                                    WHOLE COURT

                   NOTICE: Motions for reconsideration m us t be
                   physically received in our clerk’s office within ten days
                   of the date of decision to be deemed timely filed.
                                   http://www.gaappeals.us/rules


                                                                      March 15, 2019




In the Court of Appeals of Georgia
 A16A1714. ROGERS v. DUPREE et al.
 A16A1715. DUPREE et al. v. ROGERS.
 A16A1716. COHEN et al. v. ROGERS.
 A16A1717. COHEN et al. v. ROGERS.

      MERCIER, Judge.

      These related appeals arise from a lawsuit brought by Joe Rogers, Jr., against

David M. Cohen, Complex Law Group, LLC, and D. M. Cohen, Inc. (collectively,

“Cohen”); Hylton B. Dupree, Jr., Dupree & Kimbrough LLP, and Hylton B. Dupree,

Jr., P.C. (collectively, “Dupree”); and John C. Butters (“Butters”). Cohen, Butters,

and Dupree moved to strike or dismiss Rogers’s claims on two grounds: (1) failure

to state a claim upon which relief can be granted; and (2) pursuant to OCGA § 9-11-
11.1 (2015),1 Georgia’s anti-SLAPP              (“Strategic   Litigation Against    Public

Participation”) statute. The trial court denied the motions to dismiss for failure to state

a claim as to all claims except a general negligence allegation. It also denied Cohen and

Butters’s anti-SLAPP motion. As to Dupree, however, it determined that Rogers’s

claims against him were subject to strike or dismissal under the anti-SLAPP statute.

       In Case No. A16A1714, Rogers challenges the dismissal of his claims against

Dupree on anti-SLAPP grounds. Dupree cross-appeals in Case No. A16A1715,

asserting that the trial court erred in denying his motion to dismiss for failure to state

a claim. Finally, Cohen and Butters challenge the denial of their motions to dismiss

and/or strike in Case Nos. A16A1716 and A16A1717. For reasons that follow, we




       1
         The legislature significantly revised OCGA § 9-11-11.1 in 2016. See Ga. L.
2016, p. 341, 342-344, § 2. The prior version of the statute, however, applies to this
case, which was filed several years before the 2016 amendment. See Atlanta Humane
Society v. Harkins, 278 Ga. 451, 454 (1) (603 SE2d 289) (2004) (noting the
“substantive” nature of the anti-SLAPP statute); Stock Building Supply v. Platte River
Ins. Co., 336 Ga. App. 113, 118 (2) (a) (i) (783 SE2d 708) (2016) (“[L]egislation that
affects substantive rights will only apply prospectively.”) (citation and punctuation
omitted). Unless otherwise indicated, any reference to OCGA § 9-11-11.1 in this
opinion is to the pre-2016 version of the statute.

                                            2
reverse the trial court’s judgment in Case No. A16A1714, and we affirm in part and

reverse in part the judgments in Case Nos. A16A1715, A16A1716, and A16A1717. 2

      We review the grant or denial of a motion to dismiss de novo, construing “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, 443 (740 SE2d 219) (2013) (punctuation and footnote omitted). See

also Ikomoni v. Bank of America, 330 Ga. App. 776 (769 SE2d 527) (2015). So

viewed, the record shows that Cohen, Butters, and Dupree are attorneys who

represented Mye Brindle (“Brindle”), Rogers’s former housekeeper. Brindle worked

for Rogers over a ten-year period. Without dispute, she engaged in sexual activity with

Rogers during her employment. She also made various audio recordings of their

activity without Rogers’s consent.

      In June 2012, while still employed by Rogers, Brindle engaged Cohen and

Butters to represent her in a sexual harassment claim against Rogers. After consulting


      2
         We originally considered these appeals in March 2017. See Rogers v. Dupree,
340 Ga. App. 811 (799 SE2d 1) (2017). The Supreme Court of Georgia subsequently
vacated our judgments and remanded the cases to us for reconsideration in light of its
decision in State v. Cohen, 302 Ga. 616 (807 SE2d 861) (2017), a criminal appeal
arising out of the same factual scenario involved here. See Cohen v. Rogers, 2018 Ga.
LEXIS 260 (2018).

                                          3
with Cohen and Butters, she took a “spy” camera to work, which she used to video-

record a sexual encounter between Rogers and herself. Rogers was not aware that he

was being recorded and did not consent to the video recording. Brindle resigned from

her job at the end of June.

          On July 16, 2012, Cohen sent a settlement demand letter to Rogers, asserting

that Rogers had engaged in a “long history of unwelcome sexual demands and other

sexual harassment and abuse toward [Brindle] as a condition of her employment,”

which was “well documented by numerous audio and video recordings of the acts.”

The letter indicated that Brindle was prepared to proceed with a lawsuit and further

stated:

          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 counteraccusations, 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.




                                                 4
      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.


