2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 3 - Pleadings and Motions
§ 9-11-11.1. Exercise of Rights of Freedom of Speech and to Petition Government for Redress of Grievances; Legislative Findings; Verification of Claims; Definitions; Procedure on Motions; Exception; Fees and Expenses

Universal Citation: GA Code § 9-11-11.1 (2020)
  1. The General Assembly of Georgia finds and declares that it is in the public interest to encourage participation by the citizens of Georgia in matters of public significance and public interest through the exercise of their constitutional rights of petition and freedom of speech. The General Assembly of Georgia further finds and declares that the valid exercise of the constitutional rights of petition and freedom of speech should not be chilled through abuse of the judicial process. To accomplish the declarations provided for under this subsection, this Code section shall be construed broadly.
    1. 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.
    2. In making the determination as provided for in paragraph (1) of this subsection, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based; provided, however, that if there exists a claim that the nonmoving party is a public figure plaintiff, then the nonmoving party shall be entitled to discovery on the sole issue of actual malice whenever actual malice is relevant to the court's determination under paragraph (1) of this subsection.
    3. If the court determines that the nonmoving party under paragraph (1) of this subsection has established a probability that he or she would prevail on the claim, neither that determination nor the fact of such determination shall be admissible in evidence at any later stage of the case or in any subsequent action and no burden of proof or degree of proof otherwise applicable shall be affected by such determination in any later stage of the case or in any subsequent proceeding.
  2. As used in this Code section, the term "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 include:
    1. Any written or oral statement or writing or petition made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
    2. Any written or oral statement or writing or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
    3. Any written or oral statement or writing or petition made in a place open to the public or a public forum in connection with an issue of public interest or concern; or
    4. Any other conduct in furtherance of the exercise of the constitutional right of petition or free speech in connection with a public issue or an issue of public concern.
  3. All discovery and any pending hearings or motions in the action shall be stayed upon the filing of a motion to dismiss or a motion to strike made pursuant to subsection (b) of this Code section until a final decision on the motion. The motion shall be heard not more than 30 days after service unless the emergency matters before the court require a later hearing. The court, on noticed motion and for good cause shown, may order that specified discovery or other hearings or motions be conducted notwithstanding this subsection.
  4. An order granting or denying a motion to dismiss or a motion to strike shall be subject to direct appeal in accordance with subsection (a) of Code Section 5-6-34.
  5. Nothing in this Code section shall affect or preclude the right of any party to any recovery otherwise authorized by common law, statute, law, or rule.
  6. This Code section shall not apply to any action brought by the Attorney General or a prosecuting attorney, or a city attorney acting as a prosecutor, to enforce laws aimed at public protection.
  7. Attorney's fees and expenses of litigation under this Code section shall be requested by motion at any time during the course of the action but not later than 45 days after the final disposition, including but not limited to dismissal by the plaintiff, of the action.

(b.1)In any action subject to subsection (b) of this Code section, 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. If the court finds that a motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award attorney's fees and expenses of litigation to the nonmoving party prevailing on the motion for the attorney's fees and expenses of litigation associated with the motion in an amount to be determined by the court based on the facts and circumstances of the case.

(Code 1981, §9-11-11.1, enacted by Ga. L. 1996, p. 260, § 1; Ga. L. 1998, p. 862, § 2; Ga. L. 2016, p. 341, § 2/HB 513.)

The 2016 amendment, effective July 1, 2016, rewrote subsections (a) and (b); added subsection (b.1); substituted the present provisions of subsection (c) for the former provisions, which read: "As used in this Code section, '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' includes any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law."; added "until a final decision on the motion" at the end of the first sentence of subsection (d); added subsection (e); redesignated former subsection (e) as present subsection (f); added subsection (g); redesignated former subsection (f) as present subsection (h); and, in subsection (h), substituted "expenses of litigation under this Code section shall" for "expenses under this Code section may" near the beginning.

Cross references.

- Freedom of speech and of the press guaranteed, Ga. Const. 1983, Art. I, Sec. I, Para. V.

Freedom of speech, U.S. Const., amend. 1.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2016, "burden of proof" was substituted for "burden or proof" near the middle of paragraph (b)(3).

Law reviews.

- For review of 1998 legislation relating to civil practice, see 15 Ga. St. U.L. Rev. 1 (1998). For article, "Don't Raise That Hand: Why, Under Georgia's Anti-SLAPP Statute, Whistleblowers Should Find Protection from Reprisals for Reporting Employer Misconduct," see 38 Ga. L. Rev. 769 (2004). For survey article on legal ethics, see 59 Mercer L. Rev. 253 (2007). For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007). For survey article on local government law, see 60 Mercer L. Rev. 263 (2008). For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008). For article on the 2016 amendment of this Code section, see 33 Georgia St. U.L. Rev. 109 (2016). For article, "A Constitutional Counterpunch to Georgia's Anti-SLAPP Statute," see 69 Mercer L. Rev. 407 (2019). For annual survey on administrative law, see 71 Mercer L. Rev. 1 (2019).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Procedure
  • Application
  • Fees and Expenses

General Consideration

Legislative intent.

