Neff v. McGee, A18A0720

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtRay, Judge.
Citation346 Ga.App. 522,816 S.E.2d 486
Docket NumberA18A0720
Decision Date21 June 2018
Parties NEFF v. MCGEE.

346 Ga.App. 522
816 S.E.2d 486

NEFF
v.
MCGEE.

A18A0720

Court of Appeals of Georgia.

June 21, 2018


816 S.E.2d 488

Jean–Alain Schneider, Alexandra Chanin Nelson, Atlanta, John Timothy McDonald, Peter Daniel Coffman, for Appellant.

Charles A. Gower, Columbus, Shaun Patrick O'Hara, for Appellee.

Ray, Judge.

346 Ga.App. 522

Christal McGee sued Michael Neff and his law firm, the Law Offices of Michael Lawson Neff, P.C., (collectively, "Neff"), for defamation arising from an article Neff posted to his law firm’s website and for statements he made to other media outlets. The statements related to the dangers of Snapchat’s Speed Filter and an automobile collision that occurred when McGee was allegedly using the Speed Filter to capture a photo documenting her high speed. Neff’s clients were injured in the collision. Neff filed a motion to strike or dismiss the complaint under Georgia’s anti-SLAPP statute, OCGA § 9–11–11.1. The trial court denied the motion, and Neff filed the

816 S.E.2d 489

instant appeal. As set forth in more detail hereinbelow, we reverse.

On September 10, 2015, McGee crashed her car into the car driven by Wentworth Maynard. The Maynards hired Neff to represent them in litigation arising from the collision. In that action, the Maynards sued McGee and Snapchat, Inc., alleging that McGee was driving at an excessive speed as a result of her use of the Snapchat Speed Filter at the time of the collision.1 Snapchat is an application made for mobile devices that allows users to take temporary photos and videos, also known as "Snaps," and share them with friends. Snapchat creates "Filters" that allow users to include captions, drawings, and graphic overlays on a user’s photos or videos. One of these filters is a speedometer that shows the speed at which a user is moving and allows for that speed to be superimposed to a Snap before sending it out over the application (the "Speed Filter").

On November 24, 2015, Heather McCarty, one of McGee’s passengers at the time of the collision, provided an affidavit to Neff. McCarty’s affidavit stated, inter alia, the following:

I looked up and noticed that we seemed to be accelerating. I looked in the front and saw [McGee] holding her phone. The
346 Ga.App. 523
screen had a speed on it, which was about 80 m.p.h. and climbing. I asked [McGee] if her phone was keeping up with the speed of the car. [McGee] said it was. I told her I was pregnant and asked her to slow down. [McGee] responded and said that she was just trying to get the car to 100 m.p.h. to post it on Snapchat. She said "I’m about to post it." I began pleading with [McGee] to slow down. Just after I saw the speed of 113 m.p.h., a car pulled out of an apartment complex, and I screamed.

Soon after the collision, McGee did post a Snap, not of her speed as shown on her car’s dashboard, but showing blood on her face, with the caption "Lucky to be alive" imposed on the photo.

As part of his investigation into the incident prior to filing suit, Neff hired an accident reconstructionist to examine the cars and the scene. In February 2016, the reconstructionist concluded in his report that McGee’s car was traveling between 91 and 107 m.p.h. at the time of the collision. Based upon this report and McCarty’s affidavit, the Maynards filed suit against Snapchat and McGee on April 20, 2016.

On or about April 26, 2016, Neff posted an article about the case on his firm’s website, along with a link to the Complaint. The article was titled "Lawsuit filed against Snapchat for Distracted Driving[,]" and includes the following: a synopsis of the incident, including the description of McGee’s use of Snapchat while driving, a statement about the dangers of distracted driving, a description of the "[R]ise of Snapchat[,]" the public debate about the dangers of the Speed Filter, and a statement about the Maynards’ lawsuit. Various news organizations also ran stories about the dangers of the Snapchat Speed Filter and referenced the Maynards’ complaint. These articles cited to the Maynards’ lawsuit and the article posted to Neff’s law firm website.

On April 11, 2017, McGee sued Neff for defamation and related claims based on the article on the Neff website and other statements he made. In response, Neff then filed a motion to strike and to dismiss McGee’s lawsuit, arguing that the article was conditionally privileged pursuant to OCGA § 51–5–7 (4), (7) and OCGA § 9–11–11.1, and as a result, that McGee’s lawsuit was subject to dismissal pursuant to Georgia’s anti-SLAPP statute. The trial court denied the motion to dismiss, and Neff filed the instant appeal.

We review de novo the trial court’s denial of Neff’s motion to dismiss. Rogers v. Dupree , 340 Ga.App. 811, 814 (2), 799 S.E.2d 1 (2017). Upon review of a trial court’s denial of a motion to dismiss, "we construe the pleadings in the light most favorable to the plaintiff

346 Ga.App. 524

with any doubts resolved in the plaintiff’s favor." (Citation and punctuation omitted.) Id.

816 S.E.2d 490

A "strategic lawsuit against public participation" (SLAPP action) is a lawsuit filed with the intent to silence and intimidate opponents or critics by overwhelming them with the cost of a legal defense until they abandon that opposition or criticism. Rogers , supra at 814 (2), 799 S.E.2d 1. The General Assembly enacted the anti-SLAPP statute "to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their right to petition government for redress of grievances. The statute’s stated purpose is to prevent a chilling of that right through the abuse of the judicial process." (Punctuation and footnotes omitted.) Hindu Temple and Comm. Ctr. of the High Desert, Inc. v. Raghunathan , 311 Ga.App. 109, 113, 714 S.E.2d 628 (2011).

