Davis v. Emmis Pub. Corp.

• Decision Date: 05 July 2000
• Docket Number: No. A00A0778, No. A00A0779.
• Citation: 244 Ga. App. 795,536 S.E.2d 809
• Parties: DAVIS v. EMMIS PUBLISHING CORPORATION et al. Emmis Publishing Corporation et al. v. Davis.
• Court: Georgia Court of Appeals

536 S.E.2d 809

244 Ga. App. 795

DAVIS v. EMMIS PUBLISHING CORPORATION et al.

Emmis Publishing Corporation et al. v. Davis.

Nos. A00A0778, A00A0779.

Court of Appeals of Georgia.

July 5, 2000.

Neal H. Howard, Atlanta, for appellant.

Arnall, Golden & Gregory, Robert L. Rothman, Frank N. White, Roger A. Chalmers, Atlanta, for appellees.

BLACKBURN, Presiding Judge.

In this libel action, Dave Davis appeals the trial court's grant of summary judgment to defendants Emmis Publishing Corporation, d/b/a Atlanta Magazine and Scott Freeman. Davis contends that the trial court erred by finding that the complaint failed to state a claim for invasion of privacy (intrusion upon seclusion) and by finding that his claims for defamation and false light invasion of privacy were barred by the statute of limitation. We affirm the trial court's ruling on these issues.

In a cross-appeal, Emmis and Freeman appeal the trial court's determination that the failure of Davis to timely file verifications of the complaint as required by Georgia's Anti-Strategic Litigation Against Public Participation (SLAPP) Statute, OCGA § 9-11-11.1, was an amendable defect. While the trial court erred in this ruling, this procedural issue is rendered moot by the proper grant of summary judgment to defendants.

These cases arise out of an article written by Freeman entitled "Buckhead Burning" and published in the December 1997 issue of Atlanta Magazine, but which was mailed to subscribers in November 1997. The article concerned the death of a Buckhead resident and the subsequent murder investigation. Davis' son, Scott Davis, was arrested for the murder. Davis, a forensic psychiatrist, alleges that the article asserts that he called in favors from the Fulton County prosecutors and stalled the investigation to prevent his son's prosecution. He further alleges that the article accuses him of obstructing justice and interfering with a murder investigation.

On December 1, 1998, Davis filed the original complaint asserting claims for libel, false light invasion of privacy, and tortious interference with business relations. The defendants timely answered on January 13, 1999, raising as defenses that the complaint failed to state claims upon which relief could be granted; that the complaint failed to comply with OCGA § 9-11-11.1; and that the libel and false light invasion of privacy claims were barred by the statute of limitation. Thereafter, the defendants filed a motion to dismiss. On March 10, 1999, almost two months after the defendants raised the lack of verifications of plaintiff's complaint in the answer, Davis filed an amendment to the complaint adding a claim for invasion of privacy (intrusion upon seclusion) and for intentional infliction of emotional distress. Additionally, Davis attached verifications by him and his counsel as required by OCGA § 9-11-11.1.

After a hearing on the motions to dismiss, the trial court found that: (1) the Georgia Anti-SLAPP Statute, OCGA § 9-11-11.1, did apply in this case; (2) Davis' failure to verify his complaint as required by OCGA § 9-11-11.1, was an amendable defect; (3) the libel and false light invasion of privacy claims were time barred; and (4) Davis had failed to state a claim for invasion of privacy (intrusion upon seclusion), tortious interference with business relations, or intentional infliction of emotional distress. The motions to dismiss were converted to motions for summary judgment pursuant to the extent that the trial court considered evidence outside the pleadings.

Case No. A00A0778

1. With respect to the trial court's finding that the claims of defamation and false light invasion of privacy were barred by the statute of limitation, Davis' sole contention on appeal is that the trial court erred in so ruling because he was prohibited from engaging in discovery by the stay provisions of the anti-SLAPP statute, OCGA § 9-11-11.1. Davis argues that because of his inability to conduct discovery, he was unable to counter the affidavit filed by Emmis and Freeman which established the publication of the article in November 1997. For the purpose of analysis of this enumeration of error, we will assume, but not decide, the applicability of the anti-SLAPP statute to this case.

OCGA § 9-11-11.1(d) provides, "[a]ll discovery... 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." In this case, Emmis and Freeman did file motions to dismiss pursuant to subsection (b), thus triggering a stay. However, the statute offers the opportunity for relief from such a stay: "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." Thus, Davis could have sought the aid of the trial court to lift the stay for the limited purpose of conducting necessary discovery, which he failed to do. He cannot now raise this issue on appeal where he has failed to avail himself of this remedy in the trial court.