- In enacting the anti-SLAPP statute, O.C.G.A. § 9-11-11.1, 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." Providence Constr. Co. v. Bauer, 229 Ga. App. 679, 494 S.E.2d 527 (1997), cert. denied, 525 U.S. 1069, 119 S. Ct. 799, 142 L. Ed. 2d 660 (1999).

Legislative intent behind Georgia's anti-SLAPP statute, O.C.G.A. § 9-11-11.1, is to protect the public's right to petition the government for the redress of grievances on matters of public concern, O.C.G.A. § 9-11-11.1(a), and excluding the petition itself that initiates a "proceeding" to address matters of public concern from the reach of the anti-SLAPP statute would defeat a central purpose of the statute - to protect the right to petition the government. Hawks v. Hinely, 252 Ga. App. 510, 556 S.E.2d 547 (2001).

Intent of the anti-Strategic Lawsuits Against Public Participation statute is to encourage the exercise of free speech and afford procedural protection to acts of communication on public issues; in connection with this procedural protection, the appellate court has held that the mere procedural filing of a verification does not end the matter as to whether a claim could go forward under O.C.G.A. § 9-11-11.1(b) and (d). Harkins v. Atlanta Humane Soc'y, 264 Ga. App. 356, 590 S.E.2d 737 (2003).

Construction with other law.

- Upon a proper appeal from a final order, while neither former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. § 24-7-702) nor O.C.G.A. § 9-11-16 required that a complaint be dismissed or stricken for failing to comply with the terms of those statutes, unlike the Anti-SLAPP statute, codified at O.C.G.A. § 9-11-11.1, because the trial court did not enter a final judgment within the meaning of O.C.G.A. § 9-11-68(b)(1), attorney fees were properly denied; moreover, as to the claim that dismissing and refiling in another court constitutes "improper judge shopping," obtaining a different judge was simply the result of the action, not necessarily the reason for doing so. McKesson Corp. v. Green, 286 Ga. App. 110, 648 S.E.2d 457 (2007), cert. denied, No. S07C1602, 2007 Ga. LEXIS 656 (Ga. 2007).

There is no requirement that a party first seek to invoke O.C.G.A. § 9-15-14 or O.C.G.A. § 51-7-80 before seeking the protections of O.C.G.A. § 9-11-11.1. Hagemann v. City of Marietta, 287 Ga. App. 1, 650 S.E.2d 363 (2007), cert. denied, 2008 Ga. LEXIS 128 (Ga. 2008).

Voluntary dismissal of a lawsuit by a plaintiff does not preclude the imposition of a sanction under O.C.G.A. § 9-11-11.1(f) (now (h)). Hagemann v. Berkman Wynhaven Assoc., L.P., 290 Ga. App. 677, 660 S.E.2d 449 (2008).

Inapplicable to parody on trademark suit.

- Anti-SLAPP statute, O.C.G.A. § 9-11-11.1, did not apply in a trademark infringement/dilution by tarnishment countersuit filed by a national discount store chain in response to the plaintiff's declaratory judgment action because the plaintiff's unflattering parodies of the store's trademarks were not made in an official proceeding but were printed on t-shirts and other items that were sold on-line. Smith v. Wal-Mart Stores, Inc., 475 F. Supp. 2d 1318 (N.D. Ga. 2007).

Inapplicable in federal cases arising under diversity jurisdiction.

- District court's denial of the company owner's motion to dismiss was proper because Georgia's verification requirement conflicted with Fed. R. Civ. P. 11 and therefore did not apply in federal cases arising under the district court's diversity jurisdiction. Royalty Network, Inc. v. Harris, 756 F.3d 1351 (11th Cir. 2014).

District court did not err in denying the defendant news network's motion to strike the plaintiff's defamation complaint under the Georgia anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, O.C.G.A. § 9-11-11.1; because Fed. R. Civ. P. 8, 12, and 56 are valid under the Rules Enabling Act and the U.S. Constitution and govern the same basic question as the anti-SLAPP statute, the defendant's motion-to-strike procedure cannot apply in federal courts sitting in diversity jurisdiction. Carbone v. CNN, Inc., 910 F.3d 1345 (11th Cir. 2018).

Attorney's duty to advise.

