Allison v. Wilson
Allison v. Wilson
Opinion of the Court
This appeal arises from a contempt order issued after appellant Sharon Allison and her attorneys failed to pay attorney fees awarded for alleged discovery violations. That discovery focused on locating and serving Allison’s co-defendant Darnell A. Sandifer, Jr. Based on an exhaustive review of the record, including the transcripts from numerous hearings that spanned over the course of 15 months, we find that the trial court erred in awarding fees under OCGA § 9-11-37 (a) (4) (A) because the trial court erroneously believed that it had issued a prior order compelling Allison and her counsel to provide that information. Because the contempt order striking Allison’s answer was based on the erroneous fee award, the contempt order must also be reversed and vacated.
On October 30, 2008, appellee Phillippa Wilson was allegedly injured when her vehicle was struck from behind by a vehicle Sandifer was driving. The car was owned by Allison, who is Sandifer’s aunt, and Wilson filed a personal injury suit against both Sandifer and Allison
Although not transcribed, it appears that this hearing was held on October 21, 2010. On October 27, 2010, the trial court granted Wilson’s request to serve Sandifer outside the statute of limitation, finding that Wilson had exercised due diligence in attempting to locate and serve Sandifer. Further, the court held: “In the event that the location of Darnell Sandifer is not provided to Plaintiff through standard discovery measures, this Court will entertain a Motion to Compel on this issue and will consider awarding attorneys fees, expenses, and other sanctions as are appropriate.”
On November 16, 2010, Allison filed responses to Wilson’s first continuing interrogatories. Allison stated that to the best of her “recollection,” Sandifer’s last known address was on Washington Road in Atlanta, but that she did not know the specifics. Allison also stated that she believed Sandifer was attempting to gain employment through an Atlanta Job Corps program on West Lake Avenue in Atlanta, and specifically referenced her prior deposition testimony to that effect. Allison stated that she had last seen Sandifer at McDonald’s office, but that the details of that conversation were protected by
On December 6, 2010, Wilson filed a motion to compel, enter judgment, and for sanctions based on her unsuccessful attempts to obtain an acknowledgment of service from Allison, and her unsuccessful attempts to locate and serve Sandifer.
A few days later, Allison signed an acknowledgment of service and filed a response to Wilson’s motion to compel, asserting, among other things, that she had answered all deposition and interrogatory questions truthfully.
The trial court held a hearing on Wilson’s motion on February 1, 2011. On the question of service on Sandifer,
The court then turned to the issue of sanctions. Defendants’ counsel informed the court that Sandifer had been served in two other cases that were pending as a result of the accident, but that Wilson’s counsel had not attempted to “simply look to see where he was served in those cases.” Defendants’ counsel pointed out that it was Wilson’s burden to serve Sandifer and that Sandifer had not authorized his counsel to disclose his address. The trial judge again expressed her understanding, but did not reconsider her finding, and announced that Wilson was entitled to attorney fees for bringing the motion. In response to defense counsel’s inquiries concerning the statutory basis for an attorney fee award, the court stated that the award was based on contempt for a wilful violation of her prior order.
The court entered a written order on February 8, 2011 in which it found that (1) Allison had been properly served and that all service defenses asserted by Allison were stricken; (2) Sandifer had been evading service despite Wilson’s due diligence in attempting to serve him and that, therefore, he could be served by publication; and (3) defendants and/or their counsel had wilfully violated the October 27, 2010 order and were in contempt of court, entitling Wilson to an award of attorney fees and expenses to be determined at a later hearing.
Another hearing was held on March 22, 2011. The court opened the hearing by referencing the February 8 order, reiterating that either Allison or her counsel had wilfully violated the October 27 order, which required them to respond in good faith to discovery requests designed to ascertain Sandifer’s whereabouts so he could be
Defendants’ counsel argued that Allison had cooperated fully by responding to interrogatories and having her deposition taken and thus fees were not authorized under OCGA § 9-11-37 (a) for a discovery violation. The court then questioned whether Allison had responded honestly and fully in her interrogatories, and a lengthy exchange between the parties’ attorneys and the court ensued, with both sides making numerous references to Allison’s interrogatory responses and deposition testimony in their attempts to establish her credibility or lack thereof. In particular, defendants’ counsel pointed out that since the last hearing Sandifer had in fact been served at Atlanta Job Corps on West Lake Avenue, and that Allison had provided a partial address for that location in her deposition and interrogatory responses. The trial court, however, was not persuaded that this information demonstrated Allison had been forthcoming in her responses, noting that Allison had not provided an exact street address.
