William Gordon Clyatt v. Grady Electric Membership Corporation ( 2018 )

FIFTH DIVISION
MCFADDEN, P. J.,
RICKMAN and GOSS, 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.
http://www.gaappeals.us/rules
November 2, 2018
In the Court of Appeals of Georgia
A18A0843. ROSSER v. CLYATT et al.
A18A0987. CLYATT v. GRADY ELECTRIC MEMBERSHIP
CORPORATION.
MCFADDEN, Presiding Judge.
Under the Georgia Electric Membership Corporation Act, OCGA § 46-3-170
et seq., customers of an electric membership corporation generally are members of
the corporation with certain rights. OCGA §§ 46-3-260, 46-3-266. These two cases
arise from a dispute among some members of the Grady Electric Membership
Corporation (“Grady EMC”) and its management team.
The dispute ended up in court, and the parties settled. Five months later,
Thomas A. Rosser, Sr., the former president and general manager who resigned
pursuant to the settlement agreement, filed a defamation lawsuit against four Grady
EMC members who had formed a group called Take Back Our Grady EMC; a
business with a Facebook page on which messages about Rosser were posted; and the
local newspaper. In Case No. A18A0843, Rosser appeals the grant of the defendants’
motion to strike the defamation lawsuit under Georgia’s Anti-SLAPP (“strategic
litigation against public participation”) statute, OCGA § 9-11-11.1. We hold that the
trial court did not err in determining that the anti-SLAPP statute applies and that
Rosser had not established that there is a probability that he would prevail on his
claims. So we affirm the judgment.
Case No. A18A0987 stems from a separate, but related, lawsuit. In that case,
Grady EMC sued William Gordon Clyatt, one of the founders of Take Back Our
Grady EMC. Grady EMC sought, among other things, to permanently enjoin Clyatt
from publicly disclosing certain records obtained in the earlier, settled litigation.
Clyatt appeals the trial court’s order granting injunctive relief. Because there is no
evidence that Grady EMC would suffer an imminent and irreparable injury absent the
permanent injunction, we reverse the grant of injunctive relief. We affirm the trial
court’s other rulings.
Case No. A18A0843.
1. Background.
2
Grady EMC, like all EMCs, is a “private, nonprofit, electric utilit[y] owned by
the members [it] serve[s].” Walker v. Oglethorpe Power Corp., 341 Ga. App. 647
(802 SE2d 643) (2017). See OCGA § 46-3-170 et seq. It has the exclusive right to
furnish service within its service area. See Sawnee Elec. Membership Corp. v. Ga.
Pub. Svc. Comm., 273 Ga. 702, 707 (544 SE2d 158) (2001). Grady EMC has more
than 13,000 members.
In 2014, Clyatt, a member of Grady EMC, began questioning some of
management’s decisions, including, among other things, lending $468,000 to Rosser;
hiring Rosser’s son as president and general manager of Grady EMC to succeed
Rosser; and holding tens of millions of dollars in earnings instead of returning the
money to the member-owners.
In April 2014, Clyatt met with Grady EMC leadership to discuss his concerns,
but he was not satisfied with their response. Clyatt purchased nine advertisements in
the local newspaper, the Cairo Messenger, to publicize his concerns. Other members
of Grady EMC contacted Clyatt, and ultimately a group of them, including Clyatt and
defendants Ronald Sellars, Seaborn Roddenberry, and Jerome Ellis, formed a
committee they called “Take Back Our Grady EMC.”
3
In 2014, the group filed a lawsuit against Grady EMC, Rosser, his son, and
other officers and directors. The parties resolved the litigation by entering a
settlement agreement that, among other things, required Rosser to resign his
employment and terminate any affiliation, other than as a member, with Grady EMC
and its entities, and required the formation of a special committee to evaluate the
claims of Take Back Our Grady EMC and advise the board. As a result, the trial court
entered a consent order dismissing the case with prejudice on May 24, 2016.
Five months after the dismissal of the 2014 lawsuit, Rosser filed this action,
alleging that certain statements written by Clyatt were defamatory. He sued Clyatt,
Sellars, Roddenberry, Ellis, Jane and John Doe defendants, Deep South Coins and
Jewelry, Inc., which is owned by Clyatt and whose Facebook page included
statements about Rosser, and the Messenger Publishing Company, the publisher of
the local newspaper, the Cairo Messenger, which published Clyatt’s and Take Back
Our Grady’s paid advertisements about Rosser. The defendants answered the
complaint and moved to strike it under OCGA § 9-11-11.1, Georgia’s anti-SLAPP
statute. The trial court granted the motions to strike and Rosser filed this appeal.
2. The anti-SLAPP statute applies.
4
Rosser argues that the trial court erred by striking his lawsuit under OCGA §
9-11-11.1 because the anti-SLAPP statute does not apply. We disagree.
