SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 21, 2013
In the Court of Appeals of Georgia A12A2256. ALLISON et al. v. WILSON. A12A2257. ALLISON et al. v. WILSON.
MCMILLIAN, Judge.
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 fifteen 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 Allison1 (collectively referred to as defendants) on February
8, 2010.2 Allison ultimately acknowledged service of the complaint, but Sandifer
refused to acknowledge service, and Wilson’s attempts to serve him were
unsuccessful. Consequently, on October 13, 2010, Wilson filed a motion for
permission to serve Sandifer outside the statute of limitation and to compel Allison
and her attorneys to appear before the court and disclose “all available information
regarding” Sandifer’s whereabouts.” Wilson argued that Allison, who apparently had
1 State Farm Mutual Insurance Company was also sued, but the parties agreed to dismiss State Farm without prejudice. 2 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 Number A12A2257. These appeals, however, present identical issues, and we will refer to both appellees as plaintiff or Wilson.
2 stated in her deposition3 that she did not know where either Sandifer or his mother4
lived, appeared to be “withholding basic information about her family that might
assist [Wilson] in locating and serving Defendant Sandifer. . . .” Further, according
to Wilson’s motion, Wilson’s counsel had requested that defendants’ attorney,
Allison M. McDonald,5 either “turn over” Sandifer’s location or acknowledge service
on his behalf, but that she had refused to either acknowledge service or reveal his
location, despite having met with Sandifer in her office “in recent weeks.” The trial
court ordered Allison and her counsel to appear at a hearing on Wilson’s motion and
“disclose all information they have or reasonably should have regarding [Sandifer’s]
present whereabouts and show cause why [Wilson’s] Motion for Permission to Serve
[Sandifer] Beyond Statute of Limitation should not be granted.”
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
3 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 unsuccessful attempt to e-file it on April 22, 2011. 4 Sandifer’s mother is Allison’s sister. 5 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.
3 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 attorney-client privilege. Allison also provided her
sister’s cell phone number and said she believed her sister resided in Union City,
Georgia. Allison said she did not have a phone number for Sandifer, and that she did
not know any “social networking” or email addresses for either Sandifer or her sister.
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
4 service from Allison, and her unsuccessful attempts to locate and serve Sandifer.6
Wilson attached Allison’s interrogatory responses and said that Allison had
“amazingly” denied knowing where Sandifer could be located and served. Wilson
argued that “every reasonable means to attempt to locate and serve [d]efendants,” had
been utilized, and characterized Allison’s and McDonald’s conduct as “extreme[,]
outrageous, . . . [and] obstructive[.]” As relief, Wilson asked the court to strike any
responsive pleadings that had been filed in the case, enter judgment against one or
both defendants, impose sanctions and award attorney fees and expenses.
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,7 Wilson reminded the court that at the October 21
6 Wilson attached various emails 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 email 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. 7 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
5 hearing McDonald revealed that Sandifer had been in her office, and the trial court
indicated the importance of that revelation to her decision, stating “I think that’s what
turned me around on this thing.” Defendants’ counsel8 did not appear to oppose
Wilson’s request to serve Sandifer by publication, but pointed out to the court that
Sandifer could not be forced to acknowledge service. The trial judge expressed her
understanding, but deemed it a “little suspicious” that McDonald would represent to
the court that she did not know where to locate Sandifer, despite the fact that he had
been in her office and that he was related to her other client. The court granted
Wilson’s request to serve Sandifer by publication finding “that the plaintiff has
exercised extraordinary diligence, as the Court has found in its prior order, and that
Mr. Sandifer is evading service . . . .”
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
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. 8 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.
6 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 willful violation of her prior order.9 However, recognizing it did not
have jurisdiction over Sandifer because he had not yet been served, the court decided
to hold another hearing at a later date to determine the amount of attorney fees and
whether the sanction would be imposed against the defendants individually,
collectively, along with their counsel, or some combination thereof.
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; 3)
9 In it 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.
7 defendants and/or their counsel had willfully 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
willfully 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
served.10 Defendants’ counsel objected to the hearing on the basis that they had not
been informed of the statutory basis for the award, and the court responded that it was
based on either contempt for willfully violating the October 27 order or a violation
of discovery rules.
