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CEI Services v. Sosebee

Court of Appeals of Georgia, Fourth Division

February 9, 2018

CEI SERVICES AS SUBROGEES OF GE FLEET SERVICES
v.
SOSEBEE.

          DILLARD, C. J., RAY and SELF, JJ.

          DILLARD, CHIEF JUDGE.

         CEI Services, as subrogees of GE Fleet Services ("CEI Services"), appeals from the trial court's grant of a protective order and award of attorney fees to Charles Sosebee. CEI Services argues that the trial court erred in (1) granting a protective order to Sosebee after he failed to engage in a good-faith conference and to submit a statement with the motion for protective order certifying that same had occurred, as required by Uniform Superior Court Rule 6.4 (b); and (2) awarding attorney fees under OCGA § 9-15-14 (b) on a post-judgment discovery dispute. For the reasons set forth infra, we affirm in part, vacate in part, and remand for further proceedings.

         The record reflects that CEI Services brought a complaint for negligence against Sosebee in 2011 and eventually obtained a default judgment against him when he failed to file responsive pleadings. It is undisputed that Sosebee thereafter agreed to make payment to CEI Services in settlement. But a dispute later arose as to whether Sosebee had fully paid CEI Services. As a result, in 2016, CEI Services served notices for post-judgment discovery upon Sosebee. And in response, Sosebee filed a motion for protective order. Then, following a hearing and argument on Sosebee's motion, the trial court granted the motion and awarded attorney fees to him. This appeal follows.

         1. CEI Services first argues that the trial court committed reversible error by granting Sosebee a protective order when he failed to engage in a good-faith conference or file a statement with his motion that such a conference had taken place. We disagree.

Uniform Superior Court Rule 6.4 (b) provides as follows:
Prior to filing a motion seeking resolution of a discovery dispute, counsel for the moving party shall confer with counsel for the opposing party and any objecting person or entity in a good faith effort to resolve the matters involved. At the time of filing the motion, counsel shall also file a statement certifying that such conference has occurred and that the effort to resolve by agreement the issues raised failed. This rule also applies to motions to quash, motions for protective order and cases where no discovery has been provided.

         We have previously upheld the grant of a protective order in the absence of a good-faith conference or inclusion of the Rule 6.4 certificate when there has been substantial compliance with the rule.[1] Indeed, in Board of Regents of Univ. Sys. of Ga. v. Ambati, when there was no good-faith conference prior to the hearing or a certificate included with the motion, the trial court "recessed the hearing and ordered counsel to consult with each other, " the court's order reflected that "the parties conferred on the motion prior to the hearing but were unable to reach a resolution, " and the court "found that the discovery dispute could not be resolved amicably."[2] As a result, we concluded in Ambati that there was no clear abuse of discretion, and the violation of Rule 6.4 did not warrant reversal.[3]

         Here, although the trial court's order is silent on the issue, the transcript itself reflects that the hearing on the motion for protective order was originally scheduled for and conducted on September 6, 2016. And at the beginning of the hearing, the trial court inquired of the attorneys, "[D]id y'all get it worked out?" To which counsel responded, "No sir, we'll need a little bit of a hearing." Later, counsel for CEI Services informed the trial court of certain matters that he "tried to verify out in the hall" with opposing counsel so the parties and court "wouldn't have to take up time[.]" Shortly thereafter, the court informed the parties that he believed the best course of action would be to continue the hearing on a later date to allow them to see if they could "work this whole thing out." The court then instructed the parties to "see if y'all can figure out what the best thing to do to resolve [sic] this whole case."

         The parties returned before the trial court to continue the hearing on the motion for protective order on October 4, 2016. At that time, the court reminded the parties that it had continued the hearing to allow them to "come to some sort of resolution[.]" The attorney for CEI Services then stated that his firm "did have conversations with [counsel for Sosebee, the moving party, ] to try to resolve this case" and had offered to withdraw the demand for post-judgment discovery, but Sosebee's counsel "said he preferred to come to court and . . . believed [the court] would rule in his favor if he did." Later, during questions posed by Sosebee's counsel to an attorney with the firm representing CEI Services, the two engaged in a discussion regarding a conversation that they had the day before concerning the amount Sosebee owed to CEI Services in settlement. There was some indication that Sosebee's counsel believed it was "too late" to fruitfully discuss the disagreement at that time. It became evident over the course of the hearing, however, that the crux of the disagreement between the parties was how much Sosebee continued to owe CEI Services, with Sosebee maintaining that he owed nothing because the judgment had been paid in full, and CEI Services claiming that Sosebee owed additional sums.

         Under these particular circumstances, where substantial compliance is evident from the record, the violation of Uniform Superior Court Rule 6.4 (b) does not warrant reversal of the trial court's order.[4]

         2. Next, CEI Services argues that the trial court erred in awarding attorney fees under OCGA § 9-15-14 (b) on a post-judgment discovery dispute.

         It is well established that, as a general matter, "an award of attorney fees is not available unless supported by statute or contract."[5] And in that regard, we recently concluded that OCGA § 9-15-14 does not apply to post-judgment discovery.[6] Indeed, OCGA § 9-15-14 (e) provides that "[a]ttorney's fees and expenses under this Code section may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition of the action." In doing so, we explained that "final disposition, " as used in OCGA § 9-15-14 (e), was synonymous with "final judgment."[7] Thus, any position taken or conduct occurring in post-judgment discovery is "not asserted as a part of the underlying lawsuit, and such a position or other conduct cannot expand the underlying litigation."[8] Accordingly, we concluded that "[t]he plain language of OCGA § 9-15-14 makes clear . . . that the statute does not apply to post-judgment discovery."[9]

         Here, in the motion for protective order, Sosebee requested that attorney fees be assessed against CEI Services for "the wrongful bringing of this discovery, and forcing [Sosebee] to respond, " but did not cite to a specific statutory provision. And during the hearing on the motion, Sosebee's counsel informed the court that he had spent four hours working on and arguing the motion at a rate of $275 an hour for a total of $1, 100. Then, at the hearing's conclusion, the trial court indicated that it would grant the motion and request for fees. The order granting the motion for protective order reflects that the court awarded "reasonable and necessary" attorney fees in the amount of $1, 100 "in favor of [Sosebee] for ...


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