Rosser v. Clyatt

Decision Date02 November 2018
Docket NumberA18A0987,A18A0843
Citation821 S.E.2d 140,348 Ga.App. 40
Parties ROSSER v. CLYATT et al. Clyatt v. Grady Electric Membership Corporation.
CourtGeorgia Court of Appeals

W. Pope Langdale III, Kathryn Drew Parrish Bennett, for Appellant (Case No. A18A0843).

Thomas L. Lehman, Cairo, Robert J. Middleton Jr., Gabriel Stewart Ridley Ridley, Kathryn Shirley Dunnam, Albany, for Appellees (Case No. A18A0843).

Gabriel Stewart Ridley Ridley, for Appellant (Case No. A18A0987).

T. Joshua R. Archer, Margaret Claire Chason, Tyler Preston Bishop, Atlanta, for Appellee (Case No. A18A0987).

McFadden, Presiding Judge.

Under the Georgia Electric Membership Corporation Act, OCGA § 46-3-170 et seq., customers of an electric membership corporation generally are members of the corporation with certain rights. OCGA §§ 46-3-260, 46-3-266. These two cases arise from a dispute among some members of the Grady Electric Membership Corporation ("Grady EMC") and its management team.

The dispute ended up in court, and the parties settled. Five months later, Thomas A. Rosser, Sr., the former president and general manager who resigned pursuant to the settlement agreement, filed a defamation lawsuit against four Grady EMC members who had formed a group called Take Back Our Grady EMC; a business with a Facebook page on which messages about Rosser were posted; and the local newspaper. In Case No. A18A0843, Rosser appeals the grant of the defendants' motion to strike the defamation lawsuit under Georgia’s Anti-SLAPP ("strategic litigation against public participation") statute, OCGA § 9-11-11.1. We hold that the trial court did not err in determining that the anti-SLAPP statute applies and that Rosser had not established that there is a probability that he would prevail on his claims. So we affirm the judgment.

Case No. A18A0987 stems from a separate, but related, lawsuit. In that case, Grady EMC sued William Gordon Clyatt, one of the founders of Take Back Our Grady EMC. Grady EMC sought, among other things, to permanently enjoin Clyatt from publicly disclosing certain records obtained in the earlier, settled litigation. Clyatt appeals the trial court’s order granting injunctive relief. Because there is no evidence that Grady EMC would suffer an imminent and irreparable injury absent the permanent injunction, we reverse the grant of injunctive relief. We affirm the trial court’s other rulings.

Case No. A18A0843 .

1. Background .

Grady EMC, like all EMCs, is a "private, nonprofit, electric utilit[y] owned by the members [it] serve[s]." Walker v. Oglethorpe Power Corp. , 341 Ga. App. 647, 802 S.E.2d 643 (2017). See OCGA § 46-3-170 et seq. It has the exclusive right to furnish service within its service area. See Sawnee Elec. Membership Corp. v. Ga. Pub. Svc. Comm. , 273 Ga. 702, 707, 544 S.E.2d 158 (2001). Grady EMC has more than 13,000 members.

In 2014, Clyatt, a member of Grady EMC, began questioning some of management’s decisions, including, among other things, lending $468,000 to Rosser; hiring Rosser’s son as president and general manager of Grady EMC to succeed Rosser; and holding tens of millions of dollars in earnings instead of returning the money to the member-owners.

In April 2014, Clyatt met with Grady EMC leadership to discuss his concerns, but he was not satisfied with their response. Clyatt purchased nine advertisements in the local newspaper, the Cairo Messenger, to publicize his concerns. Other members of Grady EMC contacted Clyatt, and ultimately a group of them, including Clyatt and defendants Ronald Sellars, Seaborn Roddenberry, and Jerome Ellis, formed a committee they called "Take Back Our Grady EMC."

In 2014, the group filed a lawsuit against Grady EMC, Rosser, his son, and other officers and directors. The parties resolved the litigation by entering a settlement agreement that, among other things, required Rosser to resign his employment and terminate any affiliation, other than as a member, with Grady EMC and its entities, and required the formation of a special committee to evaluate the claims of Take Back Our Grady EMC and advise the board. As a result, the trial court entered a consent order dismissing the case with prejudice on May 24, 2016.

