text:
    A17A0461.
    DOUGHERTY v. THE STATE.
    (799 SE2d 257)
   BARNES, Presiding Judge.

Following a bench trial, the trial court found Preston Wayne Dougherty guilty of two counts of misdemeanor obstruction of a law enforcement officer based on Dougherty’s resistance to two officers who were attempting to arrest him. Dougherty now appeals, contending that there was insufficient evidence that he obstructed the officers while they were acting in the lawful discharge of their official duties. Upon our review, we affirm.

Construed in the light most favorable to the verdict, see Bray v. State, 330 Ga. App. 768, 771 (1) (768 SE2d 285) (2015), the evidence showed that at approximately 8:00 p.m. on March 19, 2016, a patrol officer with the Floyd County Police Department was turning onto Chulio Road when he was dispatched to an area of that road where someone was reportedly attempting to break into vehicles. It was still light outside when the officer received the call from the 911 dispatcher. As the officer drove by the area of the road where he had been dispatched, he passed by a man, later identified as Dougherty, walking down the side of the road. The officer saw no one else in the area.

The officer decided to speak with Dougherty in light of the reported attempted car break-ins in that area of the road. The officer turned around his patrol car, activated his blue lights for safety reasons due to the traffic conditions, and parked his car on the road. After exiting his patrol car, the officer approached Dougherty, who continued walking down the opposite side of the road, and said, “Howdy, hey how are you doing sir?” According to the officer, Dough-erty acted “completely weird” and “was not making sense” when the officer approached him and tried to speak with him, causing the officer to be concerned for his own and Dougherty’s safety while standing on the road.

After briefly speaking with and observing Dougherty, the officer asked Dougherty to take his hands out of his pockets and then to come over in front of his patrol car away from traffic. The officer testified that Dougherty took his hands out of his pockets, but then kept “patting down his pockets[,] trying to continue to put his hands back in his pockets.” The officer also testified that Dougherty would say “okay” in response to the officer’s requests for him to move out of the lane of traffic and come stand in front of the patrol car, but then would start walking down the road away from the officer. Dougherty also insisted that he was “fine,” but then asked the officer if he could take him home.

After initially continuing to walk down the road, Dougherty followed the officer over to the front of the patrol car and stood there with his hands out of his pockets. Dougherty told the officer his name, but when the officer inquired where he lived, Dougherty responded “right up here” and could not give an address. The officer asked Dougherty for identification and tried to continue questioning Dough-erty, but Dougherty was unresponsive to many of his questions, tried to put his hands back in his pockets, and again tried to walk away from the officer while saying “okay”

The officer had Dougherty lean against the bar on the front of his patrol car and conducted a pat-down search for weapons, and Dough-erty consented to a search of his pockets. When the officer searched one of Dougherty’s pockets, he felt a needle. When the officer felt the needle, Dougherty took one of his hands off of the police car and swung it in the air while saying “I’m sorry” The officer attempted to place Dougherty’s arm behind his back to handcuff and arrest him, but Dougherty tried to pull his arm away from the officer, and a struggle ensued during which the officer attempted to take Dough-erty to the ground and subdue him.

The officer repeatedly ordered Dougherty to stop resisting and to put his hands behind his back so that he could be handcuffed, but Dougherty did not follow the commands even while saying “okay” several more times. The officer tried to physically subdue Dougherty, but Dougherty continued struggling with the officer and, according to the officer, did not appear to feel any pain. During the struggle, the officer’s body camera fell off, and Dougherty grabbed it and held it tightly in his hand.

A second patrol officer arrived on the scene and deployed his taser on Dougherty when he would not stop resisting the officers, but Dougherty continued to disobey both officers’ commands to put his hands behind his back so that he could be handcuffed. The officers ultimately were able to subdue Dougherty and handcuff him, but only after deploying the taser a second time.

Dougherty was indicted on two charges of felony obstruction of a law enforcement officer and one count of battery. Dougherty elected to be tried in a bench trial, where the patrol officer who first responded to the scene (the “first officer”) testified to his encounter with Dougherty as summarized above. The second patrol officer who arrived on the scene did not testify

The State also introduced into evidence and played for the trial court an audio-video recording from a camera mounted in the front of the first officer’s patrol car (the “dash-cam recording”). The first officer’s initial interaction with Dougherty on the road was captured only on the audio portion of the dash-cam recording, and some of Dougherty’s verbal responses to the officer are difficult to hear on it. The police encounter with Dougherty from the point when he stepped in front of the first officer’s patrol car until he was subdued and arrested was captured on both the video and audio portions of the dash-cam recording.

Following the first officer’s testimony and the playing of the dash-cam recording, the State rested. Dougherty elected not to testify or call any defense witnesses.

After hearing the first officer’s testimony and reviewing the dash-cam recording, the trial court acquitted Dougherty of felony obstruction and battery, but found him guilty of two counts of the lesser included offense of misdemeanor obstruction of a law enforcement officer. The trial court found that when the first officer initially approached Dougherty on the road, it was a first-tier consensual encounter for Fourth Amendment purposes, but that the officer escalated the encounter to a second-tier investigatory detention “very fast.” The trial court further found that “at that point there was clearly something wrong with Mr. Dougherty” and that, consequently, the first officer had reasonable suspicion, and was acting in the lawful discharge of his official duties, in initially detaining Dougherty for “at least, if nothing else, [being] a pedestrian under the influence of something.” According to the trial court, “[a] person that’s walking down Chulio Road in that kind of shape is either going to get [him] self killed or someone else.” The trial court further found that Dougherty unlawfully resisted both officers’ subsequent efforts to handcuff and arrest him after his initial detention, “given his state of inebriation of whatever it was he was under the influence of,” and that his resistance to his arrest supported his convictions for misdemeanor obstruction.

Dougherty now appeals, contending that there was insufficient evidence to convict him of misdemeanor obstruction because the officers were not acting in the lawful discharge of their official duties, thereby entitling him to resist his arrest. We disagree.

On appeal from a bench trial resulting in a criminal conviction, we view all evidence in the light most favorable to the trial court’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not re-weigh testimony, determine witness credibility, or address assertions of conflicting evidence; our role is to determine whether the evidence presented is sufficient for a rational trier of fact to find guilt beyond a reasonable doubt.

(Citation and punctuation omitted.) Bray, 330 Ga. App. at 771-772 (1).

Mindful of the standard of review, we turn to Georgia law pertaining to misdemeanor obstruction. OCGA § 16-10-24 (a) provides in relevant part that “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” Proof that an officer was acting in the lawful discharge of his official duties thus is an essential statutory element of the offense. West v. State, 296 Ga. App. 58, 60 (2) (673 SE2d 558) (2009); Overand v. State, 240 Ga. App. 682, 682-683 (1) (523 SE2d 610) (1999).

