HARVEY v. MERCHAN ( 2021 )

In the Supreme Court of Georgia
Decided: June 21, 2021
S21A0143. HARVEY et al. v. MERCHAN.
PETERSON, Justice.
For a brief time period, OCGA § 9-3-33.1 allowed time-barred
civil claims for childhood sexual abuse to be revived. During that
time period, Joy Caroline Harvey Merchan sued her parents, Walter
Jackson Harvey, Jr., and Carole Allyn Hill Harvey, under the
revival provision of the statute for damages resulting from alleged
childhood sexual abuse that occurred decades prior to the filing of
the action, principally in Quebec, Canada. The Harveys filed a
motion to dismiss and a motion for summary judgment, arguing that
Merchan’s claims were time-barred and could not be revived under
OCGA § 9-3-33.1. Alternatively, the Harveys argued that the revival
provision of the Act violated Georgia’s constitutional ban on
retroactive laws and the due process and equal protection clauses of
the federal and state constitutions. The trial court largely denied the
Harveys’ motions, 1 and we granted interlocutory review to decide
whether Georgia or Quebec law applies to Merchan’s claims,
whether OCGA § 9-3-33.1 can revive a cause of action for acts that
did not occur in Georgia, and whether Georgia’s constitutional ban
on retroactive laws and the due process and equal protection clauses
of the federal and state constitutions would bar Merchan’s pursuit
of such a cause of action against her parents.
We conclude that Georgia substantive law applies to those
torts committed in this state, while Quebec substantive law applies
to the torts committed there. As for what statute of limitations
applies, Georgia’s limitations period applies to torts committed here,
but for torts committed in Quebec, the trial court must determine in
the first instance which limitations period is shorter, and the shorter
period will control. Merchan can pursue a cause of action for acts
that occurred in Quebec as well as Georgia, because OCGA § 9-3-
1 The trial court did grant the Harveys’ motion to dismiss Merchan’s
negligence claim, but that claim is not before us.
2
33.1’s definition of childhood sexual abuse is broad enough to cover
acts that occurred outside of Georgia. And such a result does not
violate Georgia’s constitutional ban on retroactive laws or the
Harveys’ due process or equal protection rights. Therefore, we affirm
the trial court’s judgment in part, vacate it in part, and remand the
case for the trial court to compare the respective limitations periods.
1. Factual and procedural history.
In June 2017, Joy Caroline Harvey Merchan filed suit against
her parents, Walter Jackson Harvey, Jr., and Carole Allyn Hill
Harvey, for damages resulting from sexual abuse that allegedly
occurred in Quebec and Georgia. Merchan, who is now in her mid-
40s, alleges that her parents sexually abused her frequently and
repeatedly from an early age until she turned 22 years old. In her
deposition, Merchan stated that after the family moved from Quebec
to Savannah when she was 15 years old, the physical abuse “died
down” and “seemed to not be as prevalent,” although her father
would still watch her take a shower and make comments about her
3
body.2 Merchan raised claims of negligence, sexual battery, assault,
and intentional infliction of emotional distress, and asserted that
her action was timely under OCGA § 9-3-33.1 (d) (1) (2015),3 which,
as discussed in more detail below, revived otherwise time-barred
claims for childhood sexual abuse.
The Harveys filed a motion to dismiss, arguing that Merchan’s
claims were time-barred and could not be revived by OCGA § 9-3-
2 The Harveys note that Merchan did not mention in her deposition a
single instance of sexual abuse that occurred in Georgia, and argue that, after
being deposed, Merchan amended her complaint (for the third time) to allege
that she was sexually abused until she was 22 years old, whereas she had
previously alleged that she was abused until she was 15 years old, her age
when the family moved to Georgia. The Harveys argue that under the self-
contradictory testimony rule announced in Prophecy Corp. v. Charles
Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), this Court should disregard
Merchan’s amended allegations because she provided no explanation for
contradicting her earlier deposition testimony. But the Prophecy rule applies
when a party offers contradictory testimony, and the allegations here are not
testimony or its equivalent. See CSX Transp., Inc. v. Belcher, 276 Ga. 522, 523
(1) (579 SE2d 737) (2003) (“The Prophecy rule applies only to self-
contradictions in a party’s sworn testimony. It does not apply to unsworn
statements[.]”). In any case, the record shows that, with one exception,
Merchan consistently alleged in her unverified complaints that she was abused
until she was 22 years old. She used this age in her initial complaint and first
amended complaint, which were filed before she was deposed in September
2018. Although Merchan’s second amended complaint, which was filed after
she was deposed, alleged that she was abused until she was 15 years old, she
later filed a third amended complaint changing the age back to 22.
3 For ease of reference, all references to the statute are to the 2015
version; that is the only version at issue in this case.
4
33.1 (d) (1), because her common-law tort claims did not meet the
definition of “childhood sexual abuse” as that term is used in OCGA
§ 9-3-33.1. Specifically, the Harveys argued that Merchan’s common
law tort claims were not among the criminal acts listed in the
definition of childhood sexual abuse and that some of the acts were
alleged to have occurred after Merchan turned 18 years old. The
Harveys also challenged the constitutionality of OCGA § 9-3-33.1 (d)
(1), arguing that it violated the due process and equal protection
clauses of the federal and state constitutions, as well as the Georgia
Constitution’s prohibition against retroactive laws. In conjunction
with their motion to dismiss, the Harveys moved for summary
judgment, asserting that, because Merchan alleged that the abuse
occurred in Canada, those actions could not be “violations” of
Georgia law and, thus, would not meet the definition of “childhood
sexual abuse.”
