Valade v. Meriwether & Tharp, LLC
Decision Date | 27 June 2022 |
Docket Number | A22A0330 |
Citation | 875 S.E.2d 490 |
Parties | VALADE v. MERIWETHER & THARP, LLC et al. |
Court | Georgia Court of Appeals |
James Andrew Neuberger, Atlanta, for Appellant.
Christine Lupo Mast, Zachary Stephen Lewis, Atlanta, for Appellee.
This invasion of privacy lawsuit arose from the divorce and child custody litigation between Jennifer Valade and Kenneth Valade. Kenneth Valade, allegedly at the advice of his attorneys — Elizabeth Doak, Patrick Meriwether, and Meriwether & Tharp, LLC (collectively, the "Attorneys") — secretly recorded Jennifer Valade and Crystal Rimert in a bedroom and subsequently distributed those recordings. The trial court issued a partial summary judgment order, and Jennifer Valade, Rimert, and the Attorneys all appealed from that order. We have already addressed Rimert's and the Attorneys’ appeals,1 and now turn to Jennifer Valade's appeal from the same summary judgment order. Jennifer Valade argues that the trial court erred in: (1) finding that her invasion of privacy claims were barred by the exclusive remedy provision in the abusive litigation statute, OCGA § 51-7-80 et seq. ; and (2) granting summary judgment in favor of the Attorneys on her negligent supervision claim. For the reasons set forth infra, we affirm the trial court's findings on the negligent supervision claim, but reverse the trial court's conclusion that the abusive litigation statute completely barred Jennifer Valade's invasion of privacy claim.
We summarized the relevant facts, viewed in the light most favorable to the nonmoving parties below, in the prior appeal:
Jennifer Valade filed a complaint against Kenneth Valade, the Attorneys, and others alleging claims against the Attorneys of, among other things, violations of her common law right to privacy and negligent training and supervision by Meriwether & Tharp over its employee Doak. The trial court issued a summary judgment order, and this appeal by Jennifer Valade followed.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.3
With these guiding principles in mind, we now turn to Jennifer Valade's claims of error.
Under Georgia's abusive litigation statutory 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."4 A "[c]ivil proceeding" is defined as "any action, suit, proceeding, counterclaim, cross-claim, third-party claim, or other claim at law or in equity."5 A "[c]laim" is defined as "any allegation or contention of fact or law asserted in support of or in opposition to any civil proceeding, defense, motion, or appeal."6
This statutory scheme "is the exclusive remedy for abusive litigation."7 "[N]o claim other than as provided in this article or in Code Section 9-15-14 shall be allowed, whether statutory or common law, for the torts of malicious use of civil proceedings, malicious abuse of civil process, nor abusive litigation[.]"8
In a case with similar factual circumstances — where a party covertly surveilled another engaging in sexual relations — we held that the plaintiff's claims asserting invasion of privacy did "not fall within the abusive litigation paradigm."12 However, we relied on the fact that the surveillance occurred "well before any legal action commenced," and thus "the activities underlying the claims [stood] apart from — and [did] not depend upon — the litigation" between the parties.13 Here, however, we are faced with a situation where the surveillance occurred during litigation and where the purpose of the surveillance was to gain an advantage in the lawsuit.
When we have held that the complained-of conduct was encompassed by the "initiation, continuation, or procurement of civil proceedings"14 such that the abusive litigation statute applied, the conduct has always directly corresponded to a judicial filing or process. For example, we have held that the abusive litigation statute applied against conduct in filing and litigating an adoption proceeding,15 in filing a lis pendens and delivering a copy of the notice to an interested third party,16 and in making alleged false statements filed with a dispossessory action and during a deposition.17 And in the surveillance case, cited supra, we held that the claims relating to the disclosure of the sexual relationship through the filing of a complaint fell within the abusive litigation statute.18
Here, by contrast, the surveillance on Rimert and Jennifer Valade did not involve a court filing or a judicial process, such as discovery. As such, this conduct did not involve the "initiation, continuation, or procurement of civil proceedings[.]"19 We distinguish between the surveillance and the subsequent letter to Jennifer Valade's counsel and motion filed with the divorce court which disclosed the sexual relationship. The letter and motion constituted a "[c]laim"20 asserted in connection with the continuation of a civil proceeding.21 The surveillance of Rimert and Jennifer Valade did not fall within the abusive litigation statute's definition of claim, as the act of surveilling another is not an allegation or contention of fact or law.22 Nor did the surveillance, standing alone, result in the continuation of civil proceedings.
This interpretation also comports with the other provisions of the abusive litigation statute. Under OCGA § 51-7-82 (a), it is a complete defense to withdraw the claim, position, or lawsuit in response to an abusive litigation claim. That remedy does not make sense with respect to the invasion of privacy claim alleged here, or other torts that parties in litigation could commit against one another that are unconnected to a judicial process. "For example, a...
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