                            THIRD DIVISION
                           ELLINGTON, P. J.,
          BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                       May 21, 2018




In the Court of Appeals of Georgia
 A18A0577. DURRANCE v. SCHAD.

      PHIPPS, Senior Appellate Judge.

      After Raymond C. Schad dismissed his petition seeking a stalking temporary

protective order (“TPO”) against Lorri S. Durrance, Durrance filed a motion seeking

her costs and attorney fees associated with defending against that petition. Following

an evidentiary hearing, the trial court denied Durrance’s motion. Durrance appeals,

asserting that the trial court abused its discretion in refusing to award her costs and

legal fees under OCGA § 16-5-94 and OCGA § 9-15-14 (b). Additionally, Durrance

contends that the trial court committed legal error when it refused to award her fees

and costs under OCGA § 9-15-14 (a). For reasons explained more fully below, we

find no abuse of discretion by the trial court in refusing to award fees under OCGA

§ 16-5-94. We further find, however, that given the absence of any evidence
supporting Schad’s claim of stalking, the trial court erred when it failed to award

Durrance costs and attorney fees under OCGA § 9-15-14 (a).

      Viewed in the light most favorable to the trial court’s ruling, the record shows

that in approximately February 2017, Schad performed some repair or remodeling

work on the residence of Durrance and her husband. At some unspecified time

between February and June 2017, Schad became employed with Jasper County as a

building inspector. On June 28, 2017, believing that Schad had not completed the

work at her residence, Durrance called Schad’s wife, who handled his billing. A short

time later, Schad arrived at the real estate office where Durrance worked, driving his

county-owned truck and wearing his county uniform. The two began to discuss the

work Schad had done for Durrance and the conversation became so heated that one

of Durrance’s coworkers eventually forced Schad to leave. Durrance reported the

incident to police, who contacted Schad’s supervisor. Schad was subsequently served

with a warrant for trespass.

      On June 30, two days after the incident, Schad filed a pro se petition for a

stalking TPO. Schad alleged that Durrance had committed “acts of stalking” in

violation of OCGA § 16-5-90 by making the following statements: “You sealed your

doom”; “I know people and will have your job”; and “I’ll get you.” Schad further

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alleged that “similar events may occur in the future” and that this conduct “placed

[Schad] in reasonable fear for . . . his own safety and/or the safety of . . . his

immediate family.”

      A hearing on Schad’s petition was originally scheduled for July 18, but was

continued until August 1 at Durrance’s request. On July 31, Schad dismissed the

petition without prejudice. Durrance then filed a motion seeking costs and attorney

fees under OCGA § 16-5-94 and OCGA § 9-15-14 (a) and (b). At the evidentiary

hearing on that motion, both of Durrance’s coworkers who witnessed the incident

testified that Schad came to the real estate office and spoke with Durrance and that

the conversation deteriorated into a shouting match. One coworker, a police veteran

with more than 25 years of experience, eventually told Schad he needed to leave the

premises. Schad initially refused that request, but after a few minutes, he exited the

building and stood outside the door where he continued to yell at Durrance, telling

her, “You’ll hear from me.” According to both coworkers, Schad threatened Durrance

by telling her she might not have the proper permits for work done on her house and

indicating that, in his capacity as a county building inspector, he was going to check

on those permits.



                                          3
      Durrance gave similar testimony, stating that Schad appeared at her office on

June 28, shortly after she had spoken with Schad’s wife. The two began to argue, with

both parties raising their voices. Durrance testified that her coworker eventually came

over to ask Schad to leave because Schad is “a large man” and “he was leaning over

my desk [,] hovering” and “he was very intimidating and everybody in the office was

shaking and scared.” At one point, Schad threatened to “pull [the building] permits

on my house,” and indicated she might not be able to obtain permits in the future.

Schad also asked Durrance whether she was sure the swimming pool at her residence

was properly permitted. At that point, Durrance told Schad, “I’m done . . . I do know

some people here, too,” and also told Schad that he did not “belong in this position”

as a building inspector.

      After Schad left the real estate office, Durrance filed a report with the police

and Schad was eventually served with a warrant for trespass. Less than an hour after

the incident, Durrance was contacted by Shane Seeley, the Jasper County Director of

Planning and Zoning, who also served as Schad’s supervisor. According to both

Seeley and Durrance, Seeley visited Durrance at her office later that day in an effort

to defuse the situation and get the dispute “worked out.” During that conversation,



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Durrance made clear to Seeley that she thought Schad should lose his job. Seeley was

unaware, however, of any other effort Durrance may have made to get Schad fired.

