*1 point specific giving issue, to to to evidence rise a triable failed summary judgment. Denson was entitled We therefore reverse the summary judgment. court’s denial Denson’s motion Judgment J., Smith, P. Ruffin, reversed. C. concur.
Decided March 2004. Turnipseed, Williams, Alsobrook, Saveli & William C. E. Cannon appellant. Marger, appellees. Moore, Edwin Diane M.
A03A1903. CARDEN CARDEN. JOHNSON, Presiding Judge. family dispute involving This case is a continuation of a assets previously incompetent, Lois Carden. Lois Carden was held with deeds result various she executed were set aside the court separate suit between Carden, Robert Carden and Elvis Lois Carden’s sons. A consent order entered into in 1998 dissolved Robert responsibility management Carden’s for the of Lois Carden’s affairs placed party, including duty certain duties on each for Robert pay per Carden Lois Carden month for as as she lives. $250 properties The same order also involved the transfer of real between parties. apparently regained compe- the tence and is no Lois has Carden now her
longer guardianship. under the court-ordered against Carden, Lois Carden filed this Robert claiming monthly past payments he due was due to her under order. She claimed Robert Carden had refused to deliver specific piece property, required by to a title as the 1998 order. any money counterclaimed, Carden that he Robert urging denied owed refusing the court to find Lois Carden piece property, required by subordinate her interest in a second as Following hearing, the trial court found that Lois Carden’s credibility guilty was undermined and that she was of “unclean equitable remedy hands” could not invoke the respect property specific piece to Robert to deliver Carden’s failure title required by monthly respect the 1998 order. With payments owed under the court the trial found guilty Robert Carden was The court further found monthly against the to a set-off entitled Robert Carden payments for Lois Carden’s he made Lois Carden he owed amount report attorneys back then instructed trial court debts. necessary complete transfers of all were documents what property in 1998. as ordered real considering Robert court erred the trial contends
Lois Carden *2 allowing contempt, Carden Robert in for counterclaim Carden’s attempting to order, in under the 1998 owed for amounts set-off modifying Lois Carden order, in and the 1998 enforce finding not appeal Carden was that Robert court’s the trial does contempt of Robert therefore the issue order, and the 1998 in purported not before this Court. is Carden’s considering argues erred in the trial court that 1. Lois Carden a counterclaim for counterclaim Robert Carden’s contempt. response are con- for We to a motion filed in cannot be agree. strained power judiciary’s remedy part inherent ofthe is ancillary is such, action for As its orders.1 pleading.2
primary and not a as a motion is characterized action and many provisions civil action is not a new Because apply, Court and Practice Act do the Civil party may consistently not file a counterclaim held that a has contempt.3 response in the it seem for While would to a motion in economy judicial could treat the trial court that interest contempt, separate has Robert Carden motion for as a counterclaim authority, permitting any authority, no and we can locate not cited Therefore, it was manner. in this to treat the counterclaim trial court in counterclaim consider Robert Carden’s the trial court to error for contempt. Robert Carden motion for Lois Carden’s the context of contempt. separate as it The trial court’s order file a must hold Lois Carden counterclaim to Robert Carden’s relates to piece property, failing in a subordinate her interest Lois Carden in its order to make trial court’s efforts as the as well hereby comply reversed. the 1998 are allowing argues erred in that the trial court 2. Lois Carden arrearages expenses against he his a set-off Robert Carden agree with in the 1998 order. We not addressed which were incurred plea plea analysis for affirmative for set-off is a that a Lois Carden’s Siemon, (1) (449 In re 264 Ga. See Brown, 65) (1996); Phillips 263 Ga. King, v. 266 Ga. See Brown 866) Phillips, (1993); supra; 574, 575 (1) (436 Baer, see also See Baer v. supra. directly point and not a defense.4 The ofBaer v. relief case Baer5 precludes of a for set-off in a assertion claim made counterclaim contempt. judgment hand, motion for other On the which right any reason will affirmed.6 reading
A close the trial court’s order of December any money that did reveals not award Robert Carden on his says claim set-off. The court does mention the set-off respondent says “therefore” the not in But court later “guilty that Lois Carden was of unclean “not hands” therefore equitable remedy contempt.” indepen- entitled to invoke the This ground declining dent contempt for the court’s to find Robert Carden depend set-off, on the claimed but on defenses legitimately raised Robert Carden’s The trial answer. court ruled contempt, that Robert Carden was not in and Lois Carden appeal finding. portion judg- Therefore, affirm we ment, which renders this enumeration of error moot. improperly