- While an attorney was shielded from liability as to the issue of whether a breach occurred as to the duty of care owed to the clients by failing to verify the complaint pursuant to O.C.G.A. § 9-11-11.1(b), opting instead to dismiss the complaint and refile the complaint as a renewal action, summary judgment as to the issues of harm to the clients and a breach of the duty of ordinary care as a result of the attorney's failure to advise was reversed. Chatham Orthopaedic Surgery Ctr., LLC v. White, 283 Ga. App. 10, 640 S.E.2d 633 (2006).

Statute not applicable to action not based on furtherance of free speech.

- Because the causes of action raised in this suit, which arose from a dispute as to corporate governance and membership based on compliance with the terms of the operating agreements, were not based on an act in furtherance of the rights of free speech or petition, those causes of action did not fall under the anti-strategic lawsuit against public participation (anti-SLAPP) statute and were not afforded its procedural protections. Jubilee Development Partners, LLC v. Strategic Jubilee Holdings, LLC, 344 Ga. App. 204, 809 S.E.2d 542 (2018), cert. denied, 2018 Ga. LEXIS 530 (Ga. 2018).

Cited in Great W. Bank v. Southeastern Bank, 234 Ga. App. 420, 507 S.E.2d 191 (1998); In re Carter, 235 Ga. App. 551, 510 S.E.2d 91 (1998); Grogan v. City of Dawsonville, 305 Ga. 79, 823 S.E.2d 763 (2019); Rogers v. Dupree, 349 Ga. App. 777, 824 S.E.2d 823 (2019), cert. denied, No. S19C1170, 2019 Ga. LEXIS 880 (Ga. 2019), cert. denied, No. S19C1132, 2019 Ga. LEXIS 889 (Ga. 2019).

Procedure

Two step analysis required for anti-SLAPP motion.

- Georgia Supreme Court set forth new standards applicable to the anti-SLAPP statute, O.C.G.A. § 9-11-11.1, holding that the analysis of an anti-SLAPP motion involved two steps: first, the court must decide whether the party filing an anti-SLAPP motion made the threshold showing that the challenged claim is one arising from protected activity and, if so, the court must proceed to the second step of the analysis and decide whether the plaintiff established that there is a probability that the plaintiff will prevail on the claim. Wilkes & McHugh, P.A. v. LTC Consulting, L.P., 306 Ga. 252, 830 S.E.2d 119 (2019).

In a suit involving ads placed by a lawyer challenging nursing home standards, the Supreme Court of Georgia held the trial court overlooked certain preliminary questions as the court did not properly apply the required two step analysis under the anti-SLAPP statute, O.C.G.A. § 9-11-11.1, with respect to the plaintiffs' claims as there was no discussion or analysis of whether the plaintiffs had stated and substantiated a legally sufficient claim for the violations of the statutes. Wilkes & McHugh, P.A. v. LTC Consulting, L.P., 306 Ga. 252, 830 S.E.2d 119 (2019).

When discovery was stayed upon motions to dismiss and the plaintiff claimed harm by the stay provisions, because the plaintiff could have sought the aid of the trial court to lift the stay for the limited purpose of conducting necessary discovery, which the plaintiff failed to do, the plaintiff could not raise the issue on appeal. Davis v. Emmis Publ'g Corp., 244 Ga. App. 795, 536 S.E.2d 809 (2000).

Stay of proceedings.

- Trial court did not err in holding a hearing on bond validation issues after denying a motion to strike brought by intervenors in the action based on the anti-SLAPP statute, O.C.G.A. § 9-11-11.1, because subsection (d) allowed the trial court to hold a hearing in spite of the stay provisions, and the motion to strike was meritless. Citizens for Ethics in Gov't, LLC v. Atlanta Dev. Auth., 303 Ga. App. 724, 694 S.E.2d 680 (2010), cert. denied, No. S10C1350, 2010 Ga. LEXIS 722 (Ga. 2010).

False verification.

- City's counterclaims to a landowner's declaratory judgment action challenging a rezoning decision were falsely verified and thus should have been dismissed; the counterclaims did not establish abusive litigation under O.C.G.A. § 51-7-84(b) because the declaratory judgment action had not terminated. Hagemann v. City of Marietta, 287 Ga. App. 1, 650 S.E.2d 363 (2007), cert. denied, 2008 Ga. LEXIS 128 (Ga. 2008).

Founder's verifications as to complaint for malicious prosecution and intentional infliction of emotional distress were false to the extent that the complaint was neither filed for a proper purpose or well-grounded in fact. The record showed that the defendants were merely reporting alleged criminal activity to the police and were not overly zealous or malicious. Annamalai v. Capital One Fin. Corp., 319 Ga. App. 831, 738 S.E.2d 664 (2013).

Failure to verify complaint.

- Trial court erred in holding that the plaintiff's failure to verify the complaint as required by law was an amendable defect since the plaintiff filed the verifications with an amended complaint more than ten days (approximately two months) after the failure to file was first brought to the plaintiff's attention. Davis v. Emmis Publ'g Corp., 244 Ga. App. 795, 536 S.E.2d 809 (2000).