(a) The two-step framework.
OCGA § 9-11-11.1 is intended to protect persons exercising their constitutional
rights of petition and freedom of speech. See OCGA § 9-11-11.1 (a). To accomplish
this goal, the statute is to be construed broadly. Id.
First enacted in 1996, the statute was significantly revised effective July 1,
2016. Neff v. McGee, 346 Ga. App. 522, 524 n. 2 (816 SE2d 486) (2018). The revised
statute applies to this case even though some of the allegedly defamatory statements
were made prior to July 1, 2016. See generally Crane Composites v. Wayne Farms,
LLC, 296 Ga. 271, 273 (765 SE2d 921) (2014) (“[B]ecause the rights created by the
statute pertain to the conduct of litigation, the statute is acting prospectively, not
retroactively, when applied to litigation commenced after the effective date.”). See
also Atlanta Humane Society v. Harkins, 278 Ga. 451, 454 (1) (603 SE2d 289)
(2004).
The revision did three things. It expanded the scope of protected speech to
include any conduct that reasonably could be construed as conduct related to “a
matter of public concern in furtherance of the right to petition, not just to speech
5
connected to an official proceeding (subsection (c) (4))[.]” Neff, 246 Ga. App. at 524
n. 2. The only speech protected under the former version of the statute was speech
connected to an official proceeding. See Emory Univ. v. Metro Atlanta Task Force
for the Homeless, 320 Ga. App. 442, 444-445 (1) (740 SE2d 219) (2013).
The revision “replaced the plaintiff’s complaint verification requirement with
a probability-of-success standard (subsection (b) (1))[.]” Id. And it “provided a right
of direct appeal from the grant or denial of a motion to dismiss under the statute
(subsection (e)).” Id. The statute now provides:
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.
OCGA § 9-11-11.1 (b) (1).
The application of the statute “involves a two-step process for determining
whether a claim is subject to being stricken. In the first step, the defendant bringing
an anti-SLAPP motion to [strike] must make a prima facie showing that the plaintiff’s
6
suit is subject to OCGA § 9-11-11.1. . . .” Neff, 346 Ga. App. at 524-525. The
defendant does this by showing that the defendant’s challenged acts could reasonably
be construed as acts taken in furtherance of his or her constitutional rights of petition
or free speech in connection with an issue of public concern as defined by the statute.
OCGA § 9-11-11.1 (b) (1).
“The burden then shifts to the plaintiff to demonstrate that there is a
‘probability’ that [he] will prevail on [his] claims at trial. OCGA § 9-11-11.1 (b) (1).”
Neff, 346 Ga. App. at 525. Unlike the former versions of the anti-SLAPP statute
(where a motion to strike was a remedy for a failure to comply with the statute’s
procedural verification requirement), the current version of the statute contemplates
a substantive, evidentiary determination of the plaintiff’s probability of prevailing on
his claims. It directs the court to “consider . . . supporting and opposing affidavits”
and it provides for “discovery on the sole issue of actual malice,” should there be a
claim that the plaintiff is a public figure. OCGA § 9-11-11.1 (b) (2). See also
Carbone v. CNN, No. 1:16-CV-1720-ODE, 2017 U.S. Dist. LEXIS 216286, at *7
(N.D. Ga. Feb. 14, 2017) (“The statute essentially creates a Rule 12 (b) (6) ‘plus’
standard for cases with a First Amendment nexus.”).
(b) The statute applies.
7
Rosser argues that the anti-SLAPP statute does not protect the defendants here
because, contrary to the trial court’s finding, the allegedly defamatory statements
were not made “in connection with an issue of public interest or concern.” He adds
that to the extent the statements did relate to a matter of public interest, that was only
because the statements themselves created public interest; when the statements were
published in June, July, and August 2016, there was no public controversy because
the 2014 lawsuit had been settled.
We agree with the trial court that the statements “could reasonably be
construed as” having been made “in connection with an issue of . . . public concern,”
see OCGA § 9-11-11.1 (b) (1), the management and operation of Grady EMC,
including the upcoming election of members of the board of directors. “[I]t is evident
that resolution of the controversy [would] affect people who do not directly
participate in it, [the more than 13,000 members of Grady EMC, so] the controversy
is more than merely newsworthy and is of legitimate public concern.” Gettner v.
Fitzgerald, 297 Ga. App. 258, 263 (1) (c) (i) (677 SE2d 149) (2009) (citation omitted)
(defamation case). See also Buckley v. Directv, Inc., 276 FSupp2d 1271, 1275 (N.D.
Ga. 2003) (“Any action involving such a large number of people is, by definition, a
matter of public interest and concern.”). According to the owner, editor, and publisher
8
of the Cairo Messenger, the criticisms of the management of Grady EMC “had
generated . . . a public discussion” because Grady EMC is a “major employer” in the
community and a “major factor in everyday life, being the utility.” See Mathis v.