      Schad testified and explained that on the day in question he received a call

from his wife asking why he had not completed the work at the Durrance residence.

Schad then went to Durrance’s office to discuss the situation, and the conversation

became “heated.” Schad acknowledged that he escalated the situation when he began

asking Durrance about her building permits, explaining, “I was being a smart ale[k].

I shouldn’t have said it.” According to Schad, Durrance responded by threatening

him, saying, “I got you. You sealed your doom. I’ll have your job. I know people in

this town, too.”

      When asked why he had filed the petition for the stalking TPO, Schad

responded “[t]he same reason why I got served a trespass warrant,” explaining that

he and Durrance did not need to be around one another. Schad then elaborated:

      Basically, I’m a man, she’s a woman. I am rather large. I’m loud. I coach
      football. . . . I’ve got a big bark. Basically, I would never even touch a
      woman or anything to hurt a woman. I did feel overbearing [during the
      incident]. I wouldn’t want anybody to do [what I did to Durrance] to my
      wife. I felt it was best that I just . . . have nothing to do with her. Me
      being a man and everything, you know, if something did happen and the
      police did show up, who are they going to look at?

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Schad further explained that Seeley had come back from his meeting with Durrance

and told him that Durrance was “going to put pressure on this department” to fire

Schad and that given Schad’s health problems, which included high blood pressure,

he just did not “need the stress.” Schad then explained “I got the TPO basically

thinking that she would just leave my job alone, leave me alone, and give it a couple

of weeks, she’d go on her way and I’d go on my way.”

      Schad also testified that after he filed his petition for the TPO, he continued to

experience stress over the situation because builders that he interacted with as part

of his employment continued to ask him about the incident. As a result of this stress,

and to avoid seeing Durrance (whose office building was located next door to Schad’s

county office), Schad quit his job. He then dismissed his petition against Durrance.

      After hearing this evidence, the trial court entered an order denying Durrance’s

motion for costs and attorney fees. Durrance now appeals from that order.

      1. Durrance asserts that the trial court erred in denying her motion for attorney

fees under OCGA § 16-5-94. That statute enables a trial court hearing a petition on

a stalking TPO to”grant a protective order or approve a consent agreement to bring

about a cessation of conduct constituting stalking.” OCGA § 16-5-94 (d). The statute



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further provides that any such order or consent agreement “may,” inter alia, “[a]ward

costs and attorney’s fees to either party . . . .” OCGA § 16-5-94 (d) (3).

      Under the plain language of the statute, the trial court has the discretion to

award costs and attorney fees only where the petition results in the entry of a court

order or a consent agreement designed to end the conduct constituting stalking. See

De Louis v. Sheppard, 277 Ga. App. 768, 771 (3) (627 SE2d 846) (2006). The statute

does not provide the trial court with the discretion to award costs and fees where no

such order or consent agreement is entered – i.e., where the court never rules on the

merits of the petition. See Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d

337) (2013) (we afford the language of a statute “its plain and ordinary meaning,” and

we read its text in the “most natural and reasonable way, as an ordinary speaker of the

English language would”); Arby’s Restaurant Group, Inc. v. McRae, 292 Ga. 243,

245 (1) (734 SE2d 55) (2012) (when applying a statute “we must presume that the

General Assembly meant what it said and said what it meant”) (citation omitted).

Given that the petition in this case was dismissed before any order was entered, the

trial court did not abuse its discretion in denying Durrance’s motion for attorney fees

under OCGA § 16-5-94 (d).



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       2. Durrance also contends that the trial court erred in denying her motion for

attorney fees under OCGA § 9-15-14 (a) and (b).

       (a) Under subsection (a) of OCGA § 9-15-14, “a trial court shall award

reasonable and necessary attorney fees and expenses of litigation when a party has

asserted a position that lacked any justiciable issue of law or fact such that it could

not reasonably be believed that the court would accept the claim in question.” Russell

v. Sparmer, 339 Ga. App. 207, 209 (1) (793 SE2d 501) (2016) (emphasis supplied).

See also OCGA § 9-15-14 (a). When reviewing the grant or denial of a motion

requesting costs and fees under OCGA § 9-15-14 (a), we will affirm the trial court’s

order if there is any evidence to support it. Southland Outdoors, Inc. v. Putnam

County, 265 Ga. App. 399, 401 (593 SE2d 940) (2004). This Court has made clear,

however, that “[w]here no evidence shows any factual merit in a party’s claim . . . a

trial court errs by not awarding attorney fees to the opposing party seeking them

under OCGA § 9-15-14 (a).” Omni Builders Risk v. Bennett, 325 Ga. App. 293, 297

(3) (750 SE2d 499) (2013). See also Southland Outdoors, 265 Ga. App. at 401.