Trial court did not err in dismissing a defamation action for failure to verify the complaint since the action arose out of the defendants' petition in opposition to the plaintiff's application for rezoning that involved alleged issues of county-wide soil and water environmental protection and alleged violations of environmental laws, which were matters of general public concern and interest. Browns Mill Dev. Co. v. Denton, 247 Ga. App. 232, 543 S.E.2d 65 (2000), aff'd, 275 Ga. 2, 561 S.E.2d 431 (2002).

Whether the verification required by O.C.G.A. § 9-11-11.1(b), in a claim against an individual exercising his or her free speech or right to petition for redress of grievances, is completely omitted or merely deficient upon filing, the claimant must remedy the situation within the statutory 10-day period or the complaint shall be stricken. Hawks v. Hinely, 252 Ga. App. 510, 556 S.E.2d 547 (2001).

Mandate of the anti-SLAPP statute, O.C.G.A. § 9-11-11.1(b), that an improperly verified complaint challenging the exercise of the right to free speech and to petition for redress of grievances shall be stricken necessarily means that the claims in any such complaint must be dismissed with prejudice as the appellate court is bound to follow the express language of O.C.G.A. § 9-11-11.1(b) and the statute explicitly mandates that the claim "shall be stricken" if the verification is not filed timely. Hawks v. Hinely, 252 Ga. App. 510, 556 S.E.2d 547 (2001).

Once the anti-Strategic Lawsuits Against Public Participation statute applies, a claimant must verify the complaint pursuant to the requirements of O.C.G.A. § 9-11-11.1(b), or the claim may be properly dismissed. Harkins v. Atlanta Humane Soc'y, 264 Ga. App. 356, 590 S.E.2d 737 (2003).

Trial court did not err in dismissing a former employee's action alleging that the consultants slandered the former employee and interfered with the former employee's business relations with a county school district because the court properly found that verification under the Georgia anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, O.C.G.A. § 9-11-11.1(a) and (b), was required when the speech at issue could reasonably be construed as constitutionally protected free speech to which the anti-SLAPP statute applied; the county school board's consideration or review of the issue of how to implement a computer program in the county schools was an "official proceeding authorized by law" within the meaning of the anti-SLAPP statute, the consultants made written or oral statements to the board in connection with the issue under consideration or review, and nothing in the anti-SLAPP statute rendered the verification requirement inapplicable just because the consultants acted while engaged in a commercial transaction. Lovett v. Capital Principles, LLC, 300 Ga. App. 799, 686 S.E.2d 411 (2009).

O.C.G.A. § 9-11-11.1(a), Georgia's anti-SLAPP statute, encompassed a press conference held outside the territorial limits of Georgia by New York defendants. Because the press conference was held to address an issue under consideration by a judicial body, i.e., a nuisance lawsuit filed by the New York defendants against gun dealers, a Georgia gun dealer's slander suit was dismissed for failure to file a verification as required by § 9-11-11.1(b). Adventure Outdoors, Inc. v. Bloomberg, 307 Ga. App. 356, 705 S.E.2d 241 (2010), cert. denied, No. S11C0648, 2011 Ga. LEXIS 402, cert. denied, 132 S. Ct. 763, 181 L. Ed. 2d 485 (2011).

Trial court erred by denying the defendant's motion to dismiss the defamation complaint filed under Georgia's anti-SLAPP, Strategic Lawsuits Against Public Participation statute, O.C.G.A. § 9-11-11.1, because the defendant's statements regarding the pending litigation fell within the scope of protected statements under § 9-11-11.1(c) and the plaintiff's failure to file a verification as required by § 9-11-11.1(b) barred the suit. Barnett v. Holt Builders, LLC, 338 Ga. App. 291, 790 S.E.2d 75 (2016), cert. denied, No. S17C0090, 2017 Ga. LEXIS 142 (Ga. 2017).

Party's subjective belief is not the standard for determining whether the verification requirements of Georgia's anti-SLAPP, Strategic Lawsuits Against Public Participation statute, O.C.G.A. § 9-11-11.1, apply; rather, the statute applies to any claim arising from any act that could reasonably be construed as one done in furtherance of the right of free speech or the right to petition government for a redress of grievances in connection with an issue of public interest. Barnett v. Holt Builders, LLC, 338 Ga. App. 291, 790 S.E.2d 75 (2016), cert. denied, No. S17C0090, 2017 Ga. LEXIS 142 (Ga. 2017).

Minimal effort is necessary by the party bringing suit to verify their complaint, and, if that party verifies improperly, they are given an additional ten days from the day that they are informed of the deficiency to correct their complaint. A party who fails to comply with such a simple prerequisite, which, in turn, protects the important right to petition government, should be subject to dismissal with prejudice. Barnett v. Holt Builders, LLC, 338 Ga. App. 291, 790 S.E.2d 75 (2016), cert. denied, No. S17C0090, 2017 Ga. LEXIS 142 (Ga. 2017).

