Paulding Cnty. v. Morrison

• Decision Date: 12 July 2012
• Docket Number: A12A0036,A12A0372,A12A0373.,Nos. A12A0035,s. A12A0035
• Citation: 728 S.E.2d 921,12 FCDR 2382
• Parties: PAULDING COUNTY, Georgia, Board of Commissioners et al. v. MORRISON et al.
• Court: Georgia Court of Appeals

728 S.E.2d 921

12 FCDR 2382

PAULDING COUNTY, Georgia, Board of Commissioners et al.

v.MORRISON et al.

Nos. A12A0035, A12A0036, A12A0372, A12A0373.

Court of Appeals of Georgia.

July 12, 2012.

Keith M. Wiener, Atlanta, and Allen Andre Hendrick, for Appellant.

Glen E. Stinson, Dallas, for Appellee.

DILLARD, Judge.

These four related appeals stem from two complaints filed in the Superior Court of Paulding County by appellees Thad Morrison III and Melissa W. Morrison, in which the Morrisons challenged two separate zoning decisions issued by appellant, the Board of Commissioners of Paulding County, Georgia, and asserted claims of fraud against the Board and its members (collectively, the “Board”).¹ The Board filed timely answers to the complaints, both of which included a “Wherefore” clause that contained a prayer for attorney fees. In four separate orders, the superior court concluded that the prayer for attorney fees in the Board's answers constituted counterclaims against the Morrisons, held that the counterclaims violated the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute,² struck the Wherefore clauses from the Board's answers, and ordered both the Board and its attorney to pay over $265,000 in attorney fees to the Morrisons as a sanction for the alleged statutory violations. Finding that the superior court's orders are neither authorized by the law nor the facts of this case, we reverse.

I. Facts

In May 2006, the Board issued two zoning permits to a company intending to develop real property in Paulding County. One of the permits authorized a rezoning of the real property and the other added more property to the rezoned land (collectively, the “Property”). The Morrisons, who owned land adjacent to the Property, opposed the rezoning. In June 2006, the Morrisons filed two complaints in superior court seeking to appeal the grant of the permits and asserting claims of fraud and corruption against the Board and its individual members.³ The Morrisons prayed for $500,000 in compensatory damages and $1,000,000 in punitive damages.

The Board timely filed verified answers to the complaints. In its answers, the Board asserted no independent counterclaims, but each pleading included a “Wherefore” clause in which the Board prayed in paragraph (c) “that all costs, expenses, and reasonable attorney's fees be awarded to [the Board] for responding to” the Morrisons's complaints (hereinafter, the “Wherefore clauses”).

Shortly thereafter, the Morrisons's counsel sent a letter to the Board in which he asserted that the Wherefore clauses in the Board's answers invoked the anti-SLAPP statute, OCGA § 9–11–11.1, and claimed that the Board had improperly failed to verify its answers in compliance with OCGA § 9–11–11.1(b). The Board responded with a letter in which it “vigorously den[ied]” that the Wherefore clauses constituted “claims” within the meaning of the OCGA § 9–11–11.1(a) and/or that they invoked the statute in any way, and set forth legal authority in support of its position. The Board nonetheless amended its answers in August 2006 to include verifications ⁴—filed “under protest” and “solely in an abundance of caution and in order to avoid unnecessary expense and undue delay in the case”—in which the Board maintained that it had not asserted “claims” and that OCGA § 9–11–11.1 had no application to its answers, but certified that the Wherefore clauses were not “interposed for any purpose, such as to suppress [the Morrisons's] right to free speech or right to petition government, or to harass, or to cause unnecessary delay or needless increase in the cost of litigation.” ⁵

Also in 2006, the Board filed two separate motions to dismiss the Morrisons's complaints, asserting, inter alia, that the Morrisons failed to present a timely and sufficient ante-litem notice and that the complaints were otherwise barred as a matter of law because: (1) they were untimely, (2) the Morrisons lacked standing to bring the claims, and (3) the damages sought ( i.e., punitive damages) were not recoverable against a governmental entity. The superior court never ruled on these motions, which remain pending in that court.⁶

For the next two years, the Morrisons engaged in vigorous litigation, including seeking the recusal of two superior-court judges, although no further express mention was made of the Wherefore clauses. Then, in May 2008, the Morrisons moved to dismiss the Board's defensive pleadings as violative of the anti-SLAPP statute, asserting that the Board (1) filed counterclaims in its answers and (2) failed to file verifications in accordance with OCGA § 9–11–11.1(b).⁷

