Bruno v. Light

• Decision Date: 28 February 2018
• Docket Number: A17A1967
• Citation: 811 S.E.2d 500
• Parties: BRUNO v. LIGHT.
• Court: Georgia Court of Appeals

344 Ga.App. 799
811 S.E.2d 500

BRUNO
v.
LIGHT.

A17A1967

Court of Appeals of Georgia.

February 28, 2018

811 S.E.2d 501

Rafe Banks III, Cumming, Cynthia Thompson English, for Appellant.

Darla Light, for Appellee.

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

811 S.E.2d 502

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," 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. ...

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 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 S.E.2d 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

811 S.E.2d 503

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.)

(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 S.E.2d 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 S.E.2d 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...