In orders entered on the same day, the trial court denied the
Harveys’ motion to dismiss (except for the motion to dismiss the
negligence claim) and denied their motion for summary judgment.
5
The trial court concluded that a civil action could be revived, even if
the alleged conduct occurred out-of-state, as long as a defendant met
the mens rea and actus rea elements required by one of the crimes
listed in OCGA § 9-3-33.1. The court concluded that some of the torts
alleged would constitute violations of the criminal statutes listed in
OCGA § 9-3-33.1 and, therefore, could be revived under the statute,
but concluded that the negligence claim should be dismissed because
negligent acts are not intentional and thus could not be in violation
of the criminal statutes listed in OCGA § 9-3-33.1 (a). The trial court
also rejected the Harveys’ constitutional claims. The court issued a
certificate of immediate review for the orders on the motions to
dismiss and for summary judgment, and we granted the Harveys’
application for interlocutory review. 4
2. Does Georgia or Canadian law apply to Merchan’s claims?
4 The trial court’s orders on the motions to dismiss and for summary
judgment were based entirely on an interpretation of OCGA § 9-3-33.1. The
Harveys’ main arguments on appeal relate to the proper interpretation of that
statute, raising only one argument specifically addressing the denial of
summary judgment. But that argument, which we address below in footnote
11, flows primarily from their reading of the statute.
6
Before addressing the Harveys’ constitutional challenges to
OCGA § 9-3-33.1, we must first decide whether that statute even
governs Merchan’s cause of action, as the acts underlying her
complaint occurred mostly in Canada. The statute would govern at
least some of Merchan’s causes of action.
In this case, Merchan alleged that she was sexually abused by
her parents in both Quebec and Georgia, creating a question about
what law applies to her cause of action. Under the well-established
rule of lex loci delicti, a tort action is generally governed by the
substantive law of the place where the tort was committed. See Auld
v. Forbes, 309 Ga. 893, 894 (2) (a) (848 SE2d 876) (2020); Bullard v.
MRA Holding, LLC, 292 Ga. 748, 750 (1) (740 SE2d 622) (2013).5
The place where a tort was committed is “the place where the injury
sustained was suffered rather than the place where the act was
committed,” or, in other words, “it is the place where the last event
5 There is a narrow exception to the lex loci delicti rule where
enforcement of non-Georgia law would violate the public policy of this State.
See Auld, 309 Ga. at 897 (2) (b). But no party has argued that this exception
applies in this case.
7
necessary to make an actor liable for an alleged tort takes place.”
Auld, 309 Ga. at 894 (2) (a) (citation omitted).
Although the rule of lex loci delicti governs the substantive law
of the alleged tort, procedural and remedial questions are governed
by the law of the state in which the action is brought. See id. at 895
(2) (a); Taylor v. Murray, 231 Ga. 852, 853 (204 SE2d 747) (1974).
Statutes of limitations are generally procedural in nature, and
therefore those of the forum state govern. See Taylor, 231 Ga. at 853(“In accordance with the fundamental principle of law that matters
pertaining to the remedy are governed by the law of the state or
country where suit is brought . . . it is well settled that the Statute
of Limitations of the country, or state, where the action is brought
and the remedy is sought to be enforced, controls, in the event of the
conflict of laws.” (citation and punctuation omitted)). The law of the
forum state thus generally determines the time within which a
cause of action may be pursued. See Auld, 309 Ga. at 895 (2) (a).
There is an exception to this general rule. “[W]hen the
applicable foreign law creates a cause of action that is not recognized
8
in the common law and includes a specific limitation period, that
limitation period is a substantive provision of the foreign law that
governs, and it applies when it is shorter than the period provided
for under Georgia law.” Id.
(a) Certain of Merchan’s causes of action are governed by
Georgia substantive law, while others are governed by
Quebec substantive law, depending on where the torts were
committed.
Merchan argues that Georgia substantive law applies to all of
her claims, even for alleged abuses that occurred in Quebec, because
she suffered ongoing injuries from those abuses and, therefore, the
torts were not complete until she was in Georgia. She argues that
we should apply the “continuing tort” theory to her cause of action
because she was subjected to continuous and repeated sexual abuse
on a weekly, if not daily, basis from birth until she left the family
home at the age of 22, and argues that she cannot be expected to
remember each and every individual act of abuse that occurred
during that time. Merchan acknowledges that no Georgia court has
applied the “continuing tort” theory to claims of childhood sexual
9
abuse, or any physical assault for that matter, but argues that we
should do so here because it would be consistent with our precedent
and advance judicial economy. She also argues that because Georgia
substantive law applies, Georgia’s statute of limitations period also
controls. We disagree, because every instance of alleged abuse
constituted a discrete tort, and the continuing tort doctrine does not
apply to situations in which each injury is known to the victim at
the time the wrong was inflicted.
