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Rocker v. First Bank of Dalton

Court of Appeals of Georgia, Fifth Division

October 27, 2017

ROCKER
v.
FIRST BANK OF DALTON.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Branch, Judge.

         John Rocker appeals from an order of the Whitfield County Superior Court which found Rocker in contempt of court based on his failure to comply with a subpoena for the production of documents served on him by First Bank of Dalton during post-judgment discovery. Although Rocker does not challenge the trial court's finding of contempt, he claims that the contempt order fails to comply with Georgia law in two respects. First, Rocker contends that the purge conditions in the contempt order are too indefinite to allow him to determine what documents he must produce to purge himself of contempt. Rocker further asserts that the order is self-executing, in that it required Rocker to report to jail without affording him a hearing to determine whether he had met the purge conditions. We agree with Rocker and we therefore vacate the contempt order and remand for the entry of a new order that remedies the deficiencies complained of.

         As a general rule, where an order of civil contempt is supported by at least some evidence, we will not disturb that order absent an abuse of discretion by the trial court. Thompson v. State, 294 Ga.App. 363 (670 S.E.2d 152) (2008). Such an abuse of discretion occurs where the trial court either fails to apply or misapplies the relevant law. See North Druid Dev. v. Post, Buckley, Schuh & Jernigan, 330 Ga.App. 432, 441 (767 S.E.2d 29) (2014) (on motion for reconsideration); Mathis v. BellSouth Telecommunications, 301 Ga.App. 881 (690 S.E.2d 210) (2010). Additionally, to the extent that the question of the validity of a contempt order involves a question of law, we review that question de novo. See Callaway Blue Springs v. West Basin Capital, 341 Ga.App. 535, 537 (1) (801 S.E.2d 325) (2017).

         The relevant facts are undisputed[1] and show that Rocker is a principal in Karock, LLC. In 2005, Karock obtained a loan in the amount of $1, 343, 022.70 from First Bank of Dalton ("the Bank") that was secured by both certain real property located in Whitfield County and Rocker's personal guaranty. After Karock defaulted on the loan, the Bank foreclosed on the property and sold it at auction for $841, 000, leaving a deficiency of $539, 382.04. The Bank then obtained a judicial confirmation of the sale, [2] and in December 2011, it filed the current action against Karock and Rocker seeking to recover the amount due under the note. Rocker and Karock consented to the entry of judgment against them, and in October 2012, the trial court entered an order of judgment against Karock and Rocker jointly and severally in the amount of $685, 744.00.[3]

         In December 2012, the Bank served its first post-judgment discovery requests on Rocker in an effort to collect on its judgment. As detailed in the trial court's order, Rocker was not cooperative with the discovery process and was especially uncooperative with respect to the scheduling and taking of his deposition. Rocker's noncompliance with discovery led the Bank to obtain a subpoena requiring Rocker to appear for his deposition on July 24, 2015 and to produce certain documents at that time. Rocker did not appear for the deposition noticed in the subpoena, but he eventually agreed to sit for a deposition on September 17, 2015. Rocker, however, abruptly terminated the September deposition before the Bank's attorney was through questioning him and over the objection of the Bank. The Bank then negotiated with Rocker's attorneys for several months in an effort to schedule a continuation of Rocker's deposition. When these efforts failed and Rocker continued in his refusal to cooperate, the Bank filed a motion for contempt on April 21, 2016.

         After holding a hearing on the contempt motion, the trial court issued an order on June 20, 2016 (the "Production Order"), requiring Rocker to produce, no later than June 30, 2016, all documents not previously produced that were responsive to the July 2015 subpoena and to appear for his continued deposition on August 19, 2016. Additionally, the Production Order continued the hearing on the contempt motion until August 26, 2016.

         Following entry of the Production Order, Rocker produced additional documents and appeared for the August 19 deposition. During that deposition, however, Rocker admitted that he had access to or possession of certain documents that were responsive to the Bank's subpoena, but that he had not yet produced those documents.

