This is a follow-up to the earlier post regarding intractable Georgia civil Discovery disputes.
If the wrong type of hearing is requested (a hearing to compel Discovery, though responses were given but instead are believed to be evasive or false, or a hearing to determine the sufficiency of the responses even though none were given), it is possible for the Court to have the hearing, anyway. This is an area where it is important to remember that Discovery is ultimately the search for the truth, and that substance matters the most.
The case I cite for this proposition is an older one, but still valid! In 1982, the Georgia Court of Appeals handed down a decision in West v. Milner Enterprises, Inc., 162 Ga.App. 667. The decision concerned a motion that had been filed, styled improperly “Motion for Permission to File Late Responses”, but what it actually was trying to accomplish was to withdraw or amend the responses that had been made. The Court allowed it, because substance matters more than empty procedure, when it comes down to it. The Court held that “”The court may permit withdrawal or amendment of the admission when the presentation of the merits of the action will be subserved thereby, and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action on the merits.” This standard was drawn from an older version of the Code, but it has been carried into the law as it now exists (check the post earlier for the modern statute). Note, again, that it is a two-part burden (the party has to show both that the merits of the action will be subserved by allowing them to withdraw or amend, AND that the other party DID NOT show that withdrawal or amendment prejudices them). The case is below:
Howard E. Cook, Norcross, for appellant.
Joseph C. Parker, Marietta, for appellee.
Appellee Milner Enterprises, Inc. brought suit on November 3, 1980 against appellant West claiming damages owed under certain alleged oral agreements to reimburse appellee for expenses incurred in connection with several construction projects. Appellant’s answer denied the allegations of the complaint. Appellee’s request for admissions, filed February 16, 1981 received no response and on April 7, 1981 appellee moved for summary judgment. When appellee’s counsel learned that counsel for appellant had not received the request, he agreed to remove the motion from the calendar. Meanwhile, appellant’s original attorney had associated another attorney, and on June 10, 1981 an associate of the new counsel was personally served with a copy of appellee’s request for admissions. On July 21, 1981, when it had again received no response to its request, appellee filed a second motion for summary judgment on the ground that appellant’s failure to answer constituted admissions sufficient to justify an award of summary judgment. Appellant filed a “motion for permission to file late responses” on August 5, 1981, along with the proposed late responses.
After hearing argument on both motions on September 8, 1981, the trial court denied appellant’s motion and granted summary judgment for appellee based upon the pleadings and affidavits contained in the record. Appellant appeals.
“Under the provisions of Code Ann. § 81A-136(a), the matter contained in a request for admissions is admitted unless the party served with the request files a written answer or objection within 30 days after service of the request.” Davenport v. Smith, 157 Ga.App. 870, 871, 278 S.E.2d 691 (1981). Further, “where a party failed to answer a request for admissions within the requisite time and the admissions removed all issues of fact, the other party was entitled to a grant of its motion for summary judgment.” Moore Ventures Ltd. Partnership v. Stack, 153 Ga.App. 215, 217, 264 S.E.2d 724 (1980); Crider v. Pepsi Cola Bottlers, 142 Ga.App. 304(2), 235 S.E.2d 683 (1977); Walker Enterprises, Inc. v. Mullis, 124 Ga.App. 305(2), 183 S.E.2d 534 (1971). To avoid the conclusive establishment of the matters contained in a request for admissions, the party who has failed to answer or to object to a request for admissions within the statutory period must move the court for withdrawal or amendment of the admissions in accordance with Code Ann. § 81A-136(b). “The court may permit withdrawal or amendment of the admission when the presentation of the merits of the action will be subserved thereby, and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action on the merits. Code Ann. § 81A-136(b).” (Emphasis supplied). Davenport v. Smith, supra 157 Ga.App. at 871, 278 S.E.2d 691.