      At some point, Dupree joined Brindle’s legal team. Although the timing is

unclear, he became involved in the matter no later than August 2, 2012, when Rogers’s

counsel met with Cohen, Butters, and Dupree in Dupree’s office to view portions of

the video recording made by Brindle.

      On September 14, 2012, Rogers and his counsel participated in a mediation with

Brindle and her attorneys, but the parties were unable to resolve the dispute. That same

day, Rogers sued Brindle in the Superior Court of Cobb County for injunctive and

other relief, seeking to prevent Brindle from disseminating the video recording. A few

                                                 5
days later, Brindle filed a competing suit in the State Court of Fulton County, asserting

that Rogers had, among other things, battered and sexually harassed her by requiring

her to engage in sexual activities with him as a condition of her employment. Although

the records in both suits were sealed, several news outlets reported information about

the litigation and underlying claims.

       On May 30, 2014, Rogers filed the instant action in Cobb County against

Cohen, Butters, and Dupree, alleging that Brindle’s attorneys conspired with her to

illegally obtain video evidence of the sexual encounters and to extort money from

Rogers by threatening in the demand letter to file frivolous and false claims regarding

his private activities. With respect to the video recording, he asserted that Brindle’s

attorneys convinced Brindle to make the recording, advised her how to do it, and

procured the spy camera for her. Rogers asserted claims for: (1) invasion of privacy

– intrusion upon seclusion, solitude and private affairs; (2) invasion of privacy – public

disclosure of private facts; (3) civil conspiracy; (4) intentional infliction of emotional

distress; (5) conspiracy to violate the Georgia RICO Act; (6) violation of the Georgia

RICO Act; (7) aiding and abetting breach of a confidential relationship; (8) general

negligence/negligence per se; and (9) litigation expenses.



                                            6
       In response, Cohen, Butters, and Dupree filed motions to dismiss for failure to

state a claim and motions to strike or dismiss pursuant to the anti-SLAPP statute,

OCGA § 9-11-11.1. The trial court found that the complaint failed to state a claim for

general negligence. It thus dismissed the general negligence allegation, but denied the

motions to dismiss for failure to state a claim as to the remaining counts, including

negligence per se. 3 The trial court also denied Cohen and Butters’s anti-SLAPP

motion. It ruled differently as to Dupree, however, determining that the claims against

him were subject to strike or dismissal on anti-SLAPP grounds. These appeals

followed.

                                  Case No. A16A1715

       1. For ease of discussion, we will first address Dupree’s appeal in Case No.

A16A1715, which challenges the denial of his motion to dismiss for failure to state a

claim upon which relief can be granted. A trial court should only grant a motion to

dismiss for failure to state a claim when “it appears to a certainty that the plaintiff

would be entitled to no relief under any state of facts which could be proved in


       3
         Although the trial court did not dismiss Rogers’s RICO allegations for failure
to state a claim, it dismissed one of the nine predicate acts underlying those allegations.
Neither that dismissal, nor the dismissal of the general negligence claim, is at issue in
these appeals.

                                            7
support of his claim.” Ikomoni, supra at 777. A complaint survives dismissal “[i]f,

within the framework of the complaint, evidence may be introduced which will sustain

a grant of relief to the plaintiff.” Id.

       In his sole enumeration of error, Dupree asserts that all of Rogers’s claims are

barred by OCGA § 51-7-80 et seq, Georgia’s statutory scheme governing abusive

litigation.4 Under the scheme, “[a]ny person who takes an active part in the initiation,

continuation, or procurement of civil proceedings against another shall be liable for

abusive litigation if such person acts: (1) [w]ith malice; and (2) [w]ithout substantial

justification.” OCGA § 51-7-81. The legislation establishes a procedural framework

for such claims, requiring, among other things, that the claimant provide detailed, pre-

suit notice of the claim to the opposing party. OCGA § 51-7-84 (a). This statutory

scheme offers “the exclusive remedy for abusive litigation.” OCGA § 51-7-85. No

other tort claims for malicious use of civil proceedings, malicious abuse of civil

process, or abusive litigation are allowed. Id.



       4
         To the extent Dupree argues in his appellate brief that Rogers’s complaint
failed to state a claim for other reasons, we cannot consider those arguments. See
Riggs v. State, 319 Ga. App. 189, 198 (5) (733 SE2d 832) (2012) (“A party cannot
expand his enumerations of error through argument or citation in his brief.”) (citation
and punctuation omitted).

                                             8
      (a) Asserting that Rogers’s claims allege abusive litigation, Dupree argues that

the complaint must be dismissed because Rogers failed to comply with the procedural

requirements of OCGA § 51-7-80 et seq. We agree with Dupree as to Count 2 –

invasion of privacy through the public disclosure of private facts. With respect to this

claim, Rogers alleged that Dupree and the other defendants “made a public disclosure

of private facts of Rogers by causing the disclosure to the public that he was having

a sexual relationship with Brindle.” Specifically, he asserted that the defendants

“disclosed [the sexual relationship] in the public record” by filing the Fulton County

complaint, which contained “frivolous claims” and “false allegations.” He further

claimed that they placed litigation-related documents in the “public domain” while

seeking appellate review of an issue in the Fulton County action. And he asserted that

Dupree and Brindle’s other attorneys leaked information to the press by sending the

Fulton County complaint to a news outlet.

