Rosser v. Clyatt

• Decision Date: 02 June 2022
• Docket Number: A22A0469
• Citation: 364 Ga.App. 101,874 S.E.2d 140
• Parties: ROSSER v. CLYATT et al.
• Court: Georgia Court of Appeals

364 Ga.App. 101

874 S.E.2d 140

ROSSER

v.CLYATT et al.

A22A0469

Court of Appeals of Georgia.

June 2, 2022

W. Pope Langdale III, Kathryn Drew Parrish Bennett, for Appellant.

Barbara L. Mulholland, Albany, Anna Green Cross, Kurt G. Kastorf, W. Pope Langdale III, Thomas L. Lehman, Cairo, Darren Summerville, Atlanta, Gabriel Stewart Ridley Ridley, Kathryn Dunnam Harden, Albany, for Appellee.

Miller, Presiding Judge.

This is the second appearance before this Court of this dispute between members of Grady Electric Membership Corporation ("Grady EMC") and Grady EMC's former president and general manager, Thomas A. Rosser, Sr. See Rosser v. Clyatt , 348 Ga. App. 40, 821 S.E.2d 140 (2018) (physical precedent only) (" Rosser I "). Rosser seeks review of the trial court's two orders awarding attorney fees to the defendants pursuant to Georgia's anti-SLAPP statute ( OCGA § 9-11-11.1 ). On appeal, Rosser argues that the trial court erred by (1) awarding attorney fees incurred during the previous appeal in this case; and by (2) awarding the entirety of the fees that the defendants requested without considering the facts and circumstances of the case. We conclude that the anti-SLAPP statute does provide for an award of appellate fees and that the trial court did not abuse its discretion by imposing the instant fee award, and so we affirm.

"This Court generally applies an abuse-of-discretion standard in cases involving a claim of error in the decision to award or deny attorney fees." (Citation and punctuation omitted.) Brooks v. Hayden , 355 Ga. App. 171, 171-172, 843 S.E.2d 594 (2020) ; see also Hagemann v. Berkman Wynhaven Assoc. , 290 Ga. App. 677, 682-683, 660 S.E.2d 449 (2008) (reviewing for abuse of discretion a claim that the trial court should have awarded attorney fees under the previous version of the anti-SLAPP statute). "Under an abuse of discretion standard of review, we are to review the trial court's legal holdings de novo, and we uphold the trial court's factual findings as long as they are not clearly erroneous, which means there is some evidence in the record to support them." (Citation omitted.) Brown v. Brown , 359 Ga. App. 511, 513 (2) (a), 857 S.E.2d 505 (2021).

The relevant underlying facts are set out in our prior opinion in this case:

Grady EMC, like all EMCs, is a private, nonprofit, electric utility owned by the members it serves. It has the exclusive right to furnish service within its service area. Grady EMC has more than 13,000 members.

In 2014, [William Gordon] 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 [the] anti-SLAPP statute. The trial court granted the motions to strike[.]

(Citations and punctuation omitted.) Rosser I , supra, 348 Ga. App. at 41-42 (1), 821 S.E.2d 140. On appeal, we affirmed the trial court's grant of the motions to strike, holding that the anti-SLAPP statute applied to Rosser's defamation claims and that the trial court was entitled to conclude that there was not a probability that Rosser would prevail on his claims. Id. at 42-53 (2)-(3), 821 S.E.2d 140.

After we decided Rosser I , the Messenger Publishing Company filed an amended motion for attorney fees under OCGA § 9-11-11.1 (b.1), seeking a total of $89,496.38 in attorney fees incurred during the trial court proceedings and on appeal during Rosser I . The remaining defendants (collectively, the "Take Back Our Grady defendants") filed a separate amended motion that also sought attorney fees under OCGA § 9-11-11.1 (b.1) in the amount of $48,801. Following a hearing, the trial court granted both motions, awarding $71,597.10 in attorney fees to the Messenger Publishing Company and awarding $9,850 in attorney fees to the Take Back Our Grady defendants. In its orders, the trial court specified that it awarded fees for both the trial court proceedings and the appellate proceedings. This appeal followed.¹

1. As an initial matter, the Messenger Publishing Company moves to dismiss this appeal to the extent Rosser challenges the Company's attorney fee award because the parties have settled that claim. We GRANT the motion to dismiss, and this appeal will only address the trial court's order granting attorney fees to the Take Back Our Grady defendants.