Whether an officer was acting in the lawful discharge of his official duties often turns on the type of encounter between the officer and a citizen. Under the Fourth Amendment to the United States Constitution, there are three tiers of police-citizen encounters:

First-tier encounters are consensual communications between police and citizens and involve no coercion or detention; second-tier encounters, which must be supported by reasonable suspicion, are brief stops done for the purpose of investigating suspected criminal activity; and third-tier encounters are actual or de facto arrests and, accordingly, must be supported by probable cause.

(Citation and footnote omitted.) Thomas v. State, 301 Ga. App. 198, 200 (1) (687 SE2d 203) (2009). “Apolice officer is not discharging his lawful duty when he arrests an individual without reasonable or probable cause,” or when he conducts a brief investigatory detention of an individual “without a particularized and objective basis for suspecting criminal activity” (Citations and punctuation omitted.) In the Interest of J. T., 239 Ga. App. 756, 759 (521 SE2d 862) (1999). See Curtis v. State, 285 Ga. App. 298, 300 (1) (a) (645 SE2d 705) (2007); Wynn v. State, 236 Ga. App. 98, 99 (2) (511 SE2d 201) (1999).

In his brief on appeal, Dougherty argues that the first officer immediately escalated their encounter to a second-tier investigatory detention when he activated his blue lights, exited the patrol car, and required Dougherty to remove his hands from his pockets and stand in front of the patrol car. According to Dougherty, the officer lacked reasonable suspicion to detain him at that point because the officer was relying on a vague 911 dispatch that someone had been trying to break into cars in the area, and Dougherty at most exhibited “furtive” behavior when initially approached by the officer. Dougherty further maintains that because the first officer initially detained him without reasonable suspicion of any criminal activity, the officer was not acting in the lawful discharge of his official duties from that point onward, rendering unlawful the officers’ subsequent efforts to handcuff and arrest him. Consequently, Dougherty contends that he was entitled to resist his detention “from the beginning” and to continue resisting throughout the police encounter, including when both officers sought to handcuff and arrest him. We are unpersuaded.

As an initial matter, we conclude that there was evidence supporting the trial court’s determination that there was some interaction between Dougherty and the first officer on the road, albeit very brief, before the officer escalated the encounter to a second-tier investigatory detention. It is well established that “ ‘a seizure does not occur simply because a police officer approaches an individual and asks a few questions.’ ” State v. Westmoreland, 204 Ga. App. 312, 313 (1) (418 SE2d 822) (1992), quoting Florida v. Bostick, 501 U. S. 429, 434 (II) (111 SCt 2382, 115 LE2d 389) (1991). Rather, an encounter escalates from a first-tier consensual interaction to a second-tier investigatory detention only when the individual is “seized” by the officer, i.e., “ ‘[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty’ ” of the individual. State v. Walker, 295 Ga. 888, 890 (764 SE2d 804) (2014), quoting Terry v. Ohio, 392 U. S. 1, 19 (II), n. 16 (88 SCt 1868, 20 LE2d 889) (1968).

In the present case, the audio captured on the dash-cam recording reflects that the first officer spoke briefly with Dougherty before having Dougherty remove his hands from his pockets and stand in front of the patrol car. Thus, there was evidence of a short gap in time between when the officer initially observed and interacted with Dougherty and when the officer escalated the encounter to a second-tier investigatory detention. See Durden v. State, 320 Ga. App. 218, 220 (1) (739 SE2d 676) (2013) (encounter escalated to second-tier investigatory detention when suspect stopped and removed hands from his pockets at the officer’s command); Walker v. State, 299 Ga. App. 788, 790 (1) (683 SE2d 867) (2009) (encounter became second-tier investigatory detention when suspect came back and sat on pavement at the officer’s direction). The operative question, therefore, is whether there was at least some evidence that the officer had reasonable suspicion to quickly escalate the encounter to an investigatory detention based on his brief, initial observation and interaction with Dougherty on the roadway. Construing the evidence in the light most favorable to the trial court’s ruling, we answer that question in the affirmative.

To meet the reasonable suspicion standard for conducting a second-tier investigatory detention, “the police must have, under the totality of the circumstances, a particularized and objective basis for suspecting [that a] person is involved in criminal activity” (Citation and punctuation omitted.) Walker v. State, 314 Ga.App. 67, 70 (1) (722 SE2d 887) (2012). “This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.” (Citation and punctuation omitted.) Gonzalez v. State, 334 Ga. App. 706, 711 (2) (780 SE2d 383) (2015). “[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior” rather than on scientific certainty. Illinois v. Wardlow, 528 U. S. 119, 125 (120 SCt 673, 145 LE2d 570) (2000).

Pretermitting whether the first officer had reasonable suspicion based on the information supplied by the 911 dispatcher about the attempted car break-ins in the area, we conclude that there was evidence that the officer had reasonable suspicion, based on his initial observation and interaction with Dougherty, to believe that Dougherty was a pedestrian under the influence and to detain him on that ground. The trial court found that Dougherty “clearly” was “a pedestrian under the influence of something” and in a “state of inebriation” while walking down the road, and the dash-cam recording supports the trial court’s finding. The trial court’s finding was further supported by the first officer’s testimony that when he first approached and tried to speak with Dougherty as he was walking down the heavily traveled road at 8:00 p.m., Dougherty was acting “completely weird” and “was not making sense.”

“A person who is under the influence of intoxicating liquor or any drug to a degree which renders him a hazard shall not walk or be upon any roadway or the shoulder of any roadway” OCGA § 40-6-95. In light of the officer’s testimony combined with the dash-cam recording, there was evidence from which the trial court could find that the officer, upon first interacting with Dougherty, developed reasonable suspicion to believe that Dougherty was a pedestrian under the influence and to quickly escalate the encounter to a second-tier detention on that basis. See OCGA § 40-6-95; Mack v. State, 305 Ga. App. 697, 698 (1) (700 SE2d 685) (2010) (officer had reasonable suspicion to believe that pedestrian who was about to walk down the street was under the influence of alcohol and to detain him on that ground); Zeeman v. State, 249 Ga. App. 625, 627-628 (1) (549 SE2d 442) (2001) (even if officers lacked reasonable suspicion to detain the defendant for involvement in a drug transaction, officers could detain him on the basis that he appeared to be under the influence and was about to drive).

While the officer did not specifically testify that one of his reasons for detaining Dougherty was his apparent intoxicated state while walking down the road, an “officer’s subjective motivation is irrelevant” in determining whether reasonable suspicion exists. Brigham City v. Stuart, 547 U. S. 398, 404 (II) (126 SCt 1943, 164 LE2d 650) (2006). Rather, the detention is lawful “as long as the circumstances, viewed objectively,” support a finding of reasonable suspicion, as was true in this case, based on Dougherty’s demeanor, words, and conduct as described in the officer’s testimony and as shown on the dash-cam recording. (Citation, punctuation and emphasis omitted.) Id.

Decided March 29, 2017

Robert C. Rutledge, for appellant.

Leigh E. Patterson, District Attorney, Kay Ann Wetherington, Assistant District Attorney, for appellee.

