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Somerville v. White

The trial court erred in awarding civil damages on the defendant's counterclaim for violation of O.C.G.A. § 16-11-90, which criminalizes the transmission of photography or video depicting nudity or sexually explicit conduct of an adult without his or her consent, because that statute does not expressly provide for a private right of action.

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Marcus Somerville, who successfully sued Wanda White for breach of contract, appeals the trial court’s judgment in White’s favor as to one of her counterclaims, which sought damages for a violation of Georgia penal laws. Specifically, the trial court awarded $500 in compensatory damages and $15,000 in punitive damages to White because it found that Somerville violated OCGA § 16-11-90, a statute that criminalizes the transmission of photography or video depicting nudity or sexually explicit conduct of an adult without his or her consent. On appeal, Somerville argues that the trial court erred by entering a judgment and awarding compensatory damages for the alleged violation of a criminal statute that does not provide for a private right of action, and that, under such circumstances, the trial court’s award of punitive damages as to that counterclaim was likewise unauthorized. For the reasons set forth infra, we affirm in part and reverse in part.

Although the factual circumstances underlying this case are immaterial to the purely legal issue we must resolve, a summary of the relationship between the parties is useful to provide context for the judgment being appealed.1 Somerville and White were involved in a romantic relationship during 2012 and 2013, and after the couple ended that relationship, they remained friends. In April 2014, Somerville agreed to loan White $3,000 to help her purchase a car, and without a written agreement, he wrote a check to her for that amount. But according to White, on June 15, 2014, Somerville began a pattern of harassing and threatening behavior toward her when demanding repayment of the loan.

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