Partner Nik Makarenko Wins a Defense Verdict in Cobb County

Partner Jay Eidex Prevails in the Court of Appeals in an unusual case covered by The Daily Report and Law360

December 12, 2022 – Partner Jay Eidex successfully defended an appeal brought by opposing counsel in an Anti-SLAPP/First Amendment case.  The case arose out of a suit that was filed in the Superior Court of Gwinnett County.  In that action Attorney C. Napoleon Barnwell filed a defamation suit personally against Attorney Ankur P. Trivedi, an associate with Groth, Makarenko, Kaiser & Eidex.

The allegations in the defamation suit stemmed from another matter which was pending in the State Court of DeKalb County in which Mr. Barnwell and Mr. Trivedi served as opposing counsel.   In that case, Mr. Trivedi attended a disposition that was defended by an employee of Barnwell named Renee E. Taylor.  Mr. Trivedi became suspicious that Ms. Taylor was in fact, not a licensed attorney.  After conducting an investigation, he confirmed that Ms. Taylor was a 3rd year law student and filed a Complaint against both Ms. Taylor and Mr. Barnwell with the State Bar of Georgia for the unauthorized practice of law (UPL).  Additionally, he moved for sanctions against Mr. Barnwell in the DeKalb County Case.  The State Bar opened an investigation and appointed a special master to handle the Complaint.

After Mr. Barnwell filed the defamation suit against Mr. Trivedi in Gwinnett County, GMKE Partner Jay Eidex entered as counsel for Mr. Trivedi.  Mr. Eidex moved to dismiss the matter under Georgia’s Anti-SLAPP statute (O.C.G.A 9-11-11.1) and statutory privileges protecting speech in connection with a public duty (O.C.G.A 51-5-7) and protecting speech that occurs in court proceedings (O.C.G.A. 51-5-8).  Under the Anti-SLAPP statute, Mr. Eidex’ Motion tolled discovery and required a hearing within 30 days.  Following the hearing, Judge George Hutchinson entered an Order finding that Plaintiff sought relief for essentially “three counts of defamation (1.) libel as the result of setting out the facts in the bar compliant, (2) libel as the result of setting out the facts in the motion for sanctions…and (3) slander as the result of informing “other lawyers” verbally of the facts of this matter.”  The Court noted that there was no evidence in the record or at the hearing that Mr. Trivedi discussed these matters with the general public.  Further, the Court found that at the hearing on the matter, Attorney Barnwell “abandoned his claims for libel under Counts 1 and 2, conceding those claims were not sustainable.”  The Court focused on the remaining count related to  talking to other lawyers.  The Court noted the Anti-SLAPP statute places the burden on the Plaintiff in a case like this to make a showing that his case would be likely to succeed on its merits.  The Court found the Plaintiff “has not established that there is a probability he will prevail on the claim.”  The Court further found that the lawsuit was filed “in retaliation for the Bar Complaint filed against him and for the motions for sanctions filed against him.”  Judge Hutchinson dismissed the matter with prejudice.

Mr. Barnwell appealed the Court’s dismissal to the Georgia Court of Appeals where it was considered by a three judge panel consisting of Judge Sara L. Doyle, Judge Clyde L. Reese, III and Senior Appellate Judge Herbert E. Phipps.  In a unanimous opinion authored by Judge Doyle the Court of Appeals Affirmed Judge Hutchinson’s dismissal of Mr. Barnwell’s lawsuit.  They noted that “Every Lawyer in Georgia has a duty to report violations of the Georgia Rules of Professional Conduct and lawyers are prohibited from assisting in [the unauthorized practice of law].” They further specifically found that “Barnwell has failed to establish that there is a probability that he will prevail on the claim.” While they agreed with Mr. Barnwell that Mr. Trivedi “communicated with other lawyers to obtain transcripts of depositions involving Taylor,”  they noted that “asking lawyers for deposition transcripts is not in and of itself defamatory.”  The Court of Appeals issued its remittitur and returned the matter to the Superior Court of Gwinnett County where Mr. Eidex’ claim for attorneys fees under the Anti-SLAPP statute and O.C.G.A. 9-15-14 are still pending with the Court.

The underlying defamation case is C. Napoleon Barnwell v. Ankur Pankaj Trivedi, Superior Court of Gwinnett County, Civil Action File Number 21-A-08521-1

Judge Hutchinson’s Order dismissing the underlying lawsuit can be found here.

The Court of Appeals Order affirming the dismissal can be found here or at Westlaw Citation 2022 WL 16943250 (SE Reporter Citation not available yet)

The Law 360 Article covering this matter can be found here.

The Fulton County Daily Report Article covering this matter can be found here.

Read more about GMKE at http://www.gmke.law.  Follow GMKE on Linkedin, Facebook, Instagram and Twitter.

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