Joshua David Mellberg, LLC v. the Impact Partnership, LLC ( 2020 )

SECOND DIVISION
MILLER, P. J.,
MERCIER and COOMER, 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.
Please refer to the Supreme Court of Georgia Judicial
Emergency Order of March 14, 2020 for further
information at (https://www.gaappeals.us/rules).
June 3, 2020
In the Court of Appeals of Georgia
A20A0004. JOSHUA DAVID MELLBERG, LLC et al. v. THE
IMPACT PARTNERSHIP, LLC et al.
MILLER, Presiding Judge.
This appeals stems from a defamation lawsuit which The Impact Partnership,
LLC, Tree Fine, and Jovan Will (collectively “Impact”) filed against Joshua David
Mellberg and Joshua David Mellberg, LLC (collectively “Mellberg”).1 Mellberg
appeals from the trial court’s order denying its motion to dismiss the lawsuit, arguing
that the trial court erred in determining that the revised anti-SLAPP (“Strategic
Lawsuit Against Public Participation”) statute did not apply retroactively to bar
Impact’s defamation claim and that the trial court erred by not striking Impact’s
1
Another defendant in the lawsuit, Christ Stanton, is not a party to this appeal.
complaint. Because the revised anti-SLAPP statute does not apply retroactively to bar
Impact’s defamation claim, we affirm the denial of Mellberg’s motion to dismiss.
“On appeal, we conduct a de novo review of the denial of a motion to dismiss.
In reviewing the trial court’s order, we construe the pleadings in the light most
favorable to the plaintiff with any doubts resolved in the plaintiff’s favor.” (Citation
and punctuation omitted.) Emory Univ. v. Metro Atlanta Task Force for the
Homeless, Inc., 320 Ga. App. 442, 443 (740 SE2d 219) (2013).
According to the complaint, which was filed in April 2014, the Impact
Partnership, LLC offers services to assist financial advisors and agents in relation to
insurance and annuity products. Impact alleged that Mellberg published and
distributed a defamatory press release concerning Impact. Mellberg filed a motion to
dismiss the lawsuit pursuant to former OCGA § 9-11-11.1, arguing in part that (1) the
anti-SLAPP statute applied because the press release concerned a lawsuit in Arizona
and was therefore a written statement made in connection with an issue under
consideration or review by a judicial body; and (2) the claim should be dismissed
because the press release was privileged and therefore the lawsuit was falsely
2
verified.2 In February 2015, the trial court denied Mellberg’s motion to dismiss after
a hearing, concluding that the former anti-SLAPP statute did not apply to the press
release.
More than three years after the trial court denied the initial motion to dismiss,
Mellberg filed a motion to dismiss or strike the complaint pursuant to the revised anti-
SLAPP statute, which became effective on July 1, 2016. Mellberg argued that the
revised anti-SLAPP statute applies retroactively and that the press release is
considered protected speech under the “broad reaching scope” of the revised statute.
Mellberg argued that, under the revised statute, the plaintiff has the burden of
demonstrating a probability of prevailing on the claim and that Impact lacked a
factual or legal basis for its defamation claim. The trial court denied the motion,
2
Under former OCGA § 9-11-11.1 (b), claims that fell under the anti-SLAPP
statute required a “written verification” certifying that the claim was
well grounded in fact and [was] warranted by existing law or a good
faith argument for the extension, modification, or reversal of existing
law; that the act forming the basis for the claim [was] not a privileged
communication. . . ; and that the claim [was] not interposed for any
improper purpose such as to suppress a person’s or entity’s right of free
speech or right to petition government, or to harass, or to cause
unnecessary delay or needless increase in the cost of litigation.
3
determining that Mellberg was attempting to seek a substantive benefit from the
revised statute; that the substantive provisions of the statute could not be applied
retroactively in the absence of a provision allowing such treatment; and that because
the lawsuit was filed more than two years before the statute was amended, Mellberg
could not avail itself of any new substantive provisions of the revised statute.3 This
appeal followed.
In related enumerations of error, Mellberg argues that the trial court erred in
ruling that the revised anti-SLAPP statute does not apply retroactively to Impact’s
defamation claim and that the trial court erred by not striking Impact’s complaint
under the revised anti-SLAPP statute. We discern no reversible error.
“‘Strategic lawsuits against public participation,’ or ‘SLAPPs,’ are meritless
lawsuits brought not to vindicate legally cognizable rights, but instead to deter or
punish the exercise of constitutional rights of petition and free speech by tying up
their target’s resources and driving up the costs of litigation.” Wilkes & McHugh, P.A.
3
Impact has filed a motion to dismiss, arguing that this Court lacks jurisdiction
because Mellberg’s second motion to dismiss was actually a motion for
reconsideration, the denial of which is not subject to direct appeal. Mellberg’s second
motion to dismiss cannot properly be understood as a motion for reconsideration
because Mellberg sought the application of new law. Accordingly, we deny Impact’s
motion to dismiss this appeal.
