IN THE COURT OF APPEALS

STATE OF GEORGIA

JONATHAN L. HUGGINS,

Defendant/Appellant

v. Case No. A10A1346

KAREN D. BOYD,

Plaintiff/Appellee

BRIEF OF APPELLANT

COMES NOW Appellant Jonathan L. Huggins, Defendant below, and files this

brief on appeal.

PART ONE

FACTS

On February 20, 2007, Plaintiff-Appellee Karen D. Boyd (hereinafter

“Appellee”) filed a Petition for a Stalking Temporary Protective Order (R-5

through R-11) in Clarke County Superior Court. Appellee contended that

Appellant had harassed her by sending e-mails about her to co-workers and

colleagues (R-5). Appellee’s own Petition states that the Appellant resided at an

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address in Murrells Inlet, South Carolina (R-5, R-6). Since Appellee resided in

Clarke County, she asked for relief against a non-resident pursuant to O.C.G.A. §

16-5-94. The trial court granted a Temporary Protective Order the same day as the

Petition (R-12 through R-14).

After some delay, Appellant was finally served on April 4, 2007 at his home

address in Georgetown County, South Carolina (R-18). The trial court scheduled a

hearing for April 23, 2007 (R-16 and R-17). The Appellant did not appear at said

hearing either in person or by counsel, and the court issued a Stalking Permanent

Protective Order (R-19 through R-21) on April 23, 2007. Not only did the Order

command Appellant not to contact Appellee, it also included a provision (R-19)

that he was “… ordered not to communicate in any form to Petitioner’s friends or

colleagues concerning Petitioner.”

In late 2008, Appellant hired the undersigned counsel to represent him in this

matter. Since a motion to set aside a verdict for lack of jurisdiction under

O.C.G.A. § 9-11-60 is not subject to any time limit, counsel filed a Petition to Set

Aside or Amend the protective order on May 4, 2009 (R-22 through R-28). After

Appellee was served (R-30) with a copy of the Petition, the court scheduled a

hearing for November 9, 2009 (R-59). After hearing argument from counsel for

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both sides, the trial court entered an Order denying the Petition on December 30,

2009 (R-62 through R-66). Appellant then filed on January 19, 2010 an

Application for Discretionary Appeal, which this Court granted on February 3,

2010 (R-67). Notice of Appeal was filed with the trial court on February 8, 2010

(R-1 through R-4; R67).

PRESERVATION OF ERROR

As previously stated, in the original action, there was no appearance by

Appellant in person or through counsel. Pursuant to O.C.G.A. § 9-11-60, a motion

to set aside a verdict for lack of personal or subject matter jurisdiction can be made

at any time. Appellant’s counsel filed a petition seeking to set aside the protective

order for lack of personal jurisdiction, or, in the alternative, to strike the overbroad

portion thereof which prohibited Appellant from contacting any of Appellee’s

friends or colleagues (R-22 through R-28). On June 4, 2009, Appellee’s counsel

filed a Response (R-31 through R-54). Both through written motion (R-22 through

R-28) and at oral argument (T-1 through T-42), Appellant’s counsel cited

numerous cases and statutes to support the proposition that the court lacked

personal jurisdiction over an out of state defendant who sent e-mails to Georgia,

and also that the “friends or colleagues” language of the Order was overbroad.

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 PART TWO

ENUMERATION OF ERRORS

The trial court erred in the following respects:

(a) It held that it had personal jurisdiction over a South Carolina resident as a

result of e-mails sent from that state to a Georgia resident, in disregard of this

Court’s ruling in Anderson v. Deas, 273 Ga. App. 770, 615 S.E.2d 859 (2005),

affirmed on remand, 279 Ga. App. 892, 632 S.E.2d 682 (2006) (Held: Georgia

court had no jurisdiction over Maryland resident who allegedly made threatening

phone calls to a Georgia resident).