For these reasons, the trial court was entitled to find that the first officer had reasonable suspicion and was acting in the lawful discharge of his official duties in escalating the encounter to a second-tier investigatory detention. Dougherty’s argument that an illegal initial detention rendered the rest of his detention unlawful and justified his continued resistance therefore is unpersuasive, and we affirm his convictions for misdemeanor obstruction.

Judgment affirmed.

McMillian and Mercier, JJ., concur.

       We conduct a de novo review of factual findings when the controlling facts are clearly and completely discernible from a video recording. Capellan v. State, 316 Ga. App. 467, 467 (729 SE2d 602) (2012). But where, as here, some of the controlling facts are not fully captured in the recording, we defer to the trial court’s findings regarding those facts. See State v. Chulpayev, 296 Ga. 764, 771 (2), n. 5 (770 SE2d 808) (2015); State v. Hall, 339 Ga. App. 237, 244-245 (793 SE2d 522) (2016).

       Before approaching Dougherty on foot and speaking with him, the first officer parked his patrol car in the opposite lane of traffic with the blue lights activated. The officer testified that he activated the blue lights “for safety reasons” because of the “heavy traffic,” and that Dougherty continued walking down the road at that point. In light of the officer’s testimony, the trial court was entitled to find that the activation of the blue lights on the patrol car did not, standing alone, escalate the interaction to a second-tier investigatory detention. See Cash v. State, 337 Ga.App. 511, 514-515 (2) (786 SE2d 560) (2016); Darwicki v. State, 291 Ga.App. 239, 240 (1) (661 SE2d 859) (2008).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A16A1512.
    RL BB ACQ I-GA CVL, LLC v. WORKMAN et al.
    (798 SE2d 677)
   Branch, Judge.

The current appeal arises out of a post-judgment discovery dispute, and it presents this Court with several unique questions. First, the appeal requires us to determine whether a party involved in a post-judgment discovery dispute can assert a claim for attorney fees under OCGA § 9-15-14. Additionally, this case poses the question of whether a party who fails to request an award of expenses (including attorney fees) at the time it moves for a protective order can seek such an award at a later time, by way of a separate motion for sanctions. And assuming that a party may bring a separate sanctions motion to recover expenses incurred in obtaining a protective order, the question becomes whether the Civil Practice Act allows that party to recover the expenses associated with such a sanctions motion. We address each of these questions, as well as other relevant issues, below.

The record shows that after RL BB ACQ I-GA CVL, LLC (“Rialto”), obtained a $1.9 million judgment against Cooper Village, LLC, and Howard Workman (collectively, the “Judgment Debtors”), the company served post-judgment discovery requests on Howard’s wife, Honey C. Workman, and 16 separate LLCs managed by Honey and in which Howard had an ownership interest. Honey and the LLCs (collectively, the “Third Parties”) limited their discovery responses to information and documents relating to or evidencing assets belonging to or transferred from the Judgment Debtors and/or transactions involving the Judgment Debtors. Rialto then served additional discovery requests on Fidelity Bank, seeking numerous documents relating to any account held at Fidelity by Cooper Village, Howard, Honey, and/or any of the LLCs. The Third Parties sought and obtained a protective order that limited the discovery Rialto could receive from Fidelity. Approximately six weeks after entry of that order, and three days after Rialto’s attorneys allegedly failed to appear to take Honey’s deposition, the Third Parties filed a motion seeking costs, attorney fees, and sanctions under OCGA §§ 9-15-14, 9-11-26, 9-11-30, and 9-11-37. Following a hearing, the trial court granted that motion and entered an order requiring Rialto and its attorneys to pay the fees and costs incurred by the Third Parties in moving for the protective order, in preparing for and attending Honey’s deposition, and in pursuing their motion for sanctions. That order also sanctioned Rialto by barring it from conducting a post-judgment deposition of Honey for a period of five years.

Rialto now appeals, asserting that the trial court erred in basing its award of fees and costs on OCGA § 9-15-14. Rialto further contends that any award based on OCGA § 9-15-14 must be reversed because the findings of fact on which the trial court based that award are not supported by the evidence and because the trial court failed to determine what portion of the fees claimed by the Third Parties was attributable to Rialto’s sanctionable conduct. Additionally, Rialto argues that the trial court erred in awarding the Third Parties the costs and fees they incurred in preparing for and attending Honey’s deposition and in bringing the sanctions motion. Finally, Rialto asserts that the Third Parties waived their right to seek an award under OCGA § 9-11-26 because they did not assert a right to recover under that statute until they filed their reply in support of their sanctions motion, and because they did not request their costs and fees at the time they moved for the protective order.

We find that OCGA § 9-15-14 does not apply to post-judgment discovery, and we reverse the trial court’s order to the extent that it holds otherwise. Additionally, for reasons explained more fully below, we reverse the trial court’s award of the Third Parties’ costs and fees incurred in preparing for and attending Honey Workman’s deposition and in bringing the sanctions motion. We also reverse the court’s imposition of the non-monetary sanction against Rialto. Finally, we vacate that part of the court’s order awarding the Third Parties the costs and fees associated with their motion for a protective order and remand for further proceedings on the question of whether OCGA § 9-11-26 permits a party to pursue such an award by way of a separate sanctions motion, filed after the motion for a protective order has been heard and decided.

“[T]rial courts are afforded broad discretion to control discovery and to impose sanctions for a party’s failure to comply with discovery requests, and this Court will not reverse a trial court’s ruling on such matters absent an abuse of that discretion.” North Druid Dev. v. Post, Buckley, Schuh & Jernigan, 330 Ga. App. 432, 434-435 (1) (767 SE2d 29) (2014) (citation and footnote omitted). See also In re Callaway, 212 Ga. App. 500, 501 (442 SE2d 309) (1994) (under the Civil Practice Act, the trial court’s broad discretion with respect to discovery extends to post-judgment discovery). Such an abuse of discretion occurs where the trial court either fails to apply or misapplies the relevant law. See North Druid Dev., 330 Ga.App. at 441 (on motion for reconsideration); Mathis v. BellSouth Telecommunications, 301 Ga. App. 881 (690 SE2d 210) (2010).

The relevant facts are undisputed and show that in exchange for a $5.5 million loan from BB&T Bank, Cooper Village provided the bank with both a promissory note and a security interest in certain real property located in Gwinnett County Howard, who executed all of the loan documents in his capacity as manager of Cooper Village, also gave a personal guaranty to secure the note. BB&T eventually assigned its rights under all of the loan documents, including Howard’s personal guaranty, to Rialto. After Cooper Village defaulted on the note and Howard refused to honor his guaranty, Rialto exercised its rights under the deed to secure debt, sold the Gwinnett County property for $4 million, and obtained a judicial confirmation of that sale.

In July 2012, Rialto sued Cooper Village and the Workmans in Fulton County Superior Court seeking a deficiency judgment for the amounts owed under the promissory note. In its complaint, Rialto asserted a claim against Cooper Village for breach of the promissory note, a claim against Howard for breach of the guaranty, and a claim against both Howard and Honey for fraudulent transfer of property Rialto sought and received summary judgment on its contractual claims against Cooper Village and Howard, and on May 22, 2013, the trial court entered judgment against those two defendants jointly and severally in the amount of $1,970,417.92 plus interest. Rialto voluntarily dismissed its remaining claims without prejudice on January 22, 2014, and the trial court entered an order closing the case on February 18, 2014.

