David and Donna Lawrence owned and operated a business called “Scoops and Brews” in Norwalk, Ohio. Next door to their business was Gilby’s Pizza Cravin which was owned by Bradly Gilbert through his company Gilby’s Pizza Craven LLC which apparently was owned by Bradley Gilbert.
At some point, the Lawrences decided that they wanted to purchase Gilby’s Pizza and even executed a purchase agreement with Bradley Gilbert. But then something happened (we don’t know what) and the deal fell apart.
The Lawrences sued Gilbert to void the purchase agreement. The Lawrences’ complaint also sued Gilbert for defamation based on some of Gilbert’s comments made on Facebook.com expressing his frustrations with the Lawrences and some other stuff.
In response to the Lawrences’ complaint, Gilbert filed a special motion to dismiss the complaint under Ohio’s brand spanking new Uniform Public Expression Protection Act (“UPEPA”). Ohio follows a very clean version of the UPEPA in the sense that it almost identically tracks the uniform version promulgated by the Uniform Laws Commission.
Apparently not familiar with what a UPEPA special motion is, or what it does, the Ohio trial court simply denied Gilbert’s special motion without any hearing. Since the UPEPA allows a UPEPA defendant an immediate appeal of right if he loses the special motion, Gilbert appealed and this resulted in the opinion of the Ohio Court of Appeals in Lawrence v. Gilby’s Pizza Craven LLC, 2026 WL 1363190 (Ohio.App.Distr. 6, May 15, 2026).
The appellate court discussed the basics of the UPEPA, such as that it applies when a cause of action has been asserted that implicates a person’s freedom of speech on a matter of public concern. But most importantly, once a special motion has been filed, the trial court is required to conduct a hearing on the special motion within 60 days after the filing of the motion. Here, the trial court did not hold such a hearing, and so the appellate court reversed the trial court and ordered that it conduct such a hearing.
ANALYSIS
Well, that was easy. The trial court was required by statute to hold a hearing on Gilbert’s special motion, it did not do so but simply denied his special motion, and so it was a softball for the appellate court to reverse and send it back to the trial court to hold the required hearing.
What this illustrates is that with any new statute, including the UPEPA, there will be teething difficulties as the courts attempt to get their arms around how the statute operates. It is difficult to see how the trial court missed the requirement of a mandatory hearing because it clearly laid out in the statute, but that’s what happened.
It also illustrates the importance with a new statute like the UPEPA of counsel fully educating the court as to what the statute is all about. Usually, the trial judges are familiar with most procedures — often much more than the counsel who appear before them. If a party files an ordinary motion to dismiss, that might be the 300th time the court has seen that motion and so needs no education as to what that motion is all about. In fact, it would be a waste of everybody’s time to talk much about the procedure.
Not so with new statutes. With new statutes, counsel need to take the extra step of outlining for the court why the statute exists, what the statute does, and how the statute operates. This should be done with as much detail as possible given page limits on briefs. It might also be helpful to the court to attach to the brief a bar journal article or similar article about the new statute. Which is to say that it is difficult to give the court too much information about a new statute.
Since this will likely be the rare opinion where the subject of a hearing on a UPEPA special motion will come up, let’s take the opportunity to discuss that hearing. Counsel should not presume that the court is familiar with the UPEPA or any other Anti-SLAPP law. This is true even where those Anti-SLAPP laws have been around for a number of years. In most states, California and Texas being the notable exceptions, special motions under the UPEPA or other Anti-SLAPP laws are pretty rare and it might be the first time that a particular judge will be hearing such a motion. Thus, the argument should start with the basics, again, why the statute exists, what the statute does, and how the statute operates. This needs to be kept at a very basic level except as it applies specifically to the particular motion being brought. Only then do you start to talk about the facts of the particular case.
In other words, be prepared to put on a dog and pony show for the judge. If the judge is already familiar with the subject matter, then you’ll find out quickly enough and can move on to the substance of the motion. But don’t just assume that because the UPEPA or other Anti-SLAPP laws has been codified that the court knows anything about it.
Read the full article here