Rogers v. Dupree

• Citation: 799 S.E.2d 1
• Decision Date: 16 March 2017
• Docket Number: A16A1716,A16A1715,A16A1717,A16A1714
• Parties: ROGERS v. DUPREE et al. Dupree et al. v. Rogers Cohen et al. v. Rogers. Cohen et al. v. Rogers
• Court: United States Court of Appeals (Georgia)

340 Ga.App. 811
799 S.E.2d 1

ROGERS
v.
DUPREE et al.

Dupree et al.
v.
Rogers

Cohen et al.
v.
Rogers.

Cohen et al.
v.
Rogers

A16A1714
A16A1715
A16A1716
A16A1717

Court of Appeals of Georgia.

March 16, 2017

799 S.E.2d 3

William Bradley Hill Jr., Joseph Chandler Sharp, Atlanta, Alexander Joseph Bartko, for Appellant in A16A1714.

Thomas E. Cauthorn III, John E. Floyd, Tiana Scogin Mykkeltvedt, Atlanta, J. Wickliffe Cauthorn, Marietta, for Appellee in A16A1714.

Thomas E. Cauthorn III, J. Wickliffe Cauthorn, Marietta, for Appellant in A16A1715.

William Bradley Hill Jr., Joseph Chandler Sharp, Atlanta, Alexander Joseph Bartko, for Appellee in A16A1715, A16A1716, and A16A1717.

John E. Floyd, Tiana Scogin Mykkeltvedt, Atlanta, for Appellant in A16A1716 and A16A1717.

Mercier, Judge.

These related appeals arise from a suit in the Superior Court of Cobb County, brought by Joseph Rogers, Jr. ("Rogers") against David M. Cohen ("Cohen"), Complex Law Group, LLC, and D.M. Cohen, Inc.; Hylton B. Dupree, Jr. ("Dupree"), Dupree & Kimbrough LLP, and Hylton B. Dupree, Jr., P.C.; and John C. Butters ("Butters"). The Cohen defendants (Cohen and his related entities listed above), the Dupree defendants (Dupree and his related entities listed above) and Butters moved the trial court to dismiss Rogers's claims against them (1) for failure to state a claim pursuant to OCGA § 9-11-12 (b) (6) ; and (2) pursuant to OCGA § 9-11-11.1, Georgia's statute regarding strategic lawsuits against public participation (the "anti-SLAPP" statute). The trial court granted the Dupree defendants' motion to dismiss pursuant to the anti-SLAPP statute and denied their motion to dismiss for failure to state a claim (except as to one of the alleged predicate acts for a RICO claim). The court denied the motion by Butters and the Cohen defendants to dismiss pursuant to the anti-SLAPP statute, denied their motion to dismiss for failure to state a claim, and denied their motion to dismiss Rogers's claims or sanction him because of his alleged breach of a mediation agreement.

On appeal, Rogers contends that the trial court erred in granting the Dupree defendants' anti-SLAPP motion to dismiss. The Dupree defendants contend that the court erred in denying their motion to dismiss for failure to state a claim, contending that Rogers's claims are barred by OCGA § 51-7-80 and that Rogers failed to state a tort claims where the defendants had no duty to him. Butters and the Cohen defendants contend that the trial court erred in not dismissing Rogers's claims against them pursuant to the Noerr-Pennington doctrine; not dismissing the claims under the anti-SLAPP statute based on the alleged falsity of Rogers's verifications; failing to dismiss the claims or impose a sanction despite finding that Rogers breached a mediation agreement with them; and in holding that Georgia's abusive litigation statute does not bar Rogers's claims and does not apply to pre-litigation conduct.

For the reasons that follow, we reverse the trial court's grant of the Dupree defendants' anti-SLAPP motion as challenged in A16A1714; affirm the trial court's denial of the Dupree defendants' motion to dismiss for failure to state a claim in A16A1715; and affirm the trial court's denial of Butters's and the Cohen defendants' motion to dismiss for failure to state a claim, the denial of their motion to dismiss on anti-SLAPP grounds, and the denial of their motion to dismiss or impose sanctions based on Rogers's alleged breach of the mediation agreement in A16A1716 and A16A1717.

1. Background

Dupree, Cohen and Butters are attorneys who represented Mye Brindle ("Brindle"), who had previously been employed as a housekeeper or personal assistant at Rogers's

799 S.E.2d 4

home. Brindle engaged in sexual activity with Rogers during that employment. In 2008, Brindle was injured and was terminated from her position due to her inability to continue working. She was rehired in 2009 by Rogers and his wife as their housekeeper and house manager. When she returned to work at Rogers's home, the sexual activity between Rogers and Brindle resumed. During her term of employment, Brindle made audio recordings of sexual activity between Rogers and herself, without Rogers's knowledge.

