Rogers v. Dupree
340 Ga. App. 811
| Ga. Ct. App. | 2017Background
- Plaintiff Rogers sued three attorneys (Cohen, Butters, Dupree) who represented former housekeeper Brindle, alleging illegal recording, extortionate demand, public disclosure, RICO and related torts; case is Cobb 2 following earlier suit and counterclaims in Cobb 1.
- Brindle made audio/video recordings of sexual encounters with Rogers; attorneys sent a pre-suit demand letter referencing the recordings and urging settlement; parties attended a confidential mediation that failed, and Rogers filed suit during mediation.
- Defendants moved to dismiss under OCGA § 9-11-12(b)(6) and Georgia’s anti‑SLAPP statute (OCGA § 9-11-11.1); trial court granted Dupree’s anti‑SLAPP motion (finding Rogers’ verification false as to Dupree) and denied Cohen/Butters’ anti‑SLAPP motions.
- Trial court otherwise denied defendants’ motions to dismiss for failure to state a claim and denied sanctions based on alleged breach of the mediation agreement.
- On appeal the court held the anti‑SLAPP statute did not apply to Rogers’ claims (as they arise from alleged criminal/tortious conduct and pre‑official‑proceeding acts) and therefore reversed the grant as to Dupree and affirmed denials as to Cohen and Butters; it also affirmed denials of dismissal on Noerr‑Pennington and mediation‑breach grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of anti‑SLAPP statute | Rogers: claims based on tort/criminal acts (illegal recording, extortion) — statute inapplicable | Defendants: their demand letter, mediation and litigation activities are petition/speech protected; verification required | Court: anti‑SLAPP does not apply because core claims allege criminal/tortious conduct and acts occurred pre‑official proceeding; thus plaintiffs were not subject to verification requirement; reversed Dupree dismissal and affirmed denial re: Cohen/Butters |
| Truthfulness of verification under anti‑SLAPP | Rogers: filed verification as precaution; claims are well grounded | Defendants: verification false, filed to chill petitioning rights | Court: need not reach truth as statute inapplicable; as to Dupree (given record) prior grant was reversed because pleadings construed for plaintiff showed Dupree’s involvement unclear |
| Noerr‑Pennington immunity | Rogers: claims not immune because conduct alleged is criminal/tortious, not protected petitioning | Cohen/Butters: petitioning and incidental conduct immune | Court: Noerr‑Pennington does not bar claims based on alleged extortion/illegal recording; such conduct is not First Amendment protected |
| Mediation confidentiality and mediation‑breach sanction | Rogers: suit is about illegal pre‑litigation acts, not amount of mediation demand; confidentiality does not bar all claims | Defendants: mediation agreements and FRE/OCGA § 24‑4‑408 bar use of demand/mediation statements and warrant dismissal/sanctions | Court: rejected dismissal/sanctions — mediation/demand do not dispose of claims alleging illegal recording and related torts; threats to sue and settlement communications are not per se tortious |
Key Cases Cited
- Flatley v. Mauro, 39 Cal.4th 299 (Cal. 2006) (demand letter may be unprotected where it constitutes criminal extortion; instructive comparison)
- Emory Univ. v. Metro Atlanta Task Force for the Homeless, 320 Ga. App. 442 (Ga. Ct. App.) (anti‑SLAPP applies only where claim relates to an actual official proceeding)
- Barnett v. Holt Builders, 338 Ga. App. 291 (Ga. Ct. App.) (de novo review of anti‑SLAPP dismissal/denial)
- Denton v. Browns Mill Dev. Co., 275 Ga. 2 (Ga.) (certain torts not covered by anti‑SLAPP; verification requirement analysis)
- Metzler v. Rowell, 248 Ga. App. 596 (Ga. Ct. App.) (anti‑SLAPP verification requirement and limits)
- United States v. Stevens, 559 U.S. 460 (U.S.) (criminal/tortious conduct may fall outside First Amendment protection)
- Berryhill v. Ga. Community Support & Solutions, 281 Ga. 439 (Ga.) (if anti‑SLAPP statute does not apply, verification defects cannot justify dismissal)