In Cielock v. Munn, 244 Ga. 810, 262 S.E.2d 114 (1979), the trial court denied a motion to withdraw admissions established by a request for admissions to which no timely response was made. This motion was denied based upon the movant’s failure to show “providential cause” or “excusable neglect.” The Supreme Court reversed, holding that the two-pronged language of Code Ann. § 81A-136(b) is that standard upon which a decision on a motion for withdrawal or amendment of admissions must be based.
In the case sub judice, there is no transcript of the trial court proceeding. However, the order denying appellant’s “motion for permission to file late responses” 1 entered by the trial judge at the close of the hearing recited in pertinent part: “Defendant has failed to show good cause for his failure to timely respond to Plaintiff’s Request for Admissions, and to allow Defendant to file late answers to Plaintiff’s Request for Admissions would be prejudicial to Plaintiff….”
Although the trial court applied the second prong of the Cielock standard by finding that granting appellant’s motion would result in prejudice to appellee, the court’s finding that appellant “failed to show good cause for his failure to timely respond” is insufficient to satisfy the first prong. Therefore, the judgment must be reversed and the case remanded for reconsideration of appellant’s motion to withdraw the admissions on the basis of whether “the presentation of the merits of the action will be subserved thereby.”
Judgment reversed with direction.
DEEN, P.J., and SOGNIER, J., concur.
1 Although appellant’s motion was captioned improperly as a “motion for permission to file late responses,” it was treated in the trial court as a motion to withdraw admissions pursuant to Code Ann. § 81A-136(b) for purposes of relieving appellant of the binding effect of the admissions.
This case does not have a Reporter number yet, and is only identified via its Georgia Supreme Court Docket Number (S13A1601), but is Ford Motor Co. v. Conley, decided February 24, 2014. It is a product liability dispute brought against Ford Motor Company following a vehicle rollover, and involved a response to a Discovery question that went to jury qualification. The opinion was written by Justice Nahmias, and is noteworthy because it describes a correct approach to take to resolve a dispute during Discovery with a Defendant that responds in a manner that a party might find to be ridiculous. However, the case makes the very valid point that they still need to be addressed. A record must be made, so the Court has something to review if it goes up on appeal.
I did notice on thing, however, which I welcome your comments in explanation on! The standard used by the Court was “plain error” for review of a Motion for New Trial, but the explanation the Court gives is “any evidence to support the Court’s decision”. I believe this is an incorrect statement of the standard (though it does not affect the result in this case). Discuss!
In December 2007, appellees Jordan and Renee Conley filed a product liability lawsuit against appellant Ford Motor Company in the State Court of Cobb County, based on a single-vehicle rollover accident that occurred in April 2006.1 After nearly two years of pretrial discovery and motions practice, the case went to trial on November 9, 2009. The jury, which was not qualified as to relationships with any of Ford’s insurers, returned a verdict in favor of Ford on November 19. The trial court entered judgment on the verdict on November 30, 2009, and the Conleys did not file an appeal.
Based on information about Ford’s insurers that came to light more than a year later, however, the Conleys filed a motion for new trial on July 15, 2011. On January 5, 2012, the trial court granted that motion. Ford filed an application for interlocutory appeal, which the Court of Appeals granted. The Court of Appeals judges divided evenly on the disposition of the appeal, so the case was transferred to this Court for decision. See Ga. Const. of 1983, Art. VI, Sec. V., Par. V. (“In the event of an equal division of the Judges [of the Court of Appeals] when sitting as a body, the case shall be immediately transferred to the Supreme Court.”). We heard oral arguments on September 21, 2013, and now, after careful consideration of the record and the contentions of the parties, we affirm the judgment of the trial court. In doing so, we reiterate the high hurdles that must be surmounted before an untimely, “extraordinary” motion for new trial may be granted, but we conclude that the trial court did not abuse its discretion in ruling that the Conleys met that burden under the particular circumstances of this case.
