertisements concerning the Plaintiffs"; "the advertisements included as Exhibits A, B, and C to Plaintiffs’ [First] Amended Complaint"; and "any advertisements concerning the Plaintiffs that do not fully comply with the requirements of O.C.G.A. § 31-7-3.2 (j)." The expanded TRO was to remain in effect for 30 days or until November 10, 2017, when the...