Moreover, the fact that a plaintiff voluntarily dismisses his or her claim “does not

prevent an award under OCGA § 9-15-14 . . . .” Omni Builders, 325 Ga. App. at 297

(3).

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      Here, Schad swore out the petition for a TPO alleging that Durrance was

engaging in acts of stalking towards him, in violation of OCGA § 16-5-90 (a). That

statute provides, in relevant part,

      [a] person commits the offense of stalking when he or she 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. . . . For the purposes of this
      article, 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. This Code section shall not be
      construed to require that an overt threat of death or bodily injury has
      been made.


OCGA § 16-5-90 (a) (1).

      At the hearing on Durrance’s motion for attorney fees, Schad failed to come

forward with any evidence that Durrance had engaged in any conduct that constituted

stalking under OCGA § 16-5-90.1 Nor did Schad show any conduct by Durrance that

      1
        In his brief, Schad asserts that Durrance engaged in a harassing course of
conduct against him by “contact[ing] various builders [in the county], Schad’s wife,
his supervisor at work, the Jasper County Sheriff’s Department and other persons at
[Schad’s] job.” These assertions, however, find no support in the record. Specifically,

                                          9
put Schad in reasonable fear for his safety or the safety of his family. Instead, Schad

admitted that he was the person who had escalated the argument with Durrance and

that he was far more physically imposing than Durrance. Most importantly, Schad’s

testimony made clear that he did not file the petition for a TPO because he feared for

his safety or that of his family. Instead, according to Schad, he filed the petition

because Durrance had filed a police report and he feared that if he and Durrance had

another altercation in the future, the police would side with Durrance. Schad further

testified that he filed the petition because he wanted to make sure that Durrance did

not attempt to interfere with his employment at Jasper County. Given Schad’s

admissions and the other evidence showing that he had no basis for seeking a TPO

for stalking, the trial court erred in denying Durrance’s motion for attorney fees under

OCGA § 9-15-14 (a). See Omni Builders, 325 Ga. App. at 298 (3) (because the



there was no evidence that Durrance had contacted any builder who interacted with
Schad in his capacity as a county building inspector. Moreover, the evidence showed
that Durrance contacted Schad’s wife on one occasion, prior to the incident at issue,
to schedule the completion of work at the Durrance residence. Additionally, Durrance
contacted the Sheriff’s Department to report what she and her coworkers described
as Schad’s aggressive behavior, and she then left it to the police to determine what,
if anything, should be done about the conduct reported. The evidence also showed
that Schad’s supervisor contacted Durrance, not that Durrance contacted the
supervisor. Finally, there was no evidence that Durrance ever spoke with anyone else
at Schad’s place of work either about Schad in general or about the incident at issue.

                                          10
plaintiff failed to produce any evidence showing that her claim had any merit and

because plaintiff’s own testimony showed that her claim was without merit, “the trial

court erred when it denied [the defendant’s] motion for attorney fees incurred in

defending against that claim”); Southland Outdoors, 265 Ga. App. at 401 (reversing

denial of a motion for attorney fees under OCGA § 9-15-14 (a) where the opposing

party’s “position was without factual or legal support”); Brown v. Kinser, 218 Ga.

App. 385, 389 (2) (461 SE2d 564) (1995) (where “there exist[ed] no evidence giving

rise to factual merit in [the plaintiff’s] claim,” a trial court abused its discretion in

denying defendant’s motion for fees under OCGA § 9-15-14).

      (b) In light of our holding that Durrance is entitled to an award of costs and

fees under OCGA § 9-15-14 (a), we need not address her claim that the trial court

abused its discretion in denying her motion for fees under OCGA § 9-15-14 (b).

      For the reasons set forth above, we affirm the trial court’s denial of attorney

fees pursuant to OCGA § 16-5-94. We reverse the trial court’s order as to fees under

OCGA § 9-15-14 (a) and remand for further proceedings, including an evidentiary

hearing on the amount of reasonable fees incurred by Durrance in defending against

Schad’s petition. See Shiv Aban, Inc. v. Georgia Dep’t of Transp., 336 Ga. App. 804,

818 (2) (c) (784 SE2d 134) (2016) (“an award of attorney fees is to be determined

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upon evidence of the reasonable value of the professional services which underlie the

claim for . . . fees”) (citation and punctuation omitted); Omni Risk, 325 Ga. App. at

298 (3).

      Judgment affirmed in part and reversed in part. Ellington, P. J., and Bethel,

J., concur.




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