Five months after the dismissal of the 2014 lawsuit, Rosser filed this action, alleging that certain statements written by Clyatt were defamatory. He sued Clyatt, Sellars, Roddenberry, Ellis, Jane and John Doe defendants, Deep South Coins and Jewelry, Inc., which is owned by Clyatt and whose Facebook page included statements about Rosser, and the Messenger Publishing Company, the publisher of the local newspaper, the Cairo Messenger, which published Clyatt’s and Take Back Our Grady’s paid advertisements about Rosser. The defendants answered the complaint and moved to strike it under OCGA § 9-11-11.1, Georgia’s anti-SLAPP statute. The trial court granted the motions to strike and Rosser filed this appeal.

2. The anti-SLAPP statute applies.

Rosser argues that the trial court erred by striking his lawsuit under OCGA § 9-11-11.1 because the anti-SLAPP statute does not apply. We disagree.

(a) The two-step framework.

OCGA § 9-11-11.1 is intended to protect persons exercising their constitutional rights of petition and freedom of speech. See OCGA § 9-11-11.1 (a). To accomplish this goal, the statute is to be construed broadly. Id.

First enacted in 1996, the statute was significantly revised effective July 1, 2016. Neff v. McGee , 346 Ga. App. 522, 524 n. 2, 816 S.E.2d 486 (2018). The revised statute applies to this case even though some of the allegedly defamatory statements were made prior to July 1, 2016. See generally Crane Composites v. Wayne Farms, LLC , 296 Ga. 271, 273, 765 S.E.2d 921 (2014) ("[B]ecause the rights created by the statute pertain to the conduct of litigation, the statute is acting prospectively, not retroactively, when applied to litigation commenced after the effective date."). See also Atlanta Humane Society v. Harkins , 278 Ga. 451, 454 (1), 603 S.E.2d 289 (2004).

The revision did three things. It expanded the scope of protected speech to include any conduct that reasonably could be construed as conduct related to "a matter of public concern in furtherance of the right to petition, not just to speech connected to an official proceeding (subsection (c) (4) )[.]" Neff , 346 Ga. App. at 524 n. 2, 816 S.E.2d 486. The only speech protected under the former version of the statute was speech connected to an official proceeding. See Emory Univ. v. Metro Atlanta Task Force for the Homeless , 320 Ga. App. 442, 444-445 (1), 740 S.E.2d 219 (2013).

The revision "replaced the plaintiff’s complaint verification requirement with a probability-of-success standard (subsection (b) (1) )[.]" Id. And it "provided a right of direct appeal from the grant or denial of a motion to dismiss under the statute (subsection (e) )." Id. The statute now provides:

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).

The application of the 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 [strike] must make a prima facie showing that the plaintiff’s suit is subject to OCGA § 9-11-11.1...." Neff , 346 Ga. App. at 524-525, 816 S.E.2d 486. The defendant does this by showing that the defendant’s challenged acts could reasonably be construed as acts 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 [he] will prevail on [his] claims at trial. OCGA § 9-11-11.1 (b) (1)." Neff , 346 Ga. App. at 525, 816 S.E.2d 486. Unlike the former versions of the anti-SLAPP statute (where a motion to strike was a remedy for a failure to comply with the statute’s procedural verification requirement), the current version of the statute contemplates a substantive, evidentiary determination of the plaintiff’s probability of prevailing on his claims. It directs the court to "consider ... supporting and opposing affidavits" and it provides for "discovery on the sole issue of actual malice," should there be a claim that the plaintiff is a public figure. OCGA § 9-11-11.1 (b) (2). See also Carbone v. CNN , No. 1:16-CV-1720-ODE, 2017 WL 5244176 at *3, 2017 U.S. Dist. LEXIS 216286 at *7 (N.D. Ga. Feb. 14, 2017) ("The statute essentially creates a Rule 12 (b) (6) ‘plus’ standard for cases with a First Amendment nexus.").

(b) The statute applies.

Rosser argues that the anti-SLAPP statute does not protect the defendants here because, contrary to the trial court’s finding, the allegedly defamatory statements were not made "in connection with an issue of public interest or concern." He adds that to the extent the statements did relate to a matter of public interest, that was only because the statements themselves created public interest; when the statements were published in June, July, and August 2016, there was no public controversy because the 2014 lawsuit had been settled.

We agree with the trial court that the statements "could reasonably be construed as" having been made "in connection with an issue of ... public concern," see OCGA § 9-11-11.1 (b) (1), the management and operation of Grady EMC, including the upcoming election of members of the board of directors. "[I]t is evident that resolution of the controversy [would]...

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