As discussed above, to determine where a tort is committed, we
consider “the place where the last event necessary to make an actor
liable for an alleged tort takes place.” Auld, 309 Ga. at 894 (2) (a)
(citation omitted). An actor becomes liable when there is a breach of
a duty that proximately causes damage to the plaintiff. See OCGA
§§ 51-1-6 (an “injured party may recover for the breach of [a] legal
duty if he suffers damage thereby”), 51-1-8 (“The violation of a
private duty, accompanied by damage, shall give a right of action.”);
see also Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 805 (273
SE2d 16) (1980) (recognizing that Georgia’s rule ⸺ that both the
10
wrongful act and the damage must exist in order for there to be a
cause of action ⸺ is the rule of most jurisdictions). A cause of action
may accrue each time there is a breach of a legal duty that causes
damage. See City of Columbus v. Anglin, 120 Ga. 785, 791 (48 SE
318) (1904) (“The same legal right may be more than once violated,
and each violation may give rise to a new and distinct cause of
action.”); Wells Fargo Bank, N.A. v. Cook, 332 Ga. App. 834, 841 (1)
(a) (775 SE2d 199) (2015) (in breach of fiduciary duty case, “each
time a trustee makes an investment which the beneficiary alleges to
have constituted mismanagement, the trust is detrimentally
affected, and a cause of action accrues in favor of the beneficiary at
that point and the limitation period begins to run on that specific
claim”). For actions based on personal injury, a tort is complete when
an injury results from the wrongful act or omission. See Amu v.
Barnes, 283 Ga. 549, 551 (662 SE2d 113) (2008); see also Everhart
v. Rich’s, Inc., 229 Ga. 798, 801 (2) (194 SE2d 425) (1972) (“On a tort
claim for personal injury the statute of limitation generally begins
11
to run at the time damage caused by a tortious act occurs, at which
time the tort is complete.”).
Here, based on Merchan’s allegations , the Harveys committed
a tort each time they sexually abused Merchan, and those torts were
complete at the time of each abuse. See, e.g., Daniel v. American
Optical Corp., 251 Ga. 166, 168 (1)-(2) (304 SE2d 383) (1983) (action
based on injury to the person accrued when plaintiff suffered
physical injury); Doe v. Saint Joseph’s Catholic Church, 357 Ga.
App. 710, 713 (1) (b) (850 SE2d 267) (2020) (cause of action accrued
when plaintiff was allegedly molested by priest). Multiple causes of
action would arise from multiple instances of abuse against
Merchan. See City of Columbus, 120 Ga. at 791; Wells Fargo Bank,
332 Ga. App. at 841 (1) (a). But those multiple instances of abuse do
not mean, as Merchan argues, that the continuing tort theory
applies.
This Court first recognized the continuing tort theory in
Everhart and has limited its application to personal injury cases. See
Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (2) (368
12
SE2d 732) (1988). Everhart involved the failure to warn of the
existence of a hazard capable of producing injury, and we said that
the tort would be complete when the exposure produces an
ascertainable injury. See 229 Ga. at 802 (2). But the key question in
Everhart was how to determine the date of the injury for purposes
of running the statute of limitations when the injury resulted from
continued exposure to an unknown hazard, considering the
difficulty in ascertaining the date of injury in such situations
compared to torts involving an “injury [] occasioned by violent
external means,” where there is little difficulty determining the date
when the statute of limitations begins to run. Id. at 801-802 (2). We
concluded that in situations where “the continued exposure to the
hazard is occasioned by the continued failure of the tortfeasor to
warn the victim, . . . the statute of limitation[s] does not commence
to run under these circumstances until such time as the continued
tortious act producing injury is eliminated, e.g., by an appropriate
warning in respect to the hazard.” Id. at 802 (2).
13
As our analysis in Everhart makes clear, the continuing tort
theory applies only when the wrong and the injury are unknown to
the plaintiff. See id. (holding that the continuing tort theory applies
only to those “factual situations analogous to the situation” in
Everhart). Indeed, as we have previously remarked, “in a continuing
tort a cause of action accrues when a plaintiff discovers, or with
reasonable diligence should have discovered, both the injury and the
cause thereof.” Waters v. Rosenbloom, 268 Ga. 482, 483 (2) (490 SE2d
73) (1997). Here, the sexual abuse alleged by Merchan involves
injuries “occasioned by violent external means,” so there is no
difficulty in determining when the tort was complete ⸺ both the
wrong and the physical injury would have been apparent at the
time. The factual allegations here are not analogous to the situation
in Everhart, so the continuing tort theory does not apply. Therefore,
the substantive law of Quebec applies to those torts that were
completed there, and the substantive law of Georgia applies to torts
committed here.
14
(b) The trial court must determine what statute of limitations
period applies to Merchan’s claims.
Having established what substantive law applies, there
remains a question about whether the statute of limitations period
provided by OCGA § 9-3-33.1 (d) (1) applies to all of Merchan’s
claims. Because statutes of limitations are generally procedural in
nature, the laws of Georgia, as the forum state, would generally
control the time within which a cause of action may be pursued. See
Auld, 309 Ga. at 895 (2) (a).
But the exception to this general rule is implicated in this case.