Verification of counterclaims required.

- Landowner's declaratory judgment action challenging a city's rezoning decision constituted a petition to the judiciary for a redress of grievances in connection with an issue of public interest or concern, and the city's counterclaims were filed in response to the declaratory judgment action; thus, verification of the counterclaims was required. Hagemann v. City of Marietta, 287 Ga. App. 1, 650 S.E.2d 363 (2007), cert. denied, 2008 Ga. LEXIS 128 (Ga. 2008).

Counterclaims do not fall outside of the verification requirements of O.C.G.A. § 9-11-11.1, which mandates verification for any claim asserted against a person or entity arising from an act by that person or entity which could reasonably be construed as an act in furtherance of the right to free speech or the right to petition the government for a redress of grievances. Hagemann v. City of Marietta, 287 Ga. App. 1, 650 S.E.2d 363 (2007), cert. denied, 2008 Ga. LEXIS 128 (Ga. 2008).

Trial court, not the party, must determine if there is a bona fide action for defamation brought in good faith and not as abusive litigation to chill constitutional rights of freedom of speech and right of expression as defined by the statute. Browns Mill Dev. Co. v. Denton, 247 Ga. App. 232, 543 S.E.2d 65 (2000), aff'd, 275 Ga. 2, 561 S.E.2d 431 (2002).

Neither party has the burden of proof on a motion to dismiss or strike under subsection (b) of O.C.G.A. § 9-11-11.1 because this issue is a matter of law for the trial court's determination based upon the pleadings rather than upon evidence presented by either party. Browns Mill Dev. Co. v. Denton, 247 Ga. App. 232, 543 S.E.2d 65 (2000), aff'd, 275 Ga. 2, 561 S.E.2d 431 (2002).

Motion to dismiss.

- In O.C.G.A. § 9-11-11.1, the Georgia General Assembly has established a mechanism by which the threshold question of compliance with the anti-SLAPP statute is decided on motion to dismiss or motion to strike, and this is analogous to the statutory mechanism of O.C.G.A. § 9-11-12(b), which provides that only motions under Ga. R. Civ. P. 12(b)(6) for failure to state a claim are converted to summary judgment. Other motions under Ga. R. Civ. P. 12(b), such as to dismiss for lack of jurisdiction or for insufficiency of process, are not subject to this statutory rule, and such a motion, even when tried on affidavits pursuant to O.C.G.A. § 9-11-43(b) does not become a motion for summary judgment. Land v. Boone, 265 Ga. App. 551, 594 S.E.2d 741 (2004).

Conditional privilege entitled speaker to summary judgment.

- Because a property owner made statements concerning valuation by a county appraiser in good faith which were limited in scope and made during a proper meeting, and such statements were based on the owner's interest in a property, the owner was entitled to a conditional privilege under O.C.G.A. §§ 9-11-11.1 and51-5-7(4) from the appraiser's defamation claims; as the appraiser failed in the burden of showing malice by the owner, the trial court should have granted summary judgment to the owner on defamation claims as well as all tort claims based on communications, including invasion of privacy, negligence, and emotional distress. Smith v. Henry, 276 Ga. App. 831, 625 S.E.2d 93 (2005).

Application

Statements in furtherance of free speech or promoting public good.

- Statements 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 are defined in O.C.G.A. § 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. Thus, 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 Constr. Co. v. Bauer, 229 Ga. App. 679, 494 S.E.2d 527 (1997), cert. denied, 525 U.S. 1069, 119 S. Ct. 799, 142 L. Ed. 2d 660 (1999).

In a libel action arising from a newspaper article based on reports of a Federal Aviation Administration inspection of plaintiff airlines, because the defendant did not present evidence establishing that the defendant's reporting was privileged as a matter of law, the defendant was not entitled to sanctions and dismissal of the complaint on the grounds that the plaintiff allegedly verified the complaint in violation of O.C.G.A. § 9-11-11.1. AirTran Airlines v. Plain Dealer Publishing Co., 66 F. Supp. 2d 1355 (N.D. Ga. 1999).

Complaint for trespass arising from defendants' activities in gathering information for a petition in opposition to an application for rezoning did not come within O.C.G.A. § 9-11-11.1 because it did not involve free speech as part of a petition to the government. Browns Mill Dev. Co. v. Denton, 247 Ga. App. 232, 543 S.E.2d 65 (2000), aff'd, 275 Ga. 2, 561 S.E.2d 431 (2002).

