Denton v. Browns Mill Development Co. , 275 Ga. 2 ( 2002 )

Hines, Justice.

We granted certiorari in Browns Mill Dev. Co. v. Denton, 247 Ga. App. 232 (543 SE2d 65) (2000), to determine whether the Court of Appeals was correct that trespass is a tort that falls outside the ambit of OCGA § 9-11-11.1, Georgia’s anti-SLAPP (Strategic Litigation Against Public Participation) statute. Finding that trespass, as alleged here, is not covered by OCGA § 9-11-11.1, we affirm.

Denton is a DeKalb County resident who formed DeKalb Citizens for a Better Environment, an organization dedicated to preserving the county’s remaining natural areas (collectively “Denton”). Browns Mill Development Company (“Browns Mill”) and Peach State Development Group (“Peach State”) are real estate development companies engaged in development projects on private property.

Denton sought to highlight what he perceived as the unwillingness of state and local regulatory agencies to enforce soil erosion and water protection laws. He focused on specific DeKalb County developments and documented alleged violations of federal, state, and local laws. In September 1999, Denton prepared a report titled “Land Development and Its Impact on Natural Resources: An Assessment Report of Clearing and Grading Practices Within DeKalb County,” which documented the alleged failure of several developers, including Browns Mill and Peach State, to use proper soil erosion and sedimentation controls. Denton sent the report to the media and various government officials.

Following the report’s release, and following Denton’s opposition to Browns Mill and Peach State’s rezoning and land disturbance permit applications, Denton received letters from counsel for Browns Mill and Peach State, which referred to Denton’s alleged trespassing, alleged utterance of defamatory statements, and alleged deliverance of illegally-obtained photographs and documents to state and federal agencies. The letters indicated that Browns Mill and Peach State intended to pursue litigation if the allegations proved truthful. Browns Mill and Peach State then filed a complaint asserting causes of action for trespass, libel, slander, and intentional interference with business operations.

Denton notified counsel for Browns Mill and Peach State that he believed OCGA § 9-11-11.1 applied, and noted that the plaintiffs had not complied with that statute by filing the required verification. Plaintiffs’ counsel, however, declined to provide verification under OCGA § 9-11-11.1. Denton moved to dismiss the complaint, which the trial court did. Browns Mill and Peach State appealed, and the Court of Appeals affirmed the trial court in part and reversed it in part. The Court of Appeals concluded, based on the verification requirement of OCGA § 9-11-11.1, that the trial court properly dismissed the slander, libel, and intentional interference with business relations claims. However, the Court of Appeals reversed the trial court’s dismissal of the trespass claim, concluding that trespass was not expressly brought within the ambit of OCGA § 9-11-11.1, and therefore, construing the statute strictly,¹ a trespass was not an act to which the procedural protections of OCGA § 9-11-11.1 extended.

The crucial statutory provision is OCGA § 9-11-11.1 (b):

For any claim asserted against a person or entity arising from an act by that person or entity which could reasonably be construed as 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, both the party asserting the claim and the party’s attorney of record, if any, shall be required to file, contemporaneously with the pleading containing the claim, a written verification under oath as set forth in Code Section 9-10-113. Such written verification shall certify that the party and his or her attorney of record, if any, have read the claim; that to the best of their knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is 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 is not a privileged communication under paragraph (4) of Code Section 51-5-7; and that the claim is 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. If the claim is not verified as required by this subsection, it shall be stricken unless it is verified within ten days after the omission is called to the attention of the party asserting the claim. If a claim is verified in violation of this Code section, the court, upon motion or upon its own initiative, shall impose upon the persons who signed the verification, a represented party, or both an appropriate sanction which may include dismissal of the claim and an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading,

including a reasonable attorney’s fee.

The statute, obviously, does not give blanket protection against suits filed against one acting in the public arena, but requires that the plaintiff make the stated verification. Thus, the statute does not sanction conduct that is otherwise tortious, but merely provides a measure of procedural protection. Under OCGA § 9-11-11.1 (d), discovery and pending motions are stayed while the court addresses any motion filed under OCGA § 9-11-11.1 (b). Additionally, OCGA § 9-11-11.1 (e) states that “[n]othing in this Code section shall affect or preclude the right of any party to any recovery otherwise authorized by common law, statute, law, or rule.”

Denton asserts that the phrase “any claim” in the first sentence of OCGA § 9-11-11.1 (b) necessarily includes the trespass claim and extends the procedural protection to that claim as well. However, the reference to “any claim” is not unqualified. That very sentence goes on to refer to

“any claim asserted against a person or entity arising from an act by that person or entity which could reasonably be construed as 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. . . .”