The current version of the anti-SLAPP statute, OCGA § 9–11–11.1,2 provides, in pertinent part, that

A claim for relief against a person or entity arising from any act of such person or entity which could reasonably be construed as an act in furtherance of the person’s or entity’s right of petition or free speech 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 shall be subject to a motion to strike unless the court determines that the nonmoving party has established that there is a probability that the nonmoving party will prevail on the claim.

OCGA § 9–11–11.1 (b) (1). An act in furtherance of a person’s right of petition or free speech includes, inter alia, any written or oral statement made before a judicial proceeding; in connection with an issue under consideration by a legislative or judicial body; or in connection with a public issue or an issue of public concern. OCGA § 9–11–11.1 (c) (1)–(4).

Thus, Georgia’s revised anti-SLAPP statute involves a two-step process for determining whether a claim is subject to being stricken. In the first step, the defendant bringing an anti-SLAPP motion to

346 Ga.App. 525

dismiss must make a prima facie showing that the plaintiff’s suit is subject to OCGA § 9–11–11.1 by showing that the defendant’s challenged acts were taken in furtherance of his or her constitutional rights of petition or free speech in connection with an issue of public concern as defined by the statute. OCGA § 9–11–11.1 (b) (1). The burden then shifts to the plaintiff to demonstrate that there is a "probability" that she will prevail on her claims at trial. OCGA § 9–11–11.1 (b) (1). "In making the determination as provided for in [ OCGA § 9–11–11.1 (b) (1) ], the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based[.]" OCGA § 9–11–11.1 (b) (2).

In the instant appeal, the parties do not contest that the procedural protections of the anti-SLAPP statute applies to the contested speech. However, Neff argues that the trial court erred in concluding that McGee had met her burden of establishing a probability that she would prevail on her claims for defamation.

1. Pretermitting whether the trial court erred in its determination that McGee had evidence that arguably suggests that the statements made by Neff in his article were false, which is an element of defamation,3 we find that Neff’s statements were conditionally privileged under OCGA § 51–5–7.

Under the anti-SLAPP statute, McGee must show that she has a probability

816 S.E.2d 491

of prevailing on her claims in order to survive Neff’s motion to dismiss. OCGA § 9–11–11.1 (b) (1). Intertwined with McGee’s probability of prevailing on her claim for...

To continue reading

Request your trial
9 practice notes
  • Am. Civil Liberties Union, Inc. v. Zeh, S20G1473
    • United States
    • Supreme Court of Georgia
    • October 19, 2021
    ...interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons." Neff v. McGee , 346 Ga. App. 522, 526, 816 S.E.2d 486 (2018) (citation and punctuation omitted).17 Zeh filed a notice of appeal from the order granting the Brunswick News......
  • Rogers v. Dupree, A16A1714
    • United States
    • United States Court of Appeals (Georgia)
    • March 15, 2019
    ...or opponents by overwhelming them with the cost of a legal defense until they abandon their criticism or opposition. See Neff v. McGee , 346 Ga. App. 522, 524, 816 S.E.2d 486 (2018). To combat these lawsuits, Georgia has adopted an anti-SLAPP statute that "encourage[s] participation by the ......
  • Rogers v. Dupree, A16A1714
    • United States
    • United States Court of Appeals (Georgia)
    • March 15, 2019
    ...or opponents by overwhelming them with the cost of a legal defense until they abandon their criticism or opposition. See Neff v. McGee , 346 Ga. App. 522, 524, 816 S.E.2d 486 (2018). To combat these lawsuits, Georgia has adopted an anti-SLAPP statute that "encourage[s] participation by the ......
  • Partlow v. State, A18A0436
    • United States
    • United States Court of Appeals (Georgia)
    • June 21, 2018
    ...its discretion in denying the motion to suppress evidence based upon an illegal traffic stop.54 Assuming without deciding that Hill, 816 S.E.2d 486as a passenger with no property interest in the car, had standing to challenge the legality of the stop, the search of the car, and the seizure ......
  • Request a trial to view additional results
9 cases
  • Am. Civil Liberties Union, Inc. v. Zeh, S20G1473
    • United States
    • Supreme Court of Georgia
    • October 19, 2021
    ...interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons." Neff v. McGee , 346 Ga. App. 522, 526, 816 S.E.2d 486 (2018) (citation and punctuation omitted).17 Zeh filed a notice of appeal from the order granting the Brunswick News......
  • Rogers v. Dupree, A16A1714
    • United States
    • United States Court of Appeals (Georgia)
    • March 15, 2019
    ...or opponents by overwhelming them with the cost of a legal defense until they abandon their criticism or opposition. See Neff v. McGee , 346 Ga. App. 522, 524, 816 S.E.2d 486 (2018). To combat these lawsuits, Georgia has adopted an anti-SLAPP statute that "encourage[s] participation by the ......
  • Rogers v. Dupree, A16A1714
    • United States
    • United States Court of Appeals (Georgia)
    • March 15, 2019
    ...or opponents by overwhelming them with the cost of a legal defense until they abandon their criticism or opposition. See Neff v. McGee , 346 Ga. App. 522, 524, 816 S.E.2d 486 (2018). To combat these lawsuits, Georgia has adopted an anti-SLAPP statute that "encourage[s] participation by the ......
  • Partlow v. State, A18A0436
    • United States
    • United States Court of Appeals (Georgia)
    • June 21, 2018
    ...its discretion in denying the motion to suppress evidence based upon an illegal traffic stop.54 Assuming without deciding that Hill, 816 S.E.2d 486as a passenger with no property interest in the car, had standing to challenge the legality of the stop, the search of the car, and the seizure ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT