DURRANCE v. SCHAD
A18A0577
In the Court of Appeals of Georgia
May 21, 2018
PHIPPS, Senior Appellate Judge
THIRD DIVISION; ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be physically received in our clerk‘s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
After Raymond C. Schad dismissed his petition seeking a stalking temporary protective order (“TPO“) against Lorri S. Durrance, Durrance filed a motion seeking her costs and attorney fees associated with defending against that petition. Following an evidentiary hearing, the trial court denied Durrance‘s motion. Durrance appeals, asserting that the trial court abused its discretion in refusing to award her costs and legal fees under
Viewed in the light most favorable to the trial court‘s ruling, the record shows that in approximately February 2017, Schad performed some repair or remodeling work on the residence of Durrance and her husband. At some unspecified time between February and June 2017, Schad became employed with Jasper County as a building inspector. On June 28, 2017, believing that Schad had not completed the work at her residence, Durrance called Schad‘s wife, who handled his billing. A short time later, Schad arrived at the real estate office where Durrance worked, driving his county-owned truck and wearing his county uniform. The two began to discuss the work Schad had done for Durrance and the conversation became so heated that one of Durrance‘s coworkers eventually forced Schad to leave. Durrance reported the incident to police, who contacted Schad‘s supervisor. Schad was subsequently served with a warrant for trespass.
On June 30, two days after the incident, Schad filed a pro se petition for a stalking TPO. Schad alleged that Durrance had committed “acts of stalking” in violation of
A hearing on Schad‘s petition was originally scheduled for July 18, but was continued until August 1 at Durrance‘s request. On July 31, Schad dismissed the petition without prejudice. Durrance then filed a motion seeking costs and attorney fees under
Durrance gave similar testimony, stating that Schad appeared at her office on June 28, shortly after she had spoken with Schad‘s wife. The two began to argue, with both parties raising their voices. Durrance testified that her coworker eventually came over to ask Schad to leave because Schad is “a large man” and “he was leaning over my desk [,] hovering” and “he was very intimidating and everybody in the office was shaking and scared.” At one point, Schad threatened to “pull [the building] permits on my house,” and indicated she might not be able to obtain permits in the future. Schad also asked Durrance whether she was sure the swimming pool at her residence was properly permitted. At that point, Durrance told Schad, “I‘m done . . . I do know some people here, too,” and also told Schad that he did not “belong in this position” as a building inspector.
After Schad left the real estate office, Durrance filed a report with the police and Schad was eventually served with a warrant for trespass. Less than an hour after the incident, Durrance was contacted by Shane Seeley, the Jasper County Director of Planning and Zoning, who also served as Schad‘s supervisor. According to both Seeley and Durrance, Seeley visited Durrance at her office later that day in an effort to defuse the situation and get the dispute “worked out.” During that conversation, Durrance made clear to Seeley that she thought Schad should lose his job. Seeley was unaware, however, of any other effort Durrance may have made to get Schad fired.
When asked why he had filed the petition for the stalking TPO, Schad responded “[t]he same reason why I got served a trespass warrant,” explaining that he and Durrance did not need to be around one another. Schad then elaborated:
Basically, I‘m a man, she‘s a woman. I am rather large. I‘m loud. I coach football. . . . I‘ve got a big bark. Basically, I would never even touch a woman or anything to hurt a woman. I did feel overbearing [during the incident]. I wouldn‘t want anybody to do [what I did to Durrance] to my wife. I felt it was best that I just . . . have nothing to do with her. Me being a man and everything, you know, if something did happen and the police did show up, who are they going to look at?
Schad further explained that Seeley had come back from his meeting with Durrance and told him that Durrance was “going to put pressure on this department” to fire Schad and that given Schad‘s health problems, which included high blood pressure, he just did not “need the stress.” Schad then explained “I got the TPO basically thinking that she would just leave my job alone, leave me alone, and give it a couple of weeks, she‘d go on her way and I‘d go on her way.”
Schad also testified that after he filed his petition for the TPO, he continued to experience stress over the situation because builders that he interacted with as part of his employment continued to ask him about the incident. As a result of this stress, and to avoid seeing Durrance (whose office building was located next door to Schad‘s county office), Schad quit his job. He then dismissed his petition against Durrance.
After hearing this evidence, the trial court entered an order denying Durrance‘s motion for costs and attorney fees. Durrance now appeals from that order.
1. Durrance asserts that the trial court erred in denying her motion for attorney fees under
Under the plain language of the statute, the trial court has the discretion to award costs and attorney fees only where the petition results in the entry of a court order or a consent agreement designed to end the conduct constituting stalking. See De Louis v. Sheppard, 277 Ga. App. 768, 771 (3) (627 SE2d 846) (2006). The statute does not provide the trial court with the discretion to award costs and fees where no such order or consent agreement is entered - i.e., where the court never rules on the merits of the petition. See Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013) (we afford the language of a statute “its plain and ordinary meaning,” and we read its text in the “most natural and reasonable way, as an ordinary speaker of the English language would“); Arby‘s Restaurant Group, Inc. v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012) (when applying a statute “we must presume that the General Assembly meant what it said and said what it meant“) (citation omitted). Given that the petition in this case was dismissed before any order was entered, the trial court did not abuse its discretion in denying Durrance‘s motion for attorney fees under
2. Durrance also contends that the trial court erred in denying her motion for attorney fees under
(a) Under subsection (a) of
Here, Schad swore out the petition for a TPO alleging that Durrance was engaging in acts of stalking towards him, in violation of
[a] person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person. . . . For the purposes of this article, the term “harassing and intimidating” means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person‘s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose. This Code section shall not be construed to require that an overt threat of death or bodily injury has been made.
At the hearing on Durrance‘s motion for attorney fees, Schad failed to come forward with any evidence that Durrance had engaged in any conduct that constituted stalking under
plaintiff failed to produce any
(b) In light of our holding that Durrance is entitled to an award of costs and fees under
For the reasons set forth above, we affirm the trial court‘s denial of attorney fees pursuant to
Judgment affirmed in part and reversed in part. Ellington, P. J., and Bethel, J., concur.