Metzler v. Rowell

• Decision Date: 14 March 2001
• Docket Number: No. A00A2127.,A00A2127.
• Citation: 248 Ga. App. 596,547 S.E.2d 311
• Parties: METZLER v. ROWELL et al.
• Court: Georgia Court of Appeals

547 S.E.2d 311

248 Ga. App. 596

METZLER v. ROWELL et al.

No. A00A2127.

Court of Appeals of Georgia.

March 14, 2001.

Hawkins & Parnell, Jack N. Sibley, Carl H. Anderson, Jr., Atlanta, for appellant.

Goodman, McGuffey, Aust & Lindsey, Judy F. Aust, Atlanta, Ernest R. Bennett, Jr., Lilburn, Stack & Associates, Donald D.J. Stack, Martin A. Shelton, Michael W. Broadbear, Atlanta, for appellees.

SMITH, Presiding Judge.

In this appeal we consider the application of OCGA § 9-11-11.1, the Georgia anti-SLAPP (Strategic Litigation Against Public Participation) statute, to a dispute between a landowner seeking to rezone a parcel of land for development and concerned residents of the affected neighborhood. Because the trial court properly applied the provisions of the statute and did not err in dismissing the complaint as to three of the defendants below, we affirm.¹

Daniel A. Metzler brought this tort action in DeKalb County Superior Court against Atlanta City Council member Cathy Woolard, local residents Helen Loyless, Steven Rowell, and Rochelle Routman, and the Wildwood Urban Forest Group ("Wildwood"). Most of the relevant facts are not disputed by the parties. Metzler owns approximately 31 acres of land in the Morningside neighborhood, located in the City of Atlanta and Fulton County. He filed a petition seeking to rezone the property to allow the construction of 34 houses on approximately nine acres. This zoning petition was opposed by numerous individuals from the community as well as by Wildwood, which the trial court described as "an unincorporated grass-roots environmental organization."

Metzler's zoning request was denied,² and Metzler appealed that decision to the Fulton County Superior Court in March 1999. Numerous individuals from the neighborhood, including the appellees in this case, filed a motion to intervene in the Fulton Superior Court action in June 1999. That motion was denied in December 1999. The Fulton County zoning appeal remained pending at the time of the DeKalb County trial court's order in this case.

In August 1999, Metzler entered into a contract with D.R. Horton, Inc.—Torrey ("Torrey") for Torrey to purchase and develop the land. Under the contract, Torrey had a period of 45 days within which it could, at its option, terminate and void the agreement by written notice to Metzler. During this period, Torrey had the right to enter on and inspect the land and perform various studies, including soil borings and percolation tests. During the week of September 20, 1999, Metzler alleges that Torrey attempted to perform a soil boring test. A concerned individual in the neighborhood called the police, apparently believing that the use of heavy equipment indicated that development had begun without a permit. Metzler alleges that "[d]efendants Woolard or Loyless or an unidentified third party believed to be a member, agent, or actor on behalf of" Wildwood made the telephone call; appellees Routman and Rowell deny having done so.

On September 24, 1999, an attorney representing "a number of the Morningside residents whose property adjoins or is downstream of the Dan Metzler/Torrey property" wrote a letter to Metzler's attorneys and Torrey. He noted that heavy equipment had been used to disturb the land for several days without a permit, including areas in the wetlands on the site and a state-mandated 25-foot stream buffer zone. He advised Metzler and Torrey that "all such activities must be terminated immediately" and that his clients otherwise would seek injunctive relief, and he asked that Metzler and Torrey call him at their earliest convenience to inform him of their intentions. Metzler also alleges that city council member Woolard contacted the Torrey vice president for acquisitions, told him that the property was the subject of a lawsuit and that the City of Atlanta would oppose any effort to develop the land, and asked to be informed of its decision. On September 28, 1999, Torrey notified Metzler that it would not purchase the land.

Metzler then brought this DeKalb County action against Woolard as well as Loyless, Rowell, Routman, and Wildwood, alleging tortious interference with the sales option contract with Torrey, tortious interference with business relations, trespass, and interference with his right of quiet enjoyment of his property.³ He sought punitive damages and injunctive relief.

