Gibson-Wright v. Smith

896 S.E.2d 907

GIBSON-WRIGHT

v.SMITH.

A23A1540

Court of Appeals of Georgia.

January 8, 2024

Tyler R. Conklin, William Kelbaugh, for Appellant.

John Patrick O’Brien, William John Diehl, Rudolph Smith, for Appellee.

Miller, Presiding Judge.

In this unfortunate dispute between an Alapaha city council member and a volunteer for the city of Alapaha, LuAngela Carla Gibson-Wright appeals from the trial court’s order granting Rudolph Smith a 12-month protective order and denying her claim for attorney fees. On appeal, Gibson-Wright argues that (1) the evidence was insufficient to show that she committed stalking under OCGA § 16-5-90; and (2) the trial court erred by denying her claim for attorney fees under OCGA §§ 9-15-14 and 13-6-11. For the reasons that follow, we reverse the trial court’s order granting Smith a protective-order, vacate the trial court’s denial of Gibson-Wright’s claim for attorney fees, and remand the case for further proceedings.

[1] "We review the grant of a petition for a protective order for abuse of discretion. In reviewing the sufficiency of the evidence, we construe the evidence in favor of the findings of the trier of fact." (Citations and punctuation omitted.) Bodi v. Ryan, 358 Ga. App. 267, 855 S.E.2d 11 (2021).

So viewed, the record shows that Smith has worked or volunteered for the city of Alapaha for approximately 18 years. Benjamin Davis, the mayor of Alapaha, asked. Smith to assist him with the city’s affairs, and Vickie Harsey, a member of the city council, asked Smith to assist with the city’s budget and to serve as the project manager for the "Depot construction" project. Gibson-Wright was elected to Alapaha’s city council in August 2019 and began serving her term in January 2020. After Gibson-Wright began serving her term, she discovered issues with the council’s affairs. Specifically, she discovered that the city council was not conducting its affairs according to her interpretation of the charter, decisions regarding the city were being made by individuals who were not on the council, and minutes from the council’s meetings were missing.¹ Tension arose between Gibson-Wright and Smith, and they began to have difficulties working together after she was removed from one of the council’s projects.

According to Smith, every time he goes to city hall Gibson-Wright is "up there," and she "stalked" him on five occasions.² The first incident was when Gibson-Wright made an open records request for information as to whether Smith was the city manager or the mayor’s advisor.³ The second incident involved Gibson-Wright and Larry Tabor, the chief of police for the city of Alapaha. During that incident, Gibson-Wright knocked on Tabor’s office door, asked Tabor whether Smith was in his office, and left after learning that he was present. The third incident was when Smith left city hall to go home for lunch, and Gibson-Wright asked the city hall clerk whether he was inside his office. After the clerk told Gibson-Wright that Smith was not there, she asked the clerk why Smith’s vehicle was in the parking lot. The fourth incident occurred on December 12, 2022. According to Smith, Gibson-Wright asked the city hall clerk whether Smith was a city employee while filming her interaction with the clerk.⁴ Smith then walked up to the clerk’s window and confronted Gibson-Wright. After Smith returned to his office, he saw Gibson-Wright filming his ear and circling it "like a bird," and he again confronted her. Gibson-Wright subsequently posted the footage of that interaction on YouTube.

The last incident occurred at the ribbon cutting ceremony for the Depot project on December 10, 2022, which Gibson-Wright attended with her significant other, Tremaine Atkins.⁵ According to Smith, Gibson-Wright approached a group of city employees that he was standing with to take pictures, and he turned her away because the pictures were only for a select group of individuals. Atkins then confronted Smith, and Gibson-Wright retrieved her camera and presumably began filming the interaction. Smith said that Gibson-Wright did not "harass," threaten, or cause him any other problems and that she did not have any further contact with him at the ceremony after he turned her away from the group pictures. Smith, however, testified that he fears Gibson-Wright.