      The conduct underlying Count 2 relates entirely to the defendants’ initiation,

continuation, and procurement of litigation against Rogers on behalf of Brindle.

Although Rogers couched Count 2 as an invasion of privacy claim, “we look to the

substance and not the style of a particular claim to determine whether it amounts to a

claim for abusive litigation.” Meadow Springs Recovery v. Wofford, 319 Ga. App. 79,

                                            9
82 (1) (734 SE2d 100) (2012). Because Count 2 centers on the defendants’ litigation-

related conduct – i.e., filing a civil complaint, seeking appellate review of an issue, and

disclosing the litigation to the press – the invasion of privacy allegations fall within the

abusive litigation statute.

       As to Count 2, therefore, Rogers needed to comply with the statutory

prerequisites for an abusive litigation claim. The record, however, reveals no indication

of compliance. In particular, Rogers does not contend that he provided the statutory

notice required by OCGA § 51-7-84 (a). Accordingly, the trial court erred in refusing

to dismiss Count 2 for failure to state a claim. See Slone v. Myers, 288 Ga. App. 8,

11 (2) (653 SE2d 323) (2007), overruled in part on other grounds by Reeves v. Upson

Regional Medical Ctr., 315 Ga. App. 582 (726 SE2d 544) (2012); LaSonde v. Chase

Mortgage Co., 259 Ga. App. 772, 774 (2) (577 SE2d 822) (2003).

       (b) We reach a different conclusion as to Rogers’s claims in Counts 1 and 3

through 9. Rogers asserted in Count 1 that “[b]y working together and in concert to

have Rogers filmed and recorded while engaging in sexual encounters in the privacy

of his bedroom without his knowledge or consent, Defendants invaded [Rogers’s]

right to privacy.” He further claimed that the video recording violated OCGA § 16-11-

62 (2), which makes it unlawful for “[a]ny person, through the use of any device,

                                            10
without the consent of all persons observed, to observe, photograph, or record the

activities of another which occur in any private place and out of public view.”5 Counts

3 through 9 similarly asserted causes of action based on Dupree’s alleged

participation, through a conspiracy with the other defendants, in (1) the illegal video-

recording of Rogers, and (2) an extortion scheme relating to the demand letter.

      These claims do not involve the “initiation, continuation, or procurement of civil

proceedings.” OCGA § 51-7-81. Rogers alleged that well before any legal action

commenced, the defendants conspired to illegally video-record his private activities

and extort money from him by threatening to file false claims regarding the video and

his sex life. Although Dupree characterizes the attorneys’ actions as “pre- and inter-

litigation conduct,” the activities underlying the claims stand apart from – and do not

depend upon – the litigation brought by Brindle. Under these circumstances, Counts

1 and 3 through 9 do not fall within the abusive litigation paradigm. See Ward v.



      5
         In State v. Cohen, our Supreme Court noted that “because video recording
someone [without consent using a hidden spy camera] falls into the category of
surveillance activities covered by OCGA § 16-11-62 (2), and because Brindle and her
attorneys allegedly took actions to agree to make a secret video and actually video
record others without the consent of all of the persons being recorded, the defendants’
actions fall within the purview of OCGA § 16-11-62 (2) and any alleged conspiracy to
violate that statute[.]” Supra at 627 (2) (a).

                                          11
Coastal Lumber Co., 196 Ga. App. 249, 251 (3) (395 SE2d 601) (1990) (pre-litigation

activities do not give rise to viable abusive litigation claim). Thus, although we reverse

the denial of Dupree’s motion to dismiss Count 2 of Rogers’s complaint for failure

to state a claim, we affirm the trial court’s judgment as to Counts 1 and 3 through 9.

                                  Case No. A16A1714

      2. In Case No. A16A1714, Rogers challenges the trial court’s order

dismissing/striking his claims against Dupree on anti-SLAPP grounds. Because we

have already determined that Count 2 of Rogers’s complaint should have been

dismissed for failure to state a claim, we need only consider whether the trial court

properly granted Dupree’s anti-SLAPP motion as to Counts 1 and 3 through 9.

      A SLAPP action is a lawsuit filed with the intent to silence and intimidate a

party’s critics or opponents by overwhelming them with the cost of a legal defense

until they abandon their criticism or opposition. See Neff v. McGee, 346 Ga. App. 522,

524 (816 SE2d 486) (2018). To combat these lawsuits, Georgia has adopted an anti-

SLAPP statute that “encourage[s] 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.” OCGA § 9-11-



                                           12
11.1 (a). The statute requires that a detailed verification accompany causes of action

that might be reasonably construed as SLAPP claims. The verification must certify:

      that the party and his or her attorney of record, if any, have read the
      claim; that to the best of their knowledge, information, and belief formed
      after reasonable inquiry it is well grounded in fact and is warranted by
      existing law or a good faith argument for the extension, modification, or
      reversal of existing law; that the act forming the basis for the claim is not
      a privileged communication under [OCGA § 51-5-7 (4)]; and that the
      claim is not interposed for any improper purpose such as to suppress a
      person’s or entity’s right of free speech or right to petition government,
      or to harass, or to cause unnecessary delay or needless increase in the
      cost of litigation.


