Bruno v. Light.

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.

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

February 28, 2018

In the Court of Appeals of Georgia
A17A1967. BRUNO v. LIGHT.

BARNES, Presiding Judge.

Kurtis Bruno appeals from the denial of a motion to set aside, in which motion

he challenged the propriety of two stalking protective orders procured against him by

his residential neighbor, Darla Light. For reasons explained below, we affirm in part,

reverse in part, and remand the case for proceedings not inconsistent with this

opinion.

Pursuant to OCGA § 16-5-94, Light filed on January 29, 2016 a petition in

Forsyth County Superior Court accusing Bruno of engaging in stalking behavior

against her and her family. Such conduct, Light alleged in a sworn statement,

included incidents during which Bruno, while either on his property or on her and her

family’s property, had yelled obscenities to her and her family members, made

escalating threats to them, blocked their driveway, and shone a light into their house

at night. After conducting a hearing thereon, the superior court entered a “Stalking
Twelve Month Protective Order.” In relevant part, it provided, “[Bruno] is enjoined

and restrained from approaching within one mile of [Light] and/or [her] immediate

family, and/or residence, place of employment, or school. . . . This Order expires on

February 10, 2017.

The following year, on Friday, February 10, 2017, Light filed a “Motion to

Extend Twelve Month Protective Order.” In that verified pleading, Light claimed that

she had not yet benefitted from the ordered restraint because during the intervening

twelve month period, Bruno was held without bond pending an anticipated trial.

Maintaining that Bruno had displayed a history of violence, asserting that he could

be released soon after his trial, and claiming that she feared that Bruno would harm

her and/or her family, Light requested: “(a) that a hearing on this Motion be held at

the earliest opportunity; (b) that this [c]ourt grant this Motion and Extend the

Protective Order; and (c) that this [c]ourt grant the Movant such other and further

relief as it deems equitable and just.”

The following Monday, on February 13, 2017, a rule nisi was entered

scheduling for February 22, 2017 a hearing on Light’s “Motion to Extend Twelve

Month Protective Order.” Also on February 13, 2017, the court entered one of the two

orders at issue in this appeal: “Order Extending Twelve Month Protective Order,”

2
wherein the superior court stated that “the Twelve Month Protective Order issued

February 10, 2016, is extended through February 22, 2017.”

On February 22, 2017, the superior court entered the second of the two orders

at issue in this appeal: “Stalking Three Year/Permanent Protective Order.” In

pertinent part, that order set out:

A civil hearing was held on this matter on February 22, 2017, at which
[Bruno] appeared and/or was provided with the opportunity to be heard
and [Light] requested, pursuant to OCGA §§ 16-5-94 (e) and 19-13-4
(c), that a permanent Protective Order be issued. Having heard the
evidence presented, reviewed the petition and the record concerning this
cause and for good cause shown, IT IS HEREBY ORDERED AND
ADJUDGED: [Bruno] has knowingly and willfully violated OCGA §§
16-5-90 et seq. and placed [Light] in reasonable fear for [her] safety,
because [of] stalking, harassment. . . .

[Bruno] is . . . enjoined and restrained from approaching within one mile
. . . of [Light] and/or [Light’s] immediate family, and/or residence, place
of employment, or school or subsequent residence, place of employment
or school. This restriction includes his own property.1 . . . This Order
shall be in effect for three (3) years. . . .

1
Emphasis supplied to indicate the language handwritten by the judge upon the
otherwise pre-typed form-order.

3
 Bruno filed no notice of appeal from that order.2 More than 30 days from its

entry, however, Bruno filed a motion to set aside,3 taking issue with the Order

Extending Twelve Month Protective Order (“Extension Order”) and the Stalking

Three Year/Permanent Protective Order” (“3-Year Protective Order”). The superior

court denied that motion, and Bruno procured the instant discretionary appeal.4

1. Bruno challenges the 3-Year Protective Order on two grounds.

(a) As an initial matter, before addressing Bruno’s specific arguments, we

review the governing principles and framework.

