                              THIRD DIVISION
                             MCFADDEN, C. J.,
                         DOYLE, P. J., and HODGES, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               https://www.gaappeals.us/rules

                    DEADLINES ARE NO LONGER TOLLED IN THIS
                    COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
                    THE TIMES SET BY OUR COURT RULES.


                                                                      June 25, 2020



In the Court of Appeals of Georgia
 A20A0087. DELLINGER-ALLEN et al. v. O’BRIEN.

      HODGES, Judge.

      E. Amanda Dellinger-Allen (“Dellinger-Allen”) and E. Amanda Dellinger-

Allen, LLC d/b/a Thrive Counseling (“Thrive”) sued Allison O’Brien for defamation,

breach of contract, violation of the Georgia Computer Systems Protections Act, and

attorney fees. O’Brien answered and moved to strike the defamation and breach of

contract counts of the complaint pursuant to the Georgia anti-SLAPP statute.1 See

OCGA § 9-11-11.1. Following a hearing, the Superior Court of Cobb County granted


      1
         “‘Strategic lawsuits against public participation,’ or ‘SLAPPs,’ are meritless
lawsuits brought not to vindicate legally cognizable rights, but instead to deter or
punish the exercise of constitutional rights of petition and free speech by tying up
their target’s resources and driving up the costs of litigation.” (Footnote omitted.)
Wilkes & McHugh, P.A. v. LTC Consulting, 306 Ga. 252, 257 (2) (830 SE2d 119)
(2019)
O’Brien’s motion, and Dellinger-Allen and Thrive appeal. For the following reasons,

we affirm that portion of the trial court’s order striking Dellinger-Allen’s defamation

claim, but reverse as to Thrive’s claim for breach of contract.

      Accepting Dellinger-Allen’s allegations as true,2 the record demonstrates that

O’Brien contracted with Thrive on March 1, 2016 to provide counseling services to

Thrive’s clients.3 To become a licensed counselor, O’Brien worked under Dellinger-

Allen’s direction and supervision until December 15, 2016. The relationship soured

in December 2016, culminating in a dispute between Dellinger-Allen and O’Brien

concerning the amount O’Brien owed to buy out the remainder of her contract with

Thrive.4

      O’Brien asked Dellinger-Allen to provide her with a document demonstrating

the number of direct experience hours she worked under Dellinger-Allen in order to



      2
        Wilkes, 306 Ga. at 262 (2) (b) (“The plaintiff’s evidence is accepted as true;
the defendant’s evidence is evaluated to determine if it defeats the plaintiff’s showing
as a matter of law.”) (citation and punctuation omitted).
      3
        O’Brien’s March 1, 2016, contract with Thrive replaced an earlier March 2,
2015, contract. To the extent the two contracts contain different provisions, the
parties have not raised any arguments based upon any alleged differences.
      4
       The dispute was based upon a disagreement as to the length and timing of
O’Brien’s maternity leave.

                                           2
obtain her professional counseling license. Dellinger-Allen refused because she did

not feel O’Brien was fulfilling the terms of her contract with Thrive, and thus offered

to provide proof of O’Brien’s hours “if [O’Brien] signed a promissory note for the

amount [Dellinger-Allen] felt [O’Brien] owed.” O’Brien declined. “After further

consideration and discussion,” Dellinger-Allen, through counsel, finally provided

O’Brien with proof of the direct clinical experience hours O’Brien earned on

December 23, 2016.

      To recover the amount O’Brien allegedly owed, Thrive filed an action against

O’Brien in the Magistrate Court of Cobb County on February 17, 2017 to collect

$4,778.33. Thereafter, O’Brien filed an ethical complaint with the Georgia Composite

Board of Professional Counselors, Social Workers and Marriage and Family

Therapists (the “Board”) on or about March 30, 2017 (the “grievance”). In it, O’Brien

claimed that when she asked for her

      signed and notarized licensure paperwork for hours of direct post
      graduate clinical experience . . ., Ms. Dellinger refused to release the
      form to [her] until [she] paid [Dellinger-Allen] or signed a form agreeing
      to make payments over 6 months. [O’Brien] asked several times for
      [her] licensure form, as [she] had completed the hours for licensure and
      needed the form to apply for full licensure as a marriage and family



                                          3
      therapist. [Dellinger-Allen] refused and sent a copy only after
      [O’Brien’s] attorney contacted her.


