The Supreme Court of Georgia has ruled favorably for a Florida attorney and law firm fighting legal action brought against them by nursing homes in Georgia.

On Monday, the Georgia Supreme Court issued an opinion finding a Cobb County trial court did not properly consider Gary Wimbish's and the Wilkes & McHugh law firm's motion to dismiss fraud complaints brought against them by LTC Consulting and other Georgia health care providers.

Rockdale Healthcare Center, which is owned by LTC Consulting, along with Powder Springs Transitional Care and Rehabilitation and Bonterra Transitional Care and Rehabilitation commenced litigation against the Tampa attorney and his employer after the law firm named them in advertisements taken out in local Georgia newspapers.

The notices, which emphasized they were legal advertisements, sought testimonials from residents at the companies' facilities, and listed deficiencies found at the nursing homes during government inspections.

The plaintiffs alleged the ads were misleading. They were granted temporary restraining orders against the firm, prohibiting publishing “any false, fraudulent, deceptive and misleading advertisements concerning the plaintiffs,” according to Monday's order.

In a unanimous opinion written by Justice Michael P. Boggs, the Georgia Supreme Court held the lower court did not apply the parameters of recent revisions to the state's anti-SLAPP statutes in their order denying the defendant's motion to dismiss the claim. Boggs wrote a 2016 amendment to the state's rules regarding strategic lawsuits against public participation ”fundamentally altered the mechanics of the anti-SLAPP procedure” in Georgia.

“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,” Boggs said. “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.'”

The Georgia Supreme Court found “the defendants met their burden under [Georgia's anti-SLAPP law] to show that the plaintiffs' claims are ones arising from acts that could reasonably be construed as acts in furtherance of the defendants' right of free speech,” subsequently shifting the onus to the plaintiffs to prove there was a likelihood they'd prevail on their claim. Although the trial court found the plaintiffs prevailed in that respect, in turn preventing a dismissal of the lawsuit, Boggs wrote the lower court “did not apply the proper standards at step two of the anti-SLAPP analysis.”

Read the Georgia Supreme Court ruling: 

“There was no discussion or analysis of whether the plaintiffs had 'stated and substantiated a legally sufficient claim' for violations of the cited statutes,” Boggs wrote, citing a requirement outlined in the 2016 amendment to Georgia's anti-SLAPP law. “To meet this burden, 'the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'” The supreme court vacated the trial court's denial of the the defendants' anti-SLAPP motion and remanded the case for further review.

Leighton Moore of the Moore Law Firm in Atlanta represented Wimbish and Wilkes & McHugh before the high court alongside attorney Meredith Watts. Moore said the court “clearly had some misgivings about whether the plaintiffs claims are legally viable.”

“But I wanted to give the trial court the chance to rule on that first, and we look forward to going back to the trial court and obtaining a ruling,” he said.

Arnall Golden Gregory attorneys Jason Bring and Kara Silverman served as legal counsel to the plaintiffs. Bring, a partner at Arnall Golden Gregory, regarded the ruling as a positive.

“The defendant had asked for the Supreme Court to throw out the case entirely, and we argued it was premature to do so,” he said. “This allows the trial court to address the constitutional issues raised by the defendants.”

Moore said the takeaway from the Supreme Court's ruling is the “very broad sweep” of the 2016 amendments to Georgia's anti-SLAPP statute.

“It applies in more cases than it used to. It's important to keep up with the changes in the statute and not just read the case law,” he said. “If you only read the case law and didn't read the statute, you'd think the statute is much narrower than it is.”

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