During January and February 2014, Rialto served separate post-judgment discovery requests (including interrogatories and request to produce) on each of the Third Parties. The discovery requests served on Honey demanded all of her personal financial records and the financial records of any entity in which she owned at least a five percent interest, dating back to January 1, 2009. The requests served on the third party LLCs demanded, among other things, all of the financial records of each entity The Third Parties objected to producing all of the financial information requested by Rialto, but agreed to produce documents relating to any assets belonging to Howard or any transfers of funds or property to or from Howard. It appears that the Third Parties thereafter provided such information to Rialto in the spring of 2014. Approximately one year later, in May 2015, Rialto served post-judgment discovery requests on Fidelity Bank, which sought

any and all documents that relate, reflect, or refer to bank statements, copies of checks (front and back), deposits, wire transfers, debits, and credits of Howard B. Workman; Honey B. [sic] Workman; Cooper Village, LLC; [the 16 LLCs;] or any other entity or trust in which Fidelity Bank knows that Howard B. Workman maintains an interest.

The Third Parties objected to these requests, and when the parties could not reach an agreement as to the appropriate scope of discovery from Fidelity, the Third Parties filed a motion for a protective order. Following a hearing, the trial court entered an order granting the motion and limiting the discovery Rialto could obtain from Fidelity. The Third Parties did not request an award of their costs and fees at the time they moved for the protective order, and the order entered by the trial court did not make such an award.

The protective order was entered on July 24, 2015, and on that same day an attorney for Rialto e-mailed the attorneys representing the Third Parties, requesting that they provide him with dates Honey and Howard would be available for post-judgment depositions. An attorney for the Third Parties responded that the firm no longer represented Howard and that they would provide possible dates for Honey’s deposition at a later time. On August 3, the attorney e-mailed Rialto’s lawyer reiterating that the firm no longer represented Howard, stating that it could not accept service on Howard’s behalf, providing a list of six dates that Honey could be made available for a deposition (including September 1,2015), and expressing their desire that Honey’s deposition occur at her lawyers’ offices. Rialto’s attorney responded, “September 1, 2015 at your office. We’d like to depose [Howard] on September 2, if possible.” The e-mail did not specify a time for Honey’s deposition, and Rialto never formally noticed that deposition.

At 9:09 a.m. on September 1, counsel for the Third Parties e-mailed Rialto’s attorney that Honey was at counsel’s offices for her deposition “but, as of now, no attorneys for Rialto have appeared at our office. Are you no longer deposing her today?” Rialto’s lawyer responded, “We are not — we did not serve the notice for that day to confirm.” Three days later, the Third Parties filed the motion that gave rise to this appeal.

The motion asserted a claim under OCGA § 9-15-14 for the attorney fees and costs incurred by the Third Parties in moving for the protective order, in preparing for Honey’s deposition, and in bringing the attorney fees motion. The Third Parties argued that they were entitled to assert a claim under OCGA § 9-15-14 because Rialto had acted unreasonably during post-judgment discovery. They further asserted that OCGA § 9-11-30 (d) entitled them to an award of all expenses (including attorney fees) associated with preparing Honey for her deposition, and that OCGA §§ 9-11-26 and 9-11-37 entitled them to an award of expenses associated with their motion for a protective order. Finally, although there was no evidence that Rialto had violated or otherwise attempted to circumvent the protective order, the Third Parties sought an award of sanctions against Rialto under OCGA §§ 9-11-26 and 9-11-37.

Following a hearing, the trial court granted the Third Parties’ motion and entered an order affording the Third Parties all of the relief they had requested. Specifically, the trial court found that Rialto’s conduct in serving broad post-judgment discovery on Fidelity and in opposing the motion for the protective order violated OCGA § 9-15-14; that Rialto’s failure to appear for Honey’s deposition violated both OCGA §§ 9-15-14 and 9-11-30; and that regardless of the merits of Rialto’s opposition to the protective order, OCGA §§ 9-11-26 and 9-11-37 required the court to award the Third Parties, as the prevailing movants, the costs and attorney fees they incurred in pursuing the protective order. Based on evidence submitted by the Third Parties in support of their motion, the trial court awarded the Third Parties $41,602 in attorney fees and $616.73 in expenses, and entered judgment against Rialto and their attorneys for that amount. The order further provided that “pursuant to OCGA § 9-11-26 (c) and OCGA § 9-11-37 Rialto is prohibited from taking any further oral post-judgment examination of [Honey] for a period of [five] years from the date of the entry of this order.” Rialto now appeals from these rulings.

1. Rialto contends that the trial court erred in finding that the Third Parties were entitled to recover costs and attorney fees under OCGA § 9-15-14. We agree, although not for the reasons argued in Rialto’s brief.

The question that neither the parties nor the trial court considered is whether OCGA § 9-15-14 applies to post-judgment discovery disputes. In analyzing this question, we are guided by the plain language of OCGA § 9-15-14 itself, as

we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013) (citations and punctuation omitted). Moreover, because OCGA § 9-15-14 provides for an award of attorney fees, the statute is in derogation of the common law, and it must be strictly construed against such an award. Doster v. Bates, 266 Ga. App. 194, 195 (1) (596 SE2d 699) (2004).

OCGA § 9-15-14 (a) provides:

In any civil action in any court of record of this state, reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. . . .

(Emphasis supplied.)

Subsection (b) of this statute allows a court to award such expenses and fees “in any civil action in any court of record if,” the court

. . . finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the “Georgia Civil Practice Act.” . . .

(Emphasis supplied.)

The plain language of OCGA § 9-15-14 (a) references fees and litigation expenses incurred as the result of an assertion by one party against another of a particular claim, defense, or theory of recovery during the course of a lawsuit. Similarly, subsection (b) references costs and fees incurred as the result of a party bringing or defending “an action, or any part thereof,” or from a party “unnecessarily expanding]” a lawsuit by improper conduct. As this case demonstrates, however, post-judgment discovery occurs after the underlying civil action has concluded. 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. The plain language of OCGA § 9-15-14 makes clear, therefore, that the statute does not apply to post-judgment discovery

This conclusion is supported by at least two additional factors. First, the language of OCGA § 9-11-69, which governs post-judgment discovery, provides that to facilitate the execution of a judgment “the judgment creditor ... may do any or all of the following: (1) [e]xamine any person, including the judgment debtor by taking depositions or propounding interrogatories; (2) [c]ompel the production of documents or things ... in the manner provided in this chapter for such discovery measures prior to judgment.” (Emphasis supplied.)

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. Thus[,] the trial court has the power to control the details of time, place[,] and scope of [post-judgment] discovery. The court also is authorized to impose sanctions for failure to comply with its [post-judgment] discovery orders [.]