OCGA § 9-11-11.1 (b).

      The anti-SLAPP statute, however, only protects activities that “could

reasonably be construed as . . . act[s] 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.” OCGA § 9-11-11.1 (b). Ultimately, the statute

“afford[s] a procedural protection to acts of communication on public issues.”

Denton v. Browns Mill Dev. Co., 275 Ga. 2, 6 (561 SE2d 431) (2002). Claims based



                                           13
on other conduct fall outside the statute’s protection and “do not need to be verified.”

Id.

       The record shows that Rogers filed an anti-SLAPP verification pursuant to

OCGA § 9-11-11.1 (b). Questioning whether Dupree was involved in the alleged

extortion scheme, however, the trial court determined that Rogers falsely verified the

claims against him. It thus concluded that the anti-SLAPP statute required dismissal

of those claims. We disagree. Undoubtedly, a trial court may reject an anti-SLAPP

verification that it deems insufficient. See Settles Bridge Farm v. Masino, 318 Ga.

App. 576, 577 (1) (734 SE2d 456) (2012). A plain reading of the complaint, however,

demonstrates that Counts 1 and 3 through 9 are not subject to the anti-SLAPP statute

or its verification requirement.

       As an initial matter, OCGA § 9-11-11.1 only applies to communications (i.e.,

written or oral statements, writings, or petitions) “made before or to a legislative,

executive, or judicial proceeding, or any other official proceeding authorized by law,

or . . . in connection with an issue under consideration or review by a legislative,

executive, or judicial body, or any other official proceeding authorized by law.”

OCGA § 9-11-11.1 (c) (emphasis supplied). The statute clearly contemplates that

protected communication be made to, before, or in connection with some official

                                          14
proceeding. In other words, “there must 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.” Emory University, supra at 445 (1) (emphasis

supplied).

      Dupree cannot make this threshold showing. The conduct alleged in Counts 1

and 3 through 9 – making a video recording and attempting to extort a settlement

through a demand letter – occurred before any official proceeding or legal action

began. Given the plain language of OCGA § 9-11-11.1 (c), we find no basis for

extending the statute to the private, pre-litigation activities alleged here. See Emory

University, supra a 445-446 (1); In re Whittle, 339 Ga. App. 83, 86 (1) (793 SE2d

123) (2016) (“[I]n considering the meaning of a statute, our charge as an appellate

court is to presume that the General Assembly meant what it said and said what it

meant.”) (footnote and punctuation omitted).

      Moreover, the mere act of making a video recording cannot be viewed as a

communication on a public issue. See Metzler v. Rowell, 248 Ga. App. 596, 599 (2)

(547 SE2d 311) (2001) (non-communicative acts such as “trespass by pulling up land

markers, defacing property, or blocking ingress and egress (without more) [are] not

covered by the [anti-SLAPP] statute as none of these actions constitutes a ‘written or

                                          15
oral statement.’”) (citation omitted). Although the resulting video might ultimately be

shown to others or used as evidence in a lawsuit, recording a video is “not an act in

furtherance of the exercise of the right of free speech; [the recording] is completed

before any act of communication occurs.” Denton, supra at 6. Perhaps more

importantly, the right to speak freely or petition the government does not authorize an

individual to illegally record another person or to arrange for an illegal recording to be

made. See generally id. (“[T]he right of free speech does not include the right to

trespass onto another’s land.”). Such alleged criminal conduct falls outside the

purview of OCGA § 9-11-11.1. See generally id.

       Similarly, Rogers’s extortion allegations do not involve protected conduct.

According to Rogers, Dupree and the other defendants conspired to extort money

from him via the July 2012 demand letter. A demand letter that merely threatens a

lawsuit generally enjoys First Amendment protection and will not support an extortion

claim. See Cohen, supra at 623-624 & n.9. But “[t]his is not to say that a charge of

extortion could not be based on intentional falsehoods or on knowingly frivolous

claims.” Id. at 624 n.9 (citation and punctuation omitted). And in this case, Rogers

alleged that the litigation threatened by Brindle and her attorneys was false and

frivolous.

                                           16
      Construed favorably to Rogers, Counts 1 and 3 through 9 assert claims based

on a purported illegal scheme to video-record his private activities and extort money

from him in connection with those activities. As alleged, the acts underlying this

scheme are not protected by the First Amendment or the anti-SLAPP statute. See id.;

Denton, supra. The trial court, therefore, erred in dismissing these claims against

Dupree pursuant to OCGA § 9-11-11.1.6

                        Case Nos. A16A1716 and A16A1717

      3. Like Dupree, Cohen and Butters argue that Georgia’s abusive litigation statute

bars Rogers’s claims. For the reasons outlined in Division 1, the trial court properly

rejected this argument as to Counts 1 and 3 through 9 of the complaint. Count 2,

however, should have been dismissed on this basis. We thus reverse the trial court’s

determination on Count 2, but affirm as to the other counts.

