Elgin v. Swann
315 Ga. App. 809
Ga. Ct. App.2012Background
- Elgin appeals a six-month stalking protective order issued under OCGA § 16-5-94(d) on August 9, 2011, which expired February 9, 2012.
- Swann alleged threatening and harassing conduct by Elgin beginning July 2011, including July 17 loud confrontation and threats.
- On August 4, 2011, Elgin allegedly swerved toward Swann's stepdaughter's car and later photographed the Swanns from her car.
- Elgin had moved out of the neighborhood by the August 9, 2011 hearing.
- The trial court applied the appropriate evidentiary standard and issued the protective order after a hearing.
- The Court of Appeals affirmed, concluding that the issues are not moot, the standard was correctly applied, and the order was supported by the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of the appeal | Elgin argues the issues are moot because the order expired. | Swann contends issues are capable of repetition and not reviewable due to short duration. | Not moot; issues capable of repetition and likely to evade review. |
| Burden of proof for the protective order | Elgin asserts the trial court did not apply the proper burden. | Swann argues the court correctly used the preponderance standard. | Correct application of the preponderance of the evidence standard. |
| Sufficiency of the evidence | Elgin contends evidence was insufficient to support the order. | Swann asserts the evidence showed stalking elements and a pattern of harassing and intimidating conduct. | Evidence supported a finding of stalking and reasonable fear, justifying the order. |
Key Cases Cited
- Garnsey v. Buice, 306 Ga. App. 565 (Ga. Ct. App. 2010) (defines elements and standards for stalking protective orders)
- Birchby v. Carboy, 311 Ga. App. 538 (Ga. Ct. App. 2011) (issues not moot where repetition and review are possible)
- Collins v. Lombard Corp., 270 Ga. 120 (Ga. 1998) (mootness and review standards in protective orders)
- DeLouis v. Sheppard, 277 Ga. App. 768 (Ga. Ct. App. 2006) (appellate review of evidence in stalking protective orders; credibility not weighed)
- Johnson v. Smith, 260 Ga. App. 722 (Ga. Ct. App. 2003) (evidence of surveillance and intimidation supported order)
- Daker v. Williams, 279 Ga. 782 (Ga. 2005) (two related stalking incidents can establish a pattern)
- Anderson v. Mergenhagen, 283 Ga. App. 546 (Ga. Ct. App. 2007) (trial court's determinations on protective orders defer to its assessments)