Lambert v. DMRT, LLC

1

LAMBERT et al. v. DMRT, LLC et al.

No. A23A0955

Court of Appeals of Georgia, Fifth Division

October 26, 2023

MCFADDEN, P. J., BROWN and MARKLE, JJ.

MARKLE, JUDGE

After its application for a special use permit to build an outdoor deck was denied, the nightclub DMRT, LLC d/b/a Mixx Atlanta and its partial owner, Kishen Devaraj (collectively "Mixx"), sued Earl Lambert, Jr. and the Ansley Park Civic Association, Inc. ("APCA") for breach of contract, unjust enrichment, tortious interference with business relations, punitive damages, and attorney fees. Lambert and APCA (collectively, "Appellants") appeal from the trial court's denial of their motion to strike the complaint pursuant to the Anti-SLAPP statute, OCGA § 9-1111.1, and, in the alternative, to dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6).^[1] Because this matter involves Appellants' protected speech, and Mixx has not shown a probability of prevailing on its claims, we conclude that the complaint was subject to dismissal under OCGA § 9-11-11.1. We therefore reverse the trial court's judgment.

"A trial court's ruling on an anti-SLAPP motion to strike is subject to de novo review, and the pleadings and affidavits submitted by the parties are considered in the light most favorable to the nonmoving party." (Citations omitted.) Johnson v. Cordtz, 366 Ga.App. 87 (878 S.E.2d 603) (2022).

So viewed, the record shows Devaraj is part owner of Mixx, a nightclub and restaurant, that abuts the Beltline and is adjacent to residential properties in the Ansley Park neighborhood of Atlanta. After receiving multiple noise complaints from neighborhood residents in 2015, a municipal court judge ordered Mixx to mediate with APCA to attempt to resolve the noise issues. Consequently, in 2016, Mixx and APCA entered into an agreement ("the Agreement") regarding planned renovations to the nightclub.

The Agreement incorporates both a design plan prepared by Kevin Maher ("the "Maher Plan"), showing the addition of an enclosed patio at the rear of the club, as well as acoustical design recommendations performed by Harold Merck ("the Merck Plan"). The Agreement provides:

APCA will support, speak in favor of, and recommend approval by the City of Atlanta of any such application by or submitted on behalf of Mixx to the City of Atlanta for the use, maintenance, and/or development of [the club] set forth in the Maher Plan and Merck Plan. Mixx shall include a copy of this Agreement executed by APCA and Mixx and the conditions set forth herein, including, but not limited to the Maher Plan and Merck Plan, with the filing of any such application and, further, stipulate and consent to the reference and inclusion of the same in any such approval(s) by the City of Atlanta for the development of [the club].... To the extent the conditions of this Agreement are more restrictive than or are not reflected in any conditions applied to [the club] and/or Mixx by the City of Atlanta, the conditions of this Agreement will control.

The Agreement further provides:

[S]hould Mixx seek any future renovation and/or construction of [the club] .... [,] APCA shall in good faith fairly and fully consider, and not unreasonably oppose, any such future renovation and/or construction proposed by Mixx that is consistent with this Paragraph so long as . . . such future renovation and/or construction does not interfere with, does not hinder, and is not inconsistent with the Maher Plan, Merck Plan, or the intent and provision of this Agreement.

The Agreement also contains the following merger clause: "This Agreement contains the sole and entire agreement of the parties hereto with respect to the transaction contemplated hereunder and no representation, inducement, promise or agreement, parole or written, between the parties hereto not incorporated herein shall be of any force or effect."

Mixx's enclosed patio was ultimately permitted, and construction was completed in 2018. In March 2021, Deveraj informed APCA's president that Mixx intended to seek a special use permit for the addition of an open air dining patio and deck to the rear of the property. That same night, Lambert, an APCA member, whose home is located approximately 200 feet from Mixx's rear property line, called law enforcement and made a noise complaint after hearing loud music emanating from Mixx's direction. Thereafter, the officer issued Mixx a citation for violating the noise ordinance.