4
v. LTC Consulting, L.P., 306 Ga. 252, 257 (2) (830 SE2d 119) (2019). Thus,
anti-SLAPP statutes “typically provide for an early means of testing the bona fides
of the plaintiff’s claim. . . .” (Citation and emphasis omitted.) Atlanta Humane Society
v. Harkins, 278 Ga. 451, 452 (1) (603 SE2d 289) (2004). Under the revised anti-
SLAPP statute, “the analysis of an anti-SLAPP motion involves two steps. First, the
court must decide whether the party filing the anti-SLAPP motion (usually, the
defendant) has made a threshold showing that the challenged claim is one ‘arising
from’ protected activity.” Wilkes & McHugh, P.A., supra, 306 Ga. at 261-262 (2) (b)
(citing OCGA § 9-11-11.1 (b) (1)). “If a court concludes that this threshold showing
has been made, it must proceed to the second step of the analysis and decide whether
the plaintiff has established that there is a probability that the plaintiff will prevail on
the claim.” (Punctuation omitted.) Id. at 262 (2) (b) (citing OCGA § 9-11-11.1 (b)
(1)). A claim that satisfies both prongs of the anti-SLAPP statute is subject to being
stricken. Id. at 262-263 (2) (b).
As relevant to Mellberg’s second motion to dismiss, the revised statute differs
from the old one in the following ways: (1) it contains a reconfigured scope of
protected speech (OCGA § 9-11-11.1 (c) (1) - (4)); (2) the General Assembly has now
directed that the Code section is to be construed broadly (OCGA § 9-11-11.1 (a)); and
5
(3) the probability-of-prevailing standard described above has been added to the
statute (OCGA § 9-11-11.1 (b) (1)), and the written verification requirement has been
removed. The revised statute itself is silent on the issue of retroactivity. OCGA § 9-
11-11.1. As to whether a statute applies retroactively, the rule is that “legislation
which involves mere procedural or evidentiary changes may operate retrospectively;
however, legislation which affects substantive rights may only operate prospectively.
The distinction is that a substantive law creates rights, duties, and obligations while
a procedural law prescribes the methods of enforcing those rights, duties, and
obligations.” (Citations omitted.) Fowler Properties, Inc. v. Dowland, 282 Ga. 76, 78
(1) (646 SE2d 197) (2007).
The Georgia appellate courts have not engaged in extensive analysis regarding
whether the statute (or parts thereof) is procedural or substantive so as to dictate
whether retroactive application is appropriate.4 Recently, in Rogers v. Dupree, 349
Ga. App. 777, 778, n.1 (824 SE2d 823) (2019), we noted that although the statute has
been revised, the former version of the anti-SLAPP statute applied to the case because
4
We have recognized that the former statute is both procedural and substantive
in nature, though our decisions to this effect were not made in relation to
retroactive/prospective application. See, e.g., Atlanta Humane Society, supra, 278 Ga.
at 454 (1); Hindu Temple & Community Center of High Desert, Inc. v. Raghunathan,
311 Ga. App. 109, n.1 (714 SE2d 628) (2011).
6
the lawsuit was filed several years before the revision of the statute. Mellberg
contends, however, that the Rogers decision does not evince that the parties were
contesting retroactivity, and he maintains that the anti-SLAPP statute is a procedural
mechanism which operates retroactively to bar Impact’s defamation claim.
Nonetheless, Mellberg has failed to demonstrate that Impact’s complaint should be
dismissed under the revised statute.
Even assuming, arguendo, that the revised anti-SLAPP statute (or parts thereof)
could operate retroactively, “to apply a procedural statute retroactively generally does
not mean that it applies with respect to prior filings, proceedings, and occurrences,
but rather that the procedural change affects future court filings, proceedings, and
judgments that arise from prior occurrences.” Murphy v. Murphy, 295 Ga. 376, 378
(761 SE2d 53) (2014). As explained above, anti-SLAPP statutes customarily “provide
for an early means of testing the bona fides of the plaintiff’s claim. . . .” (Emphasis
omitted.) Atlanta Humane Society, supra, 278 Ga. at 452 (1). And here, Impact filed
its complaint and the trial court tested the bona fides of Impact’s claim years before
the revised statute became effective. The trial court examined Impact’s filings
(including its complaint and written verification), held a hearing, and ruled that the
former anti-SLAPP statute did not apply to bar Impact’s complaint. By urging the
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retroactive application of the revised statute to prompt a dismissal of Impact’s claim,
Mellberg effectively seeks to both re-engage the anti-SLAPP vetting process that
occurred prior to the statute’s revision and subject Impact to an evidentiary burden
that did not exist when it filed its complaint. This does not comport with Georgia law.
See Murphy, supra, 295 Ga. at 378 (retroactive application of new statute was not
grounds to dismiss appeal because the filing of the action, issuance of the order
sought to be appealed, and filing of the notice of appeal, occurred prior to the
effective date of the amendment).5 Accordingly, the revised anti-SLAPP statute could
not apply to effectuate a dismissal of Impact’s defamation claim, and we affirm the
trial court’s denial of the motion to dismiss or strike under the revised statute.
Judgment affirmed. Mercier and Coomer, JJ., concur.
5
Relying on Rosser v. Clyatt, 348 Ga. App. 40, 42 (2) (a) (821 SE2d 140)
(2018) (physical precedent only), Mellberg contends that the revised statute applies
retroactively to statements made before July 1, 2016. This argument does not aid
Mellberg’s position. In Rosser, at the time that the complaint was filed and the trial
court assessed the bona fides of the plaintiff’s claim, the revised statute was already
in effect. Id. at 44 (2) (b).
8