related appeals arise from a lawsuit brought by Joe Rogers,
Jr., against David M. Cohen, Complex Law Group, LLC, and D.
M. Cohen, Inc. (collectively, "Cohen"); Hylton B.
Dupree, Jr., Dupree & Kimbrough LLP, and Hylton B.
Dupree, Jr., P.C. (collectively, "Dupree"); and
John C. Butters ("Butters"). Cohen, Butters, and
Dupree moved to strike or dismiss Rogers's claims on two
grounds: (1) failure to state a claim upon which relief can
be granted; and (2) pursuant to OCGA § 9-11- 11.1
(2015),  Georgia's anti-SLAPP ("Strategic
Litigation Against Public Participation") statute. The
trial court denied the motions to dismiss for failure to
state a claim as to all claims except a general negligence
allegation. It also denied Cohen and Butters's anti-SLAPP
motion. As to Dupree, however, it determined that
Rogers's claims against him were subject to strike or
dismissal under the anti-SLAPP statute.
No. A16A1714, Rogers challenges the dismissal of his claims
against Dupree on anti-SLAPP grounds. Dupree cross-appeals in
Case No. A16A1715, asserting that the trial court erred in
denying his motion to dismiss for failure to state a claim.
Finally, Cohen and Butters challenge the denial of their
motions to dismiss and/or strike in Case Nos. A16A1716 and
A16A1717. For reasons that follow, we reverse the trial
court's judgment in Case No. A16A1714, and we affirm in
part and reverse in part the judgments in Case Nos. A16A1715,
A16A1716, and A16A1717.
review the grant or denial of a motion to dismiss de novo,
construing "the pleadings in the light most favorable to
the plaintiff with any doubts resolved in the plaintiff's
favor." Emory Univ. v. Metro Atlanta Task Force for
the Homeless, 320 Ga.App. 442, 443 (740 S.E.2d 219)
(2013) (punctuation and footnote omitted). See also
Ikomoni v. Bank of America, 330 Ga.App. 776 (769
S.E.2d 527) (2015). So viewed, the record shows that Cohen,
Butters, and Dupree are attorneys who represented Mye Brindle
("Brindle"), Rogers's former housekeeper.
Brindle worked for Rogers over a ten-year period. Without
dispute, she engaged in sexual activity with Rogers during
her employment. She also made various audio recordings of
their activity without Rogers's consent.
2012, while still employed by Rogers, Brindle engaged Cohen
and Butters to represent her in a sexual harassment claim
against Rogers. After consulting with Cohen and Butters, she
took a "spy" camera to work, which she used to
video-record a sexual encounter between Rogers and herself.
Rogers was not aware that he was being recorded and did not
consent to the video recording. Brindle resigned from her job
at the end of June.
16, 2012, Cohen sent a settlement demand letter to Rogers,
asserting that Rogers had engaged in a "long history of
unwelcome sexual demands and other sexual harassment and
abuse toward [Brindle] as a condition of her
employment," which was "well documented by numerous
audio and video recordings of the acts." The letter
indicated that Brindle was prepared to proceed with a lawsuit
and further stated:
It is my experience that these sensitive type matters
involving claims of a sexual nature are always best resolved
early and outside of public litigation. I have been involved
in numerous matters where defendants engaged in a scorched
earth strategy of counteraccusations, denial, attempted
delay, obfuscation and refusal to address the core issues
promptly and properly. Never have I seen that strategy
successful. Whether through their own arrogance or
"filtered" information and poor advice of defense
counsel who seemed more interested in billing and protracted
litigation than the best interests of their clients and that
of their clients' families, the results were ultimately
In virtually all of those situations, the documents, facts,
witnesses and other matters that came to light through
protracted litigation and media attention drew other private
litigation, shareholder derivative demands for immediate
removal of those individuals, intrusive governmental
investigations, Department of Justice, Attorneys General or
SEC involvement, as well as civil and criminal charges that
resulted in disgorgement, forfeiture, lengthy incarceration
periods in several instances, divorce and the destruction of
. . .
