Pilcher v. Stribling

• Decision Date: 29 March 2006
• Docket Number: No. A05A2064.,A05A2064.
• Citation: Pilcher v. Stribling, 630 S.E.2d 94, 278 Ga.App. 889 (Ga. App. 2006)
• Parties: PILCHER v. STRIBLING et al.
• Court: Georgia Court of Appeals

278 Ga. App. 889

Page 94

630 S.E.2d 94

PILCHER v. STRIBLING et al.

No. A05A2064.

Court of Appeals of Georgia.

March 29, 2006.

Reconsideration Denied April 14, 2006.

Edwin Marger, Jasper, Michael J. Puglise, Snellville, for appellant.

Preston and Malcolm, Paul L. Rosenthal, Monroe, for appellees.

ADAMS, Judge.

Terry Pilcher appeals from the trial court's entry of a permanent restraining order enjoining him from contact with the appellees, Jason Stribling and Carl Morrow, as well as certain named protected parties.

At the relevant time, Pilcher was the fire chief for the City of Loganville Fire Department. Stribling and Morrow, along with the protected parties,¹ Rex Wamer, Anthony Logan, James D. Davis, and Kenneth Durden, were all fire department employees and Pilcher's subordinates. In March, 2004, Stribling and Morrow each filed separate verified petitions for stalking/temporary protective orders against Pilcher. On March 16, 2004, the trial court granted a Stalking Ex Parte Temporary Protective Order to Stribling, and the next day granted Morrow's petition, adding the protected parties to Morrow's order.

The evidentiary hearing in this matter was held on April 19, 2005.² Both Stribling and Morrow, as well as the protected parties and other witnesses, testified to various incidents of physical assault and repeated verbal abuse by Pilcher directed toward these and other employees of the fire department. The incidents of verbal abuse included cursing, threatening employees' jobs, and belittling employees' intelligence, personal life, weight, sexual inexperience or financial situation. Witnesses testified that these incidents involved most of Pilcher's employees and went beyond the typical interchange and banter among firemen. In one incident, Pilcher threatened a firefighter's job, and used two of his fingers on the edge of a garbage can to indicate that the firefighter was "going over that edge." All of these incidents occurred during working hours, and all but one³ of the incidents of physical assault occurred during the course of basketball games mandated as part of the employees' physical training requirement.

This physical contact involved at least four different employees, including Stribling and protected party Wamer. In the last of these incidents, Pilcher elbowed Stribling in the stomach/chest area after Stribling blocked Pilcher's shot during a basketball game. And at one point when Stribling bumped into Pilcher, Pilcher turned around and shoved Stribling with both hands. At that point, a lieutenant with the fire department intervened in an attempt to calm Pilcher down. But after Stribling blocked another of Pilcher's shots, Pilcher threw a basketball at Stribling's legs "as hard as he could." At that point, Stribling suggested that he just leave the game and complete his physical training in a different manner, but Pilcher responded, "no, the hell [you] won't," ordering him to stay and finish the game. After the lieutenant once again intervened, positioning himself between the two other men Pilcher walked away, asking Stribling, if he was just that "f___ing stupid." The witnesses to this and other incidents testified that Pilcher's behavior, which sometimes included kicking and shoving other players, exceeded the physical contact typically involved in basketball games.

Stribling, Morrow and all but one of the protected parties testified that the incidents of abuse placed them in fear for their safety. They stated that they would not be willing to play another basketball game with Pilcher and some stated that they would be unwilling to work with him again. Pilcher presented no evidence at the hearing.

Shortly thereafter, the trial judge entered a permanent protective order against Pilcher restraining him, inter alia, from approaching within 500 yards of Stribling, Morrow or the protected parties.

1. Pilcher asserts that the trial court erred in granting the protective order because the stalking statute was not intended to cover a situation where a supervisor is verbally abusive and physically aggressive to employees on the job. But even if Pilcher's behavior fell within the prohibitions of the stalking statute, he asserts that OCGA § 16-5-92 exempts the statute from applying to a fire chief engaged in his work duties.

