HARVEY v. MERCHAN

860 S.E.2d 561, 311 Ga. 811

• Court: Supreme Court of Georgia
• Decided: June 21, 2021
• Docket: S21A0143
• Status: Published

Opinion

311 Ga. 811 FINAL COPY

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-

33.1’s definition of childhood sexual abuse is broad enough to cover

1 The trial court did grant the Harveys’ motion to dismiss Merchan’s

negligence claim, but that claim is not before us. 2 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 Quebec 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 and punctuation 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 Auld, 309

Ga. 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 id. 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.” Auld, 309 Ga. at 895 (2) (a).

(a) Certain of Merchan’s courses 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 and punctuation 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

10 ⸺ that both the 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 (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

13 eliminated, e.g., by an appropriate warning in respect

to the hazard.

Id. at 802 (2).

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,

14 the substantive law of Quebec applies to those torts that were

completed there, and the substantive law of Georgia applies to torts

committed here.

(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

15 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

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

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 prescriptive period is shorter than Georgia’s and therefore controls

some of Merchan’s claims, because the parties did not litigate the

issue below.

(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.

17 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 Assur. Co. of Canada v. Imperial

Premium Finance, 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

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, Kingsbery & Co., 96 Ga. 78, 80 (23 SE 202) (1895). 18 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

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

19 & 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

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

20 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.

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 paragraph (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

21 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) (citation

and punctuation omitted). If claims based on the events that

occurred 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 paragraph (d) (1),

which provided:

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

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

22 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

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

is inapplicable because, based on Merchan’s allegations, the abuse occurred well before July 1, 2015. 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 (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

23 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.

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 paragraph (d) (1), “childhood sexual

abuse” was defined as “any act committed by the defendant against

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)).

24 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

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

paragraph (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

10 To the extent OCGA § 9-3-33.1 (d) (1) applies to Merchan’s claims, that paragraph 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 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

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.

26 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 paragraph (d) (1) only to acts that were

committed in Georgia and that would actually violate Georgia

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

27 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

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 and 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

28 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

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 paragraph (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”

29 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

we said above about the limitations period, if Quebec law provides a

shorter limitations period that expired prior to June 30, 2015,

former paragraph (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 paragraph (d) (1) violates

both the Georgia Constitution’s prohibition against ex post facto

laws and their due process rights under the federal and state

11 Because 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. 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 constitutions. The Harveys also argue that former paragraph (d) (1)

violates their equal protection rights under the federal and state

constitutions. We disagree.

(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 paragraph (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

31 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

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)).

32 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

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

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 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

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 than 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

Constitution.

34 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

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

of Ga., 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

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 of Ga., 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. 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 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.

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) (citation omitted). 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.

36 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 paragraph (b) (2), which applies to

childhood sexual abuse acts that occurred on or after July 1, 2015.

Former paragraphs (d) (1) and (b) (2) appear to treat plaintiffs, not

defendants, differently, by imposing some evidentiary burdens on

certain plaintiffs who sue under paragraph (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

14 For 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). Paragraph (b) (2) does not impose any requirements on a defendant. 37 treatment, including that the General Assembly chose to allow older

claims to be revived because the widespread 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

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 Decided June 21, 2021.

OCGA § 9-3-33.1; constitutional question. Carroll

Superior Court. Before Judge Hamrick.

Candace E. Rader; Shadrix Lane & Parmer, Met M.

Lane, for appellants.

Esther D. F. Panitch; Wilbanks Cease Clinic, Brian J.

Atkinson, Emily M. Hetherington, Devin L. Mashman, for appellee.

Paul E. Weathington; Lyle G. Warshauer; Penn Law,

Darren W. Penn, Kevin M. Ketner; Kazmarek Mowrey Cloud

Laseter, Jacqueline O. Eisermann, Richard A. Horder, amici curiae.