Wilkes & McHugh, P.A. v. Ltc Consulting, L.P.

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 27, 2018

The Court of Appeals hereby passes the following order:

A18A1155. WILKES & MCHUGH, P.A. et al. v. LTC CONSULTING, L.P. et al.

The appellants, an out-of-state law firm and lawyer, appeal the superior court’s order denying their motion to dismiss or to strike the appellees’ complaint pursuant to OCGA § 9-11-11.1, the Anti-SLAPP statute. The appellees, three affiliated nursing homes, sought injunctive relief for alleged violations of OCGA § 31-7-3.2 (j), stemming from the appellants’ placement of advertisements using nursing home survey data. In their motion, and during the hearing before the superior court, the appellants argued that OCGA § 31-7-3.2 (j) is facially unconstitutional and as applied. The superior court denied the appellants’ motion. After this appeal was docketed and the parties filed their briefs, the appellants raised the issue of this Court’s jurisdiction over the instant case, contending during oral argument that their appeal raised constitutional issues under the exclusive jurisdiction of the Supreme Court of Georgia. In their briefs, the appellants contend that the superior court erred in denying their motion because appellees “seek to proceed under a statute, OCGA § 31-7-3.2 (j), which discriminates on the basis of the content of speech and the viewpoint of the speaker, in violation of the First Amendment to the United States Constitution.” The entire record and the briefs of the parties in this case focus upon novel questions regarding the constitutionality of OCGA § 31-7-3.2 (j). And it appears that this is the first appeal to implicate this provision of OCGA § 31-7-3.2. Further, because the appellants’ motion called into question the constitutionality of OCGA § 31-7-3.2 (j), and the superior court impliedly rejected the appellants’ constitutional

argument, it appears that jurisdiction over the appeal may lie in the Supreme Court, despite the fact that the appeal could ultimately be resolved on other grounds. See Harrison v. Wigington, 269 Ga. 388, 388 (497 SE2d 568) (1998) (“If a constitutional question is raised and ruled on below, [the Supreme] [C]ourt has exclusive appellate jurisdiction, and this is true, although upon a consideration of the entire case, [the Supreme] [C]ourt determines that a decision upon such constitutional questions is not necessary to a proper solution of the case, and makes no decision thereon.”) (citation and punctuation omitted). Accordingly, this appeal is hereby TRANSFERRED to the Supreme Court.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 08/27/2018 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.