      4. In three claims of error, Cohen and Butters assert that the trial court erred in

denying their motion to dismiss pursuant to the anti-SLAPP statute. As discussed in

Division 2, however, OCGA § 9-11-11.1 does not apply to Counts 1 and 3 through



      6
        We express no opinion on the merit of Rogers’s claims against Dupree or the
other defendants. We find only that Counts 1 and 3 through 9 are not subject to strike
or dismissal under the anti-SLAPP statute.

                                          17
9, the only claims remaining after the dismissal of Count 2. Accordingly, the trial court

properly denied Cohen and Butters’s motion to dismiss or strike on anti-SLAPP

grounds.

      5. Cohen and Butters also contend that Rogers breached a mediation

confidentiality agreement by revealing information about the parties’ mediation in the

complaint. Citing this alleged breach, they assert that Rogers falsely verified his

complaint under OCGA § 9-11-11.1 (b). As noted above, however, Counts 1 and 3

through 9 are not subject to the anti-SLAPP procedures and did not need to be

verified. Moreover, the trial court found that information about the mediation had

already been publicly disclosed by the time Rogers sued Cohen, Butters, and Dupree.

Given these circumstances, the trial court properly refused to dismiss the complaint

based on the alleged breach.

      6. Finally, Cohen and Butters argue that Rogers’s complaint should have been

dismissed for failure to state a claim pursuant to the Noerr-Pennington7 doctrine, a

federal doctrine that, like the anti-SLAPP statute, safeguards a party’s First



      7
       See Eastern Railroad Presidents Conference v. Noerr Motor Freight, 365 U.
S. 127, 139-140 (81 SCt 523, 5 LE2d 464) (1961); United Mine Workers v.
Pennington, 381 U. S. 657, 669-670 (II) (85 SCt 1585, 14 LE2d 626) (1965).

                                           18
Amendment right to petition the government for a redress of grievances. See

Consumer Finance Protection Bureau v. Frederick J. Hanna & Assocs., 114

FSupp3d. 1342, 1359 (III) (B) (1) (N.D. Ga. 2015). As we explained in Division 2,

however, the First Amendment does not protect illegal conduct such as that alleged

here. See Cohen, supra at 624 n.9; Denton, supra at 6.

      Furthermore, not all litigation-related conduct is protected by the Noerr-

Pennington doctrine. “To receive immunity, the conduct at issue cannot fall within the

‘sham exception’ to the Noerr doctrine. In other words, the litigation activity must be

genuine.” Orange Lake Country Club v. Reed Hein & Assocs., 2018 U.S. Dist.

LEXIS 182131, at *17 (III) (C) (M.D. Fla. 2018) (citation omitted). Rogers alleged that

the litigation activity engaged in by the defendants was frivolous, grounded in false

claims, and part of an extortion scheme. Accordingly, because he pled sufficient facts

to suggest that the defendants’ activities fell within the “sham exception” to the Noerr-

Pennington doctrine, the trial court properly denied the motion to dismiss. See id. at

*17-18.

       Judgments in Case Nos. A16A1715, A16A1716, and A16A1717 affirmed in

part and reversed in part. Judgment in Case No. A16A1714 reversed. Miller, P. J.,



                                           19
McMillian, Mercier, Reese, Brown, Goss and Markle, J., concur. Barnes, P. J., and

McFadden, P. J., concur in part and dissent in part.




                                         20
 A16A1714. ROGERS v. DUPREE et al.
 A16A1715. DUPREE et al. v. ROGERS.
 A16A1716. COHEN et al. v. ROGERS.
 A16A1717. COHEN et al. v. ROGERS.



      BARNES, Presiding Judge, concurring in part and dissenting in part.

      Because Rogers seeks damages solely for the conduct of counsel undertaken

as part of the initiation, continuation, and procurement of civil proceedings on their

client’s behalf, all of Rogers’s claims should be dismissed under the exclusive remedy

provision of Georgia’s statutory scheme governing abusive litigation, OCGA § 51-7-

80 et seq. (the “abusive litigation statute”). Accordingly, I believe that the trial court

erred by not dismissing all of Rogers’s claims, and I therefore respectfully dissent in

part from the majority opinion.1



      1
         I concur fully in Division 1 (a) of the majority opinion in which the majority
concludes that Count 2 of Rogers’s complaint (invasion of privacy through the public
disclosure of private facts) should have been dismissed against Dupree under the
abusive litigation statute. I also concur in Division 3 to the extent that the majority
concludes that Count 2 of Rogers’s complaint should have been dismissed against
Cohen and Butters under the abusive litigation statute.
       I previously discussed the factual and procedural background of this case in
greater detail. See Rogers v. Dupree, 340 Ga. App. 811, 821-828 (799 SE2d 1) (2017)
(Barnes, P. J., concurring in part and dissenting in part), vacated by Cohen v. Rogers,
2018 Ga. LEXIS 260 (2018).
       Georgia’s abusive litigation statute provides: “Any person who takes an active

part in the initiation, continuation, or procurement of civil proceedings against another

shall be liable for abusive litigation if such person acts: (1) With malice; and (2)