“[T]o obtain a protective order based on stalking, the petitioner must establish

the elements of the offense by a preponderance of the evidence. The grant or denial

2
The protective order did not arise out of a domestic relations matter that
would subject it to the discretionary appeal procedures in OCGA § 5-6-35 (a) (2).
And we have consistently treated stalking protective orders as directly appealable.
See, e. g., Thornton v. Hemphill, 300 Ga. App. 647 (686 SE2d 263) (2009); Rawcliffe
v. Rawcliffe, 283 Ga. App. 264 (641 SE2d 255) (2007); McKlin v. Ivory, 266 Ga.
App. 298 (596 SE2d 673) (2004); Johnson v. Smith, 260 Ga. App. 722 (580 SE2d
674) (2003).
3
See Abushmais v. Erby, 282 Ga. 619, 621 (2) (652 SE2d 549) (2007) (“OCGA
§ 9-11-60 provides the sole means of attacking a judgment.”) (citation and
punctuation omitted).
4
See OCGA § 5-6-35 (a) (8) (providing that an appeal from the denial of a
motion to set aside a judgment is by the grant of a discretionary application).

4
of a motion for protective order generally lies within the sound discretion of the trial

court, and will not be reversed absent an abuse of that discretion.” (Citations and

punctuation omitted.) Pilcher v. Stribling, 282 Ga. 166, 167 (647 SE2d 8) (2007).

Pursuant to OCGA § 16-5-94 (a), “[a] person . . . who alleges stalking by

another person may seek a restraining order by filing a petition alleging conduct

constituting stalking as defined in Code Section 16-5-90.” As provided by OCGA §

16-5-90 (a) (1),

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. . . . [T]he term “contact”
shall mean any communication[.] . . . [T]he term “place or places” shall
include any public or private property occupied by the victim other than
the residence of the defendant. . . . 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.

(Emphasis supplied.)

5
 (b) Citing the language italicized above, Bruno attacks the 3-Year Protective

Order as restraining him from certain conduct that does not constitute stalking under

OCGA § 16-5-90 (a) (1), apparently because he engaged in such conduct while on his

own residential property. Pretermitting whether any such argument falls within the

purview of OCGA § 9-11-60 (d),5 we find the argument unavailing because, by its

plain language, OCGA § 16-5-90 (a) (1) excludes the defendant’s residence from the

definition of “place of places” only when it is occupied by the victim. See De Louis

v. Sheppard, 277 Ga. App. 768, 770-771 (1) (627 SE2d 846) (2006) (rejecting

appellant’s claim that the evidence failed to support the stalking protective order

against him for reason that the complained-of behavior occurred at his own residence,

explaining that under OCGA § 16-5-90 (a) (1), “the relevant inquiry is whether the

victim was at [appellant’s] residence, which she was not”); Owen v. Watts, 307 Ga.

App. 493, 498 (3) (705 SE2d 852) (2010) (rejecting appellant’s claim that her

behavior could not constitute stalking because “everything I’ve done has been from

the privacy of my own home”). This contention, therefore, provides no basis to

disturb the denial of Bruno’s motion to set aside; such ruling is accordingly affirmed

in part.

5
See n. 3, supra.

6
 (c) Bruno contends that the superior court’s restriction imposed in the 3-Year

Protective Order – banning him from his own residence – is over-broad. We agree.

When ruling on petitions sought under OCGA § 16-5-94, the superior court is

vested with discretion in each case to “fashion appropriate relief from conduct

designated as stalking.” Reynolds v. Kresge, 269 Ga. App. 767, 769 (605 SE2d 379)

(2004). However, “[t]he relief a court may grant pursuant to this Code section is set

forth in OCGA § 16-5-94 (d).”6 Rawcliff v. Rawcliff, 283 Ga. App. 264, 265 (2) (641

SE2d 255) (2007). “The question therefore is whether the court’s power in subsection

(d) . . . to prohibit a party from ‘harassing or interfering’ with the other party

authorized a prohibition against [residing in one’s own home].” Collins v. Bazan, 256

Ga. App. 164, 165 (2) (568 SE2d 72) (2002). We hold that it does not.

