Dellinger-Allen v. O'Brien

355 Ga.App. 811

846 S.E.2d 124

DELLINGER-ALLEN et al.

v.O'BRIEN.

A20A0087

Court of Appeals of Georgia.

June 25, 2020

Gregory Doyle Calhoun & Rogers, Charles L. Bachman, Jr., Joseph D. Shelley, for appellants.

Thompson O'Brien Kemp & Nasuti, Aaron M. Kappler, Aaron M. O'Brien, for appellee.

Hodges, Judge.

E. Amanda Dellinger-Allen ("Dellinger-Allen") and E. Amanda Dellinger-Allen, LLC d/b/a Thrive Counseling ("Thrive") sued Allison O'Brien for defamation, breach of contract, violation of the Georgia Computer Systems Protection Act, and attorney fees. O'Brien answered and moved to strike the defamation and breach of contract counts of the complaint pursuant to the Georgia anti-SLAPP statute.¹ See OCGA § 9-11-11.1. Following a hearing, the Superior Court of Cobb County granted O'Brien's motion, and Dellinger-Allen and Thrive appeal. For the following reasons, we affirm that portion of the trial court's order striking Dellinger-Allen's defamation claim, but reverse as to Thrive's claim for breach of contract.

Accepting Dellinger-Allen's allegations as true,² the record demonstrates that O'Brien contracted with Thrive on March 1, 2016, to provide counseling services to Thrive's clients.³ To become a licensed counselor, O'Brien worked under Dellinger-Allen's direction and supervision until December 15, 2016. The relationship soured in December 2016, culminating in a dispute between Dellinger-Allen and O'Brien concerning the amount O'Brien owed to buy out the remainder of her contract with Thrive.⁴

O'Brien asked Dellinger-Allen to provide her with a document demonstrating the number of direct experience hours she worked under Dellinger-Allen in order to obtain her professional counseling license. Dellinger-Allen refused because she did not feel O'Brien was fulfilling the terms of her contract with Thrive, and thus offered to provide proof of O'Brien's hours "if [O'Brien] signed a promissory note for the amount [Dellinger-Allen] felt [O'Brien] owed." O'Brien declined. "After further consideration and discussion," Dellinger-Allen, through counsel, finally provided O'Brien with proof of the direct clinical experience hours O'Brien earned on December 23, 2016.

To recover the amount O'Brien allegedly owed, Thrive filed an action against O'Brien in the Magistrate Court of Cobb County on February 17, 2017 to collect $4,778.33. Thereafter, O'Brien filed an ethical complaint with the Georgia Composite Board of Professional Counselors, Social Workers and Marriage and Family Therapists (the "Board") on or about March 30, 2017 (the "grievance"). In it, O'Brien claimed that when she asked for her

signed and notarized licensure paperwork for hours of direct post graduate clinical experience ..., Ms. Dellinger refused to release the form to [her] until [she] paid [Dellinger-Allen] or signed a form agreeing to make payments over 6 months. [O'Brien] asked several times for [her] licensure form, as [she] had completed the hours for licensure and needed the form to apply for full licensure as a marriage and family therapist. [Dellinger-Allen] refused and sent a copy only after [O'Brien's] attorney contacted her.

Similarly, O'Brien wrote of her concern "that Ms. Dellinger's behavior is in violation of several codes of ethics and exploits the trust and dependency of associate licensed therapists."

O'Brien supplemented her grievance on April 11, 2017.⁵ In response, the Board e-mailed Dellinger-Allen on June 13, 2017, and requested that she provide additional information, including:

1. Do you now, or have you ever, provided supervision of/and directed work experience for, [O'Brien] at your ... business, Thrive Counseling Center?

2. Did you refuse[ ] to sign and submit forms required for the licensure application of Ms. O'Brien? If yes, why have you refused?

3. What training have you had as it pertains to supervision?

On June 16, 2017, Dellinger-Allen replied to the Board's inquiry, noting that she had provided O'Brien with "her Supervision Verification Forms for licensure" and "her forms for Direct Work Experience," and detailing her training in supervision. O'Brien filed an update to her original grievance with the Board on June 29, 2017.