Without substantial justification.” OCGA § 51-7-81. The abusive litigation statute

strikes a balance between the competing public interests of preserving free access to

the courts and preventing “serious abuses of lawsuit filing.” Phillips v. MacDougald,

219 Ga. App. 152, 156 (2) (g) (464 SE2d 390) (1995). This balance is intended to

prevent the “proliferation of unnecessary causes of action for the alleged improper

filing of lawsuits [which] would have a chilling effect on the exercise by citizens of

their right of access to the courts.” Id. at 157 (2) (g).

       Notably, Georgia’s abusive litigation statute contains an exclusive remedy

provision. OCGA § 51-7-85 states: “[N]o claim other than as provided in this article

or in Code Section 9-15-14 shall be allowed, whether statutory or common law, for

the torts of malicious use of civil proceedings, malicious abuse of civil process, nor

abusive litigation. . . . This article is the exclusive remedy for abusive litigation.” And,

“we look to the substance and not the style of a particular claim to determine whether

it amounts to a claim for abusive litigation” that is preempted under OCGA § 51-7-85.

Meadow Springs Recovery v. Wofford, 319 Ga. App. 79, 82 (1) (734 SE2d 100)

                                              2
(2012). As we have emphasized, plaintiffs “may not avoid the requirements of the

statute merely by characterizing their claims arising from the allegedly abusive lawsuit

as” some other cause of action. Slone v. Myers, 288 Ga. App. 8, 11 (2) (653 SE2d

323) (2007), overruled in part on other grounds, Reeves v. Upson Regional Med.

Center, 315 Ga. App. 582 (726 SE2d 544) (2012).

      Rogers’s claims, regardless of how characterized in his complaint, fell within

the purview of the abusive litigation statute. All of the misconduct alleged to have been

committed by Brindle’s attorneys occurred in the course of their representation of

Brindle on her sexual harassment claim and took place either during the litigation of

that claim in Fulton and Cobb Counties or as part of the prelitigation activity

associated with that claim that was alleged to be part of the same “scheme” and

“conspiracy.” Hence, all of Rogers’s claims were predicated on attorney conduct that

was part of “the initiation, continuation, or procurement of civil proceedings,” OCGA

§ 51-7-81, and the claims thus were preempted by the exclusive remedy provision of

the abusive litigation statute, OCGA § 51-7-85.

      While the majority acknowledges that Count 2 of Rogers complaint was

preempted by Georgia’s abusive litigation statute, the majority concludes that the

remaining counts were not preempted because they involved allegations about the

                                           3
conduct of Brindle’s attorneys relating to the video and settlement demand letter that

took place before any legal action commenced. In support of this conclusion, the

majority relies upon Ward v. Coastal Lumber Co., 196 Ga. App. 249 (395 SE2d 601)

(1990), for the proposition that pre-litigation activities do not give rise to a viable

abusive litigation claim. The present case, however, is distinguishable.

       Ward involved allegations of improper conduct in cutting and removing timber

from the plaintiff’s property and included two counts, one for conversion/trespass and

the other for abusive litigation, both against the defendant lumber company that cut

down the timber. Ward, 196 Ga. App. at 249-250. Without discussing the substance

of the allegations of abusive litigation, this Court held that there was no legal basis for

an abusive litigation claim because the plaintiff’s claims “relate[d] solely to [the

defendant’s] pre-litigation actions.” (Emphasis omitted.) Id. at 251 (3). Unlike Ward,

the present case involves claims against attorneys arising from their representation of

their client leading up to and during the course of litigation, and the prelitigation and

litigation conduct all relate to the same sexual harassment claim. Moreover, Rogers’s

complaint alleged an ongoing “scheme” and “conspiracy” by Brindle’s attorneys that

began with prelitigation conduct and continued through the course of civil proceedings

in Fulton and Cobb Counties. Hence, in contrast to those in Ward, Rogers’s claims

                                            4
against Brindle’s attorneys for their alleged prelitigation misconduct in procuring the

video and sending the settlement demand letter were interconnected with the litigation

that ensued between Rogers and Brindle.

      Furthermore, by its plain language, Georgia’s abusive litigation statute applies

to conduct involved in the “initiation” and “procurement” of civil proceedings. See

OCGA § 51-7-81. And, the initiation and procurement of a lawsuit by an attorney

typically entails at least some prelitigation activity by counsel. See, e.g., Kendrick v.