In June 2012, Brindle engaged Butters and Cohen to represent her. On June 20, 2012, after she had engaged Butters and Cohen, Brindle used a camera to record a sexual encounter between Rogers and herself. It is undisputed that Rogers was not aware that he was being recorded and did not consent to the recording. Brindle resigned from her position. On July 16, 2012, Rogers received a letter from Cohen, stating that Rogers had engaged in "a long history of unwelcome sexual demands and other sexual harassment and abuse" towards [Brindle], which was "well documented by numerous video and audio recordings." The letter stated that Brindle was prepared to proceed with a lawsuit and an EEOC complaint, and went on to say:

It is my experience that these sensitive type matters involving claims of a sexual nature are always best resolved early and outside of public litigation. I have been involved in numerous matters where defendants engaged in a scorched earth strategy of counter accusations, denial, attempted delay, obfuscation and refusal to address the core issues promptly and properly. Never have I seen that strategy successful. Whether through their own arrogance or "filtered" information and poor advice of defense counsel who seemed more interested in billing and protracted litigation than the best interests of their clients and that of their clients' families, the results were ultimately the same.

In virtually all of those situations, the documents, facts, witnesses and other matters that came to light through protracted litigation and media attention drew other private litigation, shareholder derivative demands for immediate removal of those individuals, intrusive governmental investigations, Department of Justice, Attorneys General or SEC involvement, as well as civil and criminal charges that resulted in disgorgement, forfeiture, lengthy incarceration periods in several instances, divorce and the destruction of families.

...

My point here is simply to attempt to convey my belief that it is in the best interest of all involved to avoid this type of protracted litigation, injurious publicity to all parties, etc.

Dupree became involved in representing Brindle, along with Cohen and Butters. There is no evidence to demonstrate the exact date on which Dupree was engaged, but it is undisputed that on August 2, 2012, he was involved in this matter. On that date, Rogers's counsel met with Cohen, Butters and Dupree in Dupree's office. On

August 6, 2012, Dupree forwarded a segment of the video recording to one of Rogers's attorneys.

On September 14, 2012, Rogers and his counsel participated in mediation with Brindle, Cohen, Butters and Dupree, before which the parties signed a non-disclosure agreement. The mediation ended without agreement. The same day, Rogers filed a complaint (Cobb 1 ) using pseudonyms and seeking, inter alia, an injunction to prevent Brindle from disseminating the video (the complaint was later amended to include the parties' names). On September 19, 2012, Brindle filed suit in the State Court of Fulton County making claims related to her sexual activity with Rogers. Cohen accompanied Brindle to an appointment at the Atlanta Police Department on September 27, 2012 and a police report was filed September 28, 2012. The record was sealed in the Fulton County action. On October 11, 2012, Brindle dismissed the Fulton County action and instead asserted her claims as counterclaims in Cobb 1. On May 30, 2014, Rogers filed the suit in the instant case in the Superior Court of Cobb County (Cobb 2 ).

Rogers's suit in the instant case, Cobb 2 , alleged against all defendants claims of invasion of privacy- intrusion upon seclusion, solitude and private affairs; invasion of privacy-

799 S.E.2d 5

public disclosure of private acts; civil conspiracy; intentional infliction of emotional distress; conspiracy to violate the Georgia RICO Act; violation of the Georgia RICO Act; aiding and abetting breach of confidential relationship; negligence; and a claim for litigation expenses.

2. Anti-SLAPP Motions

We review de novo the trial court's denial of Cohen and Butters's motion to dismiss. Barnett v. Holt Builders , 338 Ga.App. 291, 295, 790 S.E.2d 75 (2016). Similarly, we review de novo the trial court's grant of Dupree's motion to dismiss. Project Control Svcs. v. Reynolds , 247 Ga.App. 889, 891 (1), 545 S.E.2d 593 (2001). "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." Emory Univ. v. Metro Atlanta Task Force for the Homeless , 320 Ga.App. 442, 445, 740 S.E.2d 219 (2013) (punctuation and footnote omitted.).

A "strategic lawsuit against public participation" (SLAPP action) is a lawsuit intended to silence and intimidate critics or opponents by overwhelming them with the cost of a legal defense until they abandon that criticism or opposition. In order to protect individuals who speak out on matters of public concern, many states, including Georgia, have adopted anti-SLAPP...