Similarly, O’Brien wrote of her concern “that Ms. Dellinger’s behavior is in violation

of several codes of ethics and exploits the trust and dependency of associate licensed

therapists.”

      O’Brien supplemented her grievance on April 11, 2017.5 In response, the Board

emailed Dellinger-Allen on June 13, 2017 and requested that she provide additional

information, including:

               1. Do you now, or have you ever, provided supervision of/and
               directed work experience for, [O’Brien] at your . . . business,
               Thrive Counseling Center?


               2. Did you refuse[] to sign and submit forms required for the
      licensure application of Ms. O’Brien? If yes, why have you refused?




      5
       Dellinger-Allen’s complaint only cited O’Brien’s March 30, 2017 grievance
that she sent the Board. Although Dellinger-Allen later referred to O’Brien’s
statements in the April 11, 2017 supplemental grievance that Dellinger-Allen
“fraudulently and deceitfully exploited her position as [O’Brien’s] director by
withholding signature on earned direct clinical experience hours until [O’Brien]
signed a promissory note,” this basis for relief was not included in an amended
complaint.

                                           4
             3. What training have you had as it pertains to supervision?



On June 16, 2017, Dellinger-Allen replied to the Board’s inquiry, noting that she had

provided O’Brien with “her Supervision Verification Forms for licensure” and “her

forms for Direct Work Experience,” and detailing her training in supervision. O’Brien

filed an update to her original grievance with the Board on June 29, 2017.

      Dellinger-Allen and Thrive filed the present action in the Superior Court of

Cobb County on September 5, 2017, alleging causes of action for defamation, breach

of contract, violation of the Georgia Computer Systems Protection Act, and attorney

fees.6 O’Brien answered and moved to strike and to dismiss Dellinger-Allen’s

complaint.7 Concerned that O’Brien’s motion “might be valid,” the trial court ordered

limited discovery to obtain O’Brien’s communications with the Board. After

additional briefing and a hearing, the trial court granted O’Brien’s motion and struck




      6
       Dellinger-Allen alleged that, at some point, the magistrate court action was
resolved at mediation. O’Brien does not contest Dellinger-Allen’s statement.
      7
       Although O’Brien did not specify the counts of Dellinger-Allen’s complaint
which should be struck or dismissed, Dellinger-Allen’s response addressed only the
defamation and breach of contract counts.

                                          5
Dellinger-Allen’s defamation count and Thrive’s breach of contract count from their

complaint.8 This appeal followed.

      1. First, Dellinger-Allen contends that the trial court erred in granting

O’Brien’s motion to strike Dellinger-Allen’s claim for defamation. We find no error.

      (a) Current Anti-SLAPP Statute. OCGA § 9-11-11.1 (b) (1) provides that

      [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.


Furthermore,

      [a]s 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:




      8
          We note that the trial court’s order was prepared by O’Brien’s counsel.

                                           6
      (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;


      . . . [and]


      (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.


OCGA § 9-11-11.1 (c).

      In Wilkes,9 our Supreme Court noted that, in view of “wholesale revision[s]”

in 2016, “[t]he text of OCGA § 9-11-11.1 (b) (1) makes clear that the analysis of an



      9
         Of course, “we apply the law as it exists at the time of appeal rather than the
law prevailing at the rendition of the judgment under review[.]” (Citation and
punctuation omitted.) Bradford v. Gen. Elec. Credit Corp. of Ga., 183 Ga. App. 782,
783 (359 SE2d 757) (1987); accord Hammond v. State, 334 Ga. App. 781, 783, n. 12
(780 SE2d 440) (2015) (same). The trial court filed its order granting O’Brien’s
motion to strike on June 7, 2019, while the Supreme Court decided Wilkes on June
24, 2019. 306 Ga. at 265. Accordingly, we are bound to apply Wilkes in evaluating
the trial court’s order. See Bradford, 183 Ga. App. at 783.