Procedural requirements of O.C.G.A. § 9-11-11.1 did not extend to a cause of action for trespass brought by real estate developers against an environmental organization and one of its members after the organization circulated a report on the developers' failure to use proper soil erosion and sedimentation controls and opposed the developers' rezoning and land disturbance permit applications. Denton v. Browns Mill Dev. Co., 275 Ga. 2, 561 S.E.2d 431 (2002).

Application for recall of elected officials.

- Filing an application for the recall of elected officials in accordance with state law is an act in furtherance of the right to petition the government to redress grievances within the meaning of Georgia's anti-SLAPP statute, O.C.G.A. § 9-11-11.1(b). Hawks v. Hinely, 252 Ga. App. 510, 556 S.E.2d 547 (2001).

Dispute pertaining to development of property.

- Action commenced by a property owner against two local residents and a neighborhood group alleging tortious interference with a sales option contract, tortious interference with business relations, trespass, and interference with the property owner's right of quiet enjoyment of the property was properly dismissed as a SLAPP suit since the action was commenced after the defendants wrote to the plaintiff and demanded that the plaintiff cease development work on the plaintiff's property conducted without a permit which disturbed wetlands on the site and a state-mandated 25 foot stream buffer zone. Metzler v. Rowell, 248 Ga. App. 596, 547 S.E.2d 311 (2001).

Because O.C.G.A. § 9-11-11.1, the anti-SLAPP statute, was not intended to immunize from the consequences of abusive litigation a party who asserted a claim with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, the statute did not apply to a county's claim for attorney's fees under O.C.G.A. § 9-15-14, after the county was granted summary judgment on a property buyer's complaint that the buyer was entitled to a written verification of zoning compliance; hence, the trial court did not err in denying the county's motion to dismiss the county's request. EarthResources, LLC v. Morgan County, 281 Ga. 396, 638 S.E.2d 325 (2006).

Trespass and defacing property not protected by statute.

- While the placing of signs or speech under certain circumstances might fall within the purview of the statute, trespass by pulling up land markers, defacing property, or blocking ingress and egress (without more) is not covered by the statute as none of these actions constitutes a "written or oral statement." Metzler v. Rowell, 248 Ga. App. 596, 547 S.E.2d 311 (2001).

Question on homeless shelter.

- Issues of material fact existed as to whether the defendants made statements that the homeless shelter should not be publicly funded because the shelter was "warehousing" the homeless and not providing services was privileged. Metro Atlanta Task Force for the Homeless, Inc. v. Ichthus Community Trust, 298 Ga. 221, 780 S.E.2d 311 (2015).

Application to tortious interference with business and contract claims.

- Trial court did not err in finding that the anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, O.C.G.A. § 9-11-11.1, applied to the property owner's tortious interference with business and contractual relations claims because nothing in the confidentiality agreement between the chamber of commerce and the chamber's vice president indicated the statute was intended for the benefit of the property owner and the subject matter had already been communicated to the city. Settles Bridge Farm, LLC v. Masino, 318 Ga. App. 576, 734 S.E.2d 456 (2012).

Application to claims for malicious arrest and emotional distress.

- Trial court did not err in finding that the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, O.C.G.A. § 9-11-11.1, applied to the founder's claims for malicious arrest and intentional infliction of emotional distress because the claims were predicated solely and exclusively upon the individuals' statements to police or statements made in furtherance of an ongoing investigation and, thus, were protected by the anti-SLAPP statute. Annamalai v. Capital One Fin. Corp., 319 Ga. App. 831, 738 S.E.2d 664 (2013).

Demand letter by television satellite company, which was sent to thousands of individuals informing the individuals of the satellite company's intent to pursue legal action for allegedly engaging in signal piracy, was protected by Georgia's anti-SLAPP law, O.C.G.A. § 9-11-11.1. Buckley v. Directv, Inc., 276 F. Supp. 2d 1271 (N.D. Ga. 2003).

Defamation action should have been dismissed.

- Trial court erred in denying an individual's motion to dismiss a defamation lawsuit filed against the individual by a humane society and the society's executive director as the individual's statements were protected under the anti-SLAPP statute, O.C.G.A. § 9-11-11.1, as the statements were made in furtherance of the individual's right of free speech in connection with an issue of public concern as: (1) the statements were made on television and resulted in an investigation of the humane society by the county commission; and (2) the humane society was accountable to the public for ineffective animal control or inefficient use of taxpayer funds. Harkins v. Atlanta Humane Soc'y, 264 Ga. App. 356, 590 S.E.2d 737 (2003).

In a driver's defamation case against an attorney for parties injured in a collision with the driver, the trial court erred in denying the attorney's motion to dismiss the case under the anti-SLAPP statute, O.C.G.A. § 9-11-11.1, because the attorney's statements regarding the driver's excessive speed and use of Snapchat's Speed Filter on the defendant's phone at the time of the collision were conditionally privileged under O.C.G.A. § 51-5-7. Neff v. McGee, 346 Ga. App. 522, 816 S.E.2d 486 (2018).

