Joshua David Mellberg, LLC v. Impact P'ship, LLC

• Decision Date: 03 June 2020
• Docket Number: A20A0004
• Citation: 844 S.E.2d 223,355 Ga.App. 691
• Parties: JOSHUA DAVID MELLBERG, LLC et al. v. The IMPACT PARTNERSHIP, LLC et al.
• Court: Georgia Court of Appeals

355 Ga.App. 691

844 S.E.2d 223

JOSHUA DAVID MELLBERG, LLC et al.

v.The IMPACT PARTNERSHIP, LLC et al.

A20A0004

Court of Appeals of Georgia.

June 3, 2020

Reconsideration Denied June 23, 2020

Vaughan & Murphy, Charles C. Murphy, Jr., Ellen G. Schlossberg, for appellants.

Miller & Martin, William P. Eiselstein, Michael P. Kohler, Robert F. Parsley ; Carroll Law Firm, Stacey A. Carroll, for appellees.

Miller, Presiding Judge.

This appeal stems from a defamation lawsuit which The Impact Partnership, LLC, Tree Fine, and Jovan Will (collectively "Impact") filed against Joshua David Mellberg and Joshua David Mellberg, LLC (collectively "Mellberg").¹ Mellberg appeals from the trial court's order denying its motion to dismiss the lawsuit, arguing that the trial court erred in determining that the revised anti-SLAPP (Strategic Lawsuit Against Public Participation) statute did not apply retroactively to bar Impact's defamation claim and that the trial court erred by not striking Impact's complaint. Because the revised anti-SLAPP statute does not apply retroactively to bar Impact's defamation claim, we affirm the denial of Mellberg's motion to dismiss.

"On appeal, we conduct a de novo review of the denial of a motion to dismiss. In reviewing the trial court's order, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff's favor." (Citations and punctuation omitted.)

Emory Univ. v. Metro Atlanta Task Force for the Homeless, Inc. , 320 Ga. App. 442, 443, 740 S.E.2d 219 (2013).

According to the complaint, which was filed in April 2014, the Impact Partnership, LLC, offers services to assist financial advisors and agents in relation to insurance and annuity products. Impact alleged that Mellberg published and distributed a defamatory press release concerning Impact. Mellberg filed a motion to dismiss the lawsuit pursuant to former OCGA § 9-11-11.1, arguing in part that (1) the anti-SLAPP statute applied because the press release concerned a lawsuit in Arizona and was therefore a written statement made in connection with an issue under consideration or review by a judicial body; and (2) the claim should be dismissed because the press release was privileged and therefore the lawsuit was falsely verified.² In February 2015, the trial court denied Mellberg's motion to dismiss after a hearing, concluding that the former anti-SLAPP statute did not apply to the press release.

More than three years after the trial court denied the initial motion to dismiss, Mellberg filed a motion to dismiss or strike the complaint pursuant to the revised anti-SLAPP statute, which became effective on July 1, 2016. Mellberg argued that the revised anti-SLAPP statute applies retroactively and that the press release is considered protected speech under the "broad reaching scope" of the revised statute. Mellberg argued that, under the revised statute, the plaintiff has the burden of demonstrating a probability of prevailing on the claim and that Impact lacked a factual or legal basis for its defamation claim. The trial court denied the motion, determining that Mellberg was attempting to seek a substantive benefit from the revised statute; that the substantive provisions of the statute could not be applied retroactively in the absence of a provision allowing such treatment; and that because the lawsuit was filed more than two years before the statute was amended, Mellberg could not avail itself of any new substantive provisions of the revised statute.³ This appeal followed.

In related enumerations of error, Mellberg argues that the trial court erred in ruling that the revised anti-SLAPP statute does not apply retroactively to Impact's defamation claim and that the trial court erred by not striking Impact's complaint under the revised anti-SLAPP statute. We discern no reversible error.

" ‘Strategic lawsuits against public participation,’ or ‘SLAPPs,’ are meritless lawsuits 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 their target's resources and driving up the costs of litigation." (Footnote omitted.) Wilkes &McHugh , P.A. v. LTC Consulting , 306 Ga. 252, 257 (2), 830 S.E.2d 119 (2019). Thus, anti-SLAPP statutes "typically provide for an early means of testing the bona fides of the plaintiff's claim...." (Citation, punctuation and emphasis omitted.) Atlanta Humane Society v. Harkins , 278 Ga. 451, 452 (1), 603 S.E.2d 289 (2004). Under the revised anti-SLAPP statute, "the analysis of an anti-SLAPP motion involves two steps. First, the court must decide whether the party filing the anti-SLAPP motion (usually, the defendant) has made a threshold showing that the challenged claim is one ‘arising from’ protected activity." (Footnote omitted.) Wilkes & McHugh, P.A. , supra, 306 Ga. at 261-262 (2) (b), 830 S.E.2d 119 (quoting OCGA § 9-11-11.1 (b) (1) ). "If a court concludes that this threshold showing has been made, it must proceed to the second step of the analysis and decide whether the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (Punctuation omitted.) Id. at 262 (2) (b), 830 S.E.2d 119 (quoting OCGA § 9-11-11.1 (b) (1) ). A claim that satisfies both prongs of the anti-SLAPP statute is subject to being stricken. Id. at 262-263 (2) (b), 830 S.E.2d 119.

As relevant to Mellberg's second motion to dismiss, the revised statute differs from the old one in the following ways: (1) it contains a reconfigured scope of protected speech ( OCGA § 9-11-11.1 (c) (1)-(4) ); (2) the General Assembly has now directed that the Code section is to be construed broadly ( OCGA § 9-11-11.1 (a) ); and (3) the probability-of-prevailing standard described above has been added to the statute ( OCGA § 9-11-11.1 (b) (1) ), and the written verification requirement has been removed. The revised statute itself is silent on the issue of retroactivity. OCGA § 9-11-11.1. As to whether a statute applies retroactively, the rule is that

legislation which involves mere procedural or evidentiary changes may operate retrospectively; however, legislation which affects substantive rights may only operate prospectively. The distinction is that a substantive law creates rights, duties, and obligations while a procedural law prescribes the methods of enforcing those rights, duties, and obligations.

(Citations omitted.) Fowler Properties v. Dowland , 282 Ga. 76, 78 (1), 646 S.E.2d 197 (2007).

The Georgia appellate courts have not engaged in extensive analysis regarding whether the statute (or parts thereof) is procedural or substantive so as to dictate whether retroactive application is appropriate.⁴ Recently, in Rogers v. Dupree , 349 Ga. App. 777, 778, n.1, (824 S.E.2d 823) (2019), we noted that although the statute has been revised, the former version of the anti-SLAPP statute applied to the case because the lawsuit was filed several years before the revision of the statute. Mellberg contends, however, that the Rogers decision does not evince that the parties were contesting retroactivity, and he maintains that the anti-SLAPP statute is a procedural mechanism which operates retroactively to bar Impact's defamation claim. Nonetheless, Mellberg has failed to demonstrate that Impact's complaint should be dismissed under the revised statute.

Even assuming, arguendo,...