                                           7
anti-SLAPP motion involves two steps.” (Footnote omitted.) 306 Ga. at 252, 261 (2)

(b).

       First, the court must decide whether the party filing the anti-SLAPP
       motion (usually, the defendant) has made a threshold showing that the
       challenged claim is one ‘arising from’ protected activity. If a court
       concludes that this threshold showing has been made, it must proceed
       to the second step of the analysis and decide whether the plaintiff has
       established that there is a probability that the plaintiff will prevail on the
       claim.


(Citations and punctuation omitted.) Joshua David Mellberg, LLC v. Impact

Partnership, LLC, No. A20A0004, 2020 Ga. App. LEXIS 303, at *4 (Ga. App., June

3, 2020); see also Wilkes, 306 Ga. at 261-262 (2) (b). “Only a claim that satisfies both

prongs of the anti-SLAPP statute — i.e., that arises from protected activity and lacks

even minimal merit — is a SLAPP that is subject to being stricken.” (Citation,

punctuation, and emphasis omitted.) Wilkes, 306 Ga. at 262-263 (2) (b). We review

an order granting or denying an anti-SLAPP motion de novo. Id. at 263 (2) (b).

       (b) Step One — Whether O’Brien’s Grievance was in Furtherance of a

Covered Right. First, the trial court was required to decide whether O’Brien “made

a threshold showing that the challenged claim [was] one ‘arising from’ protected

activity.” Wilkes, 306 Ga. at 262 (2) (b); see also OCGA § 9-11-11.1 (b) (1). “A

                                             8
defendant meets [her] burden by demonstrating that the act underlying the challenged

claim ‘could reasonably be construed as’ fitting within one of the categories spelled

out in [OCGA § 9-11-11.1 (c)].” Wilkes, 306 Ga. at 262 (2) (b). One such category

includes “[a]ny written or oral statement or writing or petition made before a

legislative, executive, or judicial proceeding, or any other official proceeding

authorized by law[.]” OCGA § 9-11-11.1 (c) (1).

      In this case, the trial court summarily found that O’Brien’s statements to the

Board “were made in furtherance of [O’Brien’s] right to petition to a legislative,

executive, or judicial proceeding pursuant to OCGA § 9-11-11.1 (b) (1).” Dellinger-

Allen does not contest the trial court’s finding related to her cause of action for

defamation,10 and we conclude that the finding was not erroneous. See OCGA §§ 43-

1-2 (creating professional licensing boards division in office of secretary of state), 43-

10A-4 (creating the Board and providing that members are appointed by the

governor), 43-10A-5 (c) (1) (defining duties of the Board); Ga. Comp. R. & Regs.,

r. 135-8-.01 (establishing the Board’s complaint procedure); compare RCO Legal, P.

      10
          As a result, Dellinger-Allen has waived any argument related to the first step
of the trial court’s anti-SLAPP analysis related to defamation. See generally Dagne
v. Schroeder, 336 Ga. App. 36, 41 (3) (783 SE2d 426) (2016) (“Matters not
enumerated as error will not be considered on appeal and are therefore presumed to
be binding and correct.”) (citation and punctuation omitted).

                                            9
S., Inc. v. Johnson, 347 Ga. App. 661, 668 (2) (b) (820 SE2d 491) (2018) (concluding

that review of a State Bar grievance “could reasonably be construed as statements

made in connection with official proceedings”); Jefferson v. Stripling, 316 Ga. App.

197, 199-200 (1) (728 SE2d 826) (2012) (finding that complaints to the Office of the

General Counsel of the State Bar of Georgia were “official proceedings authorized

by law” and, therefore, subject to anti-SLAPP statute) (punctuation omitted).

