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Durrance v. Schad

Court of Appeals of Georgia, Third Division

May 21, 2018

DURRANCE
v.
SCHAD.

          ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS

          Phipps, Senior Appellate Judge.

         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 OCGA § 16-5-94 and OCGA § 9-15-14 (b). Additionally, Durrance contends that the trial court committed legal error when it refused to award her fees and costs under OCGA § 9-15-14 (a). For reasons explained more fully below, we find no abuse of discretion by the trial court in refusing to award fees under OCGA § 16-5-94. We further find, however, that given the absence of any evidence supporting Schad's claim of stalking, the trial court erred when it failed to award Durrance costs and attorney fees under OCGA § 9-15-14 (a).

         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 OCGA § 16-5-90 by making the following statements: "You sealed your doom"; "I know people and will have your job"; and "I'll get you." Schad further alleged that "similar events may occur in the future" and that this conduct "placed [Schad] in reasonable fear for . . . his own safety and/or the safety of . . . his immediate family."

         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 OCGA § 16-5-94 and OCGA § 9-15-14 (a) and (b). At the evidentiary hearing on that motion, both of Durrance's coworkers who witnessed the incident testified that Schad came to the real estate office and spoke with Durrance and that the conversation deteriorated into a shouting match. One coworker, a police veteran with more than 25 years of experience, eventually told Schad he needed to leave the premises. Schad initially refused that request, but after a few minutes, he exited the building and stood outside the door where he continued to yell at Durrance, telling her, "You'll hear from me." According to both coworkers, Schad threatened Durrance by telling her she might not have the proper permits for work done on her house and indicating that, in his capacity as a county building inspector, he was going to check on those permits.

         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.

         Schad testified and explained that on the day in question he received a call from his wife asking why he had not completed the work at the Durrance residence. Schad then went to Durrance's office to discuss the situation, and the conversation became "heated." Schad acknowledged that he escalated the situation when he began asking Durrance about her building permits, explaining, "I was being a smart ale[k]. I shouldn't have said it." According to Schad, Durrance responded by threatening him, saying, "I got you. You sealed your doom. I'll have your job. I know people in this town, too."

         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 my 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 ...


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