After more back and forth about Allison’s deposition and interrogatory responses and Wilson’s attempts to serve Sandifer, the court finally opined that
the credibility is raised for the reason that I stated: The responses to the two sets of interrogatories and the deposition testimony coupled with the representation. That’s where I found that it wasn’t credible. ... So I said there’s been a willful violation of my order that says that they are to respond to discovery measures ....
The court continued that “[w]hen we came the last time and I heard all this about these evasive noncommittal discovery answers, discovery answers that clearly would not allow him service, ... I said I believe that the motion to compel should be granted and I granted it----That’s ... where we are.” The court also indicated that since the motion had been granted, Wilson was entitled to attorney fees incurred in bringing the motion under OCGA § 9-11-37.
On April 1, 2011, the trial court entered an order granting attorney fees and expenses pursuant to OCGA § 9-11-37 (a) (4) (A) (rather than for contempt as stated at the February 1, 2011 hearing
[defendants’ counsel permitted and condoned discovery abuses and violated this Court’s rulings by not disclosing... information known to . . . Allison and defense counsel regarding . . . Sandifer’s whereabouts despite . . . Sandifer physically meeting with defense counsel and . . . Allison in defense counsel’s office prior to the hearing on Plaintiff’s Motion to Compel and yet, Defendant Allison continued to refuse to identify Defendant Sandifer’s whereabouts in response to Plaintiff’s discovery.
The court noted in a footnote that Allison’s “counsel unnecessarily expanded the proceedings by failing to acknowledge service . . . despite agreeing to do so in open court,” and that while she was not awarding attorney fees on this basis, she had taken those actions into consideration in determining whether they acted wilfully and in bad faith with respect to the service issue. The Court then ordered Allison and her counsel (hereinafter referred to collectively as appellants) to pay attorney fees and expenses of approximately $15,000 to plaintiffs’ lawyers.
Appellants requested a certificate of immediate review, which the trial court denied. Appellants then filed a motion for reconsideration of the orders entered on October 27, 2010, February 8, 2011 and April 1, 2011. The trial court did not rule on this motion, and on July 8, 2011, Wilson filed a motion for contempt, to strike Allison’s answer, enter default judgment and award attorney fees based on appellants’ failure to pay the fees and expenses awarded by the court in the April 1 order.
On January 5, 2012, the court held a hearing on Wilson’s motion for contempt and defendants’ motion to transfer. The court denied the motion to transfer and found appellants in contempt for having failed to pay the attorney fees awarded in the April 1, 2011 order. Further,
Appellants filed their notice of appeal to this Court the next day, specifically seeking appellate review of the contempt order and denial of the motion to transfer, which were entered on January 5, 2012, as well as the October 27, 2010 order granting Wilson’s motion to serve Sandifer beyond the statute of limitation, the February 8, 2011 order granting Wilson’s motion for sanctions, and the April 1, 2011 order granting Wilson’s request for attorney fees and expenses.
1. As an initial matter, Wilson contends that we do not have jurisdiction to consider the orders that were entered prior to January 5, 2012, because those orders were not appealed within 30 days of entry as required by OCGA § 5-6-38 (a). But
[w]here an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere. . . .
OCGA § 5-6-34 (d).
OCGA § 5-6-34 (a) (2) expressly authorizes a direct appeal from an order of contempt, and thus, pursuant to OCGA § 5-6-34 (d), we have jurisdiction to consider the prior orders specified in the notice of appeal.