My point here is simply to attempt to convey my belief that
it is in the best interest of all involved to avoid this type
of protracted litigation, injurious publicity to all parties,
point, Dupree joined Brindle's legal team. Although the
timing is unclear, he became involved in the matter no later
than August 2, 2012, when Rogers's counsel met with
Cohen, Butters, and Dupree in Dupree's office to view
portions of the video recording made by Brindle.
September 14, 2012, Rogers and his counsel participated in a
mediation with Brindle and her attorneys, but the parties
were unable to resolve the dispute. That same day, Rogers
sued Brindle in the Superior Court of Cobb County for
injunctive and other relief, seeking to prevent Brindle from
disseminating the video recording. A few days later, Brindle
filed a competing suit in the State Court of Fulton County,
asserting that Rogers had, among other things, battered and
sexually harassed her by requiring her to engage in sexual
activities with him as a condition of her employment.
Although the records in both suits were sealed, several news
outlets reported information about the litigation and
30, 2014, Rogers filed the instant action in Cobb County
against Cohen, Butters, and Dupree, alleging that
Brindle's attorneys conspired with her to illegally
obtain video evidence of the sexual encounters and to extort
money from Rogers by threatening in the demand letter to file
frivolous and false claims regarding his private activities.
With respect to the video recording, he asserted that
Brindle's attorneys convinced Brindle to make the
recording, advised her how to do it, and procured the spy
camera for her. Rogers asserted claims for: (1) invasion of
privacy - intrusion upon seclusion, solitude and private
affairs; (2) invasion of privacy - public disclosure of
private facts; (3) civil conspiracy; (4) intentional
infliction of emotional distress; (5) conspiracy to violate
the Georgia RICO Act; (6) violation of the Georgia RICO Act;
(7) aiding and abetting breach of a confidential
relationship; (8) general negligence/negligence per se; and
(9) litigation expenses.
response, Cohen, Butters, and Dupree filed motions to dismiss
for failure to state a claim and motions to strike or dismiss
pursuant to the anti-SLAPP statute, OCGA § 9-11-11.1.
The trial court found that the complaint failed to state a
claim for general negligence. It thus dismissed the general
negligence allegation, but denied the motions to dismiss for
failure to state a claim as to the remaining counts,
including negligence per se. The trial court also denied Cohen
and Butters's anti-SLAPP motion. It ruled differently as
to Dupree, however, determining that the claims against him
were subject to strike or dismissal on anti-SLAPP grounds.
These appeals followed.
ease of discussion, we will first address Dupree's appeal
in Case No. A16A1715, which challenges the denial of his
motion to dismiss for failure to state a claim upon which
relief can be granted. A trial court should only grant a
motion to dismiss for failure to state a claim when "it
appears to a certainty that the plaintiff would be entitled
to no relief under any state of facts which could be proved
in support of his claim." Ikomoni, supra at
777. A complaint survives dismissal "[i]f, within the
framework of the complaint, evidence may be introduced which
will sustain a grant of relief to the plaintiff."
sole enumeration of error, Dupree asserts that all of
Rogers's claims are barred by OCGA § 51-7-80 et seq,
Georgia's statutory scheme governing abusive
litigation. Under the 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."
OCGA § 51-7-81. The legislation establishes a procedural
framework for such claims, requiring, among other things,
that the claimant provide detailed, pre-suit notice of the
claim to the opposing party. OCGA § 51-7-84 (a). This
statutory scheme offers "the exclusive remedy for
abusive litigation." OCGA § 51-7-85. No other tort
claims for malicious use of civil proceedings, malicious
abuse of civil process, or abusive litigation are allowed.
