Abortion Clinic Gets New Trial In Marietta 'Nuisance' Lawsuit

MARIETTA, GA — The Georgia Court of Appeals has overturned a verdict awarding more than $1.4 million to a Marietta office park that claimed one of its tenants — a doctor performing abortions — caused a "nuisance" at the property by attracting "up to hundreds" protesters.

Any other ruling would mean the medical practice, or other legal businesses like it, could not operate anywhere, Court of Appeals Judge Ken Hodges wrote in a court opinion June 14. He also said it would allow for a broad array of legal businesses and institutions to be sued "due to the fact that some find them controversial and some will protest their very existence."

"Both legal protestors and criminals have caused disruption around a multitude of business and institutions, such as gun shops, fur retailers, Chick-fil-A restaurants, police departments, synagogues, statehouses, Black churches, adult entertainment establishments, and mosques, to name a few," Hodges wrote. "Under the common law, property ownership in Georgia does not guarantee only ideologically-aligned neighbors whose business practices will cause no upset or attract no controversy, and we will not hold otherwise."

Governors Ridge Office Park, located on Powers Ferry Road between Windy Hill and Terrell Mill roads, sued Dr. Daniel E. McBrayer in 2013, alleging that his business — Alpha OB/GYN clinic, which performed abortions among other female health care services — attracted protesters that were "creating a nuisance in the park" and he was breaking contract guidelines, Hodges wrote in the court opinion.

The office park testified that some protesters "harassed employees or invitees of the businesses in the office park," and some were holding signs with images of terminated fetuses, the court ruling reads. Business owners testified that these actions "disrupted their businesses and made it difficult to sell or rent space in their buildings."

Governors Ridge sent correspondence to McBrayer letting him know that his practice was "causing a nuisance" and breaking contract. The office park then imposed daily sanctions against McBrayer for the alleged nuisance, which were allowed due to a provision in the contract that permitted financial sanctions for violations, Hodges wrote.

McBrayer did not pay these sanctions, which led to the 2013 lawsuit. A Cobb County jury awarded $1.4 million to Governors Ridge and denied McBrayer's motion for a new trial, court documents show. The Marietta clinic closed in 2015.

McBrayer requested a new trial, alleging that the "evidence is insufficient to support liability." Hodges agreed, saying that defining McBrayer's practice as a nuisance because it drew protesters would set a precedent that any business viewed as controversial and that attracted protesters could be sued for existing.

“Today, the Georgia Court of Appeals agreed with the ACLU of Georgia that commercial landlords cannot file ‘nuisance’ lawsuits against abortion clinics simply because anti-abortion protesters have created a nuisance on the property,” said Sean J. Young, legal director of the ACLU of Georgia, in a statement. “Otherwise, any lawful operation ranging from gun stores to Chick-fil-A restaurants could be shut down because of protesters who disagree with their views. Rather than being a nuisance, the bustling marketplace of ideas is a feature of our pluralistic democracy.”

The new court opinion grants McBrayer a new trial. A date was not available as of Tuesday.