- Factual and Procedural Background
(a) The Original Conley v. Ford Motor Company Proceeding
On December 7, 2007, in their first set of interrogatories during discovery in the original proceeding, the Conleys requested information about Ford’s insurers. There is no dispute that this was an appropriate topic for pretrial discovery. Georgia’s civil discovery statute specifically says:
A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.
OCGA § 9-11-26 (b) (2). In addition, under longstanding Georgia law, a plaintiff is entitled to obtain information about insurers who may cover a judgment against the defendant in order to determine whether the trial jury should be qualified as to relationships with such insurers. See OCGA § 15-12-135 (a) (requiring the disqualification of all trial jurors who are “related by consanguinity or affinity to any party interested in the result of the case”); Shipman v. Johnson, 89 Ga. App. 620, 622 (80 SE2d 717) (1954) (“It is well settled that stockholders of an insurance company which carries liability insurance indemnifying a party to an action from a judgment against it in that case are ‘interested in the result of the case’ and not qualified to serve as jurors . . . .”).
The insurance interrogatory that the Conleys posed, and Ford’s answer in response, were as follows:
- Please state whether or not Ford carried casualty or liability insurance to insure against the Subject Incident, [sic] if
Ford carried casualty and/or liability insurance, please state for each coverage:
(a) The full name of the insuring company;
(b) The policy limits;
(c) The effective date of the policy; and
(d) The issuing agent.
Subject to and without waiving its objections, Ford states it has sufficient resources to cover any judgment which could be reasonably rendered in this case, if any.
Ford objects to this Interrogatory as it is overly broad and seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. To the extent this Interrogatory asks for more information, Ford objects as it seeks the discovery of confidential or proprietary information or documents.
In their first set of document requests, also sent on December 7, 2007, the Conleys similarly asked for Ford’s insurance information:
- All insurance agreements or policies under which any person or entity carrying on an insurance business may be liable to satisfy part or all of a judgment which may be rendered in this action or to indemnify or reimburse for payments made to satisfy any judgment.
Ford’s response was essentially identical to its answer to Interrogatory No. 5: Ford said that it had sufficient resources to cover any reasonable judgment and then objected in the same way to the document request. Indeed, Ford objected, in the same sort of imprecise and formulaic manner, to almost all of the Conleys’ discovery requests: 37 of Ford’s 40 interrogatory answers contained objections, as did 68 of Ford’s 70 responses to document requests, although as with Interrogatory No. 5 and Document Request No. 10, many of the discovery responses that included objections also included information that, to varying degrees, appeared to satisfy the request.
After receiving Ford’s responses, the Conleys sent Ford a letter pursuant to Uniform Superior Court Rule 6.4 (B) on March 11, 2008.2 The letter identified Interrogatory No. 5, among many others, as requiring further answer:
We specifically ask that Ford withdraw all general objections that it incorporates into each interrogatory. Ford has basically lodged an objection to each interrogatory.
Plaintiff also specifically requests that Ford withdraw objections to the following interrogatories and answer each within the scope of all vehicles for which information is requested, including Lincoln Aviators:
Interrogatories 1-3, 12, 14-16, 19, 22, 25, 26, 31-34, 37-39.
With respect to the following interrogatories we request that you withdraw the specific objections and answer the questions posed instead of providing self-serving answers that do not respond to the question posed. Additionally, Plaintiff requests that the responses include all vehicles outlined in the specific questions, including Lincoln Aviators.
Interrogatory 5-10, 12-15, 17 (as to all vehicles for which information is sought), 18, 20, 21, 23 (with respect to number 23 – Ford states that it will produce certain documents, please confirm that these documents have been produced), 27-29, 36.
The Conleys’ letter similarly asked that Ford “withdraw specific objections, respond to the requests as written, . . . and/or fully respond to the following: Request for Production No. 3, 5-13, 15-20, 22-25, 27-47, 49, 51-53, 55, 56, 58-63, 65.”