Defamation action should not have been dismissed.

- In a defamation action, the trial court did not err in denying the defendant's motion to dismiss the lawsuit because the revised anti-SLAPP statute could not apply to effectuate a dismissal of the defamation claim because the complaint was filed years before the revised statute became effective. Mellberg v. Impact Partnership, 355 Ga. App. 691, 844 S.E.2d 223 (2020).

EMC manager's defamation action properly stricken.

- Defamation action by an EMC's former general manager was properly stricken under Georgia's Anti-SLAPP statute, O.C.G.A. § 9-11-11.1; the management of the EMC was an issue of public concern, and the manager was a limited-purpose public figure who failed to demonstrate actual malice in criticisms of the manager's management of the EMC. Rosser v. Clyatt, 348 Ga. App. 40, 821 S.E.2d 140 (2018).

Dismissal authorized.

- Plain language of O.C.G.A. § 9-11-11.1(b) authorizes dismissal of a claim that is not well grounded in fact, not warranted by a good faith argument or existing law, or if the statements are privileged; determining whether any of these aforementioned grounds applies requires more than a simple determination as to whether an affidavit was filed within a specified time. Harkins v. Atlanta Humane Soc'y, 264 Ga. App. 356, 590 S.E.2d 737 (2003).

Dismissal not authorized.

- Because there was no evidence that any official proceeding was involved when a mother made libelous statements about a nonprofit organization, the trial court erred in concluding that the Strategic Lawsuits Against Public Participation (anti-SLAPP) statute, O.C.G.A. § 9-11-11.1, applied. Ga. Cmty. Support & Solutions, Inc. v. Berryhill, 275 Ga. App. 189, 620 S.E.2d 178 (2005), aff'd, 281 Ga. 439, 638 S.E.2d 278 (2006).

Upon certiorari review, because a parent did not perform any act which could reasonably be construed as a statement or petition within the anti-SLAPP statute, O.C.G.A. § 9-11-11.1, the Court of Appeals of Georgia correctly reversed dismissal of a personal care provider's tortious interference with business relationship and libel per se action filed against the parent; moreover, the Court of Appeals correctly refused to expand the scope of the anti-SLAPP statute so as to encompass a wide range of speech and conduct which was arguably connected with any issue of public interest or concern, but instead, restrict the statute's application to those statements which came within the definition within O.C.G.A. § 9-11-11.1(c). Berryhill v. Ga. Cmty. Support & Solutions, Inc., 281 Ga. 439, 638 S.E.2d 278 (2006).

For the procedural protections of the anti-SLAPP statute to apply, there had to be a threshold showing that the claims could reasonably be construed as a statement or petition made in relation to or in connection with an actual official proceeding. In this case, the actions and statements that formed the basis of the claims were not specified in the complaint. Emory Univ. v. Metro Atlanta Task Force for the Homeless, Inc., 320 Ga. App. 442, 740 S.E.2d 219 (2013).

Trial court did not err in denying the non-profit organization's motion to dismiss based on the anti-Strategic Lawsuits Against Public Participation Act, O.C.G.A. § 9-11-11.1, because the attorney established that there was a probability of prevailing on the defamation claim as the attorney, a part-time public defender, alleged that the attorney maintained a private practice to handle felonies and therefore the organization's statement that the attorney "extorted" clients by charging the clients $2,500 for services that should have been free-of-charge was false. ACLU v. Zeh, 355 Ga. App. 731, 845 S.E.2d 698 (2020).

Animal activist's statements were privileged as matters of public concern.

- Animal rights activist's statements to a television station were privileged under O.C.G.A. § 51-5-7(4) and the Anti-Strategic Lawsuits Against Public Participation statute, O.C.G.A. § 9-11-11.1, as the statements were related to the policies and procedures of a humane society and involved issues of public concern; the activist made the statements in good faith, believing that the efforts could influence or persuade government officials and the public at large to help change the problems at the humane society. Harkins v. Atlanta Humane Soc'y, 273 Ga. App. 489, 618 S.E.2d 16 (2005).

Statements to law enforcement in furtherance of criminal investigation.

- Hindu temple's serial filing of civil complaints against individuals lawfully reporting alleged unlawful credit card fraud activity by the temple was a clear example of the type of abuse of judicial process that O.C.G.A. § 9-11-11.1 aimed to deter, and the individuals' statements to law enforcement in furtherance of a criminal investigation were privileged. Therefore, dismissal of the temple's defamation and malicious prosecution claims, along with an award of attorney's fees, was proper. Hindu Temple & Cmty. Ctr. of the High Desert, Inc. v. Raghunathan, 311 Ga. App. 109, 714 S.E.2d 628 (2011), cert. dismissed, No. S11C1887, 2012 Ga. LEXIS 49 (Ga. 2012).

