This case presents the Court its first opportunity to apply the provisions of OCGA § 9-11-11.1. This 1996 law, sometimes referred to as an “anti-SLAPP” statute, is designed to prevent “Strategic Litigation Against Public Participation.” See Kent & Isenberg, “Georgia’s New Anti-SLAPP Statute,” Ga. Bar J. (June 1997), p. 26.
Providence Construction Company brought this suit against Dave Bauer and other residents of Cumberland Ridge, a Cobb County subdivision developed by Providence. Providence is represented in court by its president, who is not a member of the State Bar of Georgia, but the appeal was docketed on April 8, 1997, before the rule in
Eckles v. Atlanta Tech. Group,
As far as defendants are concerned, only Bauer remains as a party. The developer sought to enjoin the residents from actively opposing its efforts to rezone a parcel of property adjoining the subdivision. Providence also sought money damages on its claim that Bauer and other residents breached contractual duties and tortiously interfered with Providence’s contractual relations by circulating petitions opposing rezoning, writing letters to county officials and speaking out before the Cobb County Planning Commission. After an expedited hearing held pursuant to OCGA § 9-11-11.1 (d), the court found Providence’s suit to be an improper attempt to chill Bauer’s free speech and petition rights and dismissed the complaint.
1. In enacting the anti-SLAPP statute, 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 *680 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.” OCGA § 9-11-11.1 (a).
To prevent such abusive litigation, the legislature imposed several procedural safeguards. Any complaint arising from an act “which could reasonably be construed as an act in furtherance of” a defendant’s free speech or petition rights must be accompanied by a verification, based on belief formed after reasonable inquiry, that the suit is well grounded in fact and law or represents a good-faith argument for the extension of existing law. OCGA § 9-11-11.1 (b). The plaintiff and her counsel must also verify the act forming the basis of the suit is not a “privileged communication” under OCGA § 51-5-7, and that the suit is not filed “for any improper purpose such as to suppress a person’s . . . right of free speech or right to petition government. . . .” OCGA § 9-11-11.1 (b). If the defendant files a motion to dismiss, the trial court must hold a hearing on the motion within 30 days of its service, if possible. OCGA § 9-11-11.1 (d).
Bauer filed a motion to dismiss on grounds that the activities of which Providence complained were privileged as “[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. . . .” OCGA § 51-5-7 (4). Such statements are defined in OCGA § 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. As the trial court construed the statute, 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 defends its suit against Bauer as valid because his actions violated a restrictive covenant between residents of Cumberland Ridge and Providence which runs with the land and binds subsequent purchasers such as Bauer whose deeds reflect they are subject to the restrictive covenant. See generally OCGA §§ 44-5-60; 44-5-39. See also
Rosen v. Wolff,
The covenant states: “It is presently contemplated by [Providence] that portions of the overall scheme for the Development, and *681 any and all contiguous land in which [Providence] presently has or may hereafter acquire an interest, include, in addition to single-family residential lots, phases to be developed as apartments, townhouses, condominiums, patio homes, shopping centers (with tenants who shall be approved at the sole discretion of [Providence]), golf driving range, office, storage and light industrial. By acceptance of the deed conveying a Lot, each Owner acknowledges the foregoing plan and Covenants and agrees not to oppose any application to amend the zoning ordinances or any petition seeking a variance of the zoning laws and regulations of the appropriate political subdivisions in order to permit such land usages or the use of other property in the area for a golf course, lounge, restaurants, and recreational facilities; further, each owner agrees not to oppose any license application or transfer relating to any such permitted land usages in the Development and in any and all contiguous land in which [Providence] presently has or may hereafter acquire an interest.” This restrictive covenant is unenforceable as against public policy.
“A contract cannot be said to be contrary to public policy unless the General Assembly has declared it to be so, or unless the consideration of the contract is contrary to good morals and contrary to law, or unless the contract is entered into for the purpose of effecting an illegal or immoral agreement or doing something which is in violation of law. [Cits.]”
Porubiansky v. Emory Univ.,
In OCGA § 9-11-11.1 (a), the General Assembly specifically declared that it is the public policy of this state to encourage citizens to exercise their rights of free speech and petition, and it forbade abuse of the judicial system to discourage such activity. Providence seeks to enforce a covenant which inhibits the speech and political activities of not only the original property purchaser, but also of all subsequent lot purchasers. “Contracting parties may waive or renounce what the law has established in their favor provided such waiver or renunciation does not thereby injure others or affect the public interest.”
Young v. John Deere Plow Co.,
The covenant is overly broad, as it seeks to prevent residents from opposing future unspecified attempts by the developer to seek rezoning of “any and all contiguous land” that Providence may acquire. The covenant, which is also vague, would prevent all lot purchasers in a development from exercising their constitutional rights to oppose government action which may affect their neighborhood’s *682 character and the properties’ value. Such a prohibition is contrary to public policy and the public interest. See Porubiansky, supra.
United Egg Producers v. Standard Brands,
Providence’s reliance on
Muldawer v. Stribling,
Because Providence’s covenant is unenforceable as against public policy, we need not determine whether it was otherwise binding on Bauer or other residents of Cumberland Ridge. A judgment right for any reason will be affirmed. See
Little v. Fleet Finance,
2. Next, Providence contends the trial court had no authority to dismiss the complaint once Providence filed the affidavit required by OCGA § 9-11-11.1 (b). But verified or not, the face of the complaint failed to state a claim upon which relief could be granted. See Little, supra at 504 (2).
3. Providence argues that the trial court should have allowed it to amend its complaint to state a claim. Nothing in the record shows Providence ever offered any deficiency-correcting amendment. An issue raised for the first time on appeal is not considered. See
Merrill v. First Union Nat. Bank &c.,
Judgment affirmed.