In response, Ford sent a letter to the Conleys on March 21, 2008, which said:
Fords’s answers and objections to Plaintiff’s Interrogatories, including interrogatory nos. 1-3, 5-10, 12-23, 25-29, 31-34, and 36-39, are proper and appropriate under the Georgia Rules of Civil Procedure. Accordingly, Ford maintains its answers and objections to these requests. . . . In addition, your letter raises general, broad complaints regarding Ford’s answers and objections but fails to address particular interrogatories with the specific grounds for your complaints. Such general, conclusory objections to Ford’s answers do not provide Ford with sufficient information to meaningfully respond to each listed interrogatory.
Ford’s letter included an essentially identical statement in response to the Conleys’ request that Ford withdraw its objections and provide full responses to the document requests.
There was no further communication during discovery regarding Ford’s insurance. The Conleys moved to compel Ford to respond to a few requests made later in the discovery process, but they did not file a motion to compel as to Interrogatory No. 5 or Document Request No. 10. Neither the Conleys nor Ford listed on the pretrial order that jurors should be qualified based on Ford’s insurers. The Conleys also did not request that jurors be qualified based on Ford’s insurers during jury selection; the jury questionnaire did not include any questions about potential jurors’ relationships with insurance companies; and the trial court did not ask Ford about its insurers. The jury found in favor of Ford; the court entered judgment on the defense verdict; and the Conleys did not appeal.
(b) Young v. Ford Motor Company
On June 13, 2011, about 19 months after the judgment in the Conleys’ case was entered, the case of Young v. Ford Motor Company began trial in Cobb County State Court before the same judge that had presided over the Conleys’ case and with at least two of the same lawyers representing Ford. During discovery, the Youngs sent Ford two requests for insurance information, much as the Conleys had done. Ford responded in much the same way, saying, “Ford has sufficient resources to satisfy any judgment that reasonably could be expected to be awarded as damages in this action, if any”; Ford’s responses in Young did not, however, also include an objection. Like the Conleys, the Youngs did not file a motion to compel further answers to its requests for insurance information.
However, the Youngs proposed in their pretrial order that the jury be qualified for relationships with American International Specialty Lines Insurance Company, Lloyds of London, and any other insurer that would provide coverage for Ford. It is unclear from the record where the Youngs got the names of those two specific insurance carriers, but it appears that one of the Youngs’ lawyers knew them from a case over which he had presided when he was a state court judge and qualified a jury as to Ford’s insurers. In response, Ford submitted its own pretrial order, which stated: ” Ford objects to any reference to an alleged insurer of Ford. Ford has sufficient resources to satisfy any judgment that reasonably could be expected to be awarded as damages in this action, if any.”
At the end of the first full day of voir dire, the Youngs asked that Ford put on the record that Ford was not insured by any companies that could cover a potential judgment in the case, and the court made it clear that, to avoid a mistrial, the jury would need to be qualified as to Ford’s insurers. Ford’s counsel said that he had made inquiries over the preceding weekend and, “consistent with our discovery responses here,” Ford had “no insurance that would be applicable to satisfy a judgment in this case.” The next morning, however, just before the parties began to strike the jury, Ford’s counsel reported that Ford did, in fact, have numerous excess coverage insurance policies that might cover a judgment.
The court then declared a mistrial and revoked the pro hac vice admission of Ford’s attorneys on the grounds that they had violated Georgia Rules of Professional Conduct 3.3 (candor toward the tribunal) and 3.4 (fairness to opposing party and counsel).3 The Youngs also moved to sanction Ford by striking its answer to the complaint. After holding a evidentiary hearing on June 20, 2011, the trial court decided that the appropriate sanction was to instruct the jury that it was established that Ford “failed to adequately warn consumers of the danger of a seatbelt during rollovers.” The Young case then settled.
(c) The Conleys’ Motion for New Trial
Based on the information about Ford’s insurers that came to light during the sanctions hearing in Young, the Conleys filed a motion for new trial on July 15, 2011, arguing that they were entitled to a new trial on the ground that the jury that decided their case had not been properly qualified. After holding an evidentiary hearing, the court granted a new trial on January 5, 2012, concluding that by failing to disclose its insurance coverage, Ford had violated OCGA § 9-11-26 (b) (2) and the court’s pretrial scheduling order, which required the parties to comply with the Uniform State Court Rules in completing their proposed pretrial orders.
