Wilkes & McHugh, P.A. v. Ltc Consulting, L.P. ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 27, 2018
The Court of Appeals hereby passes the following order:
A18A1155. WILKES & MCHUGH, P.A. et al. v. LTC CONSULTING, L.P. et
al.
The appellants, an out-of-state law firm and lawyer, appeal the superior court’s
order denying their motion to dismiss or to strike the appellees’ complaint pursuant
to OCGA § 9-11-11.1, the Anti-SLAPP statute. The appellees, three affiliated nursing
homes, sought injunctive relief for alleged violations of OCGA § 31-7-3.2 (j),
stemming from the appellants’ placement of advertisements using nursing home
survey data. In their motion, and during the hearing before the superior court, the
appellants argued that OCGA § 31-7-3.2 (j) is facially unconstitutional and as
applied. The superior court denied the appellants’ motion. After this appeal was
docketed and the parties filed their briefs, the appellants raised the issue of this
Court’s jurisdiction over the instant case, contending during oral argument that their
appeal raised constitutional issues under the exclusive jurisdiction of the Supreme
Court of Georgia. In their briefs, the appellants contend that the superior court erred
in denying their motion because appellees “seek to proceed under a statute, OCGA
§ 31-7-3.2 (j), which discriminates on the basis of the content of speech and the
viewpoint of the speaker, in violation of the First Amendment to the United States
Constitution.”
The entire record and the briefs of the parties in this case focus upon novel
questions regarding the constitutionality of OCGA § 31-7-3.2 (j). And it appears that
this is the first appeal to implicate this provision of OCGA § 31-7-3.2. Further,
because the appellants’ motion called into question the constitutionality of OCGA §
31-7-3.2 (j), and the superior court impliedly rejected the appellants’ constitutional
argument, it appears that jurisdiction over the appeal may lie in the Supreme Court,
despite the fact that the appeal could ultimately be resolved on other grounds. See
Harrison v. Wigington, 269 Ga. 388, 388 (497 SE2d 568) (1998) (“If a constitutional
question is raised and ruled on below, [the Supreme] [C]ourt has exclusive appellate
jurisdiction, and this is true, although upon a consideration of the entire case, [the
Supreme] [C]ourt determines that a decision upon such constitutional questions is not
necessary to a proper solution of the case, and makes no decision thereon.”) (citation
and punctuation omitted).
Accordingly, this appeal is hereby TRANSFERRED to the Supreme Court.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/27/2018
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.