Asserting that Rogers's claims allege abusive litigation,
Dupree argues that the complaint must be dismissed because
Rogers failed to comply with the procedural requirements of
OCGA § 51-7-80 et seq. We agree with Dupree as to Count
2 - invasion of privacy through the public disclosure of
private facts. With respect to this claim, Rogers alleged
that Dupree and the other defendants "made a public
disclosure of private facts of Rogers by causing the
disclosure to the public that he was having a sexual
relationship with Brindle." Specifically, he asserted
that the defendants "disclosed [the sexual relationship]
in the public record" by filing the Fulton County
complaint, which contained "frivolous claims" and
"false allegations." He further claimed that they
placed litigation-related documents in the "public
domain" while seeking appellate review of an issue in
the Fulton County action. And he asserted that Dupree and
Brindle's other attorneys leaked information to the press
by sending the Fulton County complaint to a news outlet.
conduct underlying Count 2 relates entirely to the
defendants' initiation, continuation, and procurement of
litigation against Rogers on behalf of Brindle. Although
Rogers couched Count 2 as an invasion of privacy claim,
"we look to the substance and not the style of a
particular claim to determine whether it amounts to a claim
for abusive litigation." Meadow Springs Recovery v.
Wofford, 319 Ga.App. 79, 82 (1) (734 S.E.2d 100) (2012).
Because Count 2 centers on the defendants'
litigation-related conduct - i.e., filing a civil complaint,
seeking appellate review of an issue, and disclosing the
litigation to the press - the invasion of privacy allegations
fall within the abusive litigation statute.
Count 2, therefore, Rogers needed to comply with the
statutory prerequisites for an abusive litigation claim. The
record, however, reveals no indication of compliance. In
particular, Rogers does not contend that he provided the
statutory notice required by OCGA § 51-7-84 (a).
Accordingly, the trial court erred in refusing to dismiss
Count 2 for failure to state a claim. See Slone v.
Myers, 288 Ga.App. 8, 11 (2) (653 S.E.2d 323) (2007),
overruled in part on other grounds by Reeves v. Upson
Regi onal Medical Ctr., 315 Ga.App. 582 (726 S.E.2d 544)
(2012); LaSonde v. Chase Mortgage Co., 259 Ga.App.
772, 774 (2) (577 S.E.2d 822) (2003).
reach a different conclusion as to Rogers's claims in
Counts 1 and 3 through 9. Rogers asserted in Count 1 that
"[b]y working together and in concert to have Rogers
filmed and recorded while engaging in sexual encounters in
the privacy of his bedroom without his knowledge or consent,
Defendants invaded [Rogers's] right to privacy." He
further claimed that the video recording violated OCGA §
16-11-62 (2), which makes it unlawful for "[a]ny person,
through the use of any device, without the consent of all
persons observed, to observe, photograph, or record the
activities of another which occur in any private place and
out of public view." Counts 3 through 9 similarly asserted
causes of action based on Dupree's alleged participation,
through a conspiracy with the other defendants, in (1) the
illegal video-recording of Rogers, and (2) an extortion
scheme relating to the demand letter.
claims do not involve the "initiation, continuation, or
procurement of civil proceedings." OCGA § 51-7-81.
Rogers alleged that well before any legal action commenced,
the defendants conspired to illegally video-record his
private activities and extort money from him by threatening
to file false claims regarding the video and his sex life.
Although Dupree characterizes the attorneys' actions as
"pre- and inter-litigation conduct," the activities
underlying the claims stand apart from - and do not depend
upon - the litigation brought by Brindle. Under these
circumstances, Counts 1 and 3 through 9 do not fall within
the abusive litigation paradigm. See Ward v.
Coastal Lumber Co., 196 Ga.App. 249, 251 (3) (395
S.E.2d 601) (1990) (pre-litigation activities do not give
rise to viable abusive litigation claim). Thus, although we
reverse the denial of Dupree's motion to dismiss Count 2
of Rogers's complaint for failure to state a claim, we
affirm the trial court's judgment as to Counts 1 and 3
Case No. A16A1714, Rogers challenges the trial court's
order dismissing/striking his claims against Dupree on
anti-SLAPP grounds. Because we have already determined that
Count 2 of Rogers's complaint should have been dismissed
for failure to state a claim, we need only consider whether