Harvey v. Merchan

• Decision Date: 21 June 2021
• Docket Number: S21A0143
• Court: Georgia Supreme Court
• Parties: HARVEY et al. v. MERCHAN.

311 Ga. 811

860 S.E.2d 561

HARVEY et al.

v.MERCHAN.

S21A0143

Supreme Court of Georgia.

Decided: June 21, 2021

Candace Ellene Rader, Candace E. Rader P.C., 301 Tanner Street, Carrollton, Georgia 30117-0623, Met Merritt Lane, Shadrix Lane & Parmer, PC, 214 Habersham Place, Carrollton, Georgia 30117, for Appellant.

Esther Dina Feuer Panitch, The Panitch Law Group, P.C., 4243 Dunwoody Club Drive, Suite 216, Atlanta, Georgia 30350, Brian Joseph Atkinson, Emily M. Hetherington, Devin LeDrut Mashman, Wilbanks Cease Clinic, P.O. Box 1792, Athens, Georgia 30603, for Appellee.

Paul E. Weathington ; Lyle G. Warshauer ; Penn Law, Darren W. Penn, Kevin M. Ketner; Kazmarek Mowrey Cloud Laseter, Jacqueline O. Eisermann, Richard A. Horder, amici curiae.

Peterson, Justice.

For a brief time period, OCGA § 9-3-33.1 allowed time-barred civil claims for childhood sexual abuse to be revived. During that time period, Joy Caroline Harvey Merchan sued her parents, Walter Jackson Harvey, Jr., and Carole Allyn Hill Harvey, under the revival provision of the statute for damages resulting from alleged childhood sexual abuse that occurred decades prior to the filing of the action, principally in Quebec, Canada. The Harveys filed a motion to dismiss and a motion for summary judgment, arguing that Merchan's claims were time-barred and could not be revived under OCGA § 9-3-33.1. Alternatively, the Harveys argued that the revival provision of the Act violated Georgia's constitutional ban on retroactive laws and the due process and equal protection clauses of the federal and state constitutions. The trial court largely denied the Harveys’ motions,¹ and we granted interlocutory review to decide whether Georgia or Quebec law applies to Merchan's claims, whether OCGA § 9-3-33.1 can revive a cause of action for acts that did not occur in Georgia, and whether Georgia's constitutional ban on retroactive laws and the due process and equal protection clauses of the federal and state constitutions would bar Merchan's pursuit of such a cause of action against her parents.

We conclude that Georgia substantive law applies to those torts committed in this state, while Quebec substantive law applies to the torts committed there. As for what statute of limitations applies, Georgia's limitations period applies to torts committed here, but for torts committed in Quebec, the trial court must determine in the first instance which limitations period is shorter, and the shorter period will control. Merchan can pursue a cause of action for acts that occurred in Quebec as well as Georgia, because OCGA § 9-3-33.1 ’s definition of childhood sexual abuse is broad enough to cover acts that occurred outside of Georgia. And such a result does not violate Georgia's constitutional ban on retroactive laws or the Harveys’ due process or equal protection rights. Therefore, we affirm the trial court's judgment in part, vacate it in part, and remand the case for the trial court to compare the respective limitations periods.

1. Factual and procedural history.

In June 2017, Joy Caroline Harvey Merchan filed suit against her parents, Walter Jackson Harvey, Jr., and Carole Allyn Hill Harvey, for damages resulting from sexual abuse that allegedly occurred in Quebec and Georgia. Merchan, who is now in her mid-40s, alleges that her parents sexually abused her frequently and repeatedly from an early age until she turned 22 years old. In her deposition, Merchan stated that after the family moved from Quebec to Savannah when she was 15 years old, the physical abuse "died down" and "seemed to not be as prevalent," although her father would still watch her take a shower and make comments about her body.² Merchan raised claims of negligence, sexual battery, assault, and intentional infliction of emotional distress, and asserted that her action was timely under OCGA § 9-3-33.1 (d) (1) (2015),³ which, as discussed in more detail below, revived otherwise time-barred claims for childhood sexual abuse.

The Harveys filed a motion to dismiss, arguing that Merchan's claims were time-barred and could not be revived by OCGA § 9-3-33.1 (d) (1), because her common-law tort claims did not meet the definition of "childhood sexual abuse" as that term is used in OCGA § 9-3-33.1. Specifically, the Harveys argued that Merchan's common law tort claims were not among the criminal acts listed in the definition of childhood sexual abuse and that some of the acts were alleged to have occurred after Merchan turned 18 years old. The Harveys also challenged the constitutionality of OCGA § 9-3-33.1 (d) (1), arguing that it violated the due process and equal protection clauses of the federal and state constitutions, as well as the Georgia Constitution's prohibition against retroactive laws. In conjunction with their motion to dismiss, the Harveys moved for summary judgment, asserting that, because Merchan alleged that the abuse occurred in Canada, those actions could not be "violations" of Georgia law and, thus, would not meet the definition of "childhood sexual abuse."

