Jarallah v. Pickett Suite Hotel

388 S.E.2d 333, 193 Ga. App. 325, 1989 Ga. App. LEXIS 1452

• Court: Court of Appeals of Georgia
• Decided: October 10, 1989
• Docket: A89A1175, A89A1176
• Status: Published

Opinions

Deen, Presiding Judge.

The pro se appellant, Taj Jarallah, commenced this action against the appellees on March 3; 1988, concerning his termination from employment. On June 21, 1988, the trial court ordered the appellant to appear for a deposition, but the appellant refused to do so. On June 23, 1988, the appellant filed a notice of appeal from the above discovery order. By order dated October 4,1988, but entered on October 11, 1988, the trial court dismissed the appellant’s notice of appeal from the discovery order since that order was not a final judgment and the appellant had not observed the interlocutory appeal procedure, and also dismissed the appellant’s complaint as a sanction for his refusal to comply with the trial court’s earlier discovery order.

On October 14, 1988, the appellant filed a motion to vacate and set aside the judgment pursuant to OCGA § 9-11-60 (d), and also a motion to recuse the trial court, accompanied by an affidavit in which the appellant merely alleged that the trial court was not impartial. On November 2, 1988, the appellant filed a notice of appeal from the order of October 11, 1988. (Case No. A89A1175.) On January 24, 1989, the trial court denied the appellant’s motion to set aside and the motion to recuse, and the appellant filed another notice of appeal from that order on January 27, 1989. (Case No. A89A1176.) Held:

Case No. A89A1175

1. The only real issue in this case is whether, pursuant to OCGA § 9-11-37 (d), the trial court abused its discretion in dismissing the appellant’s complaint for failure to comply with the trial court’s discovery order compelling the appellant’s appearance for a deposition. The only reasons given for the appellant’s conscious refusal to attend the deposition included the work product privilege and the Fifth Amendment privilege against self-incrimination. The work product privilege contained in OCGA § 9-11-26 (b) pertains to “documents and tangible things” and provides no basis for a party, even a party representing himself, to refuse to appear for a deposition. The appellant’s contention that the Fifth Amendment protects him from appearing at a deposition likewise is untenable. See Savannah Surety Assoc. v. Master, 240 Ga. 438 (241 SE2d 192) (1978).

“The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only ‘ “ ‘a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance.’ ” ’ [Cit.] ‘A conscious or intentional failure to act’ is in fact ‘wilful.’ [Cit.]” Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga. App. 344 (373 SE2d 50) (1988). The appellant presented no legitimate excuse for failing to comply with the trial court’s discovery order, and the trial court did not abuse its discretion in dismissing the appellant’s complaint.

2. The appellant’s other enumerations of error are also without merit.

Case No. A89A1176

3. To the extent that this direct appeal concerns the trial court’s denial of the appellant’s motion to set aside, it must be dismissed, because such appeals require the discretionary appeal procedures. OCGA § 5-6-35 (a) (8). To the extent that the appellant’s motion to vacate and set aside judgment was nothing more than a motion for reconsideration, the appeal was untimely and also must be dismissed. Miller v. Bank of the South, 177 Ga. App. 42 (338 SE2d 436) (1985). Concerning the denial of the appellant’s motion to recuse, there certainly was no error. Rule 25.1 of the Uniform State Court Rules requires any motion to recuse to be filed not later than 5 days after the movant first learns of the ground for disqualification and not later than 10 days before the hearing or trial which is the subject of recusal. In this case, although the appellant filed an unserved affidavit in June 1988 complaining that the trial court was not giving him a fair shake, the only motion to recuse was that filed on October 14, 1988, after the final disposition of the case. The motion was untimely and properly denied. Further, the affidavit filed in support of the motion, which stated no facts and merely accused the trial court of bias, would have been legally insufficient to necessitate a hearing on the motion. State v. Fleming, 245 Ga. 700 (267 SE2d 207) (1980); see also Bouldin v. State, 179 Ga. App. 394 (346 SE2d 871) (1986).

4. These appeals being patently frivolous, pursuant to Rule 26 (b) of the Rules of the Court of Appeals, a penalty of $200 is assessed against the appellant. Pro se litigants are no less entitled to use the courts in civil matters than litigants with attorneys. “No democracy will survive if it rations justice.” (Justice Learned Hand.) Yet, where one elects to use the court system, court orders and rules may not be totally ignored with impunity. The dissent would make it extremely difficult, if not impossible, ever to impose frivolous appeal damages against any pro se litigant.

Judgment in Case No. A89A1175 affirmed; Case No. A89A1176 dismissed in part and affirmed in part.

Carley, C. J., Banke, P. J., Birdsong and Sognier, JJ., concur. McMurray, P. J., Pope, Benham and Beasley, JJ., concur in part and dissent in part.