Dellinger-Allen and Thrive filed the present action in the Superior Court of Cobb County on September 5, 2017, alleging causes of action for defamation, breach of contract, violation of the Georgia Computer Systems Protection Act, and attorney fees.⁶ O'Brien answered and moved to strike and to dismiss Dellinger-Allen's complaint.⁷ Concerned that O'Brien's motion "might be valid," the trial court ordered limited discovery to obtain O'Brien's communications with the Board. After additional briefing and a hearing, the trial court granted O'Brien's motion and struck Dellinger-Allen's defamation count and Thrive's breach of contract count from their complaint.⁸ This appeal followed.

1. First, Dellinger-Allen contends that the trial court erred in granting O'Brien's motion to strike Dellinger-Allen's claim for defamation. We find no error.

(a) Current Anti-SLAPP Statute. OCGA § 9-11-11.1 (b) (1) 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.

Furthermore,

[a]s used in this Code section, the term "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 include:

(1) Any written or oral statement or writing or petition made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

(2) Any written or oral statement or 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;

...

(4) Any other conduct in furtherance of the exercise of the constitutional right of petition or free speech in connection with a public issue or an issue of public concern.

OCGA § 9-11-11.1 (c).

In Wilkes & McHugh, P.A. ,⁹ our Supreme Court noted that, in view of "wholesale revision[s]" in 2016, "[t]he text of OCGA § 9-11-11.1 (b) (1) makes clear that the analysis of an anti- SLAPP motion involves two steps." (Footnote omitted.) 306 Ga. at 252, 261 (2) (b), 830 S.E.2d 119.

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. 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.

(Citations and punctuation omitted.) Joshua David Mellberg, LLC v. Impact Partnership, 355 Ga.App. 691, 693, 844 S.E.2d 223 (2020) ; see also Wilkes & McHugh, P.A. , 306 Ga. at 261-262 (2) (b), 830 S.E.2d 119. "Only a claim that satisfies both prongs of the anti-SLAPP statute — i.e., that arises from protected activity and lacks even minimal merit — is a SLAPP that is subject to being stricken." (Citation, punctuation, and emphasis omitted.) Wilkes & McHugh, P.A. , 306 Ga. at 262-263 (2) (b), 830 S.E.2d 119. We review an order granting or denying an anti-SLAPP motion de novo. Id. at 263 (2) (b), 830 S.E.2d 119.

(b) Step One — Whether O'Brien's Grievance was in Furtherance of a Covered Right. First, the trial court was required to decide whether O'Brien "made a threshold showing that the challenged claim [was] one ‘arising from’ protected activity." Wilkes & McHugh, P.A. , 306 Ga. at 262 (2) (b), 830 S.E.2d 119 ; see also OCGA § 9-11-11.1 (b) (1). "A defendant meets [her] burden by demonstrating that the act underlying the challenged claim ‘could reasonably be construed as’ fitting within one of the categories spelled out in [ OCGA § 9-11-11.1 (c) ]." Wilkes & McHugh, P.A. , 306 Ga. at 262 (2) (b), 830 S.E.2d 119. One such category includes "[a]ny written or oral statement or writing or petition made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law[.]" OCGA § 9-11-11.1 (c) (1).

In this case, the trial court summarily found that O'Brien's statements to the Board "were made in furtherance of [O'Brien's] right to petition to a legislative, executive, or judicial proceeding pursuant to OCGA § 9-11-11.1 (b) (1)." Dellinger-Allen does not contest the trial court's finding related to her cause of action for defamation,¹⁰ and we conclude that the finding was not erroneous. See OCGA §§ 43-1-2 (creating professional licensing boards division in office of Secretary of State), 43-10A-4 (creating the Board and providing that members are appointed by the governor), 43-10A-5 (c) (1) (defining duties of the Board); Ga. Comp. R. & Regs. r. 135-8-.01 (establishing the Board's complaint procedure); compare RCO Legal, P. S. v. Johnson , 347 Ga. App. 661, 667 (2) (b), 820 S.E.2d 491 (2018) (concluding that review of a State Bar grievance "could reasonably be construed as statements made in connection with official proceedings"); Jefferson v. Stripling , 316 Ga. App. 197, 199-200 (1), 728 S.E.2d 826 (2012) (finding that complaints to the Office of the General Counsel of the State Bar of Georgia were "official proceedings authorized by law" and, therefore, subject to anti-SLAPP statute) (citation and punctuation omitted).

(c) Step Two — Whether Dellinger-Allen Demonstrated a...