Cannon, 276 Ga. 16, 20-21 (573 SE2d 376) (2002) (local controversy concerning the
unprofitable operation of a solid waste recovery facility in Crisp County was a matter
of public concern).
We reject Rosser’s argument that because the earlier lawsuit had been settled
the matter was no longer a public concern. Under the settlement, Rosser and the other
defendants did not admit liability. And the settlement agreement required the
formation of a committee to study many of the issues Clyatt had questioned, including
whether Grady EMC’s patronage-capital policy (under which earnings are returned
to members) should be modified; whether bylaws should be modified; and whether
Grady EMC’s policies regarding issuing company vehicles should be modified. The
agreement required the committee to present its report to the board of directors and
to Clyatt and the other plaintiffs by September 2016. In other words, some of the
issues raised in the lawsuit had not been resolved.
Morever, separate and apart from the settlement, the defendants (or at least
some of them) sought to replace two members of the board of directors at an
9
upcoming board election. The allegedly defamatory statements were made to further
that goal. For example, in one of the advertisements published on July 13, 2016, in
the Cairo Messenger, Take Back Our Grady EMC wrote that the board members had
“failed this membership and it’s time they were replaced”; that the committee was
“dedicated to ending the reign of three generations of the Rossers as well as the
present board that has allowed corruption to plague our Grady EMC”; and that the
committee “will not rest until the Rossers and the present board of directors are
gone.” Another advertisement listed the changes the group wanted the board to make.
Indeed, Rosser admits in his appellate brief that the statements were made “with the
hopes that [they] would affect the election of the Grady EMC Board of Directors.”
Finally, indicating that the matter was still of public concern, on June 8, 2016,
after the settlement and some of the allegedly defamatory statements had been made,
the Cairo Messenger published a letter to the editor from the Grady EMC board itself.
In the letter, the board expressed disappointment with Clyatt for continuing with his
criticisms after the settlement of the lawsuit, voiced support for the leadership of
Rosser and his son who succeeded him, and suggested that it was “time to move on.”
The trial court did not err in finding that the defendants met their burden of
making a prima facie showing that the statements reasonably could be construed as
10
acts in furtherance of their constitutional rights in connection with an issue of public
concern. OCGA § 9-11-11.1 (b) (1).
3. The trial court did not err in determining that Rosser had not established
that there is a probability that he will prevail on his claims.
Rosser argues that the trial court erred in striking his lawsuit without
determining whether there was a probability that he would prevail on his claims. See
OCGA § 9-11-11.1 (b) (1). The trial court did make such a determination, albeit
implicitly, holding that “the complained-of [s]tatements were merely statements
which reflect an opinion or subjective assessment as to which reasonable minds could
differ which cannot be proved false.” This necessarily implies that the trial court
determined that there was not a probability that Rosser would prevail on his claims.
Rosser then argues that, to the extent the trial court did make such a
determination, the court erred. We disagree. We cannot say that the trial court erred
in determining, based on the undisputed material facts, that Rosser had not satisfied
his burden of demonstrating that there is a probability that he will prevail on his
claims. OCGA § 9-11-1.1 (b). As detailed below, some of the allegedly defamatory
statements are opinion that cannot be proven true or false, so they are not actionable.
And the non-opinion statements are not actionable because Rosser is a limited-
11
purpose public figure and he has not established that there is a probability that he will
prevail by pointing to clear and convincing evidence that the defendants published
the statements with actual malice. So the trial court did not err in determining that
Rosser has not shown a probability that he will succeed on his claims, and the trial
court did not err in granting the defendants’ motions to strike.
(a) The statements at issue.
In his brief, Rosser argues about the following allegedly defamatory statements
contained in his complaint, all of which were written by Clyatt:
[Rosser] has stolen from the EMC for years. There are many ways to
steal.
Did Tommy Rosser get money for [the Sowega Power, LLC]
transaction?
One question to ask yourself why was Tommy Rosser forced to resign.
Not for being a great employer or an honest person. He has stolen from
the EMC for years.
Tommy Rosser had no idea that the fraud and corruption would be
uncovered.
Were the personal cars of either Tommy Rosser, Bo Rosser, or their
spouses paid for by the membership of the Grady EMC?
12
Did Tommy Rosser or any current former director, officer, or employee
of Grady EMC ever have or had any ownership or membership interest
or profit in any of the 7 for-profit LLCs and corporate entities in the
past? We can prove that they did.
This is a conspiracy by the Rossers and some of the board members to
benefit themselves with the funds and assets of the Grady EMC and its
membership.
For over 70 years the past and present board members and three
generations of Rossers have allowed corruption and unethical practices
to take place at the Grady EMC.
