Providence Const. Co. v. Bauer

• Decision Date: 17 November 1997
• Docket Number: No. A97A1630,A97A1630
• Citation: 229 Ga.App. 679,494 S.E.2d 527
• Parties: , 97 FCDR 4328 PROVIDENCE CONSTRUCTION COMPANY v. BAUER.
• Court: Georgia Court of Appeals

Page 527

494 S.E.2d 527

229 Ga.App. 679, 97 FCDR 4328

PROVIDENCE CONSTRUCTION COMPANY v. BAUER.

No. A97A1630.

Court of Appeals of Georgia.

Nov. 17, 1997.

Reconsideration Denied Dec. 5, 1997.

Certiorari Denied May 1, 1998.

Ronald S. Leventhal, pro se.

Talley & Darden, David P. Darden, Marietta, David T. Markle, Atlanta, for appellee.

BEASLEY, Judge.

This case presents the Court its first opportunity to apply the provisions of OCGA § 9-11-11.1. This 1996 law, sometimes referred to as an "anti-SLAPP" statute, is designed to prevent "Strategic Litigation Against Public Participation." See Kent & Isenberg, "Georgia's New Anti-SLAPP Statute," Ga.Bar J., (June 1997), p. 26.

Providence Construction Company brought this suit against Dave Bauer and other residents of Cumberland Ridge, a Cobb County subdivision developed by Providence. Providence is represented in court by its president, who is not a member of the State Bar of Georgia, but the appeal was docketed on April 8, 1997, before the rule in Eckles v. Atlanta Tech. Group, 267 Ga. 801, 806(2), 485 S.E.2d 22 (1997), became effective.

As far as defendants are concerned, only Bauer remains as a party. The developer sought to enjoin the residents from actively opposing its efforts to rezone a parcel of property adjoining the subdivision. Providence also sought money damages on its claim that Bauer and other residents breached contractual duties and tortiously interfered with Providence's contractual relations by circulating petitions opposing rezoning, writing letters to county officials and speaking out before the Cobb County Planning Commission. After an expedited hearing held pursuant to OCGA § 9-11-11.1(d), the court found Providence's suit to be an improper attempt to chill Bauer's free speech and petition rights and dismissed the complaint.

1. In enacting the anti-SLAPP statute, the legislature declared, "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. The General Assembly of Georgia further finds and declares that the valid exercise of [these] constitutional rights ... should not be chilled through abuse of the judicial process." OCGA § 9-11-11.1(a).

To prevent such abusive litigation, the legislature imposed several procedural safeguards. Any complaint arising from an act "which could reasonably be construed as an act in furtherance of" a defendant's free speech or petition rights must be accompanied by a verification, based on belief formed after reasonable inquiry, that the suit is well grounded in fact and law or represents a good-faith argument for the extension of existing law. OCGA § 9-11-11.1(b). The plaintiff and her counsel must also verify the act forming the basis of the suit is not a "privileged communication" under OCGA § 51-5-7, and that the suit is not filed "for any improper purpose such as to suppress a person's ... right of free speech or right to petition government...." OCGA § 9-11-11.1(b). If the defendant files a motion to dismiss, the trial court must hold a hearing on the motion within 30 days of its service, if possible. OCGA § 9-11-11.1(d).

Bauer filed a motion to dismiss on grounds that the activities of which Providence complained were privileged as "[s]tatements made in good faith as part of an 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...." OCGA § 51-5-7(4). Such statements are defined in OCGA § 9-11-11.1(c) to include written and oral statements and petitions made to legislative or executive bodies regarding an issue being reviewed by the body. As the trial court construed the statute, opposing a rezoning application by collecting signatures for a petition, writing letters to government officials, and speaking out at an official hearing clearly fall within the category of privileged activities.

Providence defends its suit against Bauer as valid because his actions violated a restrictive covenant between residents of Cumberland Ridge and Providence which runs with the land and binds subsequent purchasers such as Bauer whose deeds reflect they are subject to the restrictive covenant. See generally OCGA §§ 44-5-60; 44-5-39. See also Rosen v. Wolff, 152 Ga. 578, 583, 110 S.E. 877 (1922) (discussion of covenants running with land compared with personal covenants); Lowry v. Norris Lake Shores Dev. Corp., 231 Ga. 549, 551, 203 S.E.2d 171 (1974) (covenant runs if it concerns the land or its use and subsequent grantee has notice).

The covenant states: "It is presently contemplated by [Providence] that portions of the overall scheme for the Development, and any and all contiguous land in which [Providence] presently has or may hereafter acquire an interest, include, in addition to single-family residential lots, phases to be developed as apartments, townhouses, condominiums, patio homes, shopping centers (with tenants who shall be approved at the sole discretion of [Providence] ), golf driving range, office, storage and light industrial. By acceptance of the deed conveying a Lot, each Owner acknowledges the foregoing plan and Covenants and agrees not to oppose any application to amend the zoning ordinances or any petition seeking a variance of the zoning laws and regulations of the appropriate political subdivisions in order to permit such land usages or the use of other property in the area for a golf course, lounge, restaurants, and recreational facilities; further, each owner agrees not to oppose any license application or transfer relating to any such permitted land usages in the Development and in any and all contiguous land in which [Providence] presently has or may hereafter acquire an interest." This restrictive covenant is unenforceable as against public policy.

"A contract cannot be said to be contrary to public policy unless the General Assembly has declared it to be so, or unless the consideration of the contract is contrary to good morals and contrary to law, or unless the contract is entered into for the purpose of effecting an illegal or immoral agreement or doing something which is in violation of law. [Cits.]" Porubiansky v. Emory Univ., 156 Ga.App. 602, 603, 275 S.E.2d 163 (1980), aff'd, 248 Ga. 391, 282 S.E.2d 903 (1981). "A contract which is against the policy of the law cannot be enforced." OCGA § 13-8-2(a).

In OCGA § 9-11-11.1(a), the General...