"The grant or denial of a motion for protective order generally lies within the sound discretion of the trial court." (Citations omitted.) Alexander Properties Group v. Doe, 280 Ga. 306, 307(1), 626 S.E.2d 497 (2006). Accordingly, we will not reverse absent an abuse of that discretion. Id. And as with protective orders under the Family Violence Act, it is not this Court's function "to second-guess the trial court in cases such as this, which turn largely on questions of credibility and judgments . . . . The trial court is in the best position to make determinations on these issues, and we will not overrule its judgment if there is any reasonable evidence to support it." (Citations omitted.) Buchheit v. Stinson, 260 Ga.App. 450, 453(2), 579 S.E.2d 853 (2003). See also City of Atlanta v. Southern States Police Benevolent Assn. of Ga., 276 Ga.App. 446, 458(4), 623 S.E.2d 557 (2005) (trial court manifestly abuses its discretion in granting permanent injunction without any evidence to support it and contrary to the law and equity). Moreover, we note that the standard for obtaining a stalking protective order is proof by a preponderance of the evidence. OCGA §§ 16-5-94(e) and 19-13-3(c).

To determine whether Pilcher's actions fall under the prohibitions of Georgia's stalking statute, it is useful to consider the context in which the 1993 legislation was adopted. During the late 1980s, public attention became focused on the crime of stalking following a series of widely publicized stalking cases in California. Nga B. Tran, A Comparative Look at Anti-Stalking Legislation in the United States and Japan, 26 Hastings Int'l & Comp. L.Rev. 445 (2003). When it became apparent that existing laws could not adequately address such behavior, the states reacted swiftly to enact separate anti-stalking laws. During the period from 1990 to 1993, all 50 states and the District of Columbia passed legislation that criminalized stalking. Three years later, the federal government followed suit when Congress outlawed interstate stalking. Shonah Jefferson and Richard Shafritz, A Survey of Cyberstalking Legislation, 32 UWLA L.Rev. 323, 328-329 (2001). After this initial rush of legislation, states began to recognize that these hastily drafted statutes sometimes failed to adequately protect stalking victims, and some states began to modify and broaden their statutes to provide more effective safeguards. Tran, 26 Hastings Int'l & Comp. L.Rev. at 452.

Georgia followed this pattern. The state adopted its first anti-stalking litigation in 1993, and the original statute defined stalking as following, placing under surveillance, or contacting "another person at or about a place or places without the consent of the other person for the purpose of harassing [or] intimidating the other person." Ga. L. 1993, p. 1535, § 1. "`[H]arassing and intimidating'" was defined as knowingly and wilfully placing another "in reasonable fear of death or bodily harm" either to the person or a member of his or her immediate family, "and which serves no legitimate purpose." Id. at 1535-1536.

But this legislation proved ineffective in deterring certain kinds of stalking behavior and in protecting victims from harm. Review of Selected 1998 Georgia Legislation, 15 Ga. St. Univ. L.Rev. 62, 65 (Fall 1998). The requirement that a victim be placed in fear of death or bodily harm, for example, excluded prosecution of those cases where a stalker's main intent was to exert control over, rather than to threaten or harm, the victim. Thus, a number of stalking cases were dismissed where the victim could not prove the requisite level of fear. Id. at 65-66. In 1998, Georgia amended its statute in an attempt to provide more protection for stalking victims. Id. One change broadened the definition of "harassing and intimidating" to "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 . . . establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose." (Emphasis supplied.) OCGA § 16-5-90(a)(1). The added requirement of a pattern of intimidating behavior was meant to offset the expanded definition of stalking, by helping to "avoid abuse of the system by people who overreact or become vindictive." (Footnote omitted.) Review of Selected 1998 Georgia Legislation, 15 Ga. St. Univ. L.Rev. at 66.

Turning to the facts in this case, it is apparent Pilcher's behavior does not fit neatly within the widely recognized categories of stalking.⁴ Nevertheless, the issue before us is whether it fits within the behaviors prohibited by Georgia's amended anti-stalking statute. Here, the evidence supports a finding that Pilcher, within the statutory definition,⁵ contacted the named parties without their consent for the purpose of harassing and intimidating them. The evidence demonstrated that Pilcher engaged in a knowing and wilful course of conduct that, with one exception, caused the named subordinates emotional distress by placing them in reasonable fear for their safety. Moreover, these actions established a pattern of harassing and intimidating behavior that served no legitimate purpose.

The one remaining element, that the course of conduct be directed at a specific person, was clearly satisfied with regard to Stribling, because the evidence showed repeated physical contact and verbal harassment directed toward him specifically. And we find that the evidence supported a finding that this requirement also was met as to Morrow and the other protected parties. Even though Pilcher did not physically...