Funderburk, 230 Ga. App. 860, 864-865 (3) (498 SE2d 147) (1998) (discussing need

for counsel to conduct reasonable inquiry into the facts and the law before filing suit).

Thus, in determining whether claims are preempted by the abusive litigation statute, an

artificial boundary should not be placed between the prelitigation conduct of counsel

and counsel’s conduct during the ensuing litigation, particularly in a case like the

present one, where all of the conduct is factually connected and alleged to be part of

an ongoing scheme and conspiracy involving the attorneys.

      For these reasons, all of Rogers’s claims, including those based on alleged

prelitigation misconduct by Brindle’s attorneys, are preempted by Georgia’s abusive

litigation statute. Rogers therefore needed to comply with the statutory prerequisites

for bringing an abusive litigation claim, including providing statutory notice in

                                            5
accordance with OCGA § 51-7-84 (a), which he failed to do. See Phillips, 219 Ga.

App. at 157 (4) (“The written notice required by OCGA § 51-7-84 (a) is a condition

precedent to any claim for abusive litigation.”). Consequently, this Court should

conclude that the trial court erred in failing to dismiss all of Rogers’s claims.2




       2
         Because I conclude that all of Rogers’s claims should have been dismissed
under Georgia’s abusive litigation statute, I do not believe that this Court needs to
reach the question whether dismissal was appropriate under Georgia’s Anti-SLAPP
statute in light of our Supreme Court’s decision in State v. Cohen, 302 Ga. 616 (807
SE2d 861) (2017).

                                             6
 A16A1714. ROGERS v. DUPREE et al.
 A16A1715. DUPREE et al. v. ROGERS.
 A16A1716. COHEN et al. v. ROGERS.
 A16A1717. COHEN et al. v. ROGERS.



      MCFADDEN, Presiding Judge, concurring in part and dissenting in part.

      I agree with much of Presiding Judge Barnes’s opinion. Like her, I concur fully

in Division 1 (a) of the majority opinion, concur in part in Division 3 of that opinion,

but dissent to the remaining divisions of that opinion. I write separately to explain

where I disagree with Presiding Judge Barnes and to more fully address points raised

by reconsideration in light of our Supreme Court’s decision in State v. Cohen, 302

Ga. 616 (807 SE2d 861) (2017).

      We initially decided this case on March 16, 2017. Rogers v. Dupree, 340 Ga.

App. 811 (799 SE2d 1) (2017). The Supreme Court decided State v. Cohen, supra,

later that year. On April 16, 2018, the Supreme Court granted certiorari in this case,

vacated our 2017 decision, and remanded for reconsideration “in light of State v.

Cohen[.]” Cohen v. Rogers, 2018 Ga. LEXIS 260 (2018).

      State v. Cohen was an appeal from a trial court’s grant of a general demurrer

to an indictment arising out of the same events as the case before us. The issue before
the Supreme Court was whether the indictment sufficiently charged crimes. The

Supreme Court held that “the allegations in the indictment are legally insufficient to

support a charge of conspiracy to commit extortion,” State v. Cohen, supra at 622 (1),

but that the indictment sufficiently alleged unlawful eavesdropping or surveillance

under OCGA § 16-11-62 (2). Id. at 632 (2).

       On remand, we should consider whether the complaint before us sufficiently

alleges torts.1 It does not.

       Presiding Judge Barnes views all of the allegations in the complaint to be a

species of abusive litigation. I agree, except as to the allegations that correspond to the

criminal charges of unlawful eavesdropping or surveillance under OCGA § 16-11-62

(2) upheld by our Supreme Court.




       1
         The majority holds, in footnote 4, that our consideration of this issue is
truncated by a deficiency in the enumeration of errors in case A16A1715. That holding
is error. See Felix v. State, 271 Ga. 534, 539-540 (523 SE2d 1) (1999) (“The
individual facets of appellants’ attack on the legal ruling with which they took issue are
arguments in support of a legal position and are not, in and of themselves, errors of
law. Because the arguments supporting a position concerning a legal ruling are not
themselves legal rulings, they do not have to be enunciated in the enumeration of errors
in order to merit appellate consideration. Such arguments, however, must be
addressed by the appellate court if necessary to its decision on the issue of the
propriety of the trial court’s ruling.”).

                                            2
       All of the allegations other than unlawful eavesdropping or surveillance assert

abusive litigation because they concern acts that amount to the “initiation, continuation,

or procurement of civil proceedings.” OCGA § 51-7-81 (emphasis supplied). “[T]he

fundamental rules of statutory construction . . . require us to construe (this) statute

according to its terms, to give words their plain and ordinary meaning, and to avoid

a construction that makes some language mere surplusage.” Lyman v. Cellchem Intl.,

300 Ga. 475, 477 (796 SE2d 255) (2017) (citation and punctuation omitted). See

generally Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal

Texts 174-179 (2012) (discussing “Surplusage Canon”). But the majority reads

“procurement” out of the statute when it holds that the defendants’ pre-litigation

activities fell outside of this statutory definition. The term “procure” means, among

other things, “to prevail upon by persuasion[, to] induce[, or] to endeavor to bring

about[.]” Mgmt. Compensation Group/Southeast v. United Security Employee

Programs, 194 Ga. App. 99, 102 (2) (389 SE2d 525) (1989), quoting Webster’s New

Intl. Dictionary, 2d ed. (punctuation omitted). This broad definition can encompass

pre-litigation activities.