In Johnson v. State, 264 Ga. 590 (449 SE2d 94) (1994), the Supreme Court of

Georgia reiterated that “[a] statute is unconstitutionally over-broad if it reaches a

substantial amount of constitutionally protected conduct.” Id. at 591 (1). In construing

6
OCGA § 16-5-94 (d) provides: “The court may grant a protective order or
approve a consent agreement to bring about a cessation of conduct constituting
stalking. Orders or agreements may: (1) Direct a party to refrain from such conduct;
(2) Order a party to refrain from harassing or interfering with the other; (3) Award
costs and attorney’s fees to either party; and (4) Order either or all parties to receive
appropriate psychiatric or psychological services as a further measure to prevent the
recurrence of stalking.”

7
OCGA § 16-5-90 and 16-5-91 so as to find them constitutional, the Johnson Court

rejected the argument that the stalking statutes proscribed “many examples of conduct

which society considers to be normal everyday living in constitutionally protected

areas.” Johnson, 264 Ga. at 591 (1). As the Johnson Court held, “to the extent that the

challenged statutes do proscribe communicative conduct, their restriction is clearly

limited to a ‘knowing and willful’ course of harassment and intimidation, which is not

[expressive conduct that is constitutionally protected].” (Emphasis supplied.) Id. at

592 (1). The stalking statutes are likewise legislatively circumscribed. OCGA § 16-5-

92 states: “The provisions of Code Sections 16-5-90 and 16-5-91 shall not apply to

person engaged in activities protected by the Constitution of the United States or of

this state or to persons or employees of such persons lawfully engaged in bona fide

business activities or lawfully engaged in the practice of a profession.” (Emphasis

supplied.)

As this Court has reasoned, “Georgia’s stalking laws were drafted to protect

people not places. . . . Although the [3-Year Protective] [O]rder may have incidentally

kept [Bruno] from face-to-face contact with [Light] while she was at home, . . .

significantly, [Bruno] would violate the order even if he went to [his residence] when

8
[Light] was not [at hers].” Keaton v. State, 311 Ga. App. 14, 17 (1) (714 SE2d 693)

(2011).

Given the foregoing, we conclude that the superior court exceeded its authority

in banning Bruno from his residence for three years.7 See Rawcliff v. Rawcliffe, 283

Ga. App. 264, 265-266 (2) (641 SE2d 255) (2007) (“Because the [trial] court was not

specifically authorized [by OCGA § 16-5-94 (d)] to prohibit [appellant] from owning

or possessing a firearm, that portion of the protective order is . . . vacated.”); Collins,

256 Ga. App. at 165 (2) (reversing portion of the order that restrained appellant from

behavior of “publishing or discussing [petitioner’s medical] condition with others,”

7
We recognize that the Supreme Court has exclusive jurisdiction over “all
cases in which the constitutionality of a law, ordinance, or constitutional provision
has been drawn in question.” Ga. Const. of 1983, Art. VI, Sec. VI, Para. II (1); see
Atlanta Independent School System v. Lane, 266 Ga. 657, 657 (1) (469 SE2d 22)
(1996). While this contention by Bruno may challenge the constitutionality of the
superior court’s order, this contention does not challenge the constitutionality of a
law, ordinance, or constitutional provision. We thus conclude that appellate
jurisdiction is proper in this Court. See generally id. (explaining that, under [current]
1983 Ga. Const., Art. VI, Sec. VI, Par. II (1), “[u]nless the issue raised on appeal
relates either to the constitutional construction or to the constitutionality of a law,
ordinance or constitutional provision, jurisdiction is in the Court of Appeals”).
Accord Mayor &c. of Athens v. Gamma Delta Chapter House Corp., 208 Ga. 392,
392 (67 SE2d 111) (1951) (explaining that Court of Appeals has jurisdiction over
action alleging a taking and injuring of private property, and that the mere fact that
the Georgia Constitution forbids such an injury to or the taking of private property
without just and adequate compensation “being first paid therefor in nowise makes
a constitutional question for decision by [the Supreme Court of Georgia]”).