2. We now turn to appellants’ arguments. In their first two enumerations of error, appellants challenge the trial court’s finding that Sandifer was evading service and that, therefore, Wilson could serve him by publication (February 8, 2011 order). But Sandifer was in fact personally served; thus, the trial court’s decision to allow him to be served by publication has been rendered moot. Further, Sandifer is not a party to this appeal, and the trial court’s determination that he was evading service does not appear to be properly before us.
3. Appellants next contend that the trial court abused its discretion by finding that Wilson exercised due diligence in attempting to locate and serve Sandifer (October 27, 2010 order). As stated above,
4. Appellants next contend that the trial court’s failure to recite a statutory basis for an award of attorney fees and sanctions in the October 27 order violated their procedural due process rights. However, that order merely stated that the court would entertain a motion to compel and consider awarding fees and expenses in the event Sandifer’s location was not disclosed through standard discovery procedures. We fail to see how the failure to recite a specific statutory basis for this contingent award of attorney fees violated appellants’ procedural due process rights.
5. We now turn to appellants’ fifth, sixth and seventh enumerations of error in which they contend, for various reasons, that the trial court erred by awarding attorney fees under OCGA § 9-11-37 (a) (4) (A) as a sanction for discovery violations. “A trial court has broad discretion to control discovery, including the imposition of sanctions, and this Court will not reverse the trial court’s ruling on such matters absent the showing of a clear abuse of discretion.” (Citation and punctuation omitted.) Alexander v. Atlanta Autosave, Inc., 272 Ga. App. 73, 78 (5) (611 SE2d 754) (2005). Amaechi, 259 Ga. App. at 347.
Appellants argue that because there was no prior order compelling discovery, attorney fees were not authorized by OCGA § 9-11-37 (a) (4) (A). We agree.
“As a general rule, Georgia law does not provide for the award of attorney fees even to a prevailing party unless authorized by statute or by contract.” (Citation omitted.) Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). A motion to compel pursuant to OCGA § 9-11-37 (a) is appropriate when a party seeks more complete answers to allegedly incomplete or evasive discovery responses. See Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 437 (1), (2) (254 SE2d
Although Allison submitted to a deposition and timely responded to Wilson’s interrogatories that were hand delivered at the October 21 hearing, Wilson obviously was not satisfied with Allison’s discovery responses, and therefore she was entitled to seek an order from the court compelling more adequate responses. Mayer, 243 Ga. at 438 (2).
Clearly, that is what the trial court thought had occurred here when it entered the April 1 order directing appellants to pay fees under OCGA § 9-11-37 (a) (4) (A). But we are constrained to agree with appellants that the record shows otherwise. First, the trial court’s order of October 27 cannot be treated as a motion to compel since it clearly stated that the court would “entertain” a motion to compel and “consider” awarding attorney fees if Sandifer’s location was not provided through standard discovery measures. Thereafter, Allison filed her interrogatory responses, in which she disclosed partial addresses where Sandifer might be served, as well as her sister’s cell phone number. A few weeks later, Wilson filed what she denominated a motion to compel but, as appellants assert, that motion did not seek to have the court compel Allison to do anything and barely mentioned Allison’s interrogatory responses; rather that motion sought to have Allison’s answer stricken and the entry of a default judgment.
The court then held a hearing on the motion. As appellants further note, the order entered following that hearing did not compel Allison to do anything; rather, that order found Allison in contempt of the October 27 order and stated that Wilson would be entitled to fees on that basis. However, at the March 22, 2011 hearing, the court stated it had granted the motion to compel at the February hearing, and, as stated above, ultimately awarded fees to Wilson on the basis that she was entitled to recover the fees she incurred in seeking and obtaining an order compelling discovery, not because she was in contempt.
Based on the foregoing, we conclude that Wilson was not entitled to an award of attorney fees under OCGA § 9-11-37 (a) (4) (A). Accordingly, we reverse the trial court’s April 1, 2011 order.
6. In light of our holding in Division 5, it is unnecessary for us to consider appellants’ contention that the award was excessive.
