Sneider v. English

Court of Appeals of Georgia

Sneider v. English

200 S.E.2d 469, 129 Ga. App. 638, 1973 Ga. App. LEXIS 1089

CourtCourt of Appeals of Georgia

DecidedSeptember 14, 1973

Docket48241

StatusPublished

Cited by3 cases

This text of 200 S.E.2d 469 (Sneider v. English) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sneider v. English, 200 S.E.2d 469, 129 Ga. App. 638, 1973 Ga. App. LEXIS 1089 (Ga. Ct. App. 1973).

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Hall, Presiding Judge.

Post-judgment interrogatories served by the judgment creditor, English, upon Sneider, defendant below, were neither objected to nor answered in timely fashion. English then sought an order compelling answers and praying for attorney fees in the discovery proceedings. Sneider responded, refusing to answer on the ground that answers would produce self-incrimination or forfeiture of his estate. He prayed for relief from the necessity both of answering and paying attorney fees. After a hearing, the lower court ruled that Sneider was not required to answer for the reasons he had alleged, but that he would be required to pay $150 as attorney fees. Sneider appeals.

This case is controlled by Section 37 (d) of the CPA (Code Ann. § 81A-137 (d)) as amended in 1972. It is substantially identical with Federal Rule 37.

"The great operative principle of Rule 37 (a) (4) is that the loser PRys. If a motion under Rule 37 (a) (4) — or any of the other rules incorporating it or similar to it — is granted, the party or deponent whose conduct necessitated the motion shall be required to pay to the moving party the reasonable expenses, including attorney’s fees, incurred in obtaining the order. If the motion is denied it is the moving party who must pay to the party [639]*639or deponent who opposed the motions the expenses and fees incurred in opposing the motion. If the motion is granted in part and denied in part the court is given more discretion and may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner... The court must allow an opportunity for hearing before awarding expenses and fees under Rule 37 (a) (4). Thereafter it is to make the award against the losing party on the motion unless the court finds that his opposition to, or making of, the motion was substantially justified or that other circumstances make an award of expenses unjust. Thus the rule is mandatory unless one of the two conditions for not making an award is found to exist but these conditions are themselves broad enough that the court retains some discretion in the matter. . . . The former rule has purported to make expenses and fees mandatory, when it was applicable, if the court found that the position of the losing party 'was without substantial justification.’ Rule 37 (a) (4) reverses this and requires an award against a party unless his position 'was substantially justified.’ Thus the burden of persuasion is now on the losing party to avoid assessment of expenses and fees rather than, as formerly, on the winning party to obtain such an award. There is reason to believe that the allocation of the burden of persuasion is rarely of much significance in litigation but the shift in the burden suggests that the courts should be more willing than in the past to make an award of expenses and fees.” 8 Wright & Miller, Federal Practice & Procedure, 787, 789, § 2288.

While the appellant was not the "loser” here, the trial court nevertheless did not abuse its discretion in awarding attorney fees under the circumstances of this case. If a party entirely fails to respond to a set of interrogatories, sanctions can be imposed directly under § 81A-137 (d) and a motion under § 81A-137 (a) (2) is not required. See Bratten Apparel, Inc. v. Lyons Textile Mill, Inc., 129 Ga. App. 384. In this situation, he cannot avoid sanctions by contending that the request was improper or objectionable. "If he takes this view he is required to apply for a protective order under [§ 81A-126 (c)] Rule 26 (c).” Wright & Miller, supra, 810-812, § 2291. If he fails to do this, the court can make "such orders in regard to the failure as are just.” Code Ann. § 81A-137 (b) (2). Since the appellant did not apply for a protective order, he is in no position to object to the award of reasonable attorney fees.

[640]*640Submitted May 30, 1973 Decided September 14, 1973. J. Norwood Jones, Lewis N. Jones, for appellant. Gambrell, Russell, Killorin, Wade & Forbes, Richard L. Stumm, for appellee.

Judgment affirmed.

Clark, J., concurs. Evans, J., concurs specially.

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Hall, Presiding Judge.

Post-judgment interrogatories served by the judgment creditor, English, upon Sneider, defendant below, were neither objected to nor answered in timely fashion. English then sought an order compelling answers and praying for attorney fees in the discovery proceedings. Sneider responded, refusing to answer on the ground that answers would produce self-incrimination or forfeiture of his estate. He prayed for relief from the necessity both of answering and paying attorney fees. After a hearing, the lower court ruled that Sneider was not required to answer for the reasons he had alleged, but that he would be required to pay $150 as attorney fees. Sneider appeals.

This case is controlled by Section 37 (d) of the CPA (Code Ann. § 81A-137 (d)) as amended in 1972. It is substantially identical with Federal Rule 37.

"The great operative principle of Rule 37 (a) (4) is that the loser PRys. If a motion under Rule 37 (a) (4) — or any of the other rules incorporating it or similar to it — is granted, the party or deponent whose conduct necessitated the motion shall be required to pay to the moving party the reasonable expenses, including attorney’s fees, incurred in obtaining the order. If the motion is denied it is the moving party who must pay to the party [639]*639or deponent who opposed the motions the expenses and fees incurred in opposing the motion. If the motion is granted in part and denied in part the court is given more discretion and may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner... The court must allow an opportunity for hearing before awarding expenses and fees under Rule 37 (a) (4). Thereafter it is to make the award against the losing party on the motion unless the court finds that his opposition to, or making of, the motion was substantially justified or that other circumstances make an award of expenses unjust. Thus the rule is mandatory unless one of the two conditions for not making an award is found to exist but these conditions are themselves broad enough that the court retains some discretion in the matter. . . . The former rule has purported to make expenses and fees mandatory, when it was applicable, if the court found that the position of the losing party 'was without substantial justification.’ Rule 37 (a) (4) reverses this and requires an award against a party unless his position 'was substantially justified.’ Thus the burden of persuasion is now on the losing party to avoid assessment of expenses and fees rather than, as formerly, on the winning party to obtain such an award. There is reason to believe that the allocation of the burden of persuasion is rarely of much significance in litigation but the shift in the burden suggests that the courts should be more willing than in the past to make an award of expenses and fees.” 8 Wright & Miller, Federal Practice & Procedure, 787, 789, § 2288.

While the appellant was not the "loser” here, the trial court nevertheless did not abuse its discretion in awarding attorney fees under the circumstances of this case. If a party entirely fails to respond to a set of interrogatories, sanctions can be imposed directly under § 81A-137 (d) and a motion under § 81A-137 (a) (2) is not required. See Bratten Apparel, Inc. v. Lyons Textile Mill, Inc., 129 Ga. App. 384. In this situation, he cannot avoid sanctions by contending that the request was improper or objectionable. "If he takes this view he is required to apply for a protective order under [§ 81A-126 (c)] Rule 26 (c).” Wright & Miller, supra, 810-812, § 2291. If he fails to do this, the court can make "such orders in regard to the failure as are just.” Code Ann. § 81A-137 (b) (2). Since the appellant did not apply for a protective order, he is in no position to object to the award of reasonable attorney fees.

[640]*640Submitted May 30, 1973 Decided September 14, 1973. J. Norwood Jones, Lewis N. Jones, for appellant. Gambrell, Russell, Killorin, Wade & Forbes, Richard L. Stumm, for appellee.

Judgment affirmed.

Clark, J., concurs. Evans, J., concurs specially.

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200 S.E.2d 469, 129 Ga. App. 638, 1973 Ga. App. LEXIS 1089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sneider-v-english-gactapp-1973.

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