The following month, Mixx applied to the City of Atlanta for a special use permit to build the outdoor dining deck. APCA opposed the application at a public hearing, specifically pointing to the absence of any noise abatement plan. The Department of City Planning's Zoning Administrator recommended the Zoning Review Board deny the application, noting that "proposed measures to mitigate noise to the adjacent residential property is (sic) not sufficient." The Administrator also noted that Mixx had not performed a sound mitigation plan as requested by APCA. In September 2021, the Atlanta City Council unanimously voted to deny Mixx's application for the special use permit.

Thereafter, Mixx sued Lambert and APCA, alleging that Lambert fabricated the noise complaint; APCA relied on the resulting citation as grounds to oppose the special use permit for the outside deck; and APCA's opposition to the permit breached the Agreement. As relevant to this appeal, Mixx brought claims for breach of contract and unjust enrichment against APCA; and claims for tortious interference with business relations, punitive damages, and attorney fees under OCGA § 13-6-11 against both defendants. The defendants filed a motion to strike the complaint pursuant to the Anti-SLAPP statute, OCGA § 9-11-11.1, and, in the alternative, to dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6). Following a hearing, the trial court denied the motion, and Lambert and APCA appeal.

1. Appellants first argue that the trial court erred by finding that the Anti-SLAPP statute did not apply because (a) their activities were protected and (b) Mixx did not meet its burden to show a probability of prevailing on its claims. We agree.

A "SLAPP," or "Strategic Lawsuit Against Public Participation," is a meritless lawsuit 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 its target's resources and driving up the costs of litigation. The anti-SLAPP statute allows a defendant to make a motion to strike such a frivolous action as an avenue for ending the suit quickly, summarily, and at minimal expense.

(Citations and punctuation omitted.) Johnson, 366 Ga.App. at 87. However, we must construe the statute broadly in furtherance of the General Assembly's declared purpose "to encourage participation by the citizens of Georgia in matters of public significance and public interest through the exercise of their constitutional rights of petition and freedom of speech." OCGA § 9-11-11.1 (a); Barnwell v. Trivedi, 366 Ga.App. 168, 170 (881 S.E.2d 16) (2022).

Whether a claim should be struck under the anti-SLAPP statute involves a two-part test.^[2]

First, the court must decide whether the party filing the anti-SLAPP motion has made a threshold showing that the challenged claim is one "arising from" protected activity. If so, the court must decide whether the plaintiff "has established that there is a probability that the plaintiff will prevail on the claim." But while viewing the evidence in this light, the court must also take into account the substantive evidentiary and legal standards that apply to the case.

Johnson, 366 Ga.App. at 90 (1); Barnwell, 366 Ga.App. at 170; see also OCGA § 9-11-11.1 (b) (1), (b) (2) (in determining whether a claim should be struck, "the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based").

With this framework in mind, we turn to the merits of Appellants' argument on appeal.

(a) Protected activity.

OCGA § 9-11-11.1 (c) defines the categories of protected activities, to 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; (3) Any written or oral statement or writing or petition made in a place open to the public or a public forum in connection with an issue of public interest or concern; or (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.

Here, Mixx takes issue with Lambert's noise complaint to law enforcement, and APCA's opposition to its application for a special use permit in the course of municipal proceedings. Without question, Lambert's statements to police, regarding a potential violation of a noise ordinance, were made "in connection with a public issue or an issue of public concern," and are thus protected under OCGA § 9-11-11.1 (c) (4). See Annamalai v. Capital One Financial Corp., 319 Ga.App. 831, 833 (1) (738 S.E.2d 664) (2013) (Under former version of OCGA § 9-11-11.1, defendants' "statements to police or statements made in furtherance of an ongoing investigation regarding [plaintiff's] alleged criminal activity.... represents the type of speech that the anti-SLAPP statute is designed to protect.").

Similarly APCA's statements and activity in opposition to Mixx's permit were before a legislative...