7. Because we conclude that the trial court erred by assessing attorney fees and expenses against appellants, as stated in Division 5, it follows that the order of January 5, 2012, holding appellants in contempt and striking Allison’s answer based on her failure to comply with that order must likewise be reversed. Thus, we need not consider appellants’ enumerations of error challenging the contempt order.
8. Lastly, we consider whether the trial court erred by denying defendants’ motion to transfer venue from Fulton County to Clayton County.
The denial of a motion to transfer is reviewed for an abuse of discretion,... and we will affirm the trial court’s findings on disputed factual questions relating to venue if there is any*639 evidence to support them. But we review de novo the trial court’s application of the law to undisputed facts.
(Citation and punctuation omitted.) Killearn, Inc. v. Southern Structural, Inc., 308 Ga. App. 494, 495-496 (1) (707 SE2d 882) (2011). Mariner Healthcare, Inc. v. Foster, 280 Ga. App. 406, 411 (4) (634 SE2d 162) (2006). In support of this motion, defendants submitted their affidavits, averring that they were residing in Clayton County on February 8, 2010, the date the complaint was filed.
Judgment affirmed in part and reversed in part.
State Farm Mutual Insurance Company was also sued, but the parties agreed to dismiss State Farm without prejudice.
Wilson’s husband, appellee Hepburn George Wilson, filed a separate loss of consortium claim against both defendants, and the appeal in that case has been docketed in the Court as Case No. A12A2257. These appeals, however, present identical issues, and we will refer to both appellees as plaintiff or Wilson.
Although it appears undisputed that Allison’s deposition was taken on August 2, 2010, it was never filed of record in the trial court, despite Wilson’s counsel’s unsuccessful attempt to e-file it on April 22, 2011.
Sandifer’s mother is Allison’s sister.
On March 31, 2010, Allison M. McDonald, of the Law Offices of Tavis L. Knighten, P.C., filed an entry of appearance on behalf of both Sandifer and Allison.
Wilson attached various e-mails and letters to her motion, which she said demonstrated her attempts to perfect service or obtain acknowledgments from both defendants; one of these attachments was a reply e-mail from McDonald in which she reiterated Sandifer’s continued refusal to acknowledge service, but pointed out that Sandifer had been successfully served in other lawsuits arising out of this accident.
During the hearing, Wilson’s counsel referred extensively to Allison’s deposition testimony, despite the fact that the deposition had never been filed of record in the trial court. Further, Wilson’s attorneys outlined Allison’s prolonged failure to acknowledge service after she agreed to do so, but ultimately the parties resolved that issue by agreeing that Allison’s answer would not be stricken if she agreed to drop her service defenses.
In addition to McDonald, defendants were also represented at the hearings by McDonald’s co-counsel, Tavis Knighten, and “defendants’ counsel” will be used to refer to either McDonald or Knighten. However, although it is somewhat cumbersome and confusing, at times it is necessary for us to refer to McDonald individually.
It is not clear from either the February 1 hearing transcript or the written order entered on February 8 what directive from the October 27, 2010 order the court believed to have been violated.
The court deferred ruling on a pending motion to transfer venue to Clayton County.
Plaintiff’s counsel raised the verification issue for the first time during the March 22 hearing, but not until both sides had made extensive reference to the interrogatory responses.
For instance, at the February 1, 2011 hearing, the trial court stated that McDonald’s statement at the October 21,2010 hearing that Sandifer had been in her office was “what turned Pier] around on this thing.” Thus, it is clear that what was presented at that hearing was pivotal to the trial court’s decision.
Aparty may seek immediate sanctions without the necessity of a motion to compel when there has been a total failure to respond to discovery. Rivers v. Goodson, 184 Ga. App. 70, 72 (2) (360 SE2d 740) (1987); Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876 (429 SE2d 264) (1993) (on motion for reconsideration).
OCGA § 9-11-37 (a) (4) (A) clearly contemplates a hearing prior to an award of fees incurred in bringing a successful motion to compel:
If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
(Emphasis supplied.)
We thus find it unnecessary to consider appellants’ other challenges to the attorney fee award.
There does not appear to he any question that Allison was, in fact, residing in Clayton County at that time.
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