Hamilton Automotive Mail Company, Inc. (HAMCO) filed a complaint and a motion for temporary restraining order and preliminary injunction against appellee Equifax Credit Information Services, Inc. (Equifаx)
1
seeking, inter alia, to prevent Equifax from terminating the parties’ Sales Agent Agreement. Although appellant Hamilton Capital Group, Inc. (HCG), who had a separate agreement with Equifax,
2
was nоt an original party to this litigation, a temporary restraining order (TRO) was entered by the court on March 8, 2002, restraining and enjoining Equifax from suspending, terminating or interrupting service to either HAMCO or HCG
It is undisputed that HCG rеquested services from Equifax under the terms of the TRO and Equifax provided these services. On November 7, 2002, Equifax filed a motion contending that HCG should be held in civil contempt of the TRO because HCG had failed tо pay for all the services it had received from Equifax as required by the order.
At the contempt hearing, HCG argued that it should not be held in contempt of the TRO because Equifax had refused to provide it with a new “select” service which Equifax was providing to its competitors, and that as a result it had suffered a substantial loss of business. Thus, HCG argued that its failure to pay was not wilful since it resulted from this severe loss of business. The trial court found that the TRO required Equifax to provide HCG with only those services it had provided prior to the entry of the TRO, and that it was “clear” to the court that HCG continued to request services from Equifax even after Equifax had notified it that it would not provide it with the new select services. The trial court also expressed uncertainty over whether the evidence at the heаring established HCG’s inability to pay, but further noted that assuming HCG was “unable to pay for the services, then they should not have ordered the services.” The trial court thus rejected HCG’s arguments and on January 2, 2003, entered an order finding it in civil contempt of the March 8, 2002 order. The contempt order also provided that HCG could purge itself of the contempt by paying Equifax $327,182.20 within ten days of the order, but that its failure tо purge itself would result in judgment being entered against it for that amount. HCG did not purge itself of the contempt by paying the amount ordered, and on February 7, 2003, the trial court entered final judgment in favor of Equifax. HCG аppeals from both the January 2, 2003 contempt order and the February 7, 2003 judgment; these appeals were docketed in this Court as Case Numbers A03A1676 and A03A1677, respectively.
1. We first address Equifax’s argument that wе lack jurisdiction over the appeal in Case No. A03A1676. Equifax contends that the contempt order from which the appeal was filed in that case was not a final, directly appeаlable order because it gave HCG the opportunity to purge itself and imposed no punishment against HCG.
On previous occasions, this Court has held that a civil contempt order which allows the contemnor to purge the contempt and does not impose a punishment is interlocutory in nature and thus not subject to a direct appeal.
Carter v. Data Gen. Corp.,
Moreover, our previous cases dismissing these appeals as interlocutory did not consider the effect of OCGA § 5-6-34 (a) (2)
4
which provides, in relevant part, that a direct appeal may be taken from “contempt cases.” As our Supreme Court has noted, subsections (a) (2) through (8) of OCGA § 5-6-34 “provide[ ] for the direct appeal of judgments or orders that may have an irreparable [or final] effect on the rights of parties, such as rulings in contempt, injunction, and mandamus actions.”
In re Keith Paul,
Based on the foregoing, we now conclude that the better approach is to allow direct appeals from contempt orders even if the contemnor is given the oppоrtunity to purge the contempt before punishment is imposed. It follows that
Carter v. Data Gen. Corp.,
2. Turning to the merits of this appeal, we have reviewed HCG’s argument challenging the order of contempt and entry of final judgment and find no basis for reversal.
The defenses to both civil and criminal contempt are that the order was not sufficiently definite and certain, was not violated, or that the violation was not wilful (e.g., inability to pay or comply). Schiselman v. Trust Co. Bank,246 Ga. 274 , 277 (271 SE2d 183 ) (1980). If there is any evidence in the record to support a trial judge’s determination that a party either has or has not wilfully disobeyed the trial court’s order, the decisiоn of the trial court will be affirmed on appeal. Crowder v. Crowder,236 Ga. 612 (225 SE2d 16 ) (1976). (T)he question of whether a contempt has occurred is for the trial court, and its determination will be overturned only if there has been a gross abuse of discretion. (Cits.) Wilkerson v. Tolbert,239 Ga. 702 , 705 (238 SE2d 338 ) (1977).
(Punctuation omitted.)
Warehouse Carpet Sales &c. v. S.C.J. Assoc.,
There is no question that the TRO was sufficiently definite and certain and clearly required HCG to pay Equifax for the services Equifax provided to it pursuant to the TRO. Although HCG argues that the triаl court erred in finding wilfulness because the evidence established its inability to pay and that such inability was caused by Equifax’s refusal to provide it with the new select service Equifax was providing to HCG’s competitors, the trial court did not abuse its discretion by rejecting this argument. As the trial court noted, the TRO did not require HCG to pay anything unless it took the affirmative act of ordering services from Equifax and the evidence showed that HCG continued to order services from Equifax even after it knew that Equifax refused to provide it with the new select service. Moreover, the burden of proof was on HCG as the alleged contemnor to show its inability to pay. See
Mahaffey v. Mahaffey,
We also take this opportunity to emphasize the general rule that contempt is not an available remedy to force payment of a money judgment. See OCGA § 23-4-37 (“If a dеcree is partly for money and partly for the performance of a duty, the former may be enforced by execution and the latter by attachment or other process.”). As explаined in the leading case,
Clements v. Tillman,
But if a court of equity should render a simple decree for money, on a simple money verdict, — a decree which it may now enforce by the ordinary common lаw process against property, the failure to pay the decree would not be a contempt, nor could compulsory process against the person of the party in defаult be resorted to enforce payment.
See also
McKenna v. Gray,
The trial court’s use of contempt in the case at bar was authorized under a narrow exception to the gеneral rule. Contempt may be used by a court of equity to compel the payment of money when the order commanding the payment is interlocutory. “[WJhere, as here, the order to pаy is interlocutory in nature, contempt is the only method of enforcement available.”
Warehouse Carpet v. S.C.J.,
Judgments affirmed.
Notes
Briefs in this case were filed by Equifax Information Services, LLC as the successor in interest to Equifax Credit Information Services, Inc.
Although the agreements between HAMCO and Equifax and HCG and Equifax were not idеntical, these differences are not material to this appeal. Pursuant to the agreement between HCG and Equifax, HCG would provide Equifax with specified credit criteria and a geographic area, and Equifax, using its credit information databanks, would provide HCG with a list of consumers who met that criteria. This is referred to as "prescreening” potential credit customers.
But see
Dowdy v. Palmour,
Formerly Code Ann. § 6-701 (a) (3) enacted as part of the Appellate Practice Act, Ga. L. 1965, p. 18.
The use of compulsory process is authorized in divorce cases by OCGA § 15-1-4. See
Branch v. Branch,