      (c) Step Two — Whether Dellinger-Allen Demonstrated a Probability of

Prevailing on Her Claims. Dellinger-Allen contends that the trial court erred in

applying the second step of the anti-SLAPP analysis because she “presented a prima

facie showing of facts to sustain a favorable judgment if her evidence is credited.”11

We disagree.

      11
         Dellinger-Allen’s argument that the trial court applied an incorrect burden
of persuasion is misplaced. Although the trial court did refer to a “preponderance of
the evidence” standard in an earlier hearing, the trial court’s order correctly noted that
Dellinger-Allen was required to a show a probability that she would prevail on her
claim. See Mondy v. Magnolia Advanced Materials, 303 Ga. 764, 772 (4) (b) (815
SE2d 70) (2018) (“any discrepancy between [an] oral pronouncement and the written
ruling will be resolved in favor of the written judgment”). We need not decide here
the practical difference between the terms “probability” and “preponderance of the
evidence.” But see, e.g., Carbone v. CNN, No. 1:16-CV-1720-ODE, 2017 U. S. Dist.
LEXIS 21628, at *7-*8 (N.D. Ga. Feb. 14, 2017) (noting that Georgia’s anti-SLAPP
statute “essentially creates a Rule 12 (b) (6) ‘plus’ standard for cases with a First
Amendment nexus”); Rosser v. Clyatt, 348 Ga. App. 40, 43 (2) (a) (821 SE2d 140)
(2018).

                                           10
      The first step of the anti-SLAPP analysis having been established, the burden

shifted to Dellinger-Allen to establish “that there is a probability that [she] will

prevail on [her] claim.” Mellberg, No. A20A0004, 2020 Ga. App. LEXIS 303, at *4.

      To meet this burden, the plaintiff must demonstrate that the complaint
      is both legally sufficient and supported by a sufficient prima facie[12]
      showing of facts to sustain a favorable judgment if the evidence
      submitted by the plaintiff is credited. [To that end,] [t]he plaintiff’s
      evidence is accepted as true; the defendant’s evidence is evaluated to
      determine if it defeats the plaintiff’s showing as a matter of law.


(Citations and punctuation omitted.) Wilkes, 306 Ga. at 262 (2) (b); see also RCO,

347 Ga. App. at 667, n.10 (holding that “[t]o satisfy the second prong, a plaintiff

responding to an anti-SLAPP motion must state and substantiate a legally sufficient

claim”) (citation and punctuation omitted).

      Here, the trial court found, without any analysis, that Dellinger-Allen failed to

demonstrate “that there is a probability that [she] will prevail on the claim. The Court



      12
         See generally Spivey v. Spivey, 202 Ga. 644, 649 (1) (44 SE2d 224) (1947)
(“Literally, the words, ‘prima facie ‘ mean ‘at first view.’ A ‘prima facie case’ may
be defined as one in which the evidence in favor of a proposition is sufficient to
support a finding in its favor, if the opponent produced no evidence, or if all the
evidence to the contrary be disregarded.”), superseded by statute on other grounds as
recognized by Reeves v. Webb, 297 Ga. 405, 407-408 (1) (774 SE2d 641) (2015).

                                          11
finds that the Complaint and supplements to the Complaint to the Composite Board

are true.” Nevertheless, in accepting Dellinger-Allen’s evidence as true and applying

our de novo review, we conclude that the trial court did not err.

      “To establish a cause of action for defamation, a plaintiff must submit evidence

of (1) a false and defamatory statement about [her]self; (2) an unprivileged

communication to a third party; (3) fault by the defendant amounting at least to

negligence; and (4) special damages or defamatory words “injurious on their face.”’

(Citation omitted.) RCO, 347 Ga. App. at 668 (2) (c). Importantly, “[b]ecause falsity

is an essential element of both libel and slander, truth is a perfect defense to a

defamation action.” (Citation omitted.) Lucas v. Cranshaw, 289 Ga. App. 510, 512

(1) (659 SE2d 612) (2008).

