PNC Fin. Serv. Grp., Inc. v. Gibson

901 S.E.2d 331

PNC FINANCIAL SERVICES GROUP, INC.

v.GIBSON; and vice versa.

A24A0268

A24A0280

Court of Appeals of Georgia.

May 6, 2024

Reconsideration Denied May 24, 2024

Thomas W. Tucker, Augusta, Christopher David Kanne, Atlanta, for Appellant in A24A0268.

David E. Hudson, John W. Gibson, Augusta, for Appellee in A24A0268.

David E. Hudson, John W. Gibson, Augusta, for Appellant in A24A0280.

Thomas W. Tucker, Augusta, Christopher David Kanne, Atlanta, for Appellee in A24A0280.

McFadden, Presiding Judge.

These appeals concern two orders entered in John Gibson’s lawsuit against PNC Financial Services Group, Inc. In one order, the trial court granted PNC’s motion to dismiss Gibson’s defamation claim under Georgia’s anti-Strategic Lawsuits Against Public Participation ("anti-SLAPP") statute, OCGA § 9-11-11.1, but denied PNC’s request for attorney fees under the statute. In the other order, the trial court ordered PNC to produce certain documents to Gibson. PNC had argued that the documents were protected by the attorney-client privilege, but the trial court held that a fiduciary duty exception to the privilege required their disclosure.

In Case No. A24A0268, PNC appeals the denial of its request for attorney fees and the order requiring it to produce documents. We hold that the award of attorney fees was mandatory under the anti-SLAPP statute.

As to document production, Gibson’s claim that PNC must turn over to him documents protected by the attorney-client privilege rests on his contention that PNC owes him fiduciary duties. We reject that contention. We hold that, because Gibson’s individual retirement account ("IRA") was self directed, no fiduciary duty arose; and consequently we reject Gibson’s claim to documents protected by the attorney-client privilege.

We reverse the trial court’s contrary rulings and remand for the trial court to enter an award of attorney fees.

In Case No. A24A0280, Gibson appeals the grant of PNC’s anti-SLAPP motion. We affirm that ruling.

1. Background

[1, 2] "We generally review a trial court’s ruling on an anti-SLAPP motion to strike de novo, viewing the pleadings and affidavits submitted by the parties in the light most favorable to the plaintiff (as the non-moving party)." ACLU v. Zeh, 312 Ga. 647, 652 (1) (c), 864 S.E.2d 422 (2021) (citation omitted). We review a trial court’s decision on discovery matters for a clear abuse of discretion. See Hill, Kertscher & Wharton v. Moody, 308 Ga. 74, 80 (2), 839 S.E.2d 535 (2020).

So viewed, the record shows that PNC was the custodian of Gibson’s self-directed IRA. In relation to the investigation of an investment fund, the Securities and Exchange Commission ("SEC") subpoenaed PNC to produce records regarding a particular trans- action of Gibson’s. Gibson consented to PNC responding to the subpoena. But, according to Gibson, PNC did not respond accurately.

Gibson sued PNC. In his first amended complaint, he asserted claims for conversion of his financial records, breach of a bailment agreement, and breach of fiduciary duty. He alleged that PNC’s breach of fiduciary duty subjected him "to false and defamatory allegations against him by the Securities and Exchange Commission that have been publicly disclosed on the SEC web site."

After PNC deposed Gibson — where he testified that he was claiming in his lawsuit that, in response to the subpoena, PNC made false statements to the SEC that had caused him reputational harm — PNC filed a motion to dismiss Gibson’s claims that PNC is liable for reputational harm. It based its motion on Georgia’s anti-SLAPP statute, OCGA § 9-11-11.1. It sought attorney fees under section (b.1) of the statute.

About three weeks later, Gibson amended his complaint and, among other things, removed the reference to "defamatory allegations." But he still alleged that PNC’s breach of its fiduciary duty subjected him to "false allegations … publicly disclosed on the SEC website."

After a hearing, the trial court granted PNC’s anti-SLAPP motion, specifying that he was "dismiss[ing] the challenged defamation claim only, including tort damages arising from reputational harm." The court denied PNC’s request for attorney fees under OCGA § 9-11-11.1 (b.1) because Gibson’s "remaining claims are not subject to PNC’s [a]nti-SLAPP Motion, and, thus survive."