If there are no unethical wrongdoings to answer for, then why did
Tommy Rosser begin transferring all of his properties out of his name
once the lawsuit was filed? Moving? Going on a trip? You be the judge.
Did the board and the Rossers receive kickbacks from vendors?
The Rossers, and others associated with Grady EMC have misled the
members/owners for 78 years. They have used our money to enrich
themselves while living lavish lifestyles. Tommy Rosser has mislead,
pillaged the Grady EMC funds and worst of all, double-crossed all but
one of the board of directors which he worked for . . . . One way that
Tommy and Bo Rosser have misled the membership is through the
forming of for-profit LLCs. If you will remember, this very same thing
13
happened at Cobb EMC. . . . These LLCs are a way the Rosser[s] and
directors move and hide the members[‘] money.
The corrupt practices outlined in [Cobb EMC’s] audit mirrors that which
has been and is occurring at Grady EMC. Simply substitute the names
and companies with the Rossers and Grady EMC and you’ll have a clear
picture of what has happened at Grady EMC.
(b) Opinion.
“The expression of opinion on matters about which reasonable people might
differ is not libelous.” Davis v. Sherwin-Williams Co., 242 Ga. App. 907 (531 SE2d
764) (2000). Many of these statements, such as “Tommy Rosser had no idea that the
fraud and corruption would be uncovered,” are non-actionable opinion as the trial
court found. Rosser argues that even if some of the statements were opinion, they are
nonetheless actionable because they imply defamatory facts that can be proven false.
We disagree.
[Rosser’s] reasoning is unpersuasive because implicit in it is the
assumption that [the defendants] used the word[s] [“stolen, “steal,”
“stole,” “fraud,” “corruption,” and “conspiracy”] in [their] legal sense
and thereby implied some objective facts which make [Rosser guilty of
crimes] as determined under Georgia law. Having reviewed [the
defendants’] statement[s] in . . . context[, as described in Division 2 (a)],
we cannot make this assumption. It is apparent from the context . . . that
14
[the defendants] did not use the [words] in [their] legal sense or as a
legal conclusion, but used [them] only to express [their] subjective
opinion criticizing [Rosser’s management of Grady EMC]. More
importantly, the average reader would not have construed [the
defendants’] statement[s] to be . . . legal conclusions that [Rosser
committed crimes]. . . . [Rather,] the average reader . . . would have
taken the statement[s] for what [they were], [] subjective, hyperbolic
opinion[s] that cannot be proved to be true or false and that concern[] a
matter on which reasonable people might differ; i.e., [whether Rosser
mismanaged Grady EMC to his benefit and to the detriment of the
members].
Webster v. Wilkins, 217 Ga. App. 194, 195 (1) (456 SE2d 699) (1995) (citations
omitted).
(c) Rosser is a limited-purpose public figure.
Whether Rosser is a public figure “is a critically important issue, because in
order for a public figure to recover in a suit for defamation, there must be proof by
clear and convincing evidence of actual malice on the part of the defendant. Plaintiffs
who are private persons must only prove that the defendant acted with ordinary
negligence.” Riddle v. Golden Isles Broadcasting, 275 Ga. App. 701, 703 (1) (621
SE2d 822) (2005) (citation and punctuation omitted).
15
Although the trial court did not expressly address this argument, we address it
under the right-for-any-reason rationale. See, e.g., Bobick v. Community & Southern
Bank, 321 Ga. App. 855, 869-70 (4) (b) (743 SE2d 518) (2013) (affirming dismissal
under “right for any reason” doctrine); C. C. Leasing Corp. v. Bd. of Tax Assessors
of Hall County, 143 Ga. App. 520, 521 (239 SE2d 204) (1977) (same).
Contrary to Rosser’s argument, the evidence demonstrates that Rosser is a
public figure for purposes of this controversy. When
an individual voluntarily injects himself or is drawn into a particular
public controversy[, he may] become[] a public figure for a limited
range of issues. Whether a person is a public figure is a question of law
that requires the court to review the nature and extent of the individual’s
participation in the specific controversy that gave rise to the alleged
defamation. A three-part analysis is used to determine whether an
individual is a limited-purpose public figure. Under this analysis, a court
must isolate the public controversy, examine the plaintiff’s involvement
in the controversy, and determine whether the alleged defamation was
germane to the plaintiff’s participation in the controversy.
Cottrell v. Smith, 299 Ga. 517, 525 (III) (A) (788 SE2d 772) (2016) (citation and
punctuation omitted).
(1) The public controversy.
16
The first step in our analysis requires identification of a public
controversy, which must be more than merely newsworthy. Rather, if it
is evident that resolution of the controversy will affect people who do
not directly participate in it, the controversy is more than merely
newsworthy and is of legitimate public concern. In short, if the issue
was being debated publicly and if it had foreseeable and substantial
ramifications for nonparticipants, it was a public controversy. Moreover,
courts must look only to those controversies that already existed in the
public arena before the alleged defamation.