Ostroff v. Coyner, 187 Ga. App. 109, 117 (6) (369 SE2d 298) (1988) (citations omitted). As the foregoing demonstrates, post-judgment discovery is governed by the general discovery provisions of the Civil Practice Act. Id. See also C-Staff Inc. v. Liberty Mut. Ins. Co., 275 Ga. 624, 625-626 (1) (571 SE2d 383) (2002). OCGA § 9-15-14, however, is not included in Georgia’s Civil Practice Act, and therefore OCGA § 9-11-69 provides no basis for extending the application of that statute to post-judgment discovery

Furthermore, OCGA § 9-15-14 (e) provides that “[ajttorney’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.” (Emphasis supplied.) As used in OCGA § 9-15-14 (e), the phrase “final disposition” is synonymous with “final judgment.” See Fairburn Banking Co. v. Gafford, 263 Ga. 792, 793 (439 SE2d 482) (1994). “A final judgment exists . . . and therefore a case has been finally disposed of for purposes of OCGA § 9-15-14[ ] where the trial court issues an order that leaves no issues remaining to be resolved, constitutes the court’s final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court.” Horesh v. DeKinder, 295 Ga.App. 826, 828 (1) (673 SE2d 311) (2009) (citation and punctuation omitted). When considered in conjunction with the fact that post-judgment discovery cannot begin until after final judgment has been entered, the fact that any motion under OCGA § 9-15-14mustbefiledno later than 45 days following the entry of final judgment in the underlying case further supports the conclusion that OCGA § 9-15-14 does not apply in the context of post-judgment discovery.

In light of the foregoing, we reverse those parts of the trial court’s order that rely on OCGA § 9-15-14 to support an award of costs and attorney fees to the Third Parties.

2. Given our holding in Division 1, we need not address Rialto’s remaining arguments as to why the trial court’s award of costs and fees under OCGA § 9-15-14 should be reversed.

3. Rialto contends that the trial court erred in awarding the Third Parties costs and fees associated with attending Honey’s deposition and in preparing their client for that deposition. The trial court based its award on OCGA § 9-11-30 (g) (1), which provides that if a party giving notice of a deposition under OCGA § 9-11-30 (b)

fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney’s fees.

The Third Parties asserted, and the trial court found, that the e-mail exchange between the attorneys for Rialto and counsel for the Third Parties constituted a notice of deposition under OCGA § 9-11-30 (b). We disagree.

OCGA § 9-11-30 (b) requires that to be enforceable, a notice of deposition must be in writing; must be given “to every other party to the action”; and must “state the time and place for taking the deposition, the means by which the testimony shall be recorded, and the name and address of each person to be examined . . . OCGA § 9-11-30 (b) (1). Assuming that an e-mail exchange between counsel for the parties satisfies the requirement that a deposition notice be in writing, the exchange in this case fails to satisfy other requirements for such a notice.

Neither the parties to this appeal nor the trial court’s order addresses the fact that the Judgment Debtors were parties both to the underlying litigation and to the judgment which resulted in the post-judgment discovery. Thus, to be effective, any notice of Honey’s deposition must have been served on Howard. The e-mail exchange at issue shows, however, that although the attorneys for the Third Parties had at one point represented Howard, they had withdrawn from that representation and they therefore explicitly declined to accept service of any deposition notice on his behalf. Moreover, while the e-mail exchange specifies a date and location for the deposition (September 1, 2015 at the offices of the Third Parties’ attorneys), it does not specify a time. Nor did the e-mail exchange specify the means by which Honey’s testimony would be recorded—i.e., it did not state whether the deposition would be transcribed by a court reporter or videotaped. Given that the e-mail exchange failed to satisfy the notice requirements of OCGA § 9-11-30 (b), the trial court could not make an award under OCGA § 9-11-30 (g) for Rialto’s alleged failure to appear for Honey’s deposition. Accordingly, we reverse that part of the trial court’s order awarding the Third Parties the expenses and fees they incurred in preparing for and attending Honey’s deposition.

4. In light of our holding in Division 3, we also reverse that part of the trial court’s order which bars Rialto from deposing Honey for a period of five years. Although Rialto did not specifically enumerate as error the imposition of this sanction, the sanction was based on the erroneous conclusion that Honey’s deposition had been noticed in accordance with OCGA § 9-11-30 (b). Moreover, even had the deposition been properly noticed, the Civil Practice Act did not authorize the trial court to impose any sanction other than the award of costs and fees against Rialto. See Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 438 (2) (254 SE2d 825) (1979) (a trial court may not impose discovery sanctions unless a party has violated a court order regarding discovery or has failed completely to respond to discovery or appear for a deposition); Carrier Corp. v. Rollins, Inc., 316 Ga. App. 630, 638 (5) (a) (730 SE2d 103) (2012) (except in limited circumstances, OCGA § 9-11-37 authorizes a trial court to impose sanctions “only for a failure to comply with an order of the court”) (citation, punctuation and emphasis omitted); OCGA § 9-11-37 (b), (d) (1). Additionally, to the extent that the trial court was relying on the language of OCGA § 9-11-26 (c) (1) to justify the imposition of the sanction in question, that reliance was misplaced. OCGA § 9-11-26 (c) (1) allows a court to include, as part of a protective order, a provision that certain discovery “not be had.” Here, however, the trial court was not granting the Third Parties a protective order providing that Rialto could never depose Honey. Rather, it was sanctioning Rialto by barring it from deposing Honey for a certain period of time. And neither OCGA § 9-11-26 nor § 9-11-37 allows the imposition of such a discovery sanction in the absence of evidence showing that a party is in violation of a court order.

Given that we have reversed the finding that served as the basis for the sanction at issue and that the trial court was without authority to impose that sanction, we reverse the same. See Carter v. Glenn, 243 Ga.App. 544, 550-551 (2) (533 SE2d 109) (2000) (reversing a legal ruling by a trial court that was not specifically enumerated as error but which was in direct conflict with the statute the court was purportedly applying).

5. Rialto asserts that the relevant provisions of the Civil Practice Act did not authorize the trial court to award the Third Parties the costs and fees they incurred in pursuing their sanctions motion. We agree.

OCGA § 9-11-26 (c), which governs protective orders, states that the provisions of OCGA § 9-11-37 (a) (4) “appl[y] to the award of expenses incurred in relation to” a motion for a protective order. And under OCGA § 9-11-37, where a party prevails on a motion for a protective order,

the court shall, after opportunity for hearing, require the party... whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

OCGA § 9-11-37 (a) (4) (A).

This language clearly contemplates that any award of expenses under OCGA § 9-11-37 (a) (4) (A) will be considered and decided at the time the trial court hears and decides the motion for a protective order. In other words, the statutory scheme does not appear to contemplate that a party will bring a separate “sanctions” motion to recover its costs and fees at some indeterminate point in time after that party prevails on a discovery motion. Our conclusion in this regard is reinforced by the fact that where, as here, a party fails to request their expenses as part of their motion for a protective order but later seeks those expenses, that party has unnecessarily expanded the proceedings and made them more costly for both the parties and the court. And we decline to interpret the statutory scheme so as to encourage the expansion, rather than the consolidation, of discovery-related motions.