      Here, we need only look to the first element of Dellinger-Allen’s defamation

claim to conclude that she failed to demonstrate a probability that she will prevail on

her claim.13 In her original grievance to the Board, O’Brien stated that Dellinger-

Allen refused to release the licensing forms to her until she either paid Dellinger-


      13
        Dellinger-Allen’s recurring argument that O’Brien knew her statements to
the Board were false because Dellinger-Allen had already given O’Brien her licensing
forms overlooks the fact that, regardless of their timing, O’Brien’s statements
provided a truthful account of the parties’ initial interactions.

                                          12
Allen or signed a promissory note. For her part, Dellinger-Allen acknowledged that

she initially refused to provide O’Brien with the licensing documents because she did

not feel O’Brien was fulfilling the terms of her contract with Thrive. As a result,

Dellinger-Allen offered to supply the documents “if [O’Brien] signed a promissiory

note for the amount [Dellinger-Allen] felt [O’Brien] owed.” Indeed, it was only

“[a]fter further consideration and discussion” that Dellinger-Allen, through counsel,

finally provided O’Brien with the documents. That Dellinger-Allen ultimately

provided O’Brien with the licensing documents is irrelevant — the substance of

O’Brien’s grievance was Dellinger-Allen’s initial ultimatum and its possible

relevance to the Board’s rules and standards. Accordingly, even accepting Dellinger-

Allen’s evidence as true, Dellinger-Allen cannot show that O’Brien’s grievance was

false. Therefore, Dellinger-Allen cannot demonstrate a probability that she would

prevail in her defamation action against O’Brien. See generally Vito v. Inman, 286

Ga. App. 646, 648 (1) (649 SE2d 753) (2007) (finding that plaintiff could not recover

for slander because of inability to prove falsity and recognizing that “[d]efamation

law overlooks minor inaccuracies and concentrates upon substantial truth”) (citation

omitted).



                                         13
      In short, Dellinger-Allen seeks to recover for defamation because she

ultimately provided the licensing documents to O’Brien, ostensibly rendering

O’Brien’s complaint false, while acknowledging that O’Brien’s grievance accurately

stated the parties’ interactions. This, the law does not allow. Accordingly, we

conclude that the trial court did not err in granting O’Brien’s motion to strike

Dellinger-Allen’s cause of action for defamation.

      2. Second, Thrive contends the trial court erred in granting O’Brien’s motion

to strike its cause of action for breach of contract. Specifically, Thrive argues that

O’Brien breached two provisions of her independent contractor agreement with

Thrive: (1) Paragraph 7 (c),14 concerning the return of confidential information in

O’Brien’s possession upon termination of the agreement; and (2) Paragraph 9,15

      14
         “Contractor agrees that he or she will treat as confidential and not use, other
than in the course of performing Services pursuant to this Agreement, or disclose in
any manner during the Term of this Agreement or at any time following the
termination of this Agreement any confidential or proprietary data or information
relating to Thrive Counseling. . . . Upon termination of this Agreement, Contractor
shall promptly deliver to Thrive Counseling all originals and copies of all
Confidential Information in Contractor’s actual or constructive possession.”
      15
         “Contractor agrees not to take any action or make any statement (verbally or
in writing) which is intended, or would reasonably be expected, to harm Thrive
Counseling, its representatives, employees, independent contractors, other Associates,
or their reputation or which would reasonably be expected to lead to unwanted or
unfavorable publicity to Thrive Counseling. . . . This agreement is in effect during

                                          14
prohibiting statements which would harm Thrive or which would “lead to unwanted

or unfavorable publicity to Thrive. . . .” For the following reasons, we reverse.