(Emphasis supplied.) OCGA § 9-11-11.1 (b). Further, in subsection (c), the statute amplifies that qualifying language: the phrase

“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” includes any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.

All acts included in the statute’s amplification of the phrase “act in furtherance . . are acts of communication. Further, the purpose of the statute is stated in OCGA § 9-11-11.1 (a):

The General Assembly of Georgia finds and declares that it is in the public interest to encourage participation by the citizens of Georgia in matters of public significance through the exercise of 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 the constitutional rights of freedom of speech and the right to petition government for a redress of grievances should not be chilled through abuse of the judicial process.

Viewing the specific statements in the statute, we conclude that the intent of the statute is to encourage the exercise of free speech and afford a procedural protection to acts of communication on public issues. See Metzler v. Rowell, 248 Ga. App. 596, 597-599 (1) (547 SE2d 311) (2001). However, the right of free speech does not include the right to trespass onto another’s land. See Cahill v. Cobb Place Assoc., 271 Ga. 322 (519 SE2d 449) (1999); Citizens for Ethical Government v. Gwinnett Place Assoc., 260 Ga. 245-246 (2) (392 SE2d 8) (1990). The trespass alleged here is outside the purpose of the statute and does not qualify as “an act in furtherance of the right of free speech or the right to petition government.”² Even a trespass for the purpose of collecting information to use in a public debate is itself not an act in furtherance of the exercise of the right of free speech; the tort of trespass is completed before any act of communication occurs.

Denton argues that the entire complaint was brought with the purpose to harass, and therefore all causes of action in the complaint should fall under OCGA § 9-11-11.1. However, the procedural protections of the statute extend to “any claim . . . which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government. . . .” OCGA § 9-11-11.1 (b). Although the verification required by the statute must deny harassment as a motive for the claim, the central question under the statute is whether the claim is based on an act reasonably construed to be in furtherance of the rights of free speech or petition. A party may raise multiple causes of action in a single complaint. See OCGA § 9-11-18. And those causes of action that are not based on an act in furtherance of the rights of free speech or petition do not fall under the statute, are not afforded the procedural protections of the statute, and do not need to be verified under OCGA § 9-11-11.1 (b).

Denton also argues that imposing the requirement of verification under OCGA § 9-11-11.1 (b) for all claims in the complaint would not offend the rights of the plaintiffs as the suit may proceed after verification. However, we note that verification does not end the matter; progress of the case is stayed while any verification dispute is pending and the court can ultimately reject the verification, to the plaintiffs’ expense. See OCGA § 9-11-11.1 (b) & (d). More importantly, it is not a question of whether requiring verification harms the plaintiffs, but whether the statute, in fact, requires such verification. It is not this Court’s role to impose a requirement beyond that found in the statute.

Finally, Denton contends that in holding that a trespass claim such as this is not within the scope of OCGA § 9-11-11.1, this Court invites developers to file false claims of trespass against those who oppose them in the public arena. However, this State has enacted laws to curb the filing of suits that are not based in fact. See OCGA §§ 9-15-14 (attorney fees for frivolous actions) and 51-7-80 et seq. (abusive litigation). Further, just as plaintiffs could falsely file trespass claims, defendants could falsely claim that their actions were within the compass of OCGA § 9-11-11.1.

The Court of Appeals correctly determined that the trespass alleged here did not fall within the ambit of OCGA § 9-11-11.1.

Judgment affirmed.

All the Justices concur, except Fletcher, C. J., Sears, P. J., and Hunstein, J., who dissent.

1 The Court of Appeals stated that “[s]tatutes in derogation of common law must be strictly construed against the party asserting the right under the statute.” Browns Mill Dev. Co., supra at 234 (1) (b). However, this is an incorrect statement of the principle that a civil statute “which is in derogation of common law . . . ‘must be strictly construed or limited strictly to the meaning of the language employed and not extended beyond plain and explicit terms.’ [Cits.]” Daniel v. American Optical Corp., 251 Ga. 166, 167 (1) (304 SE2d 383) (1983). It is not a question of the burden placed on the parties to the litigation, but a question of the relationship between the common law and the law sifter the statute’s passage.

2 Obviously, the statute includes acts which have been held to be in furtherance of free speech, such as peacefully protesting on public property. See, e.g., Hirsh v. City of Atlanta, 261 Ga. 22 (401 SE2d 530) (1991).