Rowell and Routman immediately filed a motion to dismiss on numerous grounds, including the provisions of OCGA § 9-11-11.1, and Wildwood joined them in amended motions to dismiss, a motion for protective order, and a motion to quash. The trial court determined that Metzler's action violated OCGA § 9-11-11.1. The trial court also found Metzler's remaining claims to be without merit and that Wildwood was never properly served. This appeal followed. 1. Metzler contends that the trial court erred in finding that his action was a "SLAPP suit" under OCGA § 9-11-11.1. We disagree.

OCGA § 9-11-11.1 is intended to protect Georgia citizens who participate in "matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances" from "abuse of the judicial process." OCGA § 9-11-11.1(a). To prevent such abuse, the statute provides that a claim that could reasonably be construed as infringing upon these rights must be accompanied by a detailed verification and provides for a motion to dismiss and hearing on this issue. OCGA § 9-11-11.1(b). See generally Providence Constr. Co. v. Bauer, 229 Ga.App. 679, 680(1), 494 S.E.2d 527 (1997) (full concurrence as to Division 1). Even if a verification is filed with the complaint, the trial court may nevertheless impose sanctions, including dismissal, "[i]f a claim is verified in violation of this Code section." OCGA § 9-11-11.1(b). The mechanical filing of a verification with the complaint, therefore, does not preclude dismissal if the claim is found by the trial court to infringe on the rights of free speech or petition as defined by the statute.

In interpreting this statute, we first consider the expansive definition of protected speech and petition under OCGA § 9-11-11.1(c):

As used in this Code section, "act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern" includes any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.

Subsection (b) of this Code section also references the privilege statute, OCGA § 51-5-7, specifically subsection (4), and the privilege statute in its turn incorporates the free speech and petition definition set out in OCGA § 9-11-11.1(c). As established by these interlocking Code sections, the law includes two alternative definitions of a protected statement: any statement made to any "official proceeding authorized by law"; or any statement made in connection with an issue under consideration by any official proceeding. The dissent fails to take into account the scope of the latter definition.

At the time of the acts complained of, Metzler's zoning petition had been pending for some time before the City of Atlanta, and a lawsuit was pending in Fulton Superior Court, as Metzler acknowledged in his verified complaint and the trial court noted in its order. While the zoning matter, the lawsuit, and the defendants' petition to intervene in the lawsuit were all pending, there were several "official proceedings" under way, and virtually all the conduct complained of falls within the scope of this very expansive definition. A letter written by an attorney for parties to a petition to intervene, directed to the owner of the land in litigation and a developer actually performing work on that land, is clearly made "in connection with an issue" of zoning and development under consideration by a "judicial body."

The framing of Metzler's claims as tortious interference with contract or business relations does not render the assertion of privilege inapplicable. The statements complained of are not only privileged within the meaning of OCGA §§ 9-11-11.1(c) and 51-5-7(4), but also under the similar "good faith statements" provisions of OCGA § 51-5-7(3), as the trial court noted in its order. In dismissing the action, the trial court relied in part on Choice Hotels v. Ocmulgee Fields, 222 Ga.App. 185, 474 S.E.2d 56 (1996). In Choice, Ocmulgee, a hotel franchisee, claimed that the franchisor, Choice, tortiously interfered with its contractual rights. Ocmulgee's principal was involved in a long-running dispute with Choice that resulted in Ocmulgee's attempted cancellation of the franchise agreement and an attempt to contract with another hotel franchise. Choice then wrote a letter to the other franchise informing it that Ocmulgee was still under contract with Choice; it was this letter that Ocmulgee claimed constituted tortious interference. Id. at 188, 474 S.E.2d 56. We held that Choice's interest in its contract with Ocmulgee was "a valid interest that Choice was entitled to uphold" and that its letter was "made on a proper occasion, its publication was limited to those concerned, ... and it was properly limited in scope." Id. at 188-189(2), 474 S.E.2d 56. Similarly, the neighborhood residents in this case had a valid interest in the zoning and development of their immediate surroundings, and a letter expressing their legal position, sent through an attorney, was made on a proper occasion and limited to...