[2] Smith subsequently filed a petition for a temporary protective order against Gibson-Wright, alleging that "on or about" December 10, 2022, Gibson-Wright harassed or threatened him, which put him in fear for his safety. Gibson-Wright answered the petition and counterclaimed for attorney fees and litigation expenses. Following the hearing, the trial court entered an order granting Smith’s petition and imposing a 12-month protective order, determining that Gibson-Wright committed stalking under OCGA § 16-5-90 and placed Smith in reasonable fear for his safety. The trial court enjoined Gibson-Wright from committing any act that would constitute a violation of OCGA § 16-5-90 and from harassing and intimidating Smith and his immediate family. The trial court also prohibited Gibson-Wright from having any contact with Smith and his immediate family,⁶ enjoined her from approaching Smith "within 100 yards," and denied her claim for attorney fees and litigation ex- penses. This appeal followed.⁷

1. First, Gibson-Wright argues that the evidence was insufficient to show that she committed stalking under OCGA § 16-5-90. Specifically, she argues that (1) she did not engage in any conduct towards Smith on December 10, 2022, which was the date alleged in, his petition, that would constitute stalking; (2) Smith was not placed in reasonable fear for his safety; (3) she did not engage in a pattern of harassing and intimidating behavior; and (4) there was no evidence that her conduct served no legitimate purpose. We conclude that the evidence was insufficient to show that Gibson-Wright placed Smith in reasonable fear for his safety as required to establish the offense of stalking.⁸

[3, 4] OCGA § 16-5-94 (a) permits a party to seek a protective order by filing a petition alleging conduct constituting stalking under OCGA § 16-5-90. "To be entitled to a protective order based on stalking, the petitioner must establish the elements of the offense by a preponderance of the evidence." (Citation and punctuation omitted.) Bodi, supra, 358 Ga. App. at 269, 855 S.E.2d 11. "In reviewing the sufficiency of the evidence supporting a stalking protective order, we do not weigh the evidence or assess witness credibility, and we construe the evidence in favor of the findings of the trier of fact." (Citation omitted.) Id.

[5–7] "The offense of stalking is committed when a person 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." (Citation and punctuation omitted.) Bodi, supra, 358 Ga. App. at 269, 855 S.E.2d 11.

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.

(Citation omitted; emphasis supplied.) Id. "Of course, it is not necessary to show an ‘overt threat of death or bodily injury’ to establish stalking. Nor is it necessary that the threat be explicit." (Citation omitted.) Id. at 270 (b), 855 S.E.2d 11. Indeed, "[e]ven behavior that is not overtly threatening can provide the requisite degree of intimidation and harassment if is it ongoing, repetitious, and engaged in despite the communicated wishes of the victim." (Citation omitted.) Moran v. State, 334 Ga. App. 765, 768 (1) (a), 780 S.E.2d 529 (2015). Nevertheless, an essential element of stalking under OCGA § 16-5-90 is that the defendant’s actions place the victim in reasonable fear for his safety. Id. See also Bruno v. Light, 344 Ga. App. 799, 804 (1) (c), 811 S.E.2d 500 (2018) ("Under the stalking statutes, harassment and intimidation refer to conduct that at a minimum places the victim in reasonable fear for h[is] safety or the safety of h[is] immediate family.") (citation and emphasis omitted). Thus, where the evidence fails to show that the defendant engaged in conduct that placed the victim in reasonable fear for his safety, a trial court abuses its discretion by granting a protective order. Bodi, supra, 358 Ga. App. at 270-271 (b), 855 S.E.2d 11.

[8] Applying the aforementioned principles here, we conclude that, even under the preponderance of the evidence standard, the evidence failed to establish that Gibson-Wright placed Smith in reasonable fear for his safety through a pattern of harassing and intimidating conduct. As to the first incident, an open records request by Gibson-Wright, a member of the city council, inquiring as to whether Smith was the city manager or the mayor’s advisor could not have put Smith in reasonable fear for his safety. As to the second incident of Gibson-Wright asking Tabor whether Smith was in his office, Smith testified that the incident was not a basis for the petition. Yet, even in that instance, Smith testified that Gibson-Wright did not threaten or harm him and that she left city hall after learning that he was present. Regarding the third and fourth incidents of Gibson-Wright asking the city hall clerk whether Smith was an employee and in his office and filming the clerk’s response and Smith’s vehicle, Smith offered no testimony that this conduct put him in reasonable fear for his safety.

[9–12] Regarding the ribbon-cutting ceremony where Smith turned Gibson-Wright away from group pictures, Smith testified that she did not harass, threaten, or cause him any other problems and that she did not have any further contact with him at the ceremony after...