JENNIFER VALADE v. MERIWETHER & THARP, LLC ( 2022 )

THIRD DIVISION
DOYLE, P. J.,
REESE and BROWN, JJ.
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
June 27, 2022
In the Court of Appeals of Georgia
A22A0330. VALADE v. MERIWETHER & THARP, LLC et al.
REESE, Judge.
This invasion of privacy lawsuit arose from the divorce and child custody
litigation between Jennifer Valade and Kenneth Valade. Kenneth Valade, allegedly
at the advice of his attorneys — Elizabeth Doak, Patrick Meriwether, and Meriwether
& Tharp, LLC (collectively, the “Attorneys”) — secretly recorded Jennifer Valade
and Crystal Rimert in a bedroom and subsequently distributed those recordings. The
trial court issued a partial summary judgment order, and Jennifer Valade, Rimert, and
the Attorneys all appealed from that order. We have already addressed Rimert’s and
the Attorneys’ appeals,1 and now turn to Jennifer Valade’s appeal from the same
summary judgment order. Jennifer Valade argues that the trial court erred in: (1)
1
See Rimert v. Meriwether & Tharp, 361 Ga. App. 589 (865 SE2d 199) (2021).
finding that her invasion of privacy claims were barred by the exclusive remedy
provision in the abusive litigation statute, OCGA § 51-7-80 et seq.; and (2) granting
summary judgment in favor of the Attorneys on her negligent supervision claim. For
the reasons set forth infra, we affirm the trial court’s findings on the negligent
supervision claim, but reverse the trial court’s conclusion that the abusive litigation
statute completely barred Jennifer Valade’s invasion of privacy claim.
We summarized the relevant facts, viewed in the light most favorable to the
nonmoving parties below, in the prior appeal:
Jennifer Valade filed for divorce against Kenneth Valade in July 2013.
Kenneth Valade hired the Attorneys to represent him in the divorce.
Doak graduated law school in 2010 and had been working at Meriwether
& Tharp the prior three years since passing the Georgia Bar. According
to Kenneth Valade, during an initial meeting with the Attorneys,
Meriwether advised him to place a “nanny cam” in Jennifer Valade’s
bedroom, and that it was legal to do so and directly related to the issues
in the divorce. Doak agreed with this advice. At the time, the court had
a standing order in divorce actions that prohibited a party from “placing
under surveillance . . . for the purpose of harassing and intimidating the
other party.”
Kenneth Valade proceeded to install in Jennifer Valade’s bedroom a
covert surveillance camera that he had received from a private
investigator. At the time, the Valades were not living together, with
2
Jennifer Valade occupying the marital home on the weekdays, and
Kenneth Valade occupying the home on the weekends. The camera was
motion-activated and video was recorded to an SD card. Among other
recordings, the camera captured Jennifer Valade and Rimert in bed
together having sexual relations.
Kenneth Valade showed the recordings to Doak and the private
investigator. Meriwether sent a letter to Jennifer Valade’s counsel on
August 2, 2013, stating that Kenneth Valade had recently become aware
that Jennifer Valade was having sex with Rimert in the marital home.
The letter demanded that “[t]his behavior must stop immediately.”
(Emphasis in original.) Otherwise, Kenneth Valade would seek an
emergency hearing, which would “force him to present all evidence of
Ms. Valade’s adulterous, lesbian relationship thereby making it public
record.” The Attorneys subsequently filed a motion with the trial court
seeking an emergency hearing. The motion revealed that Kenneth
Valade had placed a camera in the home, which had recorded Jennifer
Valade and Rimert engaging in sexual relations.2
Jennifer Valade filed a complaint against Kenneth Valade, the Attorneys, and
others alleging claims against the Attorneys of, among other things, violations of her
common law right to privacy and negligent training and supervision by Meriwether
2
Rimert, 361 Ga. App. at 590 (footnote omitted).
3
& Tharp over its employee Doak. The trial court issued a summary judgment order,
and this appeal by Jennifer Valade followed.
Summary judgment is proper when there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law.
A de novo standard of review applies to an appeal from a grant or denial
of summary judgment, and we view the evidence, and all reasonable
conclusions and inferences drawn from it, in the light most favorable to
the nonmovant.3
With these guiding principles in mind, we now turn to Jennifer Valade’s claims of
error.
1. Jennifer Valade argues that the trial court erred in finding that her invasion
of privacy claims were barred by the exclusive remedy provision in the abusive
litigation statute.
Under Georgia’s abusive litigation statutory 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.”4 A “[c]ivil proceeding” is defined
3
Rimert, 361 Ga. App. at 591 (punctuation and footnote omitted).
4
OCGA § 51-7-81.
4
as “any action, suit, proceeding, counterclaim, cross-claim, third-party claim, or other
claim at law or in equity.”5 A “[c]laim” is defined as “any allegation or contention of
fact or law asserted in support of or in opposition to any civil proceeding, defense,
motion, or appeal.”6
This statutory scheme “is the exclusive remedy for abusive litigation.”7 “[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[.]”8
As a condition precedent to asserting a claim for abusive litigation, a plaintiff
must send written notice to the potential defendant giving the defendant “an
opportunity to voluntarily withdraw, abandon, discontinue, or dismiss the civil
proceeding, claim, defense, motion, appeal, civil process, or other position.”9 Absent
exceptions not relevant here,
5
OCGA § 51-7-80 (1).
6
OCGA § 51-7-80 (2).
7
OCGA § 51-7-85.
8
Id.
9
OCGA § 51-7-84 (a).
5
[i]t shall be a complete defense to any claim for abusive litigation that
the person against whom a claim of abusive litigation is asserted has
voluntarily withdrawn, abandoned, discontinued, or dismissed the civil
proceeding, claim, defense, motion, appeal, civil process, or other
position which the injured person claims constitutes abusive litigation
within 30 days after the mailing of the notice required . . . or prior to a
ruling by the court . . . whichever shall first occur[.]10
When tasked with interpreting a statute,
we apply the fundamental rules of statutory construction that require us
to construe the statute according to its terms, to give words their plain
and ordinary meaning, and to avoid a construction that makes some
language mere surplusage. At the same time, we must seek to effectuate
the intent of the legislature. . . . In our search for the meaning of a
particular statutory provision, we look not only to the words of that
provision, but we consider its legal context as well. After all, context is
a primary determinant of meaning. For context, we may look to other
provisions of the same statute, the structure and history of the whole
statute, and the other law — constitutional, statutory, and common law
alike — that forms the legal background of the statutory provision in
question.11
10
OCGA § 51-7-82 (a)
11
Moffitt v. State, 359 Ga. App. 261, 263 (857 SE2d 264) (2021) (citations and
punctuation omitted).
6
In a case with similar factual circumstances — where a party covertly
surveilled another engaging in sexual relations — we held that the plaintiff’s claims
asserting invasion of privacy did “not fall within the abusive litigation paradigm.”12
However, we relied on the fact that the surveillance occurred “well before any legal
action commenced,” and thus “the activities underlying the claims [stood] apart from
— and [did] not depend upon — the litigation” between the parties.13 Here, however,
we are faced with a situation where the surveillance occurred during litigation and
where the purpose of the surveillance was to gain an advantage in the lawsuit.
When we have held that the complained-of conduct was encompassed by the
“initiation, continuation, or procurement of civil proceedings”14 such that the abusive
litigation statute applied, the conduct has always directly corresponded to a judicial
filing or process. For example, we have held that the abusive litigation statute applied
against conduct in filing and litigating an adoption proceeding,15 in filing a lis
12
Rogers v. Dupree, 349 Ga. App. 777, 783 (1) (b) (824 SE2d 823) (2019).
13
Id.14
OCGA § 51-7-81.
15
See Stapler v. Boling, 347 Ga. App. 79, 83 (2) (815 SE2d 602) (2018)
(physical precedent only).
7
pendens and delivering a copy of the notice to an interested third party,16 and in
making alleged false statements filed with a dispossessory action and during a
deposition.17 And in the surveillance case, cited supra, we held that the claims relating
to the disclosure of the sexual relationship through the filing of a complaint fell
within the abusive litigation statute.18
Here, by contrast, the surveillance on Rimert and Jennifer Valade did not
involve a court filing or a judicial process, such as discovery. As such, this conduct
did not involve the “initiation, continuation, or procurement of civil proceedings[.]”19
We distinguish between the surveillance and the subsequent letter to Jennifer
Valade’s counsel and motion filed with the divorce court which disclosed the sexual
relationship. The letter and motion constituted a “[c]laim”20 asserted in connection
16
See Meadow Springs Recovery, LLC v. Wofford, 319 Ga. App. 79, 83 (1)
(734 SE2d 100) (2012).
17
See Slone v. Myers, 288 Ga. App. 8, 10-11 (2) (653 SE2d 323) (2007).
18
See Rogers, 349 Ga. App. at 781-782 (1) (a).
19
OCGA § 51-7-81.
20
See OCGA § 51-7-80 (2) (“‘Claim’ includes any allegation or contention of
fact or law asserted in support of or in opposition to any civil proceeding, defense,
motion, or appeal.”).
8
with the continuation of a civil proceeding.21 The surveillance of Rimert and Jennifer
Valade did not fall within the abusive litigation statute’s definition of claim, as the
act of surveilling another is not an allegation or contention of fact or law.22 Nor did
the surveillance, standing alone, result in the continuation of civil proceedings.
This interpretation also comports with the other provisions of the abusive
litigation statute. Under OCGA § 51-7-82 (a), it is a complete defense to withdraw
the claim, position, or lawsuit in response to an abusive litigation claim. That remedy
does not make sense with respect to the invasion of privacy claim alleged here, or
other torts that parties in litigation could commit against one another that are
unconnected to a judicial process. “For example, a tort claim founded on a violent
assault [is not] subject to the abusive litigation statute, even if the assault were
committed to intimidate a witness.”23
In summary, Jennifer Valade’s claims premised on the surveillance do not fall
within the ambit of the abusive litigation statute. Any claims stemming from the
21
See Rogers, 349 Ga. App. at 781-782 (1) (a).
22
See OCGA § 51-7-80 (2).
23
Rogers, 349 Ga. App. at 792 (McFadden, P. J., concurring in part and
dissenting in part).
9
subsequent disclosure of the sexual relationship in filings made with the divorce
court, however, are preempted by the abusive litigation statute. Accordingly, we
reverse the trial court’s conclusion that the abusive litigation statute completely
barred Jennifer Valade’s invasion of privacy claim.
2. Jennifer Valade argues that the trial court erred in granting summary
judgment to the Attorneys on her negligent training and supervision claims. She
contends that it was foreseeable that Doak would cause the type of harm alleged in
this case, as her supervisor instructed and approved of the plan to place a hidden
camera in the bedroom.
“An employer may be held liable for negligent supervision only where there
is sufficient evidence to establish that the employer reasonably knew or should have
known of an employee’s tendencies to engage in certain behavior relevant to the
injuries allegedly incurred by the plaintiff.”24 As we held in Rimert’s prior appeal on
this claim, the record was devoid of evidence that Doak was unsuited for
representation or that she had a propensity to commit the type of harm alleged in this
24
Rimert, 361 Ga. App. at 592 (1) (punctuation and footnote omitted).
10
case.25 Accordingly, the trial court did not err in granting summary judgment on the
negligent training and supervision claims.
Judgment affirmed in part and reversed in part. Brown, J., concurs. Doyle,
P. J., concurs in part and dissents in part.
25
See id.; see also Munroe v. Universal Health Svcs., 277 Ga. 861, 866 (2) (596
SE2d 604) (2004); Leo v. Waffle House, 298 Ga. App. 838, 841 (2) (681 SE2d 258)
(2009).
11
A22A0330. VALADE v. MERIWETHER & THARP, LLC et al.
DOYLE, Presiding Judge, dissenting in part and concurring in part.
I dissent to Division 1 because I believe that Jennifer Valade’s invasion of
privacy claims are barred by the exclusive remedy provision of the abusive litigation
statute,1 and therefore, I would affirm the trial court’s grant of summary judgment as
to those claims against Kenneth Valade’s attorneys. I fully concur in Division 2.
1. Our abusive litigation statute provides that “[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 that person acts “[w]ith malice” and
“[w]ithout substantial justification.”2 This statutory framework is the exclusive
1
OCGA § 51-7-80 et seq. This argument was not raised by the defendants in
the related case involving Crystal Rimert, which was reviewed by this Court in Rimert
v. Meriwether & Tharp, LLC, 361 Ga. App. 589 (865 SE2d 199) (2021).
2
OCGA § 51-7-81.
remedy for abusive litigation,3 and because Valade’s invasion of privacy claims stem
from the “continuation” of civil proceedings between her and her ex-husband, in
which proceedings he was represented by the defendants, the claims are precluded.4
This Court explained
that the abusive litigation statutes strike a balance between the
competing public interests of preserving free access to the court and
preventing serious abuses of lawsuit filing. This balance is intended to
prevent the proliferation of unnecessary causes of action for the alleged
improper filing of lawsuits [that] would have a chilling effect on the
exercise by citizens of their right of access to the courts.5
The issue of adultery frequently is an issue in divorce proceedings.6 While not
every attorney would have counseled a client to record a soon-to-be-ex spouse in a
3
OCGA § 51-7-85.
4
Cf. Dennis v. Adcock, 138 Ga. App. 425, 429-430 (4) (226 SE2d 292) (1976)
(applying pre-statutory law to hold that defense attorney’s act of getting health care
records without the consent of the plaintiff-patient was not an invasion of privacy and
instead a rebranded libel claim that was prohibited because the evidence and its use
by the defendant attorneys was privileged as “pertinent evidence introduced in a
judicial proceeding and relating to its subject matter”).
5
Meadow Springs Recovery v. Wofford, 319 Ga. App. 79, 82 (1) (734 SE2d
100) (2012), quoting Phillips v. McDonald, 219 Ga. App. 152, 155-156 (2) (g) (464
SE2d 390) (1995). See also Rogers v. Dupree, 349 Ga. App. 777, 788 (824 SE2d 823)
(2019) (Barnes, J. concurring in part and dissenting in part).
6
See, e.g., Kluge v. Renn, 226 Ga. App. 898 (487 SE2d 391) (1997).
2
private bedroom with another adult in order to support the allegations of adultery, the
vehicle for Valade to obtain redress against the attorneys for any damage she suffered
as a result of that act was an action for abusive litigation or nothing at all.7 “All of the
misconduct alleged to have been committed by [Kenneth Valade’s] attorneys
occurred in the course of their representation” of him, and Jennifer Valade “may not
avoid the requirements of the statute merely by characterizing [her] claims arising
from the allegedly abusive lawsuit as some other cause of action.”8 Accordingly, I
would affirm the trial court’s grant of summary judgment as to the defendants with
regard to this issue.
2. I concur fully with the majority with Division 2.
7
See id. See also Dennis, 138 Ga. App. at 429-430 (4).
8
(Punctuation omitted.) Rogers, 349 Ga. App. at 788 (Barnes J.), quoting
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). While I disagree with the majority in Rogers, i.e., that a video made
prior to the filing of any claims but in anticipation of litigation falls outside of the
preemptive effect of the abusive litigation statute, that issue is not before us because
in this case, the divorce proceeding was filed before the video was taken. Compare
Rogers, 349 Ga. App. 777, 782-783 (1) (b).
3