Application to State Bar proceedings.

- Anti-Strategic Lawsuits Against Public Participation (Anti-SLAPP) statute, O.C.G.A. § 9-11-11.1, applied to complaints against an attorney before the State Bar of Georgia because State Bar proceedings were "official proceedings authorized by law" under § 9-11-11.1(c). However, a hearing was required before the defense could be allowed. Jefferson v. Stripling, 316 Ga. App. 197, 728 S.E.2d 826 (2012).

Attorneys with knowledge of recordings were disqualified.

- In a suit between an employer against the employer's former housekeeper, who video recorded a sexual encounter between the two, the court held that the trial court did not abuse the court's discretion in disqualifying two of the former housekeeper's lawyers from further representation because the lawyers were necessary witnesses since the lawyers' testimony was relevant to where and from whom the recording device used to record the sexual encounter was obtained. Cohen v. Rogers, 338 Ga. App. 156, 789 S.E.2d 352 (2016).

Fees and Expenses

Attorney fees.

- When the trial court should have dismissed a city's counterclaims against a landowner as improperly verified, remand was required to determine the issue of the landowner's entitlement to attorney fees under O.C.G.A. § 9-11-11.1. Hagemann v. City of Marietta, 287 Ga. App. 1, 650 S.E.2d 363 (2007), cert. denied, 2008 Ga. LEXIS 128 (Ga. 2008).

When landowners sought judicial review of the zoning decisions of a board of county commissioners (board), it was error for a trial court to hold that wherefore clauses seeking attorney fees in the board's answers were claims that were falsely verified, under O.C.G.A. § 9-11-11.1(b), because: (1) the board's prayers for relief seeking attorney fees were not claims as a case brought by a plaintiff could not be turned into a damage suit by a defendant for bringing the suit while the suit was still pending; (2) O.C.G.A. § 9-11-11.1 did not require § 9-11-11.1(b) verifications of defensive motions so the board did not have to verify the wherefore clauses in the board's answers; and (3) O.C.G.A. § 9-11-11.1 did not bar a party defending a suit from preserving the party's right to seek attorney fees if the suit were later found to lack substantial justification so the wherefore clauses seeking attorney fees were not improper. Paulding County Bd. of Comm'rs v. Morrison, 316 Ga. App. 806, 728 S.E.2d 921 (2012).

Trial court abused the court's discretion by not awarding attorney's fees or other sanction.

- In a suit brought by a developer against a landowner asserting tortuous interference with business relations and other claims, a trial court abused the court's discretion by denying the landowner's motion for attorney fees under O.C.G.A. § 9-11-11.1 since the developer's lawsuit was voluntarily dismissed as the verification in the complaint was proven false and the voluntary dismissal of the suit did not replace the mandate upon the trial court to fashion an appropriate sanction in the court's discretion in favor of the landowner. Hagemann v. Berkman Wynhaven Assoc., L.P., 290 Ga. App. 677, 660 S.E.2d 449 (2008).

RESEARCH REFERENCES

ALR.

- Application of Anti-SLAPP ("Strategic Lawsuit Against Public Participation") statutes to real estate development, land use, and zoning disputes, 64 A.L.R.6th 365.

Application of anti-SLAPP ("Strategic Lawsuit Against Public Participation") statutes to invasion of privacy claim, 85 A.L.R.6th 475.

Application of Anti-SLAPP (Strategic Lawsuit Against Public Participation) Statutes to Defamation Claims Related to Websites or Internet Postings, 47 A.L.R.7th Art. 7

Nonpreempted Claims Concerning Frequent Flyer Programs, 47 A.L.R.7th Art. 1

Judicial Review of Board of Immigration Appeal's Determination to Decide Appeal by Single Member Rather Than by Three-Member Panel, 45 A.L.R. Fed. 3d Art. 2.

Major Event Litigation: London Inter-bank Offered Rate (LIBOR) Antitrust Litigation, 45 A.L.R. Fed. 3d Art. 3.

Applicability of State Anti-SLAPP Statutes in Federal Diversity Cases, 45 A.L.R. Fed. 3d Art. 4.

Exhaustion of ERISA Plan Claim Procedures as Affecting Judicial Relief on Suit Arising from ERISA Plan - Federal Appellate Cases, 45 A.L.R. Fed. 3d Art. 5.

Issues Arising in Electronic Filing of Bankruptcy Cases Authorized by Local Rules, 45 A.L.R. Fed. 3d Art. 7.

Limitation of Liability of Owner or Operator of Passenger-Carrying Vessel Under Federal Law for Injury or Death of Guest Passenger (46 U.S.C.A. §§ 30505, 30509), 46 A.L.R. Fed. 3d Art. 3.

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