In orders entered on the same day, the trial court denied the Harveys’ motion to dismiss (except for the motion to dismiss the negligence claim) and denied their motion for summary judgment. The trial court concluded that a civil action could be revived, even if the alleged conduct occurred out-of-state, as long as a defendant met the mens rea and actus rea elements required by one of the crimes listed in OCGA § 9-3-33.1. The court concluded that some of the torts alleged would constitute violations of the criminal statutes listed in OCGA § 9-3-33.1 and, therefore, could be revived under the statute, but concluded that the negligence claim should be dismissed because negligent acts are not intentional and thus could not be in violation of the criminal statutes listed in OCGA § 9-3-33.1 (a). The trial court also rejected the Harveys’ constitutional claims. The court issued a certificate of immediate review for the orders on the motions to dismiss and for summary judgment, and we granted the Harveys’ application for interlocutory review.⁴

2. Does Georgia or Quebec law apply to Merchan's claims?

Before addressing the Harveys’ constitutional challenges to OCGA § 9-3-33.1, we must first decide whether that statute even governs Merchan's cause of action, as the acts underlying her complaint occurred mostly in Canada. The statute would govern at least some of Merchan's causes of action.

In this case, Merchan alleged that she was sexually abused by her parents in both Quebec and Georgia, creating a question about what law applies to her cause of action. Under the well-established rule of lex loci delicti, a tort action is generally governed by the substantive law of the place where the tort was committed. See Auld v. Forbes , 309 Ga. 893, 894 (2) (a), 848 S.E.2d 876 (2020) ; Bullard v. MRA Holding, LLC , 292 Ga. 748, 750 (1), 740 S.E.2d 622 (2013).⁵ The place where a tort was committed is "the place where the injury sustained was suffered rather than the place where the act was committed," or, in other words, "it is the place where the last event necessary to make an actor liable for an alleged tort takes place." Auld , 309 Ga. at 894 (2) (a), 848 S.E.2d 876 (citation and punctuation omitted).

Although the rule of lex loci delicti governs the substantive law of the alleged tort, procedural and remedial questions are governed by the law of the state in which the action is brought. See Auld , 309 Ga. at 895 (2) (a), 848 S.E.2d 876 ; Taylor v. Murray , 231 Ga. 852, 853, 204 S.E.2d 747 (1974). Statutes of limitations are generally procedural in nature, and therefore those of the forum state govern. See id. at 853, 204 S.E.2d 747 ("In accordance with the fundamental principle of law that matters pertaining to the remedy are governed by the law of the state or country where suit is brought ... it is well settled that the Statute of Limitations of the country, or state, where the action is brought and the remedy is sought to be enforced, controls, in the event of the conflict of laws." (citation and punctuation omitted)). The law of the forum state thus generally determines the time within which a cause of action may be pursued. See Auld , 309 Ga. at 895 (2) (a), 848 S.E.2d 876.

There is an exception to this general rule. "[W]hen the applicable foreign law creates a cause of action that is not recognized in the common law and includes a specific limitation period, that limitation period is a substantive provision of the foreign law that governs, and it applies when it is shorter than the period provided for under Georgia law." Auld , 309 Ga. at 895 (2) (a), 848 S.E.2d 876.

(a) Certain of Merchan's courses of action are governed by Georgia substantive law, while others are governed by Quebec substantive law, depending on where the torts were committed.

Merchan argues that Georgia substantive law applies to all of her claims, even for alleged abuses that occurred in Quebec, because she suffered ongoing injuries from those abuses and, therefore, the torts were not complete until she was in Georgia. She argues that we should apply the "continuing tort" theory to her cause of action because she was subjected to continuous and repeated sexual abuse on a weekly, if not daily, basis from birth until she left the family home at the age of 22, and argues that she cannot be expected to remember each and every individual act of abuse that occurred during that time. Merchan acknowledges that no Georgia court has applied the "continuing tort" theory to claims of childhood sexual abuse, or any physical assault for that matter, but argues that we should do so here because it would be consistent with our precedent and advance judicial economy. She also argues that because Georgia substantive law applies, Georgia's statute of limitations period also controls. We disagree, because every instance of alleged abuse constituted a discrete tort, and the continuing tort doctrine does not apply...