In her brief here, Merchan notes that civil causes of action in Quebec
predicated on sexual abuse are governed by a civil code and are not
based on the common law. See Miller v. White, 702 A2d 392, 396 n.3
(Vt. 1997) (noting that Quebec follows civil law while the other
Canadian provinces follow common law). She also notes that, at the
time she filed her lawsuit in this case, Quebec’s civil code provided
a 30-year prescriptive period ⸺ similar to our statute of limitations
⸺ for cases involving injuries arising from sexual aggression, and
15
that the period began to run “from the date the victim becomes
aware that the injury suffered is attributable to that act.” 6
If what Merchan notes is true, Quebec’s prescriptive period
might control some of her claims. If foreign law creates a cause of
action not recognized in the common law and that law includes a
specific limitation period, that period is a substantive provision of
the foreign law and governs the claim if it is shorter than the period
provided by Georgia law. See Auld, 309 Ga. at 895 (2) (a). Merchan’s
claims are based on civil law, not common law, and it appears from
Merchan’s statements in her brief that the Quebec civil law that
would apply to Merchan’s claims includes a specific limitation
period. But it is not clear at this procedural stage whether Quebec’s
prescriptive period is shorter than Georgia’s and therefore controls
some of Merchan’s claims, because the parties did not litigate the
issue below.
6 Merchan submits that the applicable civil code has since been amended
to eliminate the prescriptive period, but acknowledges that if the Quebec civil
code applies to her claims, the former 30-year version of the code would control
instead of the current unlimited version.
16
(i) Although Merchan did not specifically plead her intention to
rely on Quebec law, she is not precluded from relying on that foreign
law.
Merchan concedes that she did not specifically plead her
intention to rely on the Quebec civil code, but argues that she may
amend her pleadings as a matter of course because no pretrial order
has been entered in the case. The Harveys counter that Merchan
waived the ability to rely on foreign law because she failed to give
timely notice of her intention to rely on said law.
Under OCGA § 9-11-43 (c), “[a] party who intends to raise an
issue concerning the law of another state or of a foreign country shall
give notice in his pleadings or other reasonable written notice.”
Under this statute, a party waives the ability to rely on foreign law
when the party fails to provide reasonable notice of its intent to rely
on foreign law. See, e.g., Kessington Partners, LLC v. Beal Bank
Nevada, 311 Ga. App. 196, 198 (2) (715 SE2d 491) (2011); Fortson v.
Fortson, 204 Ga. App. 827, 828 (1) (421 SE2d 106) (1992); Abruzzino
v. Farmers’ & Merchants’ Bank, 168 Ga. App. 639, 640 (1) (309 SE2d
911) (1983); see also Sun Life Assurance Co. of Can. v. Imperial
17
Premium Fin., LLC, 904 F3d 1197, 1208 (11th Cir. 2018) (under
Federal Rule of Civil Procedure 44.1, which contains language
similar to OCGA § 9-11-43 (c), “a party waives its opportunity to rely
on non-forum law where it fails to timely provide — typically in its
complaint or the first motion or response when choice-of-law matters
— the sources of non-forum law on which it seeks to rely”). Absent
adequate notice under OCGA § 9-11-43 (c), we presume that the
foreign law is the same as Georgia’s. See Abruzzino, 168 Ga. App. at
640 (1) (citing Glover v. Sink, 230 Ga. 81 (195 SE2d 443) (1973)). 7
Setting aside the question of whether Merchan gave reasonable
notice that Quebec law might apply merely by alleging that sexual
abuse occurred there, as neither party addresses that issue, the
Harveys have not established that Merchan cannot now amend her
pleadings to provide such notice. A plaintiff enjoys considerable
7 Even prior to the enactment of this statute as part of the Civil Practice
Act, see Ga. L. 1968, p. 1104, § 10, we held that when a party intended to rely
on the law of a foreign jurisdiction that was different than Georgia law, the
party had to submit such law into evidence; otherwise, courts could assume
that foreign law was the same as that of Georgia. See, e.g., Carter v. Graves,
206 Ga. 234, 236 (56 SE2d 917) (1949); Craven v. Bates, 96 Ga. 78, 80 (23 SE
202) (1895).
18
freedom in amending the complaint before the entry of a pre-trial
order, at which point the plaintiff must seek leave of the trial court
to amend the pleading. See OCGA § 9-11-15 (a) (“A party may amend
his pleading as a matter of course and without leave of court at any
time before the entry of a pretrial order.”); Smith v. Lockridge, 288
Ga. 180, 186 (4) (702 SE2d 858) (2010). There has been no pre-trial
order entered in this case, so Merchan is still free to amend her
pleadings to give notice of her intention to rely on the Quebec civil
code.
The fact that the trial court considered the Harveys’ motion for
summary judgment does not, by itself, prohibit Merchan from
amending. A plaintiff may not amend the complaint after losing at
the summary judgment stage because the plaintiff has a duty to
present her case in full in opposing the summary judgment motion
or run the risk of an adjudication against her. See Summer-Minter
& Assoc. v. Giordano, 231 Ga. 601, 605-606 (203 SE2d 173) (1973)
(concluding that plaintiffs could not amend their complaint after the
Court reversed the trial court’s denial of the defendant’s motion for
19
summary judgment); see also Smith, 288 Ga. at 186 (4) (“[P]laintiffs
who have lost on appeal from a summary judgment ruling are not
allowed to return to the trial court and amend the complaint to try
a new theory of recovery.” (citation and punctuation omitted));
McDaniel v. City of Griffin, 281 Ga. App. 350, 352 (1) (636 SE2d 62)
(2006) (“Because summary judgment is an adjudication on the
merits, once entered, a party is not free to amend its pleadings.”).