(b) Even if personal jurisdiction was proper, the trial court erred in refusing to

strike language from the protective order that prohibited the Defendant from

contacting “friends or colleagues” of the Plaintiff. This language was

unconstitutionally overbroad. See, e.g., Collins v. Bazan, 256 Ga. App. 164, 568

S.E.2d 72 (2002) (Held: It was unconstitutionally overbroad to prohibit a stalker

from discussing his former girlfriend’s medical condition with third parties). This

language was also beyond the scope of the stalking statutes, which prevent

harassing conduct aimed at a person or “a member of his or her immediate family.”

O.C.G.A. § 16-5-90(a)(1); O.C.G.A. § 16-5-94(a).

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 PART THREE

STANDARD OF REVIEW

The grant or denial of a motion for a protective order lies within the trial court’s

discretion, and will not be reversed unless the court abused its discretion. Sinclair

v. Daly, 295 Ga. App. 613, 614, 672 S.E.2d 672 (2009); Pilcher v. Stribling, 282

Ga. 166, 167, 647 S.E.2d 8 (2007).

ARGUMENT AND CITATION OF AUTHORITIES

I. The trial court abused its discretion when it ruled that it had jurisdiction over

a South Carolina resident who sent e-mails to Georgia.

The trial court’s determination that it had jurisdiction over a South Carolina

resident regarding e-mails sent to a person in Georgia was erroneous. No party has

ever alleged that Mr. Huggins was anywhere other than South Carolina when the

allegedly harassing or intimidating communications were sent. Karen Boyd, as the

Plaintiff below, had the burden to show the trial court that it had jurisdiction. Yet

her very own filings in the case give a South Carolina address for Mr. Huggins (R-

5-6, R-11), and indicate that he was served by a South Carolina deputy sheriff in

that state (R-18). The trial court’s Order denying the Motion to Set Aside assumed

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for the sake of argument that all communications originated in South Carolina (R-

64).

The code section dealing with restraining orders, O.C.G.A. § 16-5-94, provides

in subsection (b) that jurisdiction for such matters shall be the same as for Family

Violence Act (FVA) petitions as set out in O.C.G.A. § 19-13-2. That section, in

turn, provides in its own subsection (b) that where a petition is filed against a non-

resident respondent, the superior court of the petitioner’s county of residence or the

superior court where the act allegedly occurred shall have jurisdiction, provided

that the elements for personal jurisdiction under paragraph (2) or (3) of the Long

Arm Statute (O.C.G.A. § 9-10-91) are met. In a case with facts very similar to this

one, this Court ruled that a Georgia court had no jurisdiction over a man who

allegedly made threatening phone calls from Maryland to the mother of his child in

Georgia. Anderson v. Deas, 273 Ga. App. 770, 615 S.E.2d 859 (2005), affirmed

on remand at 279 Ga. App. 892, 632 S.E.2d 682 (2006).

In the first case, this Court conceded that, according to the stalking statute

(O.C.G.A. § 16-5-90(a)(1)), contact is “deemed” to have taken place where the

communication is received. 273 Ga. App. at 772. Nevertheless, the Court held

that this statutory definition could not be reconciled with the limits of jurisdiction

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under the Long Arm Statute as described in a long line of cases going back more

than twenty years. Specifically, the Court stated (273 Ga. App. at 773):

Here, Deas allegedly placed the telephone calls from

another state. Although the injurious consequences

would have been felt in Georgia, it is undisputed that

Deas never came to Georgia so as to commit an act here.

Therefore, applying the Long Arm Statute as interpreted

in Gust [v. Flint, 257 Ga. 129, 356 S.E.2d 513 (1987)] to

the FVA, in accordance with the express terms of the

FVA, we agree with the trial court that Anderson has

alleged no acts by Deas giving the Georgia courts

jurisdiction over him under the FVA.

In the case on remand, this Court again stated it is immaterial where the

criminal statute “deems” the offense to have occurred. 279 Ga. App. at 893-894:

Nonetheless, the conduct giving rise to the offense occurs

at the place where the maker of the call speaks into the

telephone. The effect is transmission of the voice along

the telephone line or otherwise and its receipt by the listener

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 at the other end. We, therefore, conclude that Deas did

not engage in any conduct, persistent or otherwise, in

Georgia, either when he made his daily phone calls to

speak to his daughter or when he made the calls that

allegedly threatened and harassed Anderson.