Emmis and Freeman presented uncontradicted evidence that the subject article was published in November 1997. Consequently Davis' claims for defamation and false light invasion of privacy were time barred, and the trial court properly granted summary judgment as to said claims. OCGA § 9-3-33.

2. In addition to his claim for false light invasion of privacy, Davis contends that he alleged a claim for invasion of privacy by intrusion upon his seclusion or solitude. The trial court properly determined that the allegations of the complaint do not support such a claim.

"In reviewing a trial court's order dismissing a complaint for failure to state a claim, [the appellate] court construes the pleadings in the light most favorable to the losing party with the doubts resolved in [that party's] favor." Coleman v. Coleman, 265 Ga. 568, 569(1), 459 S.E.2d 166 (1995). Davis has not alleged or shown that he was subjected to "a physical intrusion analogous to a trespass, as would be required to recover for an intrusion upon seclusion. Kobeck v. Nabisco, Inc., 166 Ga.App. 652, 654, 305 S.E.2d 183 (1983)." Cox Communications v. Lowe, 173 Ga.App. 812, 814(2), 328 S.E.2d 384 (1985); Cabaniss v. Hipsley, 114 Ga.App. 367(1), 151 S.E.2d 496 (1966).

Case No. A00A0779

3. Emmis and Freeman enumerate as error the trial court's holding that Davis' failure to verify his original complaint as required by OCGA § 9-11-11.1 was an amendable defect.

If Davis' claim fell within the scope of the anti-SLAPP statute, it was clearly subject to the procedural requirements thereof:

To prevent such abusive litigation, the legislature imposed several procedural safeguards. Any [such] complaint ... must be accompanied by a verification, based on belief formed after reasonable inquiry, that the suit is well grounded in fact and law or represents a good-faith argument for the extension of existing law. OCGA § 9-11-11.1(b). The plaintiff and her counsel must also verify the act forming the basis of the suit is not a "privileged communication" under OCGA § 51-5-7, and that the suit is not filed for any improper purpose such as to suppress a person's right of free speech or right to petition government. OCGA § 9-11-11.1(b).

(Punctuation omitted.) Providence Constr. Co. v. Bauer, 229 Ga.App. 679, 680(1), 494 S.E.2d 527 (1997).

The statute further provides: "If the claim is not verified as required by this subsection, it shall be stricken unless it is verified within ten days after the omission is called to the attention of the party asserting the claim." OCGA § 9-11-11.1(b).

In interpreting the statute,

"we must first look to the statute's literal meaning, and if the language is plain and does not lead to any absurd or impracticable consequences, we will simply construe the statute according to its terms without conducting further inquiry." World Trade Business v. Amit, Inc., 239 Ga.App. 383, 385(1), 521 S.E.2d 40 (1999). Generally, the failure to verify a complaint is an amendable defect, and a reasonable time is allowed for a defective pleading to be amended. See Harvard v. Walton, 243 Ga. 860(1), 257 S.E.2d 280 (1979); Wall v. Mills, 126 Ga.App. 149(1), 190 S.E.2d 146 (1972). However, the anti-SLAPP statute, by its own terms, sets ten days as a reasonable time to allow for the late filing of the verifications: "If the claim is not verified as required by this subsection, it shall be stricken unless it is verified within ten days after the omission is called to the attention of the party asserting the claim." (Emphasis supplied.) OCGA § 9-11-11.1(b). Compare this express language with other Code sections which set forth a verification requirement but set no time limit for late filing: OCGA §§ 19-5-5; 23-3-22; 23-3-62; 23-3-91.

In this case, it is undisputed that Davis failed to file the verifications with his complaint, and that the omission was raised by the defendants in their answer. It is also undisputed that Davis filed the verifications with his amended complaint more than ten days (approximately two months) after the failure to file was first brought to his attention. We are bound to follow the express language of the statute. Applying that language, Davis was not free to amend the complaint after the ten-day period for the remedy of such failure had already expired.

Furthermore, the statute explicitly mandates that the claim "shall be stricken" if the verification is not filed timely. "`Shall' ordinarily denotes command and not permission." Ring v. Williams, 192 Ga.App. 329, 330(2), 384 S.E.2d 914 (1989). Thus, the trial court erred in holding that Davis' failure to verify his complaint as required by law was an amendable defect.

4. It is unnecessary to reach the applicability of the anti-SLAPP statute, OCGA § 9-11-11.1, to this case for several reasons. The direct issue of its applicability has not been expressly...