       And I fully agree with Presiding Judge Barnes that those allegations of abusive

litigation are precluded because the required statutory procedure was not followed.

                                            3
The abusive litigation statute, OCGA § 51-7-80 et seq., “is the exclusive remedy for

abusive litigation.” OCGA § 51-7-85. And the “condition[s] precedent” for an abusive

litigation claim are a “written notice,” OCGA § 51-7-84 (a), which Rogers did not give,

and “final termination of the proceeding in which the alleged abusive litigation

occurred,” OCGA § 51-7-84 (b), which termination has not yet occurred.

       But of the allegations of unlawful eavesdropping or surveillance, my

reconsideration in light of State v. Cohen, supra, must reckon with the Supreme

Court’s decision that the corresponding counts in the criminal indictment sufficiently

alleged violations of OCGA § 16-11-62 (2).2 In light of that holding, I must

acknowledge a distinction between conduct that would be tortious (or criminal)

whether connected to litigation or not, on the one hand, and conduct that is arguably

tortious only because of its connection to the “initiation, continuation, or procurement

of civil proceedings,” on the other. OCGA § 51-7-81. While the latter is subject to the

abusive litigation statute, the former is not. For example, a tort claim founded on a

violent assault would not be subject to the abusive litigation statute, even if the assault

were committed to intimidate a witness.

       2
         I acknowledge that the parties represent, as has been reported in the press, that
the defendants were acquitted at trial. But this court cannot take formal cognizance of
that fact, and it does not affect my analysis.

                                            4
       So while I adhere to the view that Rogers’s claims regarding the demand letter

fall squarely within the abusive litigation statute, I am persuaded that his claim for

videotaping him without his consent would fall outside that statute — if it were a tort.

       As to his allegations of criminal behavior, Rogers admits that the statutes

establishing the criminal offenses of unlawful eavesdropping or surveillance under

OCGA § 16-11-62 and extortion under OCGA § 16-8-16, “do not create private rights

of action.” His argument in support of his private claims for conduct criminalized by

those statutes is that he does not rely on the statutes themselves. “Instead he claims

violations of Georgia’s RICO statute, for which violations of [those statutes]

constitute predicate acts[.]”

       But the Georgia RICO statute prohibits actions “through a pattern of

racketeering activity[.]” OCGA § 16-14-4 (a). A “pattern” (outside the context of

domestic terrorism) requires “at least two acts of racketeering activity.” OCGA § 16-

14-3 (4) (A). “Racketeering activity” is defined at OCGA § 16-14-3 (5), with a long list

of predicate acts and cross-references to other statutes. Extortion is on that list at

OCGA § 16-14-3 (5) (B). But unlawful surveillance isn’t. And the remaining acts

Rogers complains about fall squarely under the umbrella of abusive litigation. So




                                           5
Rogers has only one predicate act, the demand letter. That’s not enough for Georgia

RICO.

        Moreover, the viability of the extortion claim founded on the demand letter —

if only as a single predicate act under RICO — must be reexamined in light of the

Supreme Court’s analysis in State v. Cohen, supra. The Supreme Court struck down

the criminal extortion charge founded on that demand letter. State v. Cohen, 302 Ga.

at 624-625 (1). In doing so, the Court reaffirmed that “mere threats to sue cannot

constitute criminal extortion.” Id. at 623 (1) (citations and punctuation omitted). The

Court went on in a footnote to acknowledge the possibility “that a charge of extortion

could . . . be based on intentional falsehoods or on knowingly frivolous claims,” id.

at 624 (1) n. 9 (citation and punctuation omitted), but found that the criminal

indictment did not allege

        that the legal grounds supporting the threatened litigation in this case were
        based on intentional falsehoods or that the lawsuit was otherwise
        somehow unlawful such that the protection typically afforded to private
        litigation by the First Amendment right to petition the government for
        redress of grievances would not longer be available.


Id.




                                             6
       The majority relies on this footnote, finding that the civil claim based on

extortion survives the motion to dismiss because Rogers alleged in his complaint that

the threatened litigation was false and frivolous. But in construing the complaint in the

context of a motion to dismiss, we are required only to accept as true Rogers’s well-

pleaded facts, not his legal conclusions based on those facts. Auto-Owners Ins. Co.

v. Tracy, 344 Ga. App. 53, 54 (806 SE2d 653) (2017). Rogers does not dispute that

he engaged in sexual activity with a person in his employment. His allegation that this

activity did not rise to the level of sexual harassment is a legal conclusion.

       For these reasons, the complaint must be dismissed.




                                             7