See also Commercial Food Specialties, Inc. v. Quality Food Equipment Co.,

176 Ga. App. 892, 338 S.E.2d 865 (1985) (Held: No personal jurisdiction over

non-resident under Long Arm Statute based solely on telephone calls made to this

state). There is no evidence in this case disputing Appellant’s assertion that he was

in the state of South Carolina when he sent all the e-mails in question. The trial

court’s ruling that the Appellant engaged in a persistent course of conduct

sufficient to confer jurisdiction over him (R-66) is contrary to the holdings of the

two Anderson v. Deas cases and therefore should be overruled.

II. Even if the trial court did not err on the jurisdictional issue, it abused its

discretion by refusing to strike the part of its order that said Appellant was not to

contact “friends or colleagues” of the Appellee because such language was

overbroad, both in the constitutional sense and also under the plain language of the

stalking statutes.

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 In the original case, the trial court, added a hand-written addendum which

provided that not only was Appellant not to contact Appellee, but also stated that

he was forbidden from contacting Appellee’s “friends or colleagues” about her (R-

19). By using such broad terms, the court prohibited Appellant from making

comments that would have been facially neutral or even complimentary. Appellant

would have been in violation merely for stating by phone or e-mail to one of

Appellee’s co-workers, “I knew Karen Boyd when I was a student at East Carolina

University. She’s a good counselor.”

This infringes on Appellant’s freedom of speech under the First Amendment, as

made applicable to the states under the Due Process Clause of the Fourteenth

Amendment. The Legislature clearly anticipated that this could be a problem,

because it provided in O.C.G.A. § 16-5-92, “Application of stalking statutes”, that:

The provisions of Code Sections 16-5-90 and 16-5-91

[relating to stalking and aggravated stalking] shall not

apply to persons engaged in activities protected by the

Constitution of the United States or of this state or to

persons or employees of such persons lawfully engaged in

a bona fide business activity or lawfully engaged in the

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 practice of a profession.

Furthermore, at least one reported case has held that a trial court exceeded the

scope of its authority to issue a stalking protective order. In Collins v. Bazan, 256

Ga. App. 164, 568 S.E.2d 72 (2002), this Court was called on to consider that

portion of a superior court’s protective order which prohibited the defendant from

discussing his former girlfriend’s medical condition with any third parties.

Looking at the plain language of the stalking statute, O.C.G.A. § 16-5-90(a)(1), the

Court noted that the term “harassment and intimidation” refers to conduct which, at

a minimum, places the petitioner in reasonable fear for her safety or the safety of a

member of her immediate family. Id., 256 Ga. App. at 166. The Court went on to

state that, while discussing someone’s medical condition with a third party may be

“insensitive”, it cannot be proscribed under the stalking statutes. Similarly,

communicating by phone, e-mail, or other means with a person’s “friends or

colleagues” does not in and of itself constitute such conduct as would place that

person in reasonable fear for her safety or that of her immediate family. The

stalking statutes are not meant to be and should not be turned into a substitute for a

defamation suit.

WHEREFORE, the Appellant prays that this Court:

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 (a) Reverse and remand the trial court’s order with directions to vacate the

stalking permanent protective order due to a lack of personal jurisdiction over the

Appellant; or

(b) In the alternative, reverse and remand the trial court’s order with directions

to strike from its order the “friends and colleagues” language thereof, nunc pro

tunc to the original date of entry.

Respectfully submitted,

_____________________________
H. Scott Basham
Ga. Bar No. 041098
Attorney for Appellant

191 E. Broad St.

Suite 215
Athens GA 30601
(706) 543-6277
(706) 543-6278 Fax

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 IN THE COURT OF APPEALS

STATE OF GEORGIA

JONATHAN L. HUGGINS,

Defendant/Appellant

v. Case No. A10A1346

KAREN D. BOYD,

Plaintiff/Appellee

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have this day served this Brief of Appellant upon

the attorney for the Appellee by personal delivery to the following address:

Bryan K. Webb, Esq.

233 E. Broad St.
Athens GA 30601

This 24th day of March, 2010.

________________________
H. Scott Basham
Ga. Bar No. 041098
Attorney for Appellant

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