3. Lois Carden contends the trial court modified merely However, clarified, rather portions modified, than order.7 The of the 2002 order appointing agent apportioning an escrow were costs well within *3 enforcing But, the court’s in discretion its as in order.8 we stated presumably required Division the court would not have Lois prepare Carden’s counsel to if real estate documents the court not had by considered the affirmative counterclaims Robert Carden. portions Thus, those the order which mandate future distinguished finding from those Robert Carden not to be con- in tempt, must be reversed.9 attempting
4. Lois Carden contends in the court erred the 1998order because order had been nullified a 2001 confusing However, order. this enumeration error is because Lois present by arguing Carden initiated the that Robert Carden — suddenly in the 1998 order the order she claims ways. was nullified. Lois Carden cannot have it both She cannot argue that Robert Carden is in of the 1998 and at the 4 Co., App. 481, See Charles S. Martin Distrib. Co. v.Bernhardt 213 Furniture Ga. 484 (445 297) (1994); Stewart, App. (1) (511 SE2d see Stewart v. 236 349 Ga. 5 Supra. 6 Trussell, 344) (1965). See Jones v. 273 7 Opatut Club, 487) (1985) (court may See v. Guest Pond 254 260 Ga. clarify modify orders). but not 8 Id. Davis, See Davis v. argue in ofthe 1998 order that she be held cannot same time nullified. it has been orders reveals that Moreover, the 1998 and 2001 a review ofboth merely nullify The 2001 order does not the order time, because, at Lois Carden did the sets certain transactions aside possess capacity The mental to enter into the transactions. certainly, and, not refer to the 1998 order nullify lacks merit. order. This enumeration of error the 1998 part. Eldridge, part Judgment in in and reversed affirmed specially. Mikell, J., concurs concurs. MlKELL, Judge, concurring specially. majority opinion completely Although correct, Division ofthe separately urge I our Court reconsider write permitted in rule that counterclaims are traditional response original contempt. The rule was more narrow to motions for leading today’s seemingly prohibition. case, Davis than blanket although explained that, in Practice Act of Davis,10 Civil Georgia’s treatment of counterclaims and cross- 1966 had liberalized contempt. claims, not extend to motions for In the liberalization did custody Davis, awarded of a child to the the divorce decree had right Later, a father. mother mother with moved to hold her ex-husband visitation for his failure to of court couple’s period. after a The father return the child to her visitation custody. change for a Justice Nichols wrote that the counterclaimed contempt motion was not complaint filing the movant
tantamount
wherein
where,
Thus,
as in the
submits to
venue of the court.
. . .
present case,
the movant is shown
to be a resident
filed,
citation
wherein
jurisdiction
a counterclaim or cross com-
without
to consider
plaint modify prior judgment granting custody of child.12
ground
refusing
court
firm
to treat a
The Davis
was on
complaint.
post-judgment
person
like
A
motion for
*4
complaint
jurisdiction
court,
of the
files a
submits
who
pursuant
any objection
9-11-5,
venue, and,
§
to OCGA
waives
10
440)
(195
(1973).
153 agrees pleadings, including subsequent of all counter- service person by ordinary may claims, attorney. be made in or mail to him or his policy reasons, For Court has refused to sound complaint any the attributes to a motion for con- transfer tempt.13 reaffirming jus- major concurring Davis, In a decision two permitted contempt that, if tices worried counterclaims were might stop alimony strategically paying actions, child a husband or support subject ex-wife, was not so as to force who otherwise jurisdiction thereby enabling court, of the to file a delinquent spouse to counterclaim for modification.14 These justices argued permitting a rule would counterclaims encour- age parties disregard court orders.15 solidly jurisdic- rule,
But the
based
on considerations of
process,
repeated
frequently
tion,
has been
venue and service
so
forgotten.
applied automatically
that its
has been
It is
rationale
now
dilatory
bar,
situations,
even in
such as the
at
where it
case
leads
judgment
parties
entered,
result. The
which both
seek to enforce was
Douglas County Superior
plaintiff
consent, in
Court in
1998.
present contempt proceeding.
in that action
The defen-
plaintiff,
asking
counterclaimed,
mother,
dant
contempt.
his
be held in
bring
seeking modify
He did not
a counterclaim
It has
been the
rule
that courts look to the
writing
substance of a
and not
title.16
to its
The trial court had before
it, in essence, two motions for
It dealt
them and
did
complete justice
just
parties,
equity
supposed
between the
13
50,
Phillips
(2)
866)
(error
(426
(1993)
v.
263 Ga.
51
SE2d
to allow DHR to
by contempt
temporary
pending
action);
institute new civil
to enforce
ain
civil
Club,
Opatut
487)
(327
(1985) (motion
contempt may
v. Guest Pond
Defoor, GRAYCO, INC. A03A2029. CHAMBLEE Judge. Miller, granting appeals court’s order from the trial Elizabeth Chamblee trip Grayco, summary judgment fall Inc. in this her landlord case. affirm. We summary judgment, grant appeal this Court from the
On construing record, the evidence a de novo review conducts nonmoving party. Maddox v. Southern in favor of all inferences 23-1-7; Brown v. OCGA § 18Davis, supra at 34. 19 McNeal, supra at 838.