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Heard v. Ruef

Court of Appeals of Georgia, First Division

June 21, 2018


          BARNES, P. J., MCMILLIAN and REESE, JJ.


         William T. Heard, III, appeals the trial court's order holding him in contempt for failing to appear at a postjudgment deposition, ordering him to pay attorney fees and costs as sanctions, and ordering him to appear for a deposition in Georgia. This case raises an issue of first impression as to whether the geographical limits for depositions under OCGA § 9-11-45 (b) (3) apply to nonresident judgment debtors during postjudgment discovery. We find that because the trial court retained jurisdiction over Heard in connection with the judgment and OCGA § 9-11-45 (b) (3) does not apply to parties to a litigation such as Heard, the trial court was authorized to compel Heard to appear for a deposition in Georgia. However, we find that the trial court lacked jurisdiction to grant the motion for contempt because Heard was not personally served with that motion. We therefore reverse the portion of the trial court's order imposing contempt sanctions.

         In September 2008, Andrea Ruef brought suit against Heard asserting claims for fraud, unjust enrichment, and breach of contract in connection with real estate held by the parties through their jointly owned limited liability company. Heard filed a timely answer to the complaint, denying liability. The parties ultimately reached a settlement of the claims and on April 5, 2010, entered into a consent judgment awarding Ruef damages against Heard in the principal amount of $1, 270, 570.77, plus $272, 705.71 in accrued interest. After Heard failed to satisfy this judgment, Ruef obtained a writ of fieri facias, which was filed as of record on October 18, 2012.

         Over four years later, on December 29, 2016, Ruef caused Heard to be personally served with a subpoena and notice of a deposition at a business address in Alabama through a private investigator licensed to serve process there. The notice set the deposition for January 25, 2017, in Atlanta, Georgia. After Heard failed to appear at the appointed place and time, Ruef filed a "Motion to Hold Defendant Heard in Contempt or in the Alternative to Compel, " asking for an evidentiary hearing on the motion for contempt, an order compelling Heard to provide discovery, and an award of attorney fees and costs for the bringing of the motion. Ruef served the motion on Heard by mail at the same Alabama business address, and Heard responded by entering a special appearance to contest the trial court's jurisdiction over him and to argue, alternatively, that the subpoena was unenforceable under state and federal law. In support of this argument, Heard submitted an affidavit stating that he moved to Florida in 2008 and established legal residency there in 2009 and that Ruef had served him with the subpoena and notice of deposition at his work address in Alabama. Following a hearing, the trial court granted Ruef's motion, finding that Heard was subject to the court's jurisdiction and directing him to appear at any properly noticed deposition within the State of Georgia within 30 days. The trial court further ordered that Heard "be held in contempt and subject to pay [Ruef's] attorney fees and costs in an amount of $18, 460.78 as sanctions."

         On appeal, Heard argues that the trial court erred in finding him in contempt, fining him in an amount exceeding the statutory limit for criminal contempt under OCGA § 15-6-8 (5), and determining that it continued to have personal jurisdiction over him more than seven years after entry of the consent judgment[1] such that he could be compelled to attend a postjudgment deposition in Georgia.

         1. We turn first to Heard's argument that he cannot be compelled to come to Georgia for a deposition and begin our analysis with a review of Georgia's postjudgment discovery procedures. OCGA § 9-11-69 provides:

Process to enforce a judgment for the payment of money shall be a writ of execution unless the court directs otherwise. In aid of the judgment or execution, the judgment creditor, or his successor in interest when that interest appears of record, may do any or all of the following:
(1) Examine any person, including the judgment debtor by taking depositions or propounding interrogatories;
(2) Compel the production of documents or things; and
(3) Upon a showing of reasonable necessity, obtain permission from a court of competent jurisdiction to enter upon that part of real property belonging to or lawfully occupied by the debtor which is not used as a residence and which property is not bona fide in the lawful possession of another;
in the manner provided in this chapter for such discovery measures prior to judgment.

         "The purpose of OCGA § 9-11-69 is to allow post judgment discovery to aid a litigant to recover on a liability which has been established by a judgment, in the manner provided for such discovery measures prior to judgment." (Citation and punctuation omitted.) Ostroff v. Coyner, 187 Ga.App. 109, 117 (6) (369 S.E.2d 298) (1988). See also Hickey v. RREF BB SBL Acquisitions, LLC, 336 Ga.App. 411, 414 (2) (a) (785 S.E.2d 72) (2016) (purpose of postjudgment discovery is to aid a litigant in obtaining satisfaction of a judgment). This Court has found that in addition to incorporating prejudgment discovery tools, OCGA § 9-11-69 actually expands the scope of discovery beyond that available during the pendency of an action by providing for the service of postjudgment interrogatories on "'any person, ' regardless of whether that person was a party to the underlying action." Esasky v. Forrest, 231 Ga.App. 488, 489 (1) (a) (499 S.E.2d 413) (1998) (also holding that creditor was entitled to serve postjudgment requests for production of documents against a party's spouse). Compare OCGA § 9-11-33 (a) (allowing the service of interrogatories only upon "any other party") (emphasis supplied). To aid in this postjudgment discovery process, "the trial court has the power to control the details of time, place and scope of [postjudgment] discovery. The court also is authorized to impose sanctions for failure to comply with its [postjudgment] discovery orders[.]" (Citation and punctuation omitted.) Ostroff, 187 Ga.App. at 117 (6).

         After Heard failed to comply with Ruef's deposition notice and subpoena, Ruef filed her motion, and Heard argued in response that the trial court lacked the jurisdiction to compel him to appear at a deposition in Georgia because he is not a Georgia resident and because the location of the deposition violated the geographical limitations set forth under OCGA § 9-11-45 (b) (3). Under that provision, "[a] person who is to give a deposition may be required to attend an examination . . . [a]t any place which is not more than 30 miles from the county seat of the county wherein the witness resides, is employed, or transacts his business in person." OCGA ...

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