But here, the trial court denied summary judgment to the Harveys,
so Merchan would not be prohibited from amending her complaint
unless we concluded that the Harveys were entitled to summary
judgment, which we decline to do, as we discuss in footnote 11. See
Lafontaine v. Alexander, 343 Ga. App. 672, 676 (1) (808 SE2d 50)
(2017) (where no pretrial order had been entered in the case, the
plaintiffs had the right to amend their complaint after partial grant
of summary judgment to the defendants only to the extent the
amendment pertained to issues not already decided against them).
(ii) It is for the trial court to determine whether Quebec’s
prescriptive period is shorter than Georgia’s statute of limitations.
20
That Quebec’s civil code (and its attendant 30-year prescriptive
period) is implicated in this case merely raises the additional
question of whether that period is shorter than Georgia’s statute of
limitations. But this analysis must be done claim-by-claim, and is a
fact-specific determination for the trial court to make in the first
instance.
If abuse that occurred in Quebec would be barred by Quebec’s
prescriptive period, then those causes of action would have been
extinguished upon the expiration of the prescription period, and
former subsection (d) (1) of OCGA § 9-3-33.1 cannot revive those
causes of action. When a foreign statute creates a cause of action not
known to the common law that provides a shorter limitation period,
no action can be maintained in any jurisdiction, foreign or
domestic, after the expiration of such period, since the
limitation is, in such a case, a qualification or condition
upon the cause of action itself, imposed by the power
creating the right, and not only is action barred, but the
cause of action itself is extinguished, upon the expiration
of the limitation period.
Taylor v. Murray, 231 Ga. 852, 853 (204 SE2d 747) (1974)
(punctuation omitted). If claims based on the events that occurred
21
in Quebec would not be barred by Quebec’s prescriptive period, then
Georgia’s general two-year limitation period for personal injury
actions would apply, see OCGA § 9-3-33; and those claims
potentially could be revived by former subsection (d) (1), which
provided that:
For a period of two years following July 1, 2015, plaintiffs
of any age who were time barred from filing a civil action
for injuries resulting from childhood sexual abuse due to
the expiration of the statute of limitations in effect on
June 30, 2015, shall be permitted to file such actions
against the individual alleged to have committed such
abuse before July 1, 2017, thereby reviving those civil
actions which had lapsed or technically expired under the
law in effect on June 30, 2015.
OCGA § 9-3-33.1 (d) (1) (2015). 8
Because the parties did not litigate these issues below, and the
procedural posture of this case has limited the development of the
factual record, it is not presently known how Quebec’s limitations
8 Subsection (d) was repealed effective July 1, 2017. OCGA § 9-3-33.1 (d)
(3) (2015). For actions that accrued after June 30, 2015, a separate subsection
of OCGA § 9-3-33.1 applies. See OCGA § 9-3-33.1 (b) (2) (A) (governing actions
for childhood sexual abuse committed on or after July 1, 2015). This provision
is inapplicable because, based on Merchan’s allegations, the abuse occurred
well before July 1, 2015.
22
period would apply to any alleged abuse that occurred there. The
prescriptive period may have been suspended during the time
Merchan was a minor, and it is not clear when Quebec law would
consider Merchan as “becoming aware” of her injuries to trigger the
start of the 30-year prescriptive period. These questions are for the
trial court to resolve in the first instance.9
3. If OCGA § 9-3-33.1 (d) (1) would provide a shorter limitation
period than Quebec’s prescriptive period, the trial court did
not err in determining that the Georgia statute applies to acts
that occurred in Quebec.
9 To decide the issue, the trial court may conduct an evidentiary hearing
or rule on a motion for summary judgment supported by the factual record, in
which case all inferences would be drawn in the non-movant’s favor. But even
if the Harveys were not to prevail on their statute of limitations defense at
such a stage, nothing would preclude a jury from revisiting this issue. If,
however, the Harveys prevailed, those causes of action would be dismissed. See
Jenkins v. State, 278 Ga. 598, 604-605 (1) (B) (604 SE2d 789) (2004) (outlining
that a pre-trial hearing is proper procedure in criminal cases, and concluding
that “[i]f a defendant prevails on a pre[-]trial plea in bar on the statute of
limitations, the charge should be dismissed; if the State prevails on this issue
before trial, the defendant may still require the State to prove at trial that the
charge is not barred by the statute of limitations.” (footnotes omitted)); see also
Curlee v. Mock Enterprises, Inc., 173 Ga. App. 594, 596 (2) (327 SE2d 736)
(1985) (whether a cause of action is barred by the statute of limitations is a
mixed question of law and fact, and “[w]here the facts are in doubt or dispute,
this question is one of fact to be determined by the trier of fact, but where the
facts are not disputed, the question of whether the case is within the bar of the
statute is one of law for the court” (citing Morris v. Johnstone, 172 Ga. 598, 605
(158 SE 308) (1931)).
23
The Harveys argue that the trial court misread OCGA § 9-3-
33.1 (d) (1) to apply it to acts that allegedly occurred in Quebec. The
Harveys argue that the trial court erred by focusing on the mens rea
and actus rea elements of the torts rather than on the plain
language of the revival statute, which, they argue, shows that acts
that occurred outside of Georgia do not fall within the definition of
childhood sexual abuse as that term is used in the statute. We agree
with the Harveys that the trial court’s analysis was wrong, but we
disagree with their reading of the statute.