      (a) Paragraph 7 (c). Thrive first argues that O’Brien failed to return certain

confidential information to it, in violation of Paragraph 7 (c) of the parties’

agreement.16 Despite the absence of any showing of a breach of Paragraph 7 (c),

Thrive correctly notes that O’Brien failed to make “a threshold showing that the

challenged claim [was] one ‘arising from’ protected activity.” Wilkes, 306 Ga. at 262

(2) (b); see also OCGA § 9-11-11.1 (b) (1). In fact, the only argument Thrive

presented in the trial court, either orally or in writing, concerning its breach of

contract claim consisted of the following statement by Thrive’s counsel during an

initial hearing on its motion to strike:

      The contract claim is basically the same [as the defamation claim]. The
      contract claim says [O’Brien] made these statements and that was a



the term of this Agreement and for two years following its Termination.”
      16
         We note that the trial court made no findings of fact or conclusions of law
related to Thrive’s cause of action for breach of contract, although the absence of
such findings and conclusions is not necessarily fatal to Thrive’s argument. See
generally OCGA § 9-11-52 (b); McLeod v. Clements, 326 Ga. App. 840, 842 (1) (755
SE2d 346) (2014) (finding that OCGA § 9-11-52 (b) “does not apply to motions
except as provided in OCGA § 9-11-41 (b), which relates to involuntary dismissals
and is not applicable here”).

                                           15
      breach of the contract. So I ask the Court to strike that claim, too,
      because it’s basically the same thing.


A defendant satisfies her burden under the first step of the anti-SLAPP analysis “by

demonstrating that the act underlying the challenged claim ‘could reasonably be

construed as’ fitting within one of the categories spelled out in [OCGA § 9-11-11.1

(c)].” Wilkes, 306 Ga. at 262 (2) (b). O’Brien has not shown any connection between

her grievance to the Board and Paragraph 7 (c) of the agreement. See generally

OCGA § 9-11-11.1 (b) (1); Wilkes, 306 Ga. at 262 (2) (b) (“challenged claim [was]

one ‘arising from’ protected activity”). Due to O’Brien’s failure to meet her threshold

burden to satisfy the first step of the anti-SLAPP analysis, we conclude that the trial

court erred in granting O’Brien’s motion to strike Thrive’s breach of contract claim

based upon an alleged breach of Paragraph 7 (c) of the parties’ agreement. Therefore,

we reverse that portion of the trial court’s order.

      (b) Paragraph 9. At first glance, O’Brien’s grievance to the Board seems more

closely related to the alleged breach of the anti-disparagement clause of her

agreement with Thrive. However, O’Brien failed to articulate that her act of filing a

grievance with the Board was permissible despite the existence of Paragraph 9, such

that Thrive’s complaint sought to stifle protected conduct. Furthermore, left un-

                                          16
answered is the question of whether Thrive, as a business regulated by the secretary

of state, could pursue an action against O’Brien based upon a confidential complaint

to Thrive’s governing body about Dellinger-Allen. See OCGA §§ 43-1-19 (h)

(defining confidential nature of a licensing board’s hearing procedures generally), 43-

10A-17 (h) (defining confidential nature of Board’s hearing procedures); Ga. Comp.

R. & Regs., r. 135-8-.01 (4) (providing that “the name of the person or business entity

against whom [a] complaint is being filed shall be treated as confidential” during the

Board’s investigation of a complaint). Stated differently, O’Brien failed to make a

threshold showing that Thrive’s breach of contract claim as to Paragraph 9 arose from

O’Brien’s confidential grievance about Dellinger-Allen. See Wilkes, 306 Ga. at 262

(2) (b); see also OCGA § 9-11-11.1 (b) (1). As a result, we reverse the trial court’s

order striking Thrive’s complaint based upon an alleged breach of Paragraph 9 of the

agreement.

      In sum, we conclude that the trial court correctly granted O’Brien’s motion to

strike Dellinger-Allen’s claim for defamation. However, we further conclude that the

trial court erred in striking Thrive’s breach of contract claim. Therefore, we affirm in

part and reverse in part the trial court’s order granting O’Brien’s motion to strike

Dellinger-Allen and Thrive’s complaint.

                                          17
      Judgment affirmed in part and reversed in part. McFadden, C. J., and Doyle,

P. J., concur.




                                       18