Ladner v. New World Communications of Atlanta, 343 Ga. App. 449, 453 (1) (a) (806
SE2d 905) (2017) (citations and punctuation omitted).
Here, the public controversy is the operation and management of Grady EMC
under Rosser’s and his son’s tenures and the upcoming board elections. Although
Rosser resigned from Grady EMC, many of the decisions that were the subject of the
allegedly defamatory comments were made by Rosser in his capacity as head of
Grady EMC. And “the resolution of the controversy will affect people who do not
directly participate in it,” Ladner, supra, the more than 13,000 members of Grady
EMC.
The controversy pre-existed the defendants’ allegedly defamatory statements
and survived the settlement. As noted in Division 2 (b), supra, the settlement
17
agreement left many issues unresolved, including the issue of Rosser’s responsibility
for the practices the defendants questioned as well as the upcoming board elections.
“[T]he management of [Grady EMC] was still a matter of lively public interest;
propositions for further change were abroad, and public interest in the way in which
the prior administration had done its task continued strong.” Rosenblatt v. Baer, 383
U.S. 75, 87 n.14 (III) (86 SCt 669, 15 LE2d 597) (1966). See Ladner, supra
(rejecting plaintiff’s claim that only the defendant’s actions made the issue into a
public controversy); Purvis v. Ballantine, 226 Ga. App. 246 (487 SE2d 14) (1997)
(fact that allegedly defamatory statements were uttered three years after school
superintendent’s retirement did not change analysis where “public interest in the way
in which the prior administration had done its task continued strong”).
(2) Rosser’s involvement in the controversy.
“A plaintiff in a libel case must be deemed a public figure if he purposefully
tries to influence the outcome of a public controversy or, because of his position in
the controversy, could realistically be expected to have an impact on its
resolution.”Atlanta Humane Society v. Mills, 274 Ga. App. at 163 (2) (b) (citation
omitted). “[E]ven a single interview given to the media may be sufficient to establish
a plaintiff as a limited-purpose public figure.” Id. (citations omitted).
18
The record demonstrates that Rosser involved himself in this controversy. On
August 24 and 31, 2016, Rosser placed advertisements in the Cairo Messenger
addressed “[t]o the members of Grady EMC and the community,” characterizing
Clyatt’s published statements as “half-truths or outright lies about [Rosser], [his]
family, and Grady EMC.” He denied any illegality and stated that he was “only guilty
of doing what I thought was best for Grady EMC.” See Finkelstein v. Albany Herald
Publishing Co., 195 Ga. App. 95, 97 (1) (392 SE2d 559) (1990) (plaintiff who made
one appearance on a local television program and was quoted in one newspaper
article was a public figure).
(3) The alleged defamation was germane to Rosser’s participation in the
controversy.
An allegedly defamatory publication “is germane to a plaintiff’s participation
in a controversy if it might help the public decide how much credence should be
given to the plaintiff.” Jones v. Albany Herald Publishing Co., 290 Ga. App. 126, 131
(1) (c) (658 SE2d 876) (2008) (citation omitted). As the former head of Grady EMC
and the person who made the challenged decisions, Rosser was germane to the
controversy and was a limited-purpose public figure in relation to it. Atlanta Humane
Society v. Mills, 274 Ga. App. at 164 (2) (c).
19
(d) Actual malice.
“[I]n order for a public figure to recover in a suit for defamation, there must be
proof by clear and convincing evidence of actual malice on the part of the defendant.”
Ladner, 343 Ga. App. at 452 (1) (citation omitted). A public figure proves actual
malice by showing by clear and convincing evidence that the person who made the
defamatory falsehood did so “with knowledge of its falsity or with reckless disregard
for the truth.” Williams v. Trust Co., 140 Ga. App. 49, 52 (I) (230 SE2d 45) (1976)
(punctuation omitted). See also Evans v. Sandersville Georgian, 296 Ga. App. 666,
668 (1) (675 SE2d 574) (2009) (to avoid summary judgment in his defamation suit
against publisher of newspaper, plaintiff had to “make a showing with clear and
convincing evidence that the statements complained of were made with actual malice
— that is, with knowledge that they were false or with reckless disregard for their
truth or falsity”) (citation and punctuation omitted).
(T)he standard of proof of actual malice is extremely high; it must
be shown by clear and convincing evidence that false and defamatory
statements were published with actual malice. Actual malice in a
constitutional sense is not merely spite or ill will, or even outright
hatred; it must constitute actual knowledge that a statement is false or
a reckless disregard as to its truth or falsity. Actual or constitutional
malice is different from common law malice because knowledge of
20
falsity or reckless disregard of the truth may not be presumed nor
derived solely from the language of the publication itself. Reckless
disregard requires clear and convincing proof that a defendant was
aware of the likelihood he was circulating false information. Thus, it is
not sufficient to measure reckless disregard by what a reasonably
prudent man would have done under similar circumstances nor whether
a reasonably prudent man would have conducted further investigation.