As applied to former subsection (d) (1), “childhood sexual
abuse” was defined as “any act committed by the defendant against
the plaintiff which act occurred when the plaintiff was under 18
years of age and which act would be in violation of” several
enumerated crimes as prohibited by Georgia statutes, including
rape, child molestation, incest, sexual battery, and aggravated
sexual battery. See OCGA § 9-3-33.1 (a) (1), (2). 10 The Harveys argue
10 To the extent OCGA § 9-3-33.1 (d) (1) applies to Merchan’s claims, that
24
that only acts that were committed in Georgia would be in violation
of Georgia statutes, so acts committed in Quebec do not fall within
the meaning of childhood sexual abuse for purposes of former
subsection (d) (1).
When determining the meaning of a statute, we consider the
text of the statute itself, because “[a] statute draws its meaning from
its text.” City of Marietta v. Summerour, 302 Ga. 645, 649 (2) (807
SE2d 324) (2017) (citation and punctuation omitted). In construing
a statute, the text must be given its “plain and ordinary meaning”
according to “the context in which it appears,” and reading it “in its
most natural and reasonable way, as an ordinary speaker of the
English language would.” Deal v. Coleman, 294 Ga. 170, 172-173 (1)
(a) (751 SE2d 337) (2013) (citations and punctuation omitted).
The most natural and reasonable reading of the statutory
definition of childhood sexual abuse is broad enough to cover acts
subsection revives only claims of childhood sexual abuse, so any acts that
occurred after Merchan turned 18 years of age are time-barred and cannot be
revived.
25
that occurred outside of Georgia. The definition covers acts
committed against the victim (1) when the victim was less than 18
years old and (2) “which would be in violation of” an enumerated
statute. By using the phrase “would be,” the legislature did not
require that the acts were a violation of Georgia law at the time they
occurred, which is how the Harveys read the statute. Instead, the
“would be” language requires an assessment of past actions under
the present set of circumstances, in this case whether those past acts
would violate Georgia law. Implicit in this assessment is the
assumption that the acts would be a violation of Georgia law if they
occurred in Georgia. Moreover, nothing in the definition of childhood
sexual abuse limits the statute’s reach to crimes committed in
Georgia.
The Harveys argue that the legislature’s 2015 amendment to
the definition of “childhood sexual abuse” in which the language
“proscribed by” was replaced with “in violation of” reflects the
application of former subsection (d) (1) only to acts that were
committed in Georgia and that would actually violate Georgia
26
statutes. The Harveys rely on the Black’s Law Dictionary definitions
of “violation” (“an infraction or breach of the law”) and “proscribe”
(“to outlaw or prohibit”), to argue that it is one thing “to describe
acts as being prohibited by a criminal statute; it is another for those
acts to actually be breaches of the statute.” See Black’s Law
Dictionary (11th ed. 2019) (also defining “violation” as “[t]he act of
breaking or dishonoring the law; the contravention of a right or
duty”).
It is true that “changes in statutory language generally
indicate an intent to change the meaning of the statute.” Jones v.
Peach Trader Inc., 302 Ga. 504, 514 (III) (807 SE2d 840) (2017)
(citation and punctuation omitted). But that general rule has no
application here, where the cited amendment to the definitional
subsection was merely a reorganization to make that subsection
more readable and to set out more clearly what criminal statutes
were relevant to determining what constituted childhood sexual
abuse. See Ga. L. 2015, p. 689, § 2. The distinction between
“proscribed by” and “in violation of” is immaterial in this context, as
27
the phrase “proscribed by” does not contain an expansive territorial
scope missing from “in violation of”; neither phrase speaks to a
territorial reach.
The Harveys also make a passing reference to statements in
Auld that Georgia statutes are presumed to have no extraterritorial
application. See Auld, 309 Ga. at 897 (2) (b). In Auld, this Court
relied in part on Selma, Rome & Dalton R. Co. v. Lacy, 43 Ga. 461(1871), and described Selma as holding that “Georgia courts could
not administer Georgia’s wrongful death statute to [a] claim arising
from [a] death that occurred in Alabama.” Auld, 309 Ga. at 897 (2)
(b). But the wrongful death statute at issue in Selma governed
substantive, not procedural, rights. The Selma court declined to
recognize a cause of action for acts occurring in Alabama when the
common law did not allow a wife to recover damages from the
wrongful death of her husband, Georgia allowed such a claim only
by virtue of a statute, and the wife did not show that Alabama law
contained a similar provision. See Selma, 43 Ga. at 462-463. In other
words, the Selma court would not create a cause of action for an act
28
occurring extraterritorially when the plaintiff failed to show that the
foreign jurisdiction itself would recognize the claim pursued by the
plaintiff. See id. at 463 (“If it had been affirmatively shown that the
law of the foreign jurisdiction in which the injury was done, was
similar to that of our own as to the alleged cause of action, then it
would have presented a different question.”).
The statute at issue here is unlike the statute in Selma.