The superior court did not hold a hearing on the Morrisons's motion until March 2010, nearly two years later.⁸ It subsequently issued two separate and nearly identical orders—dated November 22, 2010, and May 12, 2011, respectively—in which it held that the Wherefore clauses in the Board's answers constituted counterclaims that violated the anti-SLAPP statute and dismissed the Board's prayers for attorney fees.⁹ The superior court acknowledged in the orders that the Board had filed verifications in accordance with OCGA § 9–11–11.1(b), but summarily concluded that the verifications were false because the “counterclaims” were neither grounded in fact nor warranted by law; that they were asserted for the improper purpose of suppressing the Morrisons' right to petition the government for the redress of grievances; and that the Morrisons had incurred unnecessary legal expenses in defending them.¹⁰ The court then ruled that the Morrisons were entitled to recover attorney fees as a sanction pursuant to OCGA § 9–11–11.1(b), and scheduled hearings to determine the amount of those fees. ¹¹

During the subsequent hearings in each respective case, the Morrisons's counsel, Glen E. Stinson, was the sole witness. Although Stinson neither produced nor tendered any billing statements, invoices, or business records, he testified that he had incurred $147,765 in fees in one case and $117,348.68 in fees in the other.¹² Stinson further testified that, with the exception of time spent preparing and filing the complaints, “every hour” of the fees incurred during the five years of litigation was directly attributable to the Board's Wherefore clauses.¹³

The superior court entered two separate orders, both dated July 6, 2011, granting judgment against the Board and awarding Stinson the full amount of the fees requested in the two cases, a total award of $265,113.68, against both the Board and its counsel, to be paid instanter.¹⁴

We granted the Board's applications for interlocutory appeal to consider all four of the superior court's rulings—the orders dated November 22, 2010, and May 12, 2011, in which the superior court held that the Wherefore clauses constituted counterclaims and violated the anti-SLAPP statute, and the two orders dated July 6, 2011, in which the superior court sanctioned the Board for the full amount of Stinson's fees.¹⁵ And while we could reverse the superior court's rulings for any number of reasons, it is only necessary to do so on the ground that the Wherefore clauses in the Board's answers did not constitute counterclaims.

II. Analysis

We begin by noting that Georgia's anti-SLAPP statute was adopted in recognition “that it is in the public interest to encourage participation by the citizens of Georgia 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.” ¹⁶ Its purpose is to prevent a “chill[ing]” of “the valid exercise of the constitutional rights of freedom of speech and the right to petition government for a redress of grievances ... through abuse of the judicial process.” ¹⁷

Consequently, the General Assembly adopted a mandate that, “[f]or any claim asserted against a person or entity arising from an act by that person or entity which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances ... in connection with an issue of public interest or concern,” the party asserting the claim and his or her attorney must file a verification in accordance with OCGA § 9–11–11.1(b).¹⁸ The verification in essence certifies that the claim is well-grounded in law and fact, is not directed toward a privileged communication, and is not interposed for an improper purpose.¹⁹ If the court determines that a party falsely verified a claim, the party and/or his or her counsel shall be sanctioned, and the sanction may include dismissal of the claim and/or an order to pay the other party's attorney fees.²⁰

Under well-established Georgia law, however, the Board's prayer for relief requesting attorney fees does not, in and of itself, constitute a claim.²¹ Indeed, even had the Board intended it so, “[t]here is no law by which [a] case brought by a plaintiff can be turned into a damage suit by the defendant against the plaintiff for bringing it, while it is still pending.” ²² Moreover, we have previously held that nothing in the anti-SLAPP statute imposes an obligation to file OCGA § 9–11–11.1(b) verifications in conjunction with purely defensive motions.²³ And finally, the anti-SLAPP statute does not preclude a party defending a lawsuit from preserving its right to seek attorney fees and expenses if the lawsuit later is determined to lack substantial justification.²⁴

In sum, the superior court has a duty to construe “[a]ll pleadings ... as to do substantial justice.” ²⁵ That was not done in this case. The court's determination that the Board's Wherefore clauses were impermissible counterclaims constitutes plain legal error,²⁶ and consequently its subsequent holdings that the “counterclaims” were falsely verified and warranted sanctions must also be reversed.

Judgment reversed.

ELLINGTON, C.J., and PHIPPS, P.J., concur.

1. The appellant herein includes the...