concurring specially.
While I concur in the conclusion of the majority opinion, I do not agree with all that is said. We need not consider whether the plaintiffs claim violated the anti-SLAPP statute because the appellate record does not contain the evidence on which the trial court relied in making its factual findings. “We are limited in our review to matters contained in the appellate record,” and thus, we must affirm the trial court’s findings and conclusions which are based on evidence not contained in the record. Metzler v. Rowell, 248 Ga. App. 596, 601 (4), n. 4 (547 SE2d 311) (2001).
Under OCGA § 9-11-11.1 (b), a plaintiff has ten days to file a verification affirming that the complaint is not a SLAPP suit after its omission is called to her attention. If the plaintiff fails to file a verification, or files one the defendant claims is false, then the trial court must determine whether the anti-SLAPP statute applies and verification was required. Atlanta Humane Society v. Harkins, 278 Ga. 451, 452 (603 SE2d 289) (2004).4 Claims arising from an act of the defendant which “could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances 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” require verification. OCGA § 9-11-11.1 (b). If the complaint cannot be reasonably construed as being asserted against a person for an act furthering free speech or the right to petition government, then failure to file a verification is not a ground to dismiss the complaint. Ga. Community Support &c. v. Berryhill, 275 Ga. App. 189, 192 (620 SE2d 178) (2005), aff'd, 281 Ga. 439 (638 SE2d 278) (2006) (online comments about nonprofit were not related to official proceeding and did not further right of free speech or right to petition government regarding issue of public concern).
In considering a motion to dismiss based on the anti-SLAPP statute, the trial court may consider evidence in addition to the complaint. While OCGA § 9-11-11.1 (d) stays discovery when a defendant moves to dismiss an action based upon the anti-SLAPP statute, it also allows the court to order that specified discovery or other hearings or motions be conducted notwithstanding this subsection “to obtain evidence for use in resolving a motion to dismiss pursuant to OCGA § 9-11-11.1 (b).” Atlanta Humane Society v. *804Harkins, supra, 278 Ga. at 453; Metzler v. Rowell, supra, 248 Ga. App. at 600 (3).
Decided November 6, 2009. Stephen M. Katz, for appellant. Gray, Rust, St. Amand, Moffett & Brieske, Michael J. Rust, Debra K. Haan, Swift, Currie, McGhee & Hiers, Alicia Timm, Bradley S. Wolff, for appellees.In this case, the trial court noted in its order that Lovett failed to respond to Capital Principles’ motion to dismiss or strike for failing to include a verification pursuant to the anti-SLAPP statute and failed to respond to the company’s opposition to Lovett’s voluntary dismissal without prejudice. The court also noted that Lovett argued at a hearing on the motions that the defendants slandered her and interfered with her employment contract while procuring and executing a contract with the Fulton County school system. According to the trial court, Capital Principles contacted a school board member with a business proposition regarding quality control during an upcoming computer project, and the board voted to hire the company. Part of the company’s job was to observe Lovett’s department and make recommendations regarding the program implementation. Lovett complained of a March 3, 2006 letter to the school board regarding the SAP computer program, and the trial court found that the letter contained observations about the department as a whole and not about Lovett individually. Lovett did not dispute this fact, according to the court, based on her interrogatory answers.
Neither the March 3, 2006 letter nor Lovett’s interrogatory answers are included in the record, and therefore we cannot review them to consider whether they established that Lovett’s suit was subject to dismissal pursuant to OCGA § 9-11-11.1. Additionally, the hearing was not transcribed, and thus we cannot ascertain the basis for the trial court’s conclusions regarding Capital Principles’ contractual obligations. Accordingly, we must accept the court’s factual findings as true and affirm the trial court’s dismissal of Lovett’s action with prejudice.
For these reasons, I concur specially with the majority opinion.
If the statute applied and plaintiff filed a verification, the trial court would then determine whether the verification was false. Hagemann v. Berkman Wynhaven Assoc., 290 Ga. App. 677, 681 (660 SE2d 449) (2008). As Lovett never filed a verification, the trial court did not have to reach this step.