Applying OCGA § 9-3-33.1 to acts that occurred in Quebec would not
create a substantive cause of action unrecognized under Quebec law,
at least as represented to us thus far. Instead, former subsection (d)
(1) is simply a procedural rule governing the limitations period for
causes of action based on childhood sexual abuse already recognized
under the law. Consequently, construing “childhood sexual abuse”
to encompass acts that occur outside of Georgia’s borders does not
run afoul of the rule enunciated in Selma. 11 But consistent with what
11Because we reject the defendants’ argument that OCGA § 9-3-33.1 (d)
(1) applies only to acts that occurred in Georgia, there is no merit to the
defendants’ argument that they are entitled to summary judgment based on
Merchan’s purported admission that all of the tortious acts occurred in Quebec.
29
we said above about the limitations period, if Quebec law provides a
shorter limitations period that expired prior to June 30, 2015,
former subsection (d) (1) cannot revive those claims, because the
cause of action would have been permanently extinguished by the
expiration of the Quebec limitations period.
4. The Harveys’ constitutional challenges to OCGA § 9-3-33.1
(d) (1) fail.
The Harveys argue that by reviving all claims that had expired
prior to enactment of the statute, former subsection (d) (1) violates
both the Georgia Constitution’s prohibition against ex post facto
laws and their due process rights under the federal and state
constitutions. The Harveys also argue that former subsection (d) (1)
violates their equal protection rights under the federal and state
constitutions. We disagree.
In any case, the defendants rely on Merchan’s deposition to argue that she
admitted that all abuse ended when the family moved to Georgia when she was
15 years old. But in the cited portions of her deposition, Merchan merely said
that certain conduct stopped in Georgia and that “the more physical things
died down” and were not “as prevalent”; she did not say that the physical abuse
ended altogether.
30
(a) The revival of claims provided by OCGA § 9-3-33.1 (d) (1)
does not violate the Georgia Constitution’s prohibition
against retroactive laws.
The Harveys concede that our precedent forecloses their
argument that former subsection (d) (1) violates Georgia’s
constitutional prohibition against retroactive laws. See Ga. Const.
of 1983, Art. I, Sec. I, Par. X (“No bill of attainder, ex post facto law,
retroactive law, or laws impairing the obligation of contract or
making irrevocable grant of special privileges or immunities shall
be passed.”). As explained above, statutes of limitations are
generally procedural rules (rather than substantive ones). See, e.g.,
Auld, 309 Ga. at 895 (2) (a); see also Polito v. Holland, 258 Ga. 54,
55 (3) (365 SE2d 273) (1988) (“Procedural law is that law which
prescribes the methods of enforcement of rights, duties, and
obligations.”). “Ordinarily, there is no constitutional impediment to
giving retroactive effect to statutes that govern only procedure of the
courts.” Hunter v. Johnson, 259 Ga. 21, 22 (2) (376 SE2d 371) (1989).
And we have specifically held that enacting a new limitation period
that revives civil claims barred by a previous limitation period does
31
not violate Georgia’s constitutional prohibition against retroactive
laws. See, e.g., Vaughn v. Vulcan Materials Co., 266 Ga. 163, 164 (1)
(465 SE2d 661) (1996); Canton Textile Mills, Inc. v. Lathem, 253 Ga.
102, 105 (1) (317 SE2d 189) (1984). In Canton, we expressly adopted
the reasoning of United States Supreme Court cases providing that
statutes of limitations are subject to “‘a relatively large degree of
legislative control,’” the legislature’s choices in this respect reflect
public policy considerations, and the protection afforded by such
statutes have “‘never been regarded’” as a “‘fundamental right.’”
Canton, 253 Ga. at 105 (1) (quoting Chase Securities Corp. v.
Donaldson, 325 U.S. 304, 314 (65 SCt 1137, 89 LE 1628) (1945);
citing Campbell v. Holt, 115 U.S. 620 (6 SCt 209, 29 LE 483) (1885)).
The Harveys argue that we should overrule that precedent
because it is in conflict with the law of other states that have
concluded that revival legislation was constitutionally invalid,
including under provisions of other state constitutions that prohibit
retroactive legislation. Specifically, the Harveys cite an opinion from
a federal district court holding that a Kansas revival statute was
32
unconstitutional because it interfered with vested rights of the
defendant and, thus, violated due process. 12 See Waller v. Pittsburgh
Corning Corp., 742 FSupp. 581, 583-584 (D. Kan. 1990). But Waller
noted that many courts, including Georgia’s, have concluded that
state revival legislation does not offend due process. See id. at 584
(citing Canton Textile Mills). In providing a survey of jurisdictions,
the Waller court did not expound on whether states like Georgia
were right or whether the contrary view was correct, but merely
applied Kansas constitutional law to the question at issue. See id.Like the court in Waller, the Harveys simply point to case law that
12 The Harveys’ due process argument also relies on Stogner v.
California, 539 U.S. 607 (123 SCt 2446, 156 LE2d 544) (2003), where the
United States Supreme Court struck down a state statute that authorized
certain criminal prosecutions after the previous limitations period had expired.
Stogner concluded that the statute violated the Ex Post Facto Clause of the
United States Constitution. See 559 U.S. at 621. Stogner’s analysis does not
apply here, because it is well-established that the Ex Post Facto Clause of the
United States Constitution applies only to criminal laws that retroactively
impose or increase criminal punishment. See California Dept. of Corrections v.
