Huggins v. Boyd

¶1concurring fully and specially.

¶2I concur in all that is said in the majority opinion, but write specially to note that having to set aside the protective order in this case is an unfortunate result of Georgia’s unnecessarily restrictive Long Arm Statute, which under these facts requires both act and injury inside the state under OCGA § 9-10-91 (2). It is illogical that venue for the crime of stalking is the place where threatening e-mail is received, OCGA § 16-5-90 (a) (1), but that our courts cannot obtain personal jurisdiction over the stalker to issue a civil protective order unless the stalker engages in some additional “persistent course of conduct.” OCGA § 9-10-91 (3). As noted by the authors of a 2007 law review article about Georgia’s Long Arm Statute, Georgia

residents are . . . not fully protected in their ability to obtain long-arm jurisdiction over nonresident defendants in cases arising in the context of [IJnternet activity. . . .The literal reading of subsection (2) by the Georgia state courts, which requires the tortious act to be committed within the state, severely limits the ability of injured residents to obtain personal jurisdiction over nonresidents who commit “cyber-torts.”

¶3“Extraterritorial Personal Jurisdiction for the Twenty-First Century,” Van Detta and Kapoor, 3 Seton Hall Circuit Rev. 339, 381 (2007).

¶4In this case, Boyd was associate dean at a South Carolina university who adjudicated a disciplinary action against Huggins in the mid-1990s.10 When she left, Huggins sent her e-mail messages for eighteen months, one of which led Boyd to contact authorities at Huggins’ school. After that, Huggins’ correspondence became adversarial. In August 2003, a detective from Boyd’s former university warned her that Huggins had made threats against her, and Huggins sent her an e-mail message indicating he had been watching her. As a result, Boyd obtained a twelve-month protective order for stalking, valid until September 2004 pursuant to OCGA § 16-5-94. Huggins consented to this order.

¶5*568On February 7, 2007, Huggins sent a 65-page e-mail message to Boyd’s faculty advisor and most of the male faculty and staff from her department, which led her to contact the police out of concern for her personal safety. She sought another protective order, based on this e-mail message and at least 17 other messages Huggins has sent to large groups of people about Boyd. In her statement, Boyd noted that while Huggins did not overtly threaten her in his e-mail messages, his references to murder along with her previous experience with him were “sufficient for [her] to worry and wonder.” Boyd petitioned for and obtained a temporary protective order on February 20, 2007.

¶6Huggins pled nolo contendere to stalking on March 20, 2008 and was ordered not to contact Boyd or send e-mail about her. That plea, of course, cannot be considered in determining whether Huggins had sufficiently minimum contacts with the State. OCGA § 17-7-95 (c) (“Except as otherwise provided by law, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose.”).11

¶7Huggins was served with the petition for a protective order but did not appear personally at a hearing on April 23, 2007, after which the trial court granted Boyd a stalking permanent protective order against Huggins. In May 2009, Huggins petitioned the court to set aside or amend the protective order, arguing that the trial court had no personal jurisdiction over him, a nonresident. He also argued that the order was overbroad.

¶8At a hearing on the motion to set aside the protective order, the trial court noted that the record included no transcript of the evidence it had heard before it issued the protective order Huggins sought to set aside, and could not remember independently what evidence it considered. The court noted that, under the reasoning of Anderson v. Deas, 275 Ga. App. 770 (615 SE2d 859) (2005), a person could be charged with aggravated stalking from a remote location for sending e-mail messages but could not be restrained civilly from making threatening communications in the future. The trial court determined that the nature and extent of the contacts in this case were different from the telephone calls addressed in Anderson v. Deas, and denied Huggins’ motion to set aside the permanent protective order.

¶9As noted by the majority, no one disputes that all of Huggins’ conduct occurred outside of Georgia. Thus, based on our holding in *569Anderson u. Deas that, although the injury occurred here, the act of making a call or sending e-mail took place outside the state, we do not have civil jurisdiction over Huggins under our Long Arm Statute. Accordingly, I concur fully in the majority’s reasoning and result.