Johnson v. Cordtz
| Decision Date | 19 September 2022 |
| Docket Number | A22A0892 |
| Citation | 366 Ga.App. 87,878 S.E.2d 603 |
| Parties | JOHNSON v. CORDTZ et al. |
| Court | Georgia Court of Appeals |
Larry Wayne Johnson, Johnson Legal Offices, Atlanta, for Appellant.
Richard Scott Alembik, Decatur, Orion Gregory Webb, Smith Welch Webb & White, Stockbridge, Thomas MacIver Clyde, Kurtis George Anderson, Kilpatrick Townsend & Stockton, Atlanta, for Appellee.
Following the striking of his defamation-based action against Jeffrey Cordtz, Richard Alembik, and Shimshon Wexler ("Appellees"), Larry W. Johnson appeals, contending that the trial court erred by applying the anti-SLAPP statute, OCGA § 9-11-11.1, to his claims. Johnson concedes, however, that his claims should have been dismissed for failing to satisfy the pre-suit notice requirements of the abusive litigation statute, OCGA § 51-7-80 et seq. For the reasons set forth below, we affirm.
A "SLAPP," or "Strategic Lawsuit Against Public Participation," is a "meritless lawsuit[ ] brought not to vindicate legally cognizable rights, but instead to deter or punish the exercise of constitutional rights of petition and free speech by tying up [its] target's resources and driving up the costs of litigation." Wilkes & McHugh v. LTC Consulting , 306 Ga. 252, 257 (2), 830 S.E.2d 119 (2019). The anti-SLAPP statute allows a defendant to make a motion to strike such a frivolous action as "an avenue for ending the suit quickly, summarily, and at minimal expense." Geer v. Phoebe Putney Health System, Inc. , 310 Ga. 279, 282 (2), 849 S.E.2d 660 (2020). A trial court's ruling on an anti-SLAPP motion to strike is subject to de novo review, and the pleadings and affidavits submitted by the parties are considered in the light most favorable to the nonmoving party. See, e.g., RCO Legal, P.S., Inc. v. Johnson , 347 Ga. App. 661, 661-662, 820 S.E.2d 491 (2018). See also OCGA § 9-11-11.1 (b) (2) ().
With this standard in mind, the record indicates that Cordtz, as debtor, is in an ongoing debt-collection dispute regarding a home equity line of credit ("HELOC") with the banking client of Johnson, an attorney. In 2019, Cordtz filed suit in Gwinnett County against Johnson's client, raising the propriety of certain aspects of the HELOC on which the debt-collection action was based and attempting to bring an end to the matter. On April 8, 2021, Johnson sent a letter to Cordtz and his attorney, Alembik, demanding both payment of the debt underlying the HELOC, which had been accelerated, and warning about the accrual of and potential liability for Johnson's fees. After consulting with Wexler, an attorney experienced in matters involving the federal Fair Debt Collection Practices Act ("FDCPA"), 15 USC § 1692 et seq., Alembik responded to Johnson, stating that the April 8 demand letter violated the FDCPA. Specifically, Alembik identified four alleged violations: (1) Johnson falsely represented the character, amount, or legal status of the HELOC; (2) he sought to collect amounts not expressly authorized by the agreement creating the debt or permitted by law; (3) he threatened to take action that cannot be legally taken; and (4) he failed to provide the notice required in an initial written communication to a consumer. Alembik copied Cordtz, his client, on the letter. That same day, Johnson spoke to Alembik and agreed to retract his April 8 letter, though he expressed disagreement with Alembik's April 15 response. After further consultation with Alembik and Cordtz, however, Wexler later filed a federal suit on Cordtz's behalf against Johnson, again raising Johnson's violation of the FDCPA.
