FIFTH DIVISION
MCFADDEN, P. J.,
BRANCH and BETHEL, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
January 9, 2018
In the Court of Appeals of Georgia
A17A2137. JUBILEE DEVELOPMENT PARTNERS, LLC et al. v.
STRATEGIC JUBILEE HOLDINGS, LLC et al.
BETHEL, Judge.
Jubilee Development Partners, LLC, Minchew Enterprises LLC, Ronald
Reeser, Mason Drake, and Kenneth Minchew (collectively, “Appellants”) appeal
from the denial of their motion to strike or in the alternative, motion to dismiss the
complaint filed against them for violation of Georgia’s statute regarding strategic
lawsuits against public participation (the “anti-SLAPP” statute). They argue that the
trial court erred in denying their motion, and that the Georgia suit is subject to the
anti-SLAPP statute. We disagree and affirm because the claims brought in the
Georgia suit are not based on an act in furtherance of the rights of free speech or
petition, and therefore do not fall under the anti-SLAPP statute.
We review de novo the trial court’s denial of the Appellants’ motion to dismiss.
See Rogers v. Dupree, 340 Ga. App. 811, 814 (2) (799 SE2d 1) (2017). “In reviewing
the trial court’s order, we construe 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, Inc., 320 Ga. App. 442, 443 (740 SE2d 219)
(2013) (punctuation and footnote omitted).
So viewed, the record shows that in 2015, Jubilee Investment Holdings, LLC
was formed to purchase and hold 2,718 acres of land in Santa Rosa County, Florida.
Jubilee Manager was simultaneously formed to serve as the managing member of
Jubilee Investment Holdings,1 and was expected to lead the development of the
Florida property. The membership of Jubilee Manager consists of: (1) Appellant
Jubilee Development Partners;2 (2) Appellant Minchew Enterprises;3 (3) non-party
1
Strategic Jubilee Holdings is also a member of Jubilee Investment Holdings.
2
The individual members of Jubilee Development Partners are Appellants
Ronald Reeser and Mason Drake.
3
The individual member of Minchew Enterprises is Appellant Kenneth
Menchew.
2
River Life Investments, LLC; and (4) Strategic Jubilee Holdings.4 After acquisition
of the property by Jubilee Investment Holdings, Jubilee Manager began pursuing
development of the property. Jubilee Development Partners funded some portion of
these efforts.
In January 2016, Appellants received letters from Strategic Jubilee Holdings
alleging that Jubilee Manager was in material breach of Jubilee Investment
Holdings’s operating agreement and that Reeser, Minchew, and Drake were in
material breach of Jubilee Manager’s operating agreement, in both cases for failing
to make capital contributions. The Appellants disputed this. However, relying on
these alleged defaults, Freeman and Novak voted to remove Jubilee Manager as the
managing member of Jubilee Investment Holdings, substituting their own company
— Strategic Jubilee Holdings — as the managing member. Freeman and Novak then
indicated that they no longer intended to develop the property, but instead would
donate a large portion of it to the State of Florida.
On November 1, 2016, Appellants and Jubilee Manager filed suit in Florida
against Freeman, Novak, Strategic Jubilee Holdings, and additional entities seeking
4
The individual members of Strategic Jubilee Holdings are James Freeman and
Ricky Novak.
3
damages and injunctive relief for the wrongful removal of Jubilee Manager as the
managing member of Jubilee Investment Holdings and for the attempt to donate the
property. They also recorded a notice of lis pendens against the Florida property. On
November 7, 2016, Reeser also wrote a letter on behalf of Jubilee Manager to the
Santa Rosa County Attorney claiming that Jubilee Manager remained the managing
member of Jubilee Investment Holdings, and that the proposed plan was unlawful.
The letter mentioned the pending Florida suit and that an injunction staying any
transfers of the property had been sought.
Strategic Jubilee Holdings filed a motion to dismiss the action and to dissolve
the lis pendens the Appellants had placed on the property. The Florida court granted
the motion to dissolve the lis pendens, finding that Jubilee Investment Holding’s
ownership of the land was not in question. Appellants then voluntarily dismissed their
Florida lawsuit.