The evidence must show in a clear and convincing manner that a
defendant in fact entertained serious doubts as to the truth of his
statements.
Cottrell, 299 Ga. at 525-26 (II) (A) (citation omitted). “Publishing with such doubts
shows reckless disregard for truth or falsity and demonstrates actual malice. [The]
failure to investigate does not in itself establish bad faith.” Williams, 140 Ga. App.
at 55 (III) (citations, punctuation, and emphasis omitted).
In arguing that Clyatt and the other defendants had actual malice, Rosser
primarily points to evidence that he contends demonstrates that the statements were
false. But “[i]t is not a question of the truth of the alleged falsehood. The defamatory
statement may be false but it is still not actionable unless it was uttered with
knowledge of its falsity or in reckless disregard for the truth.” Williams, 140 Ga. App.
at 62 (IV) (emphasis in original).
21
Rosser has not pointed to evidence showing that the defendants made the
allegedly defamatory statements with knowledge of their falsity or in reckless
disregard for the truth. Clyatt explained that his references to Rosser stealing were
based on the fact that Rosser had EMC employees work on his personal vehicles (on
company time, without personally paying them) and that he stored his personal
vehicles at Grady EMC, using EMC electricity and facilities. Clyatt explained that
had EMC assets not been used in that way, the assets would have been used to benefit
Grady EMC, increasing the earnings allocated to members. He added that Rosser did
not pay late fees on a loan he owed to Grady EMC. Clyatt also noted that the loan was
not disclosed on the forms Grady EMC filed with the Internal Revenue Service.
Clyatt testified that he asked the question about Rosser transferring title to his
properties once the 2014 lawsuit had been filed, because according to court
documents, once the lawsuit was filed, Rosser transferred title to certain pieces of
property. His question about the board and the Rossers receiving kickbacks was based
on statements from unnamed sources, including, specifically, a statement that a
manager had bragged about a tree-trimming company paying for his personal trips.
Also, Clyatt questioned what could explain the $3.8 million renovation of the Grady
EMC building, when the cost should have been half as much. He added that he had
22
been asking for documents, such as invoices from vendors, about this issue for three
years, but was never given any.
Clyatt explained he based his questions about Sowega Power LLC — asking
whether Rosser got money for the transaction — on the fact that Rosser was its
registered agent. He based his statements and questions about the other for-profit
LLCs on the research conducted by an attorney at a law firm that he consulted
regarding his concerns. The attorney’s research, according to Clyatt, had uncovered
certain inexplicable transactions..
Clyatt believed that Rosser was forced to resign by the litigation committee that
was appointed by the judge in the earlier action. Indeed, Rosser’s counsel, during
Clyatt’s deposition, conceded that he knew that Clyatt thought that.
As for the question whether the membership of Grady EMC paid for the cars
of Rosser, his son, and their spouses, Clyatt testified that he had asked for documents
regarding this issue, but did not receive them. He noted, however, that 25 employees
drove lavish, EMC-owned cars; they drove the cars home at night; and Grady EMC
did not require them to pay for the personal use.
23
Clyatt added that all of his research had “a bearing on [his] frame of mind when
[he] was writing these articles,” and that he would believe that Rosser and the board
of directors had deceived Grady EMC’s members “to the day [he goes] to the grave.”
As for whether the newspaper acted with actual malice, the owner, editor, and
publisher of the Cairo Messenger testified that the paper makes every effort to verify
the truthfulness of what it publishes. He had “no reason to doubt” Clyatt, whom he
had known for 30 years and who had never lied to him, and “had no reason to think
he’s not trustworthy.” The publisher testified that he did not know of anyone more
knowledgeable about the allegations than Clyatt, who “had done a lot of
investigating” and may have gathered information due to his status as a plaintiff in
the earlier lawsuit. The publisher knew about Rosser’s having staff work on his cars,
storing his cars at Grady EMC, and the loan. The publisher testified that he had been
shown documents and had a reasonable belief that they were true.
Rosser has pointed to “no evidence, much less ‘clear and convincing’ evidence,
that [the defendants] disbelieved [the statements] or that [they] otherwise had a high
degree of awareness of the probable falsity of what [they] posted [and published]. .
. . [T]he evidence more forcefully supports the opposite conclusion, i.e., that [the
24
defendants] believed what . . . [they published and ] posted.” Cottrell, 299 Ga. at 528
(1) (footnote omitted).
