630 S.E.2d 119 | Ga. Ct. App. | 2006
In this personal injury action, the trial court ordered CSX Transportation, Inc. (“CSXT”), to pay $25,500 in attorney fees to Patricia D. Deen as a sanction for its discovery abuses. The order was entered after this Court reversed the trial court’s denial of CSXT’s motion for summary judgment in CSX Transp. v. Deen (“CSXT I”)
As stated in CSXT I, this case arose out of an automobile accident in which Deen, who was stopped at a train crossing, was struck from behind by a drunk driver, propelling Deen’s vehicle into a train.
During the course of the litigation, Deen filed two motions to compel, both of which addressed CSXT’s failure to provide corporate agents for deposition pursuant to OCGA § 9-11-30 (b) (6). The trial court granted the first motion on December 21, 2001, compelling the depositions of CSXT’s corporate agents. Deen filed the second motion to compel after CSXT failed to provide the agents for deposition, seeking attorney fees and sanctions against CSXT. CSXT opposed the motion. On August 8, 2002, the trial court entered an order, dismissing CSXT’s answer and entering default judgment against CSXT on the issue of liability. CSXT moved for reconsideration of the trial court’s order on August 15, 2002.
On October 22, 2003, another judge was appointed to preside over the case. This judge held a hearing on November 6, 2003, during which he denied CSXT’s motion to declare void and vacate prior orders entered by the original judge and granted CSXT’s motion for reconsideration.
Plaintiffs counsel served the affidavit regarding attorney fees on December 2, 2003. On that day, another pre-trial hearing was held, during which the court again reserved for later determination the issue of attorney fees and gave plaintiffs counsel 30 days from the conclusion of the trial to amend his affidavit to itemize his expenses. The trial court also entered an order entitled “Order Reserving the Issue of Attorney’s Fees for the Failure of CSXT to Provide Discovery.” CSXT filed its brief in opposition to attorney fees on January 6, 2004. On January 7, 2004, the trial court entered an order denying CSXT’s renewed motion for summary judgment and granting CSXT a certificate of immediate review. Deen’s counsel requested that the court postpone the hearing on fees pending the outcome of the certificate of immediate review, and CSXT’s counsel agreed.
In CSXT I,
CSXT is correct that the order regarding the fees was entered in a subsequent term of court since the courts of Ware County have two
In this case, the record is devoid of evidence that the trial court intended the ruling on the remittitur to be the final order on attorney fees in the case. On the contrary, the trial court not only entered an order reserving the issue of fees, but it also expressly stated its intention to reserve the issue on more than one occasion and was unequivocal about its intention to impose sanctions against CSXT for its discovery abuses. Therefore, the order on remittitur did not resolve all of the issues that were still pending before the court.
CSXT argues that the only avenue through which Deen could obtain fees after the entry of the remittitur was by filing a motion pursuant to OCGA § 9-15-14, which governs the assessment of litigation costs and attorney fees for frivolous actions and defenses. OCGA § 9-15-14 is inapposite here because this case does not involve the assertion of frivolous defenses, as evidenced by the grant of summary judgment in CSXT’s favor. Instead, the trial court was concerned solely with the award of fees for CSXT’s discovery abuses, which is governed by OCGA§ 9-11-37 (d). OCGA§ 9-11-37 (d) authorizes the imposition of sanctions, including dismissal and default, for the wilful failure to comply with a court order.
Judgment affirmed.
269 Ga. App. 641 (605 SE2d 50) (2004).
Id.
Id.
It appears that CSXT filed several motions against the original trial judge requesting that he recuse himself from the case, none of which are included in the record. On October 21, 2003, the trial judge recused himself.
Supra.
Id. at 643 (1).
Id. at 641.
See OCGA § 15-6-3 (41) (F).
(Citation and punctuation omitted.) Hubbert v. Williams, 175 Ga. App. 393, 394 (1) (333 SE2d 425) (1985).
See Vintage Enterprises v. Powers, 175 Ga. App. 785 (334 SE2d 383) (1985) (order from which appeal taken did not adjudicate all pending claims, thus it did not constitute a final judgment). Accord Henderson v. Smith, 177 Ga. App. 89, 90 (338 SE2d 520) (1985). But see Levingston v. Crable, 203 Ga. App. 16, 18 (416 SE2d 131) (1992) (consent order was final judgment since there was no language in consent order reflecting it to be anything other than final judgment and no issue remained for trial court to reserve to itself).
See Doe v. HGI Realty, 254 Ga. App. 181 (561 SE2d 450) (2002) (court awarded attorney fees for discovery abuses in the amount of $30,000 against party prevailing on summary judgment).
Davidson v. Callaway, 274 Ga. 813, 814 (559 SE2d 728) (2002).
Riches To Rags v. McAlexander & Assoc., 249 Ga. App. 649, 652-653 (549 SE2d 474) (2001). We need not address the trial court’s finding that CSXT wilfully failed to comply with its order because that issue has not been raised on appeal. In fact, we note that CSXT has not
Cf. Sofran Peachtree City v. Peachtree City Holdings, 272 Ga. App. 851-852 (614 SE2d 111) (2005) (trial judge permitted to award expenses almost three years after the date of judgment pursuant to OCGA§ 9-11-60 because he expressly found that as a matter of oversight, he failed to reserve the matter of the amount of attorney fees for final determination in his initial order granting summary judgment).