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Rogers v. Dupree

Court of Appeals of Georgia

March 15, 2019

ROGERS
v.
DUPREE et al. DUPREE et al.
v.
ROGERS. COHEN et al.
v.
ROGERS. COHEN et al.
v.
ROGERS.

          MERCIER, JUDGE.

         These 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), [1] 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.

         In Case 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.[2]

         We 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.

         In June 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.

         On July 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 the same.
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 families.
. . .
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, etc.

         At some 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.

         On 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 underlying claims.

         On May 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.

         In 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.[3] 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.

         Case No. A16A1715

         1. For 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." Id.

         In his 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.[4] 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. Id.

         (a) 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.

         The 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.

         As to 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).

         (b) We 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."[5] 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.

         These 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 through 9.

         Case No. A16A1714

         2. In 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 the ...


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