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Little v. Booker

Court of Appeals of Georgia, Fifth Division

June 14, 2018


          MCFADDEN, P. J., RAY and RICKMAN, JJ.

          Rickman, Judge.

         Gwenette Little appeals from a stalking twelve-month protective order and contends that appellee Linda Booker failed to meet the requirements of the relevant statute. For the reasons that follow, we affirm.

         "The grant or denial 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." (Citation and punctuation omitted.) Pilcher v. Stribling, 282 Ga. 166, 167 (647 S.E.2d 8) (2007).

         The record shows that on April 27, 2017, Booker filed a verified petition against Little seeking a stalking temporary protective order under OCGA § 16-5-90 et seq.[1] In the petition, Booker alleged that on or about March 31, 2017, as she rode with her son to his job in Milledgeville, "[Little] had followed us all the way to Milledgeville, and kept showing up around there like she was trying to find us." Booker also alleged that

[Little] called the police and made two false reports on my sons. She has harassed me constantly[, ] ma[d]e me feel uncomfortable, and keep[s] reports on me. Watching me and monitoring everything I do. She makes false statement[s] about me to others. She makes me feel threatened on a daily basis.

         The court entered a temporary order and scheduled a hearing for May 9, 2017. Following a joint hearing in both the Little and Bullard cases, the court found Little to have knowingly and willfully violated OCGA § 16-5-90 et seq. and, among other things, ordered Little not to come within 50 yards of Booker, her immediate family, or their residence, place of employment, or school for a period of twelve months. The court further ordered that Little not have any other type of contact with Booker or her immediate family for the same period. On appeal, Little contends that the preponderance of the evidence did not support the elements of such an order.

         1. We first address this Court's jurisdiction to hear the appeal. Because the order on appeal expired on May 8, 2018, "the issues raised arguably are moot, and mootness is a mandatory ground for dismissal." (Citation and punctuation omitted.) Baca v. Baca, 256 Ga.App. 514, 515 (1) (568 S.E.2d 746) (2002); see also OCGA § 5-6-48 (b) (3). But appeals are not moot where they involve "matters in which there is intrinsically insufficient time to obtain judicial relief for a claim common to an existing class of sufferers." (Citation and punctuation omitted.) Collins v. Lombard Corp., 270 Ga. 120, 121-122 (1) (508 S.E.2d 653) (1998); see also Inserection v. City of Marietta, 278 Ga. 170, 171 (2) (598 S.E.2d 452) (2004) ("an appeal is not moot where the alleged error is capable of repetition yet evades judicial review"). "Accordingly, we must address whether the various issues are common to an existing class, yet tend to evade review." Baca, 256 Ga.App. at 516 (1).

         In Elgin v. Swann, 315 Ga.App. 809, 810 (1) (728 S.E.2d 328) (2012), this Court held that although the six-month stalking protective order on appeal had expired, the issues raised on appeal - the correct burden of proof and the sufficiency of the evidence - were not moot for two reasons. First, the issues were capable of repetition because they concerned whether the evidence showed "a pattern of harassing or intimidating conduct and a potential for future stalking [that] could arise again in the context of another stalking protective order." Id. at 810 (1). Second, the issues were likely to evade review because "[a] stalking protective order is limited by statute to a duration of 12 months, although it can later be renewed for a greater time period or be made permanent." Id. Further, the time constraints of the appellate courts often leave insufficient time to address the merits of such an appeal. Id. For the same reasons as in Elgin, we conclude the appeal in the present case is not moot. Compare Baca, 256 Ga.App. at 516 (1) (appellate issues regarding the admission of evidence in a hearing on a six-month protective order were "germane only to the temporary order" and therefore moot); Birchby v. Carboy, 311 Ga.App. 538, 540 (2) (716 S.E.2d 592) (2011) (in appeal of twelve-month protective order, "enumerations regarding the trial court's failure to reopen the evidence, its failure to consider the pending divorce action, and its denial of his motion for new trial" were moot given that order had expired).

2. Under the stalking statute,
[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.

OCGA § 16-5-90 (a) (1). The term "harassing and intimidating" is defined as

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.

Id. These elements of the offense must be established by a preponderance of the evidence. Pilcher, ...

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