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
10 The court deferred ruling on a pending motion to transfer venue to Clayton County.
8 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
9 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 and February 8, 2011 order) based on the following
findings: (1) Allison was not forthcoming and truthful in her deposition regarding
Sandifer’s whereabouts; (2) Allison was not truthful and forthcoming in her
interrogatory responses regarding her knowledge of Sandifer’s address, location and
whereabouts, despite being ordered by the court to cooperate with Wilson in good
faith; and (3) Allison’s interrogatory responses were not properly verified, amounting
to a complete failure to respond.11 Further, the court found that “[d]efendants’ 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
11 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.
10 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 willfully 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, the court found there was no justification for the failure to
11 comply with the order and struck Allison’s answer as a sanction for the contempt. The
court did provide, however, that appellants could purge the order of contempt if the
attorney fees were paid by 5:00 pm on January 6, 2012.
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. . . .
12 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, the court held a hearing before issuing this
order, but those proceedings were not transcribed. Thus, without knowing what
transpired at that hearing, we have no basis to second guess the trial court’s
13 decision.12 “[W]here the transcript is necessary, as in the case sub judice, and the
appellant omits it from the record on appeal or fails to submit a statutorily authorized
substitute, the appellate court must assume the judgment below was correct and
affirm.” (Punctuation and citations omitted.) Atwood v. Southeast Bedding Co., 236
Ga. App. 116 (1) (511 SE2d 232) (1999). Blue v. Blue, 279 Ga. 550 (615 SE2d 540)
(2005); Amaechi v. Somsino, 259 Ga. App. 346, 347 (577 SE2d 48) (2003).
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
12 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 [her] around on this thing.” Thus, it is clear that what was presented at that hearing was pivotal to the trial court’s decision.
14 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.” (Punctuation and citation
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 825) (1979).
And, without question, OCGA § 9-11-37 (a) (4) (A) allows the successful proponent
of a motion to compel to recover fees and expenses incurred in bringing the motion,
and this award may be made against the party whose conduct necessitated bringing
the motion, the party’s attorney or both.
15 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).13 And, if the court granted her motion, Wilson would have then been
entitled to recover the attorney fees and expenses she incurred in bringing the motion
pursuant to OCGA § 9-11-37 (a) (4) (A).
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
13 A party 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).
16 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.
Further, because the trial court stated in its February 8 order that it was
awarding fees based on a violation of its October 27 order and made no mention of
an attorney fee award under OCGA § 9-11-37 (a) (4) (A), we are hard pressed to say
that appellants were provided with an opportunity to be heard on whether fees should
17 be awarded under that section.14 The transcript from the February 1 hearing clearly
indicates that the trial court irrevocably decided to award fees at that time, leaving for
resolution at a subsequent hearing only the amount of fees and who would have to
pay them. Appellants were not informed that fees were being awarded under OCGA
§ 9-11-37 (a) (4) (A), despite defendants’ counsel’s repeated entreaties to the court
to disclose the statutory basis for the award so they could prepare for a hearing;
rather, the court informed them that the award was being made for contempt of the
October 27 order.
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.15
14 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 attorneys fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.” 15 We thus find it unnecessary to consider appellants’ other challenges to the attorney fee award.
18 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
evidence to support them. But we review de novo the trial court’s application of the
law to the undisputed facts.” (Punctuation and citation omitted.) Killearn, Inc. v.
Southern Structural, Inc., 308 Ga. App. 494, 495 (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
19 residing in Clayton County on February 8, 2010, the date the complaint was filed.16
However, in his deposition, Sandifer provided conflicting and contradictory
testimony about where he was living at that time, although he explained the
contradictions by saying it was difficult for him to remember specific dates and
specific addresses because he had moved numerous times since he moved to Georgia
as a child, and had moved several times between the date of the accident and the date
the complaint was filed. Further, Sandifer’s driver’s license had a Fulton County
address, and he had never registered to vote in any county but Fulton County.
Although the trial court’s order denying the motion to transfer did not contain any
specific factual findings, Sandifer’s deposition was before the court at the venue
hearing, and the court clearly considered his testimony demonstrating his uncertainty
concerning when he lived where, and in particular his testimony that he was unsure
whether his averment in his affidavit that he was residing in Clayton County at the
time that suit was filed was true. The trial court resolved these discrepancies against
the motion to transfer, and determined that venue was proper in Fulton County, the
county where Sandifer had lived for much, if not all, of the relevant time. Based on
16 There does not appear to be any question that Allison was, in fact, residing in Clayton County at that time.
20 the record before us, we cannot say that the trial court abused its discretion by
denying the motion to transfer.
Judgment affirmed in part and reversed in part. Barnes, P. J., and McFadden,
J., concur.