In June 2021, Johnson e-mailed Alembik and Wexler, and he threatened to file suit against them unless the parties agreed to a settlement, including the dismissal of the FDCPA litigation. When these demands were not met, Johnson brought the present suit against Alembik, Cordtz, and Wexler, alleging that Alembik's April 15 letter to Johnson: (1) was defamatory (a claim directed only at Alembik); (2) caused the intentional infliction of emotional distress; (3) was the product of a conspiracy between Cordtz, Alembik, and Wexler to defame Johnson; and (4) caused tortious interference with Johnson's business relations.1 In essence, Johnson complained that Appellees were maliciously prosecuting him simply because he represented the bank to which Cordtz allegedly owed a debt. Thereafter, Wexler filed a motion to dismiss or strike Johnson's complaint pursuant to the anti-SLAPP statute. See OCGA § 9-11-11.1 and OCGA § 9-11-12 (b) (6). Cordtz and Alembik filed a separate motion to dismiss Johnson's complaint, arguing that his contentions amounted to claims of abusive litigation under the abusive litigation statute and that these claims were made without the required pre-suit notice. Cordtz and Alembik also joined Wexler's motion to dismiss or strike. In addition, Johnson filed a motion asking for limited discovery pursuant to the anti-SLAPP statute, arguing that he needed more evidence to determine whether the Appellees had acted in bad faith and with malice.2
On December 9, 2021, following a hearing, the trial court granted Appellees’ motion to strike Johnson's claims pursuant to the anti-SLAPP statute. After finding Johnson's claims subject to the statute, the trial court concluded that Johnson had failed to show a probability that he would prevail on the claims, citing the following alternative bases for this conclusion: (1) Johnson's claims comprised claims for abusive litigation, and Johnson failed to satisfy the abusive litigation statute's mandatory pre-suit notice requirement; (2) Johnson's claims failed as a matter of law because there was no publication to support defamation or conspiracy to defame, no support for defamation per se, and no damages to support intentional infliction of emotional distress or tortious interference with business relations; and (3) Johnson's arguments, which were raised in conjunction with an FDCPA action, were preempted by federal law. The trial court did not rule on the motion for limited discovery.
On December 17, 2021, Appellees filed a motion seeking attorney fees and costs pursuant to the anti-SLAPP statute. See OCGA § 9-11-11.1 (b.1) (granting "recovery of attorney's fees and expenses of litigation related to the action" to a prevailing party). This motion, however, has not yet been considered by the trial court and remains pending below.
1. As previously indicated, Johnson does not ultimately challenge the judgment of the trial court that his claims against Appellees were barred, only some of the alternative bases for this result. He states:
The trial court did not err when it found as a matter of law that Appellant did not provide the pre-suit notice (which is undisputed) required by [the abusive litigation statute], but the trial court did err when it then went outside the exclusive remedy provisions of the Abusive Litigation Statute and it dismissed the civil action as well under the [a]nti-SLAPP statute and other statutes.3
Because Johnson has conceded that his claims were properly barred as abusive litigation claims, we limit our analysis to the question of whether that infirmity may be considered as a reason for his action to be struck under the anti-SLAPP statute. To answer this question, we begin with the text of the relevant statutory provisions.
OCGA § 9-11-11.1 (b) provides:
In accordance with these provisions, the analysis of an anti-SLAPP motion to strike involves two steps. First, the court must decide whether the party filing the anti-SLAPP motion "has made a threshold showing that the challenged claim is one ‘arising from’ protected activity." Wilkes , supra at 262 (2) (b), 830 S.E.2d 119 (quoting OCGA § 9-11-11.1 (b) (1) ). If so, the court must "decide whether the plaintiff ‘has established that there is a probability that the plaintiff will prevail on the claim.’ " Id. (quoting OCGA § 9-11-11.1 (b) (1) ). "But while viewing the evidence in this light, the court must also take into account the substantive evidentiary and legal standards that apply to [the] case[.]" American Civil Liberties Union, Inc. v. Zeh , 312 Ga. 647, 654 (1) (c), 864 S.E.2d 422 (2021).
Wilkes , supra at 262 (2)...
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