On December 7, 2016, Strategic Jubilee Holdings and Jubilee Manager filed
suit against Appellants in Georgia, seeking a declaratory judgment that Jubilee
Development Partners and Minchew Enterprises are not members of Jubilee Manager
because they failed to make requisite capital contributions. . Strategic Jubilee
Holdings and Jubilee Manager also brought a breach of contract claim against Jubilee
4
Development Partners and Minchew Enterprises for failing to make capital
contributions under the Jubilee Manager operating agreement, as well as a claim for
breach of fiduciary duty against Reeser, Drake, and Minchew for failing to cause
Jubilee Development Partners and Minchew Enterprises to pay their initial capital
contributions. In response, Appellants sent a letter informing counsel for Strategic
Jubilee Holdings and Jubilee Manager that the action violated Georgia’s anti-SLAPP
statute. Strategic Jubilee Holdings and Jubilee Manager then filed an amended
complaint, clarifying that the letter sent to the Santa Rosa county attorney, ostensibly
on behalf of Jubilee Manager, demonstrated the existence of a dispute over which
entity is the proper manager of Jubilee Investment Holdings. Appellants filed a
motion to strike or in the alternative, motion to dismiss the complaint for violation of
Georgia’s anti-SLAPP statute.
Following a hearing, the trial court denied the motion. The trial court held that,
even assuming the Florida lawsuit and letter to the county attorney were acts of free
speech, the claims in the Georgia suit did not arise from those acts. Rather, the
Georgia lawsuit involved a dispute over corporate governance and membership in
Jubilee Manager. Thus, the anti-SLAPP statute did not apply. This appeal followed.
5
The Appellants argue that the claims in the Georgia action arise from their
petitioning activity in Florida, and therefore the anti-SLAPP statute should apply. We
disagree.
“A strategic lawsuit against public participation (SLAPP action) is a lawsuit
intended to silence or intimidate critics or opponents by overwhelming them with the
cost of a legal defense until they abandon that criticism or opposition.” Rogers, 340
Ga. App. at 814 (2). Georgia’s anti-SLAPP statute is intended to protect persons
exercising their rights to free speech and to petition. See OCGA § 9-11-11.1 (a). The
statute provides that
[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).
An act in furtherance of a person’s or entity’s right of petition or
constitutionally guaranteed free speech includes any written statement, writing, or
6
petition made before a judicial proceeding or in connection with an issue under
consideration or review by a judicial body. OCGA § 9-11-11.1 (c) (1) & (2).
Thus, “[f]or the procedural protections of the anti-SLAPP statute to apply, there must
be a threshold showing that the claims could reasonably be construed as a statement
or petition made in relation to or in connection with an actual official proceeding.”
Emory, 320 Ga. App. at 445 (1) (footnote omitted). See also Rogers, 340 Ga. App.
at 815 (2). “The anti-SLAPP statute operates to protect a person from lawsuits that
are initiated in response to such protected statements.” Adventure Outdoors, Inc. v.
Bloomberg, 307 Ga. App. 356, 360 (2) (705 SE2d 241) (2010).
However, the claims for declaratory relief as well as those for breach of
contract and breach of fiduciary duties brought by Strategic Jubilee Holdings and
Jubilee Manager in the Georgia suit did not arise from the voluntarily dismissed
Florida action. Rather, the claims in the Georgia suit arose from a dispute as to
corporate governance and membership based on compliance with the terms of the
operating agreements for Jubilee Manager and Jubilee Investment Holdings.
Nor did the Georgia suit arise from the letter sent to the county attorney.
Compare Barnett v. Holt Builders, LLC, 338 Ga. App. 291, 291, 294-97 (790 SE2d
75) (2016) (defamation claims subject to anti-SLAPP statute where the claims were
7
based on an email sent by a party to a preceding suit commenting on that litigation);
Metzler v. Rowell, 248 Ga. App. 596, 598-599 (1) (547 SE2d 311) (2001) (letter
written by an attorney to parties in pending litigation that was directed to the owner
of land involved in litigation and a developer interested in purchasing the land was
made “in connection with an issue” under consideration by a judicial body, and a
subsequent lawsuit that was brought based on the sending of this letter was subject
to anti-SLAPP statute). The only relevance of the letter to the Georgia suit is to
demonstrate the need for a declaratory judgment that would clarify whether Jubilee
Manager has the authority to act for and speak on behalf of Jubilee Investment
Holdings. Because the causes of action raised in the Georgia suit are not based on an
act in furtherance of the rights of free speech or petition, those causes of action do not
fall under the anti-SLAPP statute and are not afforded its procedural protections. See
Denton v. Browns Mill Dev. Co., Inc., 275 Ga. 2, 6 (561 SE2d 431) (2002).
Judgment affirmed. McFadden, P. J., and Branch, J., concur.
8