4. Failure to conduct a hearing.
Rosser argues that the trial court erred by granting the motion to strike without
conducting a hearing. Rosser relies on OCGA § 9-11-11.1 (d), which provides:
All discovery and any pending hearings or motions in the action shall be
stayed upon the filing of [an anti-SLAPP] motion to dismiss or [an anti-
SLAPP] motion to strike made pursuant to subsection (b) of this Code
section until a final decision on the motion. The motion shall be heard
not more than 30 days after service unless the emergency matters before
the court require a later hearing. The court, on noticed motion and for
good cause shown, may order that specified discovery or other hearings
or motions be conducted notwithstanding this subsection.
OCGA § 9-11-11.1 (d).
In Jefferson v. Stripling, 316 Ga. App. 197, 200 (3) (728 SE2d 826) (2012), we
held that the statute mandates a hearing on motions to dismiss or strike under OCGA
§ 9-11-11.1. But our Supreme Court’s recent opinion in City of College Park v.
Martin, __ Ga. __ (__ SE2d __), 2018 Ga. LEXIS 578, at *4-5 (Case No. S17G2008,
decided Aug. 27, 2018), casts doubt upon that holding. In that case, the Court held
25
that similar language, the public-vote language of the Open Meetings Act, OCGA §
50-14-3 (b) (2), did not mandate any particular action:
The phrase “the vote . . . shall be taken in public” employs the use of a
definite article (“the”) and is therefore referential, presupposing a
required action. Simply put, the language does not mandate a vote on a
relevant employment decision, it simply references such vote and
requires that any such vote be taken in public. Thus, consistent with the
design of the Open Meetings Act, the plain language of (b) (2) requires
that when a vote on a relevant employment matter is taken, it must be
taken in public.
Id. Similarly, the phrase in the anti-SLAPP statute that “[t]he motion [to dismiss or
strike] shall be heard not more than 30 days after service,” OCGA § 9-11-11.1 (d),
could simply mean that should the trial court conduct a hearing on a motion to
dismiss or strike, the hearing must occur within 30 days after service.
We need not decide whether Jefferson, 316 Ga. App. at 197 (3), was correctly
decided, however. Because the material facts are undisputed, in the interest of judicial
economy, we may exercise our discretion to address the issues Rosser raises in his
appeal. Massey v. Allstate Ins. Co., 341 Ga. App. 462, 469 (2) n.9 (800 SE2d 629)
(2017). See also Jones v. Spruill, 337 Ga. App. 200, 202 (1) (786 SE2d 848) (2016)
(physical precedent only) (where facts are undisputed and issue before court is
26
question of law, “judicial economy dictates that we exercise our discretion to address
the controlling question of law rather than require the same issue to arise on any
subsequent appeal”); J. M. High Co. v. Arrington, 45 Ga. App. 392, 392 (3) (165 S.E.
151) (1932) (where the material facts are undisputed and the issue on appeal is a
question of law, “it is unnecessary to send the case back for another hearing in the
trial court”); accord Ingraham v. Marr, 246 Ga. App. 445, 447 (2) (540 SE2d 652)
(2000).
Case No. A18A0987.
5. Background.
This related case involves Grady EMC’s action to enjoin Clyatt from publicly
sharing certain records from the 2014 litigation. Grady EMC filed a complaint
asserting breach of contract and seeking a temporary restraining order and
preliminary injunction. The breach of contract claim stemmed from an email
agreement between the attorneys in the 2014 litigation. In that email exchange, the
attorney representing the plaintiffs, Clyatt and the others, agreed that “[a]t this time
we will not share an[y] documents [provided to a litigation review committee
appointed in the 2014 litigation] with anyone other than the plaintiffs.”
27
Clyatt answered the instant complaint and filed a motion to strike under OCGA
§ 9-11-11.1. Clyatt requested a hearing on his motion to strike, and the trial court set
and conducted a hearing. See OCGA § 9-11-11.1 (d). At the hearing, the parties
agreed that “personal identifying information that [is] contained in the documents will
be redacted and not shared beyond the people who have already seen it.”
Four days after the hearing, Grady EMC filed a pleading entitled “first
amended complaint” in which it sought “more limited relief [than requested in the
original complaint] given facts discovered” at the hearing. In light of the parties’
stipulation at the hearing, Grady EMC asserted that it only sought to “enjoin Clyatt
from sharing with anyone the private information in the documents,” in accordance
with Clyatt’s agreement to redact such information. Grady EMC explicitly asserted
that it sought no further relief.
The next day, the trial court entered the order on appeal. Based on the parties’
stipulation at the hearing, the court enjoined Clyatt from publishing personal,
identifying information in the records, including dates of birth, social security
numbers, driver’s license numbers, and checking account numbers. The court found
that during the hearing, before the court and on the record,
28
Clyatt explicitly and solely agreed/stipulated that he would voluntarily
enjoin himself and forgo publishing any personal private information
contained in the documents produced to him by Grady EMC during
previous litigation. Unambiguously, Defendant Clyatt agreed not to
publish personal identifying information contained within said records,
specifically including dates of birth, social security numbers, driver’s
license numbers, and actual account numbers listed on business or
personal checks.
The court ruled that other than this restriction, Clyatt’s use of the documents was not
enjoined. The court determined that given the stipulation and Grady EMC’s
amendment to its complaint, Clyatt’s motion to strike under OCGA § 9-11-11.1 was
moot. Clyatt filed a notice of appeal. He also filed a motion for attorney fees under
OCGA § 9-11-11.1 (h) and OCGA § 9-15-14. There is no order resolving that motion
in the appellate record.
6. Grant of injunctive relief.
Clyatt argues that the trial court erred by granting Grady EMC injunctive relief
because the court lacked jurisdiction; because Grady EMC lacked standing; because
the amended complaint was in reality a supplemental pleading for which Clyatt was
not given notice; and because the injunction merely pre-emptively enforced Clyatt’s
29
gratuitous promise, thereby exposing him to criminal sanctions. We agree that the
trial court erred by granting Grady EMC injunctive relief.
Entry of a permanent injunction is appropriate only in clear and
urgent cases where there is a vital necessity to prevent a party from
being damaged and left without an adequate remedy at law. Equitable
relief is a matter within the sound discretion of the trial court. The grant
of a permanent injunction is to be sustained on review unless the trial
court has manifestly abused its discretion. A trial court manifestly
abuses its discretion when it grants an injunction adverse to a party
without any evidence to support such judgment and contrary to the law
and equity.
Savannah Cemetery Group v. DePue-Wilbert Vault Co., 307 Ga. App. 206, 210 (2)
(704 SE2d 858) (2010) (citations omitted). “Injunction ought not to be granted unless
the injury is pressing and the delay dangerous, and there is no adequate remedy at
law. . . . No allegation is made that [Clyatt] has improperly [disclosed personal
identifying information].” Lue v. Eady, 297 Ga. 321, 329 (2) (c) (773 SE2d 679)
(2015). In fact, as noted, Clyatt stipulated in open court that he will not do so.”Courts
of equity will not exercise this power to allay mere apprehensions of injury, but only
where the injury is imminent and irreparable and there is no adequate remedy at law.”
30
Morton v. Gardner, 242 Ga. 852, 856 (252 SE2d 413) (1979) (citation and
punctuation omitted).
Here, there were no allegations, much less evidence of, Grady EMC
imminently suffering an injury because of Clyatt’s disclosure of personal identifying
information. Under these circumstances, the trial court erred and the grant of
injunctive relief is, therefore, reversed. See Parker v. West View Cemetery Assn., 195
Ga. 237, 243 (24 SE2d 29) (1943) (finding that defendants would not engage in
certain behavior in the future meant that interlocutory injunction was unnecessary);
Behn & Foster v. William H. Young & Co., 21 Ga. 207, 211 (1857) (“It is good
ground to refuse an injunction, if the party against whom it is moved propose in the
presence of the Chancellor to do all that a Court, on the most favorable construction
of complainant’s case, ought to decree for him, provided he complies with his
proposition.”).
7. Motion to strike under the anti-SLAPP statute.
Clyatt argues that the trial court erred in denying his motion to strike and
finding it moot. He argues that Grady EMC’s claims in its original complaint were
not resolved by the attempt to eliminate them by amending the complaint, and they
are subject to his motion to strike under OCGA § 9-11-11.1 (b) (1). But Clyatt
31
conceded in the trial court that the amended complaint was effective to eliminate the
other claims for relief. And he stipulated that he would do what Grady EMC sought
in its only remaining claim. So Grady EMC has no viable claims for relief against
Clyatt and there is nothing to strike. His motion to strike, therefore, is moot. See
Black’s Law Dictionary (10th ed. 2014) (defining “moot” as “[h]aving no practical
significance; hypothetical or academic).
Clyatt alleges that he was harmed because the trial court’s mootness order
removed the case from the attorney fees provision of OCGA § 9-11-11.1 (b.1). This
argument is premature. As described above, Clyatt’s motion for attorney fees is
pending. And the anti-SLAPP statute contemplates awarding fees when litigation is
terminated by a plaintiff’s dismissal. OCGA § 9-11-11.1 (h). So the trial court may
consider, when assessing Clyatt’s fee request, whether Clyatt is a “prevailing moving
party,” OCGA § 9-11-11.1 (b.1), given Grady EMC’s withdrawal of all of its claims
for relief but for the injunction and our holding that the trial court erred in entering
the injunction.
We deny Clyatt’s request for an award of fees for the costs of this appeal.
32
Judgment affirmed in Case No. A18A0843. Judgment affirmed in part and
reversed in part in Case No. A18A0987. Rickman and Goss, JJ., concur in the
judgments only.*
THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF
APPEALS RULE 33.2.
33