364 Ga. App. 739
Ga. Ct. App.2022Background
- Ruby Tuesday filed a dissenters’ rights action; Quadre (a defendant/shareholder) served document requests on nonparty NRD, which objected.
- Quadre moved to compel under OCGA § 9-11-37(a); after briefing/hearing the trial court entered an order narrowing and compelling production from NRD but did not decide fees then.
- Quadre later filed contempt motions alleging NRD failed to comply and sought attorney fees under OCGA § 9-11-37(b)(2); the trial court ordered additional production and signaled it would award fees.
- After hearings the trial court awarded Quadre attorney fees citing both OCGA § 9-11-37(a)(4)(A) (fees for a granted motion to compel) and OCGA § 9-11-37(b)(2) (sanctions for violating discovery orders).
- NRD appealed, arguing (1) subsection (b)(2) does not authorize fees against nonparties and (2) subsection (a)(4)(A) may not apply because the motion to compel was not fully granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA § 9-11-37(b)(2) authorizes attorney fees against a nonparty (NRD) for violating a discovery order | Quadre argued the trial court could award fees as contempt/sanction under (b)(2) for NRD’s noncompliance | NRD argued (b)(2) applies only to a party, an officer/director/managing agent of a party, or a person designated to testify — not to a general nonparty | Held: (b)(2) does not authorize fees against nonparties; fee award based on (b)(2) vacated and remanded. |
| Whether OCGA § 9-11-37(a)(4)(A) applies (fees for a motion to compel that was granted) given the trial court narrowed the requested production | Quadre treated the motion as granted and sought fees under (a)(4)(A) | NRD argued the motion was granted only in part (or modified), so (a)(4)(A) may not apply; (a)(4)(C) might govern instead | Held: Court did not decide; remanded for the trial court to clarify whether the motion was granted or granted in part and then apply (a)(4)(A) or (a)(4)(C). |
| Whether the evidentiary record supports the amount of fees awarded | Quadre maintained the fee application and support justified the award | NRD challenged reasonableness and evidentiary support | Held: Court did not reach this claim; remand required for reconsideration under correct statutory basis. |
Key Cases Cited
- Bishop v. Goins, 305 Ga. 310 (Ga. 2019) (attorney fees require statutory or contractual authorization)
- Reeves v. Upson Regional Med. Ctr., 315 Ga. App. 582 (Ga. Ct. App. 2012) (statutes authorizing fees strictly construed)
- Mayer v. Interstate Fire Ins. Co., 243 Ga. 436 (Ga. 1979) (distinguishing Rule 37(a) motions to compel from Rule 37(b) sanctions)
- Workman v. RL BB ACQ I-GA CVL, LLC, 303 Ga. 693 (Ga. 2018) (de novo review of statutory construction despite discovery discretion)
- Allstate Ins. Co. v. Reynolds, 210 Ga. App. 318 (Ga. Ct. App. 1993) (statutory categories for fee awards must be followed; court cannot expand category)
- Sechler Family P’ship v. Prime Group, 255 Ga. App. 854 (Ga. Ct. App. 2002) (nonparties subject to document production rules under OCGA § 9-11-34(c))