         At the August 26 contempt hearing, the trial court reviewed Rocker's compliance with the Production Order and heard arguments from the parties as to whether Rocker had produced all subpoenaed documents. The court thereafter entered an order (the "Contempt Order") finding Rocker in contempt for failing to comply fully with the Production Order. The Contempt Order required Rocker to be confined to the Whitfield County jail "for a maximum of 20 days commencing at 8:00 p.m. on" November 11, 2016, but further provided that Rocker could purge himself of contempt if, before 8:00 p.m. on November 11, he paid a $300 fine and "produce[d] any documents that have been requested . . . and that have not been produced, including, but not limited to, " 10 specific categories of documents described in the Contempt Order.

         On the day he was due to report to the Whitfield County jail, Rocker filed a "notice of compliance" with the trial court stating that he had produced responsive documents for each of the 10 categories specified in the Contempt Order. That same day, Rocker also filed a notice of appeal from the Contempt Order.

         1. A party may not be punished for failure to comply with the purge conditions of a contempt order unless those conditions are set forth "in definite terms" that are express rather than implied.[4] Hall v. Nelson, 282 Ga. 441, 444 (3) (651 S.E.2d 72) (2007) (citation and punctuation omitted). See also Cabiness v. Lambros, 303 Ga.App. 253, 255 (1) (692 S.E.2d 817) (2010). Thus, if the order is "not sufficiently definite and certain, " that fact may constitute a defense to an assertion of noncompliance. See Schiselman v. Trust Co. Bank, 246 Ga. 274, 277 (2) (271 S.E.2d 183) (1980); In re Butterfield, 265 Ga.App. 745, 749 (2) (595 S.E.2d 588) (2004). Here, Rocker contends that the contempt order is not sufficiently definite and certain, because it requires him to "produce any documents that have been requested . . . and that have not been produced, including, but not limited to, " the 10 specific categories of documents described in the order.[5] (Emphasis supplied.) As explained more fully below, we find that under the circumstances of this case, the foregoing language is susceptible of more than one reasonable interpretation. Accordingly, we agree with Rocker that the Contempt Order must be vacated.

         The motion that resulted in the Contempt Order was brought pursuant to OCGA § 24-13-26 (a), which provides that "[s]ubpoenas may be enforced by attachment for contempt and by a fine of not more than $300.00 or not more than 20 days' imprisonment, or both." (Emphasis supplied.) Additionally, that motion sought only Rocker's compliance with the July 15, 2015 subpoena; it did not seek to compel the production of any additional documents that had been requested during the post-judgment discovery period. And in the Production Order, the trial court ordered Rocker to produce all documents responsive to the July 2015 subpoena - it did not order him to produce any additional documents. Thus, given the basis for the Bank's contempt motion, the specific relief sought in that motion, and the contents of the Production Order, Rocker is correct that one could logically construe the phrase "any documents that have been requested" to refer only to those documents responsive to the subpoena. Put another way, one could read the Contempt Order as requiring Rocker to produce the 10 specified categories of documents and any additional documents requested under the July 2015 subpoena that did not otherwise fall into one of those 10 categories.

         Although one could reasonably interpret "any documents that have been requested" as referring only to those documents requested in the July 2015 subpoena, the record shows that a number of other requests to produce were made over the course of the post-judgment discovery period. Some of these requests were formal, made through either a written request to produce under OCGA § 9-11-34 or through additional subpoenas. Other requests were more informal and were made by the Bank's attorney at Rocker's deposition and/or via an email exchange between counsel for the parties. And the Contempt Order references some (but not all) of these additional requests to produce. Thus, the Contempt Order could also be read as requiring Rocker to comply with every request to produce made during the course of post-judgment discovery and further requiring him to produce the 10 specified categories of documents listed in the Contempt Order. Notably, the Bank reads the Contempt Order in this way; its brief makes clear that the Bank reads the purge conditions as requiring Rocker to produce all documents requested at any time during post-judgment discovery.

         Given that the purge condition in the Contempt Order requiring Rocker to "produce any documents that have been requested . . . and that have not been produced" is susceptible of more than one reasonable interpretation, we find that the order was not sufficiently definite and specific enough to allow ...


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