2. Rosser first argues that the trial court erred by awarding the attorney fees that the defendants incurred during the first appeal in this case, arguing that the anti-SLAPP statute does not allow for recovery of appellate fees. We conclude that the anti-SLAPP statute does allow an award for such fees.

When we interpret a statute, we must keep in mind the familiar canons of statutory construction, which provide that

[a] statute draws its meaning from its text. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. If the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end. But when the language of a statute or regulation is not obvious on its face, we should employ other tools of construction to interpret it and resolve its meaning.

(Citations and punctuation omitted.) Premier Health Care Investments, LLC v. UHS of Anchor, LP , 310 Ga. 32, 39 (3) (b), 849 S.E.2d 441 (2020).

"Generally, an award of attorney fees is not available in Georgia unless authorized by statute or contract. Thus, whether a statute that authorizes an award of attorney fees also includes an award of appellate fees depends on the language of the statute." (Citations omitted.) Day v. Mason , 357 Ga. App. 836, 847 (6), 851 S.E.2d 825 (2020). "A party can, however, recover attorney fees incurred on appeal when attorney fees in general are authorized by other statutes." Springside Condo. Assn. Inc. v. Harpagon Co. LLC , 298 Ga. App. 39, 40 (1), 679 S.E.2d 85 (2009).

Turning to the provision at issue, the anti-SLAPP statute provides that "[i]n any action subject to [the anti-SLAPP statute], a prevailing moving party on a motion to strike shall be granted the recovery of attorney's fees and expenses of litigation related to the action in an amount to be determined by the court based on the facts and circumstances of the case." OCGA § 9-11-11.1 (b.1). This provision "requires the trial court to award [attorney] fees and expenses of litigation related to the action to a moving party (usually, the defendant) who prevails on an anti-SLAPP motion[.]" (Punctuation omitted and emphasis supplied.) Wilkes & McHugh, P. A. v. LTC Consulting, L. P. , 306 Ga. 252, 260 (2) (a), 830 S.E.2d 119 (2019).

We are compelled to conclude that the anti-SLAPP's attorney fees provision allows parties to recoup appellate fees. First, a fair reading of the statute's broad wording that fees "related to the action" shall be recoverable supports an inference that appellate fees are included in its purview. We have previously interpreted the term "action" to refer to the entire course of legal proceedings, including appellate proceedings, and we have upheld appellate fee awards under statutes that use such broad terminology. See In re Estate of Zeigler , 295 Ga. App. 156, 161 (2) (d), 671 S.E.2d 218 (2008) (holding that appellate fees are recoverable under former OCGA § 53-12-193 (a) (4), which allows a trial court to award "reasonable attorney's fees incurred by the beneficiary in bringing an action on the breach [of a trust.]") (emphasis supplied); Buckler v. DeKalb County Bd. of Tax Assessors , 288 Ga. App. 332, 333-334, 654 S.E.2d 184 (2007) (holding that appellate fees are recoverable under OCGA § 48-5-311 (g) (4) (B), which authorizes the recovery of attorney fees "incurred in the [taxpayer's] action. ") (emphasis supplied); see also Kautter v. Kautter , 286 Ga. 16, 19-20 (4) (c), 685 S.E.2d 266 (2009) (appellate fees are recoverable under OCGA § 19-6-2, which authorizes the recovery of attorney fees "at any time during the pendency of the litigation").

Second, contrary to Rosser's argument, the text...