Finally, and most importantly, even assuming that a party has a right to bring a motion for expenses under OCGA § 9-11-37 (a) (4) (A) that is separate from their motion for a protective order, there is no statutory language authorizing a trial court to award the expenses associated with bringing such a separate motion. Instead, the relevant statutory language authorizes the trial court to award a prevailing party only “the reasonable expenses incurred in obtaining the [protective] order[.]” Id. Accordingly, we find that the trial court was without authority to award the Third Parties the expenses they incurred in pursuing their separate sanctions motion, and we therefore reverse that part of the trial court’s order. See Joyner v. Raymond James Financial Svcs., 268 Ga. App. 835, 838-839 (2) (602 SE2d 871) (2004) (Georgia law does not permit an award of attorney fees or litigation costs, unless authorized by statute or contract.).

6. Rialto offers two arguments to support its claim that the trial court erred in awarding the Third Parties the expenses they incurred in pursuing the protective order. We address each of these arguments below.

(a) In their opening brief filed in support of their sanctions motion, the Third Parties argued that OCGA § 9-15-14 entitled them to an award of the costs and fees associated with seeking the protective order. In their reply brief, the Third Parties asserted for the first time that an award of such expenses was also proper under OCGA § 9-11-26. Rialto argues that the Third Parties’ failure to argue OCGA § 9-11-26 in their opening brief as a basis for the award of their expenses precluded the trial court from basing its award on that statute. This argument is without merit.

There is no rule that precludes a trial court from considering any argument raised at any time before the entry of judgment, provided the opposing party is given an opportunity to respond. See Jim Tidwell Ford, Inc. v. Bashuk, 335 Ga.App. 668, 672-673 (1) (782 SE2d 721) (2016); Stephens v. Alan V. Mock Constr. Co., 302 Ga. App. 280, 284 (1) (b) (690 SE2d 225) (2010). Here, the Third Parties argued their entitlement to an award of expenses under OCGA § 9-11-26 in both their reply brief in the trial court and at the hearing on their sanctions motion. Rialto was therefore aware of the argument and had the opportunity to respond at the hearing. Accordingly, Rialto’s appellate argument on this issue cannot serve as a basis for reversing the trial court’s award of the expenses associated with the protective order.

(b) Rialto also argues that the Third Parties’ failure to seek their expenses either at the time they moved for the protective order or at the hearing on that motion bars them from seeking those expenses by way of a separate motion. As noted above, the statutory scheme put in place by the legislature pursuant to OCGA §§ 9-11-26 and 9-11-37 appears to contemplate that an award of expenses resulting from the pursuit or defense of a motion for a protective order will be considered at the time the trial court decides that motion. See Bd. of Regents of the Univ. System of Ga. v. Ambati, 299 Ga. App. 804, 811 (4) (a) (685 SE2d 719) (2009) (affirming an award of attorney fees under OCGA § 9-11-37 (a) (4) (A) where the party had requested those fees “in his motion for [a] protective order”); Hendricks v. Emerson, 199 Ga. App. 208 (404 SE2d 279) (1991) (affirming an award of attorney fees under OCGA § 9-11-37 (a) (4) (A) where the party requested such fees in his response to a motion for a protective order). In light of the relevant statutory language, we find that a question exists as to whether the Third Parties’ failure to request their expenses at the time they sought the protective order bars them from seeking those expenses by way of a separate motion, filed more than 40 days after the protective order was entered. While this question is one of law, it was not addressed by the trial court, and it has not been adequately briefed by the parties on appeal. Under the circumstances, therefore, “it seems most appropriate to leave it to the trial court” to consider this question in the first instance. Deal, 294 Ga. at 187 (3). See also Chua v. Johnson, 336 Ga. App. 298, 307 (2), n. 13 (784 SE2d 449) (2016) (remanding case to the trial court for consideration of a legal issue where the trial court had failed to address that issue and the parties had failed to brief the same on appeal). We therefore vacate that part of the trial court’s order awarding the Third Parties the costs and fees incurred in pursuing the protective order and remand for the trial court to consider whether the Third Parties have waived their right to recover such expenses.

For the reasons set forth above, we reverse that part of the trial court’s order applying OCGA § 9-15-14 to a post-judgment discovery dispute. We also reverse the award to the Third Parties of their costs and fees associated with preparing for and attending Honey Workman’s deposition and in pursuing their sanctions motion. Additionally, we reverse that part of the trial court’s order barring Rialto from deposing Honey Workman for a period of five years. We vacate that part of the trial court’s order awarding the Third Parties the costs and attorney fees they incurred in obtaining their protective order, and we remand the case for further proceedings on the question of whether the Third Parties have waived their right to recover those expenses.

Decided March 15, 2017

Reconsideration denied March 30, 2017

Jones Walker, Stephen P. Drobny, April R. Freeman, for appellant.

Cohen Pollock Merlin & Small, Gus H. Small, Jr., Brent W. Herrin, Benjamin S. Klehr, for appellees.

Judgment reversed in part and vacated in part, and case remanded with direction.

Mercier, J., concurs. Ellington, P. J., concurs in judgment only.

       These included 302 Research, LLC; 8040 Roswell, LLC; Abbotts Bridge Commons, LLC; Crystal Valley, LLC; Duluth Joint Venture, LLC; Norcross Shooting Range, LLC; PTC East, LLC; Rockdale Boulevard, LLC; Warm Springs Storage, LLC; West Vista, LLC; Windward Forest II, LLC; WR 3400, LLC; W. Family, LLC; W. Family II, LLC; P-B Road Associates, LLC; and Sandy Springs Shooting Range, LLC.

       In an unpublished opinion, this Court affirmed the confirmation order pursuant to Court of Appeals Rule 36. Cooper Village, LLC v. RL BB ACQ I-GA CVL, LLC, 326 Ga. App. XXIII (A13A2439) (March 21, 2014).

       In support of its fraudulent transfer claim, Rialto alleged that on or about December 1, 2009, Howard transferred title to a piece of real property (identified as the “Cold Branch Property”) to Honey without receiving anything of value in exchange, and that he did so for the purpose of hindering or defrauding his creditors.

       As requested by the Third Parties, the trial court limited the scope of post-judgment discovery that Rialto could obtain from either Fidelity or other financial institutions to documents or information relating to: “(1) any property owned by... the Judgment Debtors that is subject to execution, (2) any property transferred between the [Third Parties] ontheonehand and the Judgment Debtors on the other, and (3) any funds or other property that the [Third Parties] may owe to the Judgment Debtors.” Additionally, the order limited the document production from Fidelity to copies of checks or other documents showing payments from the Third Parties to the Judgment Debtors; copies of deposit slips or other documents showing payments from the Judgment Debtors to the Third Parties; any documents showing the assets of the Judgment Debtors; and any documents evidencing debts owed by the Third Parties or Fidelity to the Judgment Debtors.