9
where the prohibition fell outside the scope of OCGA § 16-5-94 (d) because it banned

behavior that did not constitute stalking). Accord Pilcher, 282 Ga. at 166-168

(reversing restraining order granted against the fire chief to fire department

employees, where the fire chief’s conduct – verbal abuse in the workplace, as well as

physical assaults occurring primarily during basketball games conducted as part of

their required physical training – did not fall within statutory definition of stalking).

To the extent the 3-year Protective Order ousted Bruno from his residence, the

superior court should have granted the motion to set aside that order.8 Accordingly,

we reverse in part the denial of Bruno’s motion to set aside.

“Under the stalking statutes, harassment and intimidation refer to conduct that

at a minimum places the victim in reasonable fear for her safety or the safety of her

immediately family.” (Emphasis supplied.) Collins, 256 Ga. App. at 166 (2). This

case is remanded to allow the superior court opportunity to “fashion appropriate relief

from conduct designated as stalking.” Reynolds, 269 Ga. App. at 769. See generally

8
See OCGA § 9-11-60 (d) (3) (providing in pertinent part that “[a] motion to
set aside may be brought to set aside a judgment based upon . . . [a] nonamendable
defect which appears upon the face of the record or pleadings”). Although when
pursuing his motion to vacate, Bruno did not explicitly cite OCGA § 9-11-60 (d) (3)
nor use the term “nonamendable defect,” he sufficiently raised the key issues before
the superior court. See Hiner Transport. v. Jeter, 293 Ga. App. 704, 706 (667 SE2d
919) (2008).

10
Johnson, 264 Ga. at 592 (2) (“The [stalking] statutes are not unconstitutionally over-

broad, since they do not reach a substantial amount of constitutionally protected

conduct.”) (citation and punctuation omitted).

2. In several claims of error, Bruno challenges the Extension Order.

(a) Bruno asserts that Light’s underlying motion, filed on February 10, 2017,

was untimely, because the initial 12-month protective order expired that same day.

Bruno has supported this assertion with no legal authority, and we find it unavailing.

See generally Parsons v. Capital Alliance Fin., 325 Ga. App. 884, 887 (3) (756 SE2d

14) (2014) (explaining that pleading was timely filed when filed on the day of the

deadline); Magnum Communications v. Samoluk, 275 Ga. App. 177, 179 (620 SE2d

439) (2005) (“A party may file a motion . . . , but it is the trial court that decides when

it will rule on the motion.”) (emphasis supplied).

(b) Bruno argues that, because he was given neither notice nor a hearing before

the superior court entered the Extension Order, the order violated both OCGA § 19-

13-4 (c)9 and Uniform Superior Court Rule (“USCR”) 6.2. We disagree.

9
“Any order granted under this Code section shall remain in effect for up to
one year; provided, however, that upon the motion of a petitioner and notice to the
respondent and after a hearing, the court in its discretion may convert a temporary
order granted under this Code section to an order effective for not more than three
years or to a permanent order.” (emphasis supplied). See generally OCGA § 16-5-94

11
 (i) OCGA § 16-5-94 (c) authorized the superior court to “order such temporary

relief ex parte as it deems necessary to protect the petitioner or a minor of the

household from stalking.” Furthermore, it is undisputed that the superior court

conducted a hearing on Light’s motion filed on February 10, 2017 – at which hearing

Bruno appeared and/or was provided with the opportunity to be heard – before the

superior court entered the 3-Year Protective Order. Thus, Bruno cannot show any

harm resulting from the (ex parte) Extension Order.

(ii) Finally, nothing in USCR 6.2 provides for an outcome in Bruno’s favor.10

For the foregoing reasons, Bruno’s challenges to the Extension Order provide

no basis to disturb the denial of his motion to set aside. The denial of his motion is

thus affirmed in part.

Judgment affirmed in part and reversed in part, and case remanded with

direction. McMillian and Mercier, JJ., concur.

(e) (“The provisions of . . . subsections (b), (c), and (d) of Code Section 19-13-4 . .
. shall apply to petitions filed pursuant to this Code section.”).
10
USCR 6.2 provides, “Unless otherwise ordered by the judge or as provided
by law, each party opposing a motion shall serve and file a response, reply
memorandum, affidavits, or other responsive material not later than 30 days after
service of the motion. . . .” (Emphasis supplied).

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