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Gary v. Dollar Thrifty Automotive Group

Court of Appeals of Georgia

August 29, 2014

GARY
v.
DOLLAR THRIFTY AUTOMOTIVE GROUP

Reconsideration denied October 21, 2014.

Res judicata. Fulton State Court. Before Judge Leftridge, pro hac vice.

Joe E. Gary, Jr., pro se.

Carlock, Copeland & Stair, Adam L. Appel, for appellee.

MILLER, Judge. Doyle, P. J., and Dillard, J., concur.

OPINION

Miller, Judge.

This appeal arises from a subrogation suit filed by Dollar Thrifty Automotive Group (" DTAG" ) against pro se defendant Joe E. Gary, Jr., to recover damages DTAG paid following a January 2007 automobile accident in which Gary was driving a DTAG rental vehicle. Following a bench trial, the trial court awarded damages to DTAG in the amount of approximately $50,000 in principal along with post-judgment interest. On appeal, Gary argues that the trial court erred

Page 355

in not ruling that DTAG's lawsuit was barred by res judicata and in failing to require DTAG to comply with his discovery requests.[1] For the reasons that follow, we affirm.

On appeal from the entry of judgment in a bench trial, we view the evidence in the light most favorable to the trial court's verdict. Cox Interior v. Bayland Properties, 293 Ga.App. 612, 613 (1) (667 S.E.2d 452) (2008). Although the bench trial was not transcribed, the evidence shows that, in January 2007, Gary rented a vehicle from DTAG. Gary was driving the DTAG rental vehicle when he was involved in an automobile accident. Gary purchased a damage waiver plan that relieved him of liability for damage to the rental vehicle, but he did not purchase supplemental liability insurance from DTAG to cover bodily injury or property damage to third parties. In February 2007, DTAG sent Gary correspondence advising him to immediately report the accident to his insurance company, Shield Insurance Company (" Shield" ). There is no evidence that Gary informed Shield of the accident at that time.

In July 2011, DTAG filed the instant subrogation claim against Gary for damages it paid as a result of the accident. DTAG subsequently filed a motion for summary judgment, arguing that, under the rental agreement, Gary was required to indemnify DTAG. In November 2011, the trial court granted DTAG's motion for summary judgment on the issue of liability, and the case was scheduled for a bench trial on the issue of damages.

[329 Ga.App. 321] Thereafter, Shield moved to intervene and to stay the instant case until its coverage obligations could be determined in a separate declaratory judgment action. The trial court granted Shield's motions.

In the declaratory judgment action, the trial court found that, although Gary had available coverage for the accident under his policy, Shield was not obligated to provide such coverage because Gary failed to provide timely notice of the underlying accident. Shield subsequently filed a motion to dismiss it as a party to this case and to terminate the stay on the basis that it had been granted summary judgment in the declaratory judgment action. The trial court in this case granted Shield's motion to dismiss and terminated the stay.

Gary moved to compel discovery and to dismiss DTAG's lawsuit on the basis that the declaratory judgment granted to Shield precluded further litigation of DTAG's claims because the trial court in the declaratory judgment case ruled that he was unable to pay DTAG.[2] There is no evidence that the trial court ruled on Gary's motions. The case proceeded to a bench trial, resulting in the trial court's award of damages to DTAG in the amount of approximately $50,000 in principal, along with post-judgment interest. This appeal ensued.

Page 356

On appeal, Gary contends that the trial court erred in not granting his motion to dismiss on the grounds that DTAG's suit was barred by res judicata or collateral estoppel. Additionally, he alleges that the trial court erred in denying his motion to compel discovery. The record reveals no ruling by the trial court on any of Gary's motions. Additionally, since the trial was not transcribed and there was no authorized substitute submitted, there is no way to discern whether Gary objected to proceeding to trial without a ruling or otherwise made an effort to elicit a ruling.[3] Accordingly, Gary's enumerations of error present nothing for us to review. See Ware v. [329 Ga.App. 322] Fidelity Acceptance Corp., 225 Ga.App. 41, 42 (1) (482 S.E.2d 536) (1997) (appellant waived claim of error where there was no evidence that the trial court ruled on several motions, including a discovery motion, or that appellant objected to proceeding to trial without a ruling on the motions).

Even if the trial court's failure to rule on Gary's motions could be construed as a denial of the same, no error occurred. Gary's res judicata and collateral estoppel arguments are based on his erroneous belief that DTAG is precluded from recovering damages because of a finding made in the declaratory judgment action that he was unable to pay for the damages resulting from the accident. Res judicata and the related doctrine of collateral estoppel, however, require identical parties or those in privity with them. See, e.g., Butler v. Turner, 274 Ga. 566, 568 (1) (555 S.E.2d 427) (2001). " A privy has generally been defined as one who is represented at trial and who is in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right." (Citations omitted.) Id.

Here, DTAG was not a party to the declaratory judgment action. Although Gary contends that the " trial court erred by not classifying [him] as one of six classes of privies," he makes no showing that DTAG was in privity with Shield. Since the declaratory judgment involved a coverage dispute under the Shield policy, whereas the instant case concerns a contractual issue under the DTAG rental policy, Shield cannot be said to be in privity with DTAG because their interests were not fully congruent. See Butler, supra, 274 Ga. at 568 (1) (" [B]efore privity can be established, the interests of the party must fully 'represent' the interests of the privy and be fully congruent with those interests." ) (citations and punctuation omitted). Consequently, res judicata and collateral estoppel do not apply.

Likewise, there is no merit to Gary's claim that the trial court erred in refusing to grant his motion to make DTAG cooperate in discovery. In his motion, Gary argued that DTAG failed to answer all questions propounded to it and attached a copy of the questions relating to DTAG's damages. A review of the attached discovery request reveals that it was comprised mostly of statements challenging the validity of DTAG's damages, rather than propounding questions. Nevertheless, Gary has failed to establish reversible error from the trial court's refusal to grant his motion to compel, because any relevant information as to DTAG's damages was presumably presented at the bench trial, and there is no evidence that any delay prejudiced his defense. See Infinite Energy v. Cottrell, 295 Ga.App. 306, 309 (2) (671 S.E.2d 294) (2008) (no reversible error in trial court's refusal to consider motion to compel where discovery information [329 Ga.App. 323] sought was introduced at trial, defendant had ability to review the material, and there was no evidence that the defendant was prejudiced by the delay in obtaining the information). Accordingly, we affirm the trial court's judgment.[4]

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.


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