       According to the trial court’s order, this amount represented $20,318.50 in fees incurred in pursuing the protective order; $3,501 in fees incurred “preparing for and attending [Honey’s] deposition”; and $17,882.50 in fees incurred in filing the sanctions motion. We note, however, that the evidence does not support the amount of fees awarded with respect to the sanctions motion. The affidavit of the Third Parties’ attorney submitted in support of the request for fees stated that the Third Parties had incurred $7,285 in fees in preparing the sanctions motion. And at the hearing on the motion, counsel represented to the court that the Third Parties had incurred $7,285 in fees “in preparing the instant motion for sanctions.” The order signed by the trial court (and which was prepared by the attorneys for the Third Parties), however, increased that amount by approximately $10,000.

       This amount represented $512.13 in costs incurred in pursuing the protective order and $104.60 in costs incurred in pursuing the sanctions motion. Again, however, the record does not support the finding of costs as to the sanctions motion. Counsel for the Third Parties averred that his clients had incurred no expenses in association with the sanctions motion, and he reiterated that statement to the trial court at the motion hearing.

       While the statute uses the term “civil action, ” that term is generally viewed as a synonym for “lawsuit.” See Black’s Law Dictionary (10th ed. 2014) (defining “civil action”). See also Carruthers v. City of Hawkinsville, 171 Ga. 313, 316 (155 SE 520) (1930) (interpreting legislature’s use of the phrase “cause of action” in a particular statute as synonymous with the legislature’s use of the words “claim” and “suit” in the same statute).

       We note that the Third Parties’ sanctions motion was filed more than 45 days following the entry of final judgment in the underlying litigation. We further note that OCGA § 9-15-14 does not permit an award of fees and expenses to a nonparty. See Reeves v. Upson Regional Med. Center, 315 Ga.App. 582, 587 (2) (726 SE2d 544) (2012) (third party upon whom the plaintiff in the underlying action served a subpoena requiring the production of documents was not entitled to recover under OCGA § 9-15-14 (b) because they were not a party to the lawsuit); In re N. S. M., 183 Ga.App. 398, 400 (3) (359 SE2d 185) (1987) (a nonparty witness could not assert a claim under OCGA § 9-15-14 for fees and expenses incurred in quashing a subpoena issued by one of the parties). Thus, because none of the LLCs were a party to the underlying litigation, they could not assert a claim under OCGA § 9-15-14. Additionally, although Honey was originally named as a defendant in the underlying lawsuit, the claim against her had been dismissed (and thus Honey was no longer a party to the underlying litigation) by the time the trial court closed the case and post-judgment discovery began. Nor is Honey a party to the judgment that gave rise to the discovery dispute that led to the sanctions motion.

       In addressing this claim of error, we assume without deciding that an award under OCGA § 9-11-30 (g) is available to a nonparty, if the nonparty appears for a properly noticed deposition and the party serving notice fails to proceed with the same. Additionally, we do not consider whether the legal fees charged for preparing a client for her deposition constitute a cost of attending that deposition, within the meaning OCGA § 9-11-30 (g).

       It appears that service on Howard would have also accomplished service on Cooper Village, as the record shows that Howard served as Cooper Village’s manager.

       Although counsel for the Third Parties e-mailed Rialto’s attorney at 9:09 a.m. on September 1 regarding Rialto’s failure to appear, there is nothing in the record showing that the parties had agreed that the deposition would start at or before 9:00 a.m.

       Additionally, if Rialto desired to make a written response to the Third Parties’ claim for these expenses, it could have filed a supplemental brief in the trial court and/or filed a motion for reconsideration. The record shows that it did neither.


author: BARNES, Presiding Judge.

text:
    A16A1651.
    MONDY v. MAGNOLIA ADVANCED MATERIALS, INC.
    (797 SE2d 506)
   BARNES, Presiding Judge.

Attorney Michael O. Mondy appeals the trial court’s order finding him in contempt for wilfully violating an order of the court and appeals the court’s oral order compelling discovery. For the reasons that follow, we affirm the contempt order and do not reach the discovery issue.

1. On November 23, 2015, the trial court held a hearing on Magnolia Advanced Materials’ motion for contempt against Mondy and orally granted it, directing Magnolia to submit a proposed order within ten days. The court then announced its intention to set a hearing on Magnolia’s entitlement to attorney fees based on Mondy’s violation of the court’s order. A week later, on November 30, 2015, Mondy filed a motion for recusal and his own affidavit. The substance of the motion is that the trial judge’s action — finding Mondy in contempt — showed that the judge was biased or prejudiced against him, and in his affidavit Mondy averred that based on the judge’s comments, facial expressions, and actions during the hearing, “It was clear he wanted to put me in jail.”

On December 15, 2015, the trial court entered a written order memorializing the November 23, 2015 oral ruling finding Mondy in contempt, and half-an-hour later the court issued the following order: “I hereby recuse myself voluntarily from the above-styled case. The Superior Court Administrator shall assign the case to a different, division.”

Mondy argues on appeal that the trial court erred in issuing the contempt order after Mondy filed the motion for recusal, contending that after the motion was filed, the trial court was required to cease acting on the merits of the case and to determine whether another trial court should hear the recusal motion before ruling on the contempt motion. Because the trial court did not do so, he asserts, the contempt order should be reversed.

[W]hen a trial judge in a case pending in that court is presented with a motion to recuse accompanied by an affidavit, the judge’s duty will be limited to passing upon the legal sufficiency of the affidavit, and if, assuming all the facts alleged in the affidavit to be true, recusal would be warranted, then another judge must be assigned to hear the motion to recuse. We note also the well-settled rule that it is as much the duty of a judge not to grant the motion to recuse when the motion is legally insufficient as it is to recuse when the motion is meritorious; nor does the simple filing of an affidavit automatically disqualify a judge.

State v. Fleming, 245 Ga. 700, 702 (1) (267 SE2d 207) (1980) (citation omitted). The procedure set out in Fleming for determining recusal was codified in Uniform Superior Court Rule 25. Mayor & Aldermen of City of Savannah v. Batson-Cook Co., 291 Ga. 114, 116, n. 3 (728 SE2d 189) (2012).

USCR 25.1 requires that motions to recuse or disqualify a judge presiding in a particular case must be filed

not later than five (5) days after the affiant first learned of the alleged grounds for disqualification, and not later than ten (10) days prior to the hearing or trial which is the subject of recusal or disqualification, unless good cause be shown for failure to meet such time requirements. In no event shall the motion be allowed to delay the trial or proceeding.

USCR 25.3 provides that the trial court “shall temporarily cease to act upon the merits of the matter” to determine whether the motion for recusal is timely, the accompanying affidavit is legally sufficient, and the facts asserted therein authorize recusal, and if so, another judge must hear the motion.

