Rosser v. Clyatt, A18A0843

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtMcFadden, Presiding Judge.
Citation821 S.E.2d 140,348 Ga.App. 40
Parties ROSSER v. CLYATT et al. Clyatt v. Grady Electric Membership Corporation.
Decision Date02 November 2018
Docket NumberA18A0987,A18A0843

348 Ga.App. 40
821 S.E.2d 140

ROSSER
v.
CLYATT et al.

Clyatt
v.
Grady Electric Membership Corporation.

A18A0843
A18A0987

Court of Appeals of Georgia.

November 2, 2018


821 S.E.2d 144

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.

348 Ga.App. 40

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

348 Ga.App. 41

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

821 S.E.2d 145

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

348 Ga.App. 42

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
348 Ga.App. 43
be subject to a motion to strike unless the court determines that the nonmoving party has established
821 S.E.2d 146
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...

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9 practice notes
  • Frett v. State Farm Emp. Workers' Comp., A18A0820
    • United States
    • United States Court of Appeals (Georgia)
    • November 2, 2018
    ...on the way to restroom break under scheduled break rule); Hanson v. Globe Indemnity Co. , 85 Ga. App. 179, 68 S.E.2d 179 (1961) (same); 821 S.E.2d 140 Aetna Cas. & Sur. Co. v. Honea , 71 Ga. App. 569, 31 S.E.2d 421 (1944) (no coverage for employee injured leaving for her scheduled break).34......
  • Am. Civil Liberties Union, Inc. v. Zeh, S20G1473
    • United States
    • Supreme Court of Georgia
    • October 19, 2021
    ...is an " ‘extremely high’ " standard of proof. Cottrell , 299 Ga. at 525, 788 S.E.2d 772 (citation omitted). See also Rosser v. Clyatt , 348 Ga. App. 40, 50, 821 S.E.2d 140 (2018) (applying the "clear and convincing" standard of proof to an anti-SLAPP motion to strike the public-figure plain......
  • Carbone v. Cable News Network, Inc., No. 17-10812
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 13, 2018
    ...determination of the plaintiff’s probability 910 F.3d 1351of prevailing on his claims." Rosser v. Clyatt , ––– Ga.App. ––––, ––––, 821 S.E.2d 140, 2018 WL 5729226, *3 (2018). But to avoid summary judgment under Rule 56, a nonmovant need only "designate specific facts showing that there is a......
  • Am. Civil Liberties Union v. Zeh, S20G1473
    • United States
    • Georgia Supreme Court
    • October 19, 2021
    ...evidence, 47 which is an "'extremely high'" standard of proof. Cottrell, 299 Ga. at 525 (citation omitted). See also Rosser v. Clyatt, 348 Ga.App. 40, 50 (821 S.E.2d 140) (2018) (applying the "clear and convincing" standard of proof to an anti-SLAPP motion to strike the public-figure plaint......
  • Request a trial to view additional results
9 cases
  • Frett v. State Farm Emp. Workers' Comp., A18A0820
    • United States
    • United States Court of Appeals (Georgia)
    • November 2, 2018
    ...on the way to restroom break under scheduled break rule); Hanson v. Globe Indemnity Co. , 85 Ga. App. 179, 68 S.E.2d 179 (1961) (same); 821 S.E.2d 140 Aetna Cas. & Sur. Co. v. Honea , 71 Ga. App. 569, 31 S.E.2d 421 (1944) (no coverage for employee injured leaving for her scheduled break).34......
  • Am. Civil Liberties Union, Inc. v. Zeh, S20G1473
    • United States
    • Supreme Court of Georgia
    • October 19, 2021
    ...is an " ‘extremely high’ " standard of proof. Cottrell , 299 Ga. at 525, 788 S.E.2d 772 (citation omitted). See also Rosser v. Clyatt , 348 Ga. App. 40, 50, 821 S.E.2d 140 (2018) (applying the "clear and convincing" standard of proof to an anti-SLAPP motion to strike the public-figure plain......
  • Carbone v. Cable News Network, Inc., No. 17-10812
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 13, 2018
    ...determination of the plaintiff’s probability 910 F.3d 1351of prevailing on his claims." Rosser v. Clyatt , ––– Ga.App. ––––, ––––, 821 S.E.2d 140, 2018 WL 5729226, *3 (2018). But to avoid summary judgment under Rule 56, a nonmovant need only "designate specific facts showing that there is a......
  • Am. Civil Liberties Union v. Zeh, S20G1473
    • United States
    • Georgia Supreme Court
    • October 19, 2021
    ...evidence, 47 which is an "'extremely high'" standard of proof. Cottrell, 299 Ga. at 525 (citation omitted). See also Rosser v. Clyatt, 348 Ga.App. 40, 50 (821 S.E.2d 140) (2018) (applying the "clear and convincing" standard of proof to an anti-SLAPP motion to strike the public-figure plaint......
  • Request a trial to view additional results

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