American Medical Security Group, Inc. v. Parker

663 S.E.2d 697, 284 Ga. 102, 2008 Fulton County D. Rep. 2280, 2008 Ga. LEXIS 568
CourtSupreme Court of Georgia
DecidedJuly 7, 2008
DocketS07G1388
StatusPublished
Cited by73 cases

This text of 663 S.E.2d 697 (American Medical Security Group, Inc. v. Parker) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Medical Security Group, Inc. v. Parker, 663 S.E.2d 697, 284 Ga. 102, 2008 Fulton County D. Rep. 2280, 2008 Ga. LEXIS 568 (Ga. 2008).

Opinions

SEARS, Chief Justice.

The controlling issue in this granted petition for certiorari is whether a party may directly appeal an order that finds that the party has committed an act of wilful contempt in failing to comply with a prior discovery order and that dismisses the party’s answer and enters a default judgment as to liability as a sanction under OCGA § 9-11-37 (b) (2) (C). We conclude that such an order is not directly appealable as a contempt judgment under OCGA § 5-6-34 (a) (2) where, as in the present case, it does not impose a sanction that is available for criminal contempt and does not attempt to coerce compliance with the prior discovery order as in cases involving civil contempt. For these reasons, we affirm the Court of Appeals’ dismissal of the appellants’ appeal to that Court.

1. On October 3, 2006, the trial court entered an order finding that the appellants had failed to produce discovery documents as required by a prior discovery order for a period of over eighteen months; that the failure to produce was “wilful and flagrant”; and that the appellants were in wilful contempt of the prior discovery order. Under OCGA § 9-11-37 (b) (2) (C),1 the trial court entered the discovery sanction of striking the appellants’ answer and entering a default judgment as to liability. The appellants filed a notice of appeal from the October 3 order, but the appellees moved to dismiss the notice of appeal on the ground that the trial court had not issued a contempt order but only a discovery order that was not subject to direct appeal. On November 2, 2006, the trial court dismissed the appellants’ notice of appeal. The trial court reiterated that, in the October 3 order, it had found that the appellants had committed an act of contempt, but concluded that its prior order was, in substance, not a contempt case within the meaning of OCGA § 5-6-34 (a) (2) because it did not impose a contempt punishment. The court, instead, ruled that its October 3 order was an interlocutory discovery order and that, as such, the order was not directly appealable.2 3The [103]*103appellants filed a timely notice of appeal to the Court of Appeals from the November 2 order.

The Court of Appeals subsequently dismissed the appeal by order. The Court implicitly concluded that the October 3, 2006, order was an interlocutory discovery order that was not directly appeal-able, and ruled that a trial court’s order that dismisses an unauthorized interlocutory appeal is itself an interlocutory order and that a party seeking to appeal the dismissal must comply with the interlocutory appeal procedures of OCGA § 5-6-34 (b). Because the appellants did not comply with those procedures, the Court of Appeals dismissed the appeal. We subsequently granted the appellants’ petition for certiorari to review the Court of Appeals’ ruling. For the reasons that follow, we affirm.

2. The appellate jurisdiction question of whether the Court of Appeals erred in dismissing the appellants’ appeal of the trial court’s November 2, 2006, order dismissing its appeal turns on whether the October 3, 2006, order was directly appealable. The reason is that a trial court’s order dismissing a properly filed direct appeal is itself subject to a direct appeal.3 Conversely, as recognized by Rolleston v. Cherry,4 a trial court’s order dismissing an improperly filed direct appeal should be considered an interlocutory order and is not subject to a direct appeal.5 Thus, in the present case, if the October 3, 2006, order was a final order of contempt and thus subject to a direct appeal under OCGA § 5-6-34 (a) (2),6 the November 2, 2006, order dismissing that appeal is subject to a direct appeal. Conversely, if the October 3 order was an interlocutory discovery order, the Court of Appeals did not err “in concluding that the trial court’s [November 2] dismissal of appellants’ original notice of appeal from the [October 3] . . . was itself an interlocutory order which was only appealable pursuant to OCGA § 5-6-34 (b).”

3. We now address whether the trial court’s October 3, 2006, order was a directly appealable order. The appellants contend that, under OCGA § 5-6-34 (a) (2), as construed in Hamilton Capital Group v. Equifax Credit Information Svcs.,7 they had a right to a direct appeal of the trial court’s October 3 order. More specifically,

_t_ [104]*104the appellants contend that the trial court found that they had committed an act of contempt in violating a prior discovery order, that the court punished them by dismissing their answer and entering a default judgment as to liability, and that the order should thus be considered a contempt case within the meaning of OCGA § 5-6-34 (a) (2). We disagree.

4. We begin with the proposition that “the appealability of an order is determined, not by its form or the name given to it by the trial court, but rather by its substance and effect.”8 The issue here is whether the trial court’s order is an interlocutory discovery order imposing sanctions on the appellants or is a contempt judgment. If the former, the order falls under the general rule that orders imposing discovery sanctions under OCGA § 9-11-37, including orders that contain harsh sanctions such as the entry of a default judgment as to liability, are not directly appealable.9 On the other hand, if the trial court’s order is in substance a judgment of contempt, the order is directly appealable under OCGÁ § 5-6-34 (a) (2). A number of factors convince us that the trial court’s order was in substance an interlocutory sanctions order that is not directly appealable.

5. There are two kinds of contempt for violations of court orders, civil and criminal, and the sanction of dismissing an answer and entering a default judgment on liability does not fall within either category.10 “ ‘The distinction between criminal and civil contempt is that criminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.’ 11 As for criminal contempt, a superior court’s power to punish for it is limited by OCGA § 15-6-8

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Bluebook (online)
663 S.E.2d 697, 284 Ga. 102, 2008 Fulton County D. Rep. 2280, 2008 Ga. LEXIS 568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-medical-security-group-inc-v-parker-ga-2008.