Whether these three criteria are met are questions of law, and our appellate courts review de novo a trial court’s decision on these threshold issues. Mayor & Aldermen of City of Savannah, 291 Ga. at 119 (1). The issue here, however, is not whether the trial court properly determined the timing and legal sufficiency of the motion to recuse but rather whether the trial court erred in issuing the written order of contempt after Mondy filed the motion.

We have found no cases, and the parties have cited to none, which consider the parameters of the prohibition against “acting on the merits” of the case, or which consider whether a motion for recusal requires the trial court to abstain from reducing to writing a previously-announced oral ruling. The pitfalls of such a requirement are evident, however, particularly when the basis for the recusal motion is the substance of the trial court’s oral ruling, as it was here.

Just as a plaintiff may not foreclose a judge from acting on its orally-announced intention to grant a defendant’s dispositive motion by dismissing his complaint, we conclude that a party cannot foreclose a judge from acting on its orally-announced intention to grant a motion for contempt by filing a motion to recuse.

The principle at the foundation of these decisions [that a plaintiff cannot foreclose such actions] is that, after a party has taken the chances of litigation, and knows what is the actual result reached in the suit by the tribunal which is to pass upon it, he can not, by exercising his right of voluntary dismissal, deprive the opposite party of the victory thus gained.

Dillard Land Investments v. Fulton County, 295 Ga. 515, 519-520 (2) (b) (761 SE2d 282) (2014) (citation and punctuation omitted). The same principle applies by analogy to the present case.

Based on the peculiar facts of this case, we conclude that Mondy could not forestall the trial court’s oral finding of contempt by filing a motion to recuse. The trial court’s issuance of a written order memorializing its previous oral ruling was not an action “on the merits” of the case. Instead, filing the written order was an administrative process that effectuated a ruling made before Mondy filed his motion to recuse. Thus, we find no merit in this enumeration of error.

2. Mondy contends that the trial court erred in granting Magnolia’s motion seeking to find him in contempt for violating a previous court order. Because the trial court sought to punish Mondy for actions already taken rather than coerce him to take actions, the contempt was criminal in nature rather than civil. See generally Ensley v. Ensley, 239 Ga. 860, 861 (238 SE2d 920) (1977).

On appeal of a criminal contempt conviction the appropriate standard of appellate review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Criminal contempt is that which involves some disrespectful or contumacious conduct toward the court. Contempt of court has been variously defined; in its broad sense it means disregard for or disobedience of the order or command of the court.

In re Patterson, 331 Ga. App. 45 (769 SE2d 762) (2015) (citation and punctuation omitted).

Here, Magnolia filed a motion for contempt, and at the end of a hearing on the motion, the trial court granted the contempt motion in open court. As discussed previously, Mondy filed a motion to recuse the judge a week later, and two weeks after that the trial court issued its written order granting the contempt motion, then issued a written order voluntarily recusing from the case. In its written order, the trial court found that Mondy had wilfully violated the court’s order enjoining Mondy’s client from disclosing “any non-public information of Magnolia, including but not limited to trade secrets and confidential information.” Mondy violated the order, the court held, by attaching certain exhibits to his reply to Magnolia’s motion to quash a subpoena in a federal court case a competitor had brought against Magnolia. In both its oral and written rulings, the trial court reserved the issue of whether Magnolia was entitled to an award of attorney fees under OCGA§ 9-15-14.

In his notice of appeal, Mondy designated 14 documents to be included in the appellate record and directed the trial court clerk to omit everything else from the appellate record. The resulting record is 950 pages long, but while the order of contempt quotes a portion of the earlier injunction that served as the basis for its contempt finding, the record does not include a copy of that earlier injunction. Nor does it contain a copy of Magnolia’s previous motion for contempt, which alleged a violation of a different, trial court’s order or of this trial court’s denial of that previous motion, all of which may be relevant to the trial court’s contempt finding. Finally, while the record does contain a copy of the federal court pleading Mondy filed, which was included in Mondy’s motion to recuse the trial court in this case, the appellate record does not contain a copy of the exhibits that were attached to the federal pleading, which the trial court found to be “non-public,” subject to its injunction, and disclosed in violation of its injunction.

In light of the incomplete record, we must affirm the trial court’s finding of contempt.

3. Finally, Mondy enumerates as error that the trial court granted Magnolia’s motion to compel discovery responses and its related request for attorney fees. The trial court heard Magnolia’s motion to compel after hearing its motion for contempt, orally granted the motion as to each matter requested, and gave Magnolia 20 days to prepare a proposed order. Unlike the contempt motion, however, the trial court’s ruling on Magnolia’s motion to compel discovery responses was not reduced to writing and filed before the trial court voluntarily recused from the case.

An “oral order [is] neither final nor appealable until and unless it is reduced to writing, signed by the judge, and filed with the clerk.” Hill v. State, 281 Ga. 795, 799 (3) (642 SE2d 64) (2007). See also Titelman v. Stedman, 277 Ga. 460, 461 (591 SE2d 774) (2003) (“[T]herecan be no appeal from an oral announcement that a judgment will be rendered, since no judgment is effective until it is signed by the judge and filed with the clerk.”) (citation and punctuation omitted).

Accordingly, we find no merit to Mondy’s enumerations of error related to the trial court’s oral discovery rulings.

Judgment affirmed.

Rickman and Self, JJ., concur.

On Motion for Reconsideration.

Mondy has filed a motion for reconsideration of this opinion. In addition to reiterating arguments that are addressed in the opinion, Mondy disagrees that the record on appeal is incomplete. Mondy is correct that the trial court’s permanent injunction underpinning the contempt order is in the record after all. It is one of 20 unindexed exhibits totaling 240 pages that were attached to Mondy’s affidavit supporting his motion to recuse the trial court. Mondy did not cite to this order in his previous briefs, however, and “we will not cull the record on a party’s behalf to locate information in support of the party’s argument.” Doherty v. Brown, 339 Ga. App. 567, 573 (2), n. 4 (794 SE2d 217) (2016).

Decided March 8, 2017

Reconsideration denied March 30, 2017

Michael O. Mondy, pro se.

Nelson Mullins Riley & Scarborough, Erika C. Birg, Michelle W. Johnson, Peter L. Munk, for appellee.

Mondy also cites two additional exhibits, again attached to his affidavit, as evidence in the record upon which the trial court relied. Mondy also did not previously cite to these documents in his briefs. Additionally, the trial court found that Mondy violated its injunction by attaching at least five documents to his federal pleading, not just two. Finally, while Mondy argues that a preceding contempt motion was not relevant to his appeal and thus its absence from the record was harmless, the preceding motion was discussed during the contempt hearing.

In sum, Mondy’s efforts to identify the evidence in the record supporting his claims of error are unavailing at this late date. His motion to supplement the record and his motion for reconsideration are both denied.

Motion for reconsideration denied.

       Because the court then voluntarily recused itself from the case, it never considered the threshold issues.

       OCGA § 5-6-37 directs an appellant include in his notice of appeal “a designation of those portions of the record to be omitted from the record on appeal.” Listing the documents omitted allows this court to see which documents were presented to the trial court but excluded from the appellate record.