Morales, 514 U.S. 499, 504 (115 SCt 1597, 131 LE2d 588) (1995) (“[T]he Clause
is aimed at laws that retroactively alter the definition of crimes or increase the
punishment for criminal acts.” (citation and punctuation omitted)); Harisiades
v. Shaughnessy, 342 U.S. 580, 594 (72 SCt 512, 96 LE 586) (1952) (“It always
has been considered that that which [the Ex Post Facto Clause] forbids is penal
legislation which imposes or increases criminal punishment for conduct lawful
previous to its enactment.”).
33
differs from Georgia’s without explaining whether our case law is
wrong. The mere fact that other states have construed their state
laws differently is insufficient reason to reconsider our own
precedent. See Elliott v. State, 305 Ga. 179, 195-209 (III) (B) – (C)
(824 SE2d 265) (2019) (adhering to our construction of Georgia’s
constitutional self-incrimination provision, even though it was
broader in scope the many other jurisdictions because there was no
showing that the construction was wrong).
(b) OCGA § 9-3-33.1 does not violate the Harveys’ equal
protection rights under either the United States or Georgia
Constitutions.
We also reject the Harveys’ argument that OCGA § 9-3-33.1
violates the equal protection clauses of the United States and
Georgia Constitutions. 13
13 The trial court did not distinguish between the state and federal
Constitutions in analyzing the Harveys’ equal protection claims, and we have
occasionally said, without any analysis, that the equal protection clauses of the
federal and Georgia Constitutions are “coextensive.” See, e.g., Harper v. State,
292 Ga. 557, 560 (1) (738 SE2d 584) (2013); Grissom v. Gleason, 262 Ga. 374,
376 (2) (418 SE2d 27) (1992). Of course, the United States Supreme Court’s
construction of a federal constitutional provision does not bind our construction
of a similar Georgia constitutional provision, which must be construed
independently in the light of the Georgia provision’s text, context, and history.
34
In analyzing an equal protection challenge, the first step is
deciding what level of scrutiny to apply to the statute. “If neither a
suspect class nor a fundamental right is implicated, the most lenient
level of judicial review — ‘rational basis’ — applies.” Harper v. State,
292 Ga. 557, 560 (1) (738 SE2d 584) (2013) (citation omitted). The
Harveys are not in a suspect class, but they argue that their
fundamental right to due process was infringed by the statute
because it impaired their vested right of defense. The Harveys again
rely on Waller for this point, but as we concluded above, Waller does
not control Georgia law. Georgia law is clear that a defendant has
no vested right in a statute of limitations period. OCGA § 9-3-33.1
(d) (1) therefore does not implicate a fundamental right, and we
therefore apply the rational basis test.
See Elliott, 305 Ga. at 187-189 (II) (C). But neither party makes an argument
that the equal protection clause under Georgia’s Constitution should be
construed differently than the parallel provision in the United States
Constitution. Therefore, we decline to consider in this case whether the state
provision should be considered any differently than the federal provision.
35
Under that test, the Harveys bear the burden of establishing
that they are treated differently than “similarly situated”
individuals and that “there is no rational basis for such different
treatment.” Harper, 292 Ga. at 560 (1). Under federal rational basis
review, a state “has no obligation to produce evidence to sustain the
rationality of a statutory classification.” Heller v. Doe, 509 U.S. 312,
320 (113 SCt 2637, 125 LE2d 257) (1993). And because statutes are
presumed to be constitutional, the party challenging the law must
negate every conceivable basis that might support it. See id. at 320-
321. The Harveys have not carried their burden in showing that the
statute violates equal protection.
The Harveys argue that OCGA § 9-3-33.1 treats defendants
alleged to have committed acts of childhood sexual abuse differently
depending on when the offense occurred. The Harveys argue that
they are afforded less protections than certain defendants who are
sued in actions governed by subsection (b) (2), which applies to
childhood sexual abuse acts that occurred on or after July 1, 2015.
Former subsection (d) (1) and subsection (b) (2) appear to treat
36
plaintiffs, not defendants, differently, by imposing some evidentiary
burdens on certain plaintiffs who sue under subsection (b) (2).14
Even if the different treatment of plaintiffs means that
similarly situated defendants also are treated differently, the
Harveys fail to “negate every conceivable basis that might support”
the different treatment. The trial court noted that there were
several conceivable and rational explanations for the different
treatment, including that the General Assembly chose to allow older
claims to be revived because the wide-spread and long-term damage
from childhood sexual abuse had not historically been understood,
and that, by imposing certain evidentiary burdens for claims
accruing on or after July 1, 2015, the General Assembly was putting
victims and victim advocates on notice of the need for such evidence
in order to pursue their claims while acknowledging that the same
14For acts that occurred on or after July 1, 2015, a plaintiff must file suit
before the plaintiff turns 23 years old, or “[w]ithin two years from the date that
the plaintiff knew or had reason to know of such abuse and that such abuse
resulted in injury to the plaintiff as established by competent medical or
psychological evidence,” and a trial court must hold a pretrial hearing to
determine when the plaintiff discovered the alleged sexual abuse. OCGA § 9-
3-33.1 (b) (2) (A), (B). Subsection (b) (2) does not impose any requirements on
a defendant.
37
type of evidence is unlikely to be available for claims accruing before
July 1, 2015. The Harveys do not rebut these reasonable
explanations and instead say on appeal that such explanations do
not survive strict scrutiny analysis. But strict scrutiny review does
not apply here, and the Harveys’ equal protection claim fails.
Judgment affirmed in part and vacated in part, and case
remanded with direction. All the Justices concur.
38