The same day, the court entered an order requiring PNC to produce certain documents that PNC contended were protected by the attorney-client privilege. The court based the order on a fiduciary duty exception to the attorney-client privilege. PNC filed this appeal, and Gibson filed a cross-appeal.

2. Anti-SLAPP

We first address the anti-SLAPP issues. We hold that the trial court did not err in granting the anti-SLAPP motion, but it did err in denying PNC’s request for attorney fees.

(a) Applicable law

[3] Regarding dismissing a claim under the anti-SLAPP statute, the statute protects free speech. It 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,

OCGA § 9-11-11.1 (b) (1). The statutory text

makes clear that the analysis of an anti-SLAPP motion to strike involves two steps. 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.

ACLU, 312 Ga. at 650 (1) (a), 864 S.E.2d 422.

(b) Parties’ arguments

(i) Gibson

Gibson enumerates that the trial court erred in granting PNC’s anti-SLAPP motion because the motion was untimely and was filed for the purpose of delay. He also enumerates that the motion meets none of the requirements of OCGA § 9-11-11.1 and that PNC’s alleged defamatory acts do not fall within the protection of the anti-SLAP P statute. (Gibson also enumerates that if the trial court excluded any damages from an alleged conflict of interest or breach of fiduciary duties, the court erred. He has not shown error. The trial court explicitly limited its dismissal order to defamation claims.)

(A) Delay and timeliness

Gibson argues that the trial court erred by granting the anti-SLAPP motion because it was untimely and its timing demonstrates that PNC filed it for the purpose of delay. We disagree.

Initially, we note that OCGA § 9-11-11.1 does not provide that delay is a ground for denying an anti-SLAPP motion. The only mention of delay in the anti-SLAPP statute is in the attorney fees provision. See OCGA § 9-11-11.1 (b.1) ("If the court finds that a motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award attorney’s fees and expenses of litigation to the nonmoving party prevailing on the motion for the attorney’s fees and expenses of litigation associated with the motion in an amount to be determined by the court based on the facts and circumstances of the case."). And Gibson cites no authority in support of his argument that an anti-SLAPP motion may be denied solely because of delay.

[4] In any event, PNC filed the anti-SLAPP motion less than four months after the taking of Gibson’s deposition in which he announced for the first time that he was claiming reputational harm because of PNC’s statements to the SEC. (Although he had included in his first amended complaint a reference to the SEC making "false and defamatory allegations against him" due to PNC’s breach of fiduciary duty, Gibson had not claimed until his deposition that PNC’s actions harmed his reputation for integrity.) Gibson has not shown that the trial court erred by failing to deny the anti-SLAPP motion because of delay.

[5] Gibson also argues that PNC’s anti-SLAPP motion was actually a motion to strike, since OCGA § 9-11-11.1 refers to such motions as motions to strike. See OCGA § 9-11-11.1 (b) (1). So, he argues, PNC had to file its motion within 30 days after service of the pleadings under OCGA § 9-11-12 (f) ("Upon motion made by a party within 30 days after the service of the pleading upon him … the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."). Gibson did not raise this statutory argument in the trial court, and so has not preserved it for review on appeal. Rodriguez v. State Farm, Mut. Automobile Ins. Co., 366 Ga. App. 65, 70, 880 S.E.2d 606 (2022).

(B) Two-step analysis

Gibson argues that the anti-SLAPP motion meets none of the requirements of the statute. Relatedly, he argues that PNC’s allegedly defamatory acts do not fall within the protection of the anti-SLAPP statute. We disagree.

As detailed above, the analysis of an anti-SLAPP motion involves two steps: first determining whether the party filing the anti-SLAPP motion has made a threshold showing that the challenged claim is one arising from protected activity and then deciding whether the proponent of the challenged claim has established that there is a probability that he will prevail on the claim. ACLU, 312 Ga. at 650 (1) (a), 864 S.E.2d 422.

(1) First step

[6] Gibson argues that PNC’s conduct that forms the basis of his claim cannot reasonably be construed as acts in furtherance of PNC’s right of free speech and therefore is not protected activity. We disagree.

OCGA § 9-11-11.1 (c) defines the relevant term used in subsection (b) (1) — "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 ...