Relying on testimony given in Young by Ford’s in-house counsel, the trial court found that Ford has maintained insurance to cover product liability claims like the Conleys’ since 1999 but, “as a general corporate practice, in all jurisdictions, does not disclose any insurance when responding to discovery.”4 The lawyer had testified that Ford did not respond to requests for insurance information “as a matter of course,” explaining that “Ford has also had courts say we don’t have to produce the information. . . . Where it is an issue and it’s required, it has been produced.” The Ford lawyer added, “Insurance is rarely an issue in most of the cases that we see where the requests have been asked. The issue is, does Ford have sufficient assets to cover a judgment. When we respond that we do, the issue rarely progresses [from] there.” The Youngs had also presented evidence that Ford was aware that in Georgia courts, a jury is supposed to be qualified as to insurers that may be liable for a judgment.
The trial court found that Ford’s concealment of its insurance coverage from the Conleys was “willful” and “intentional” and excused the Conleys from being required to request jury qualification with respect to Ford’s insurers in order to preserve that issue for later challenge. The court concluded that the Conleys “had no reason to know, or even suspect, that insurance coverage existed at the time of trial” and did not have the burden “to ferret out information that was clearly required to be produced under Georgia law.” Finally, citing Atlanta Coach Co. v. Cobb, 178 Ga. 544 (174 SE 131) (1934), the court presumed that the Conleys had been harmed by Ford’s conduct, because “under Georgia law, the harm is presumed when there is a failure to qualify a jury as to a Defendant’s insurance carriers.”
(d) The Court of Appeals’ Opinions
At Ford’s request, the trial court certified its new trial order for immediate review, and the Court of Appeals granted Ford’s application for interlocutory appeal. See OCGA § 5-6-34 (b). However, the Court of Appeals then divided equally on the disposition of the appeal.5
In concluding that the trial court’s judgment should be affirmed, Presiding Judge Barnes’s opinion said that Ford ‘s responses to the Conleys’ insurance questions “could be interpreted by a reasonable attorney as stating that [Ford] was self-insured, and the fact that [Ford] went on to include the same boilerplate objections it made to virtually every interrogatory and request to produce does not change the fact that the response was misleading and excused the [Conleys] from filing a motion to compel.” Barnes Op. at 3. The opinion added that the failure to qualify the jurors as to Ford’s insurers required harm to the Conleys to be presumed under Atlanta Coach, 178 Ga. at 551-552, and Smith v. Crump, 223 Ga. App. 52, 56 (476 SE2d 817) (1996). See Barnes Op. at 3. Emphasizing the deference owed to the trial court’s fact-finding and discretion in this context, the Barnes Opinion saw no basis to reverse the new trial ruling. See id. at 3-4.
Reaching the same conclusion, Presiding Judge Ellington’s opinion observed that
a party should not be able to ignore an opposing party’s objections to its discovery requests, take its chances at trial, and then file a motion for new trial at any time . . . . But, by equal measure, a party should not be able to refuse to respond fully and honestly to discovery requests about its insurance coverage – where such information is relevant and necessary to the selection of a properly qualified jury – and also cloak the fact that it is refusing to provide the information as Ford did . . . in this case.
Ellington Op. at 2-3 (footnote omitted). Both the Barnes and Ellington Opinions also argued that the Court of Appeals should follow its recent decision in Reese v. Ford Motor Co., 320 Ga. App. 78 (738 SE2d 301) (2013).6
In concluding that the trial court’s judgment should be reversed, Judge Boggs’ opinion viewed Ford’s “arguably incomplete” discovery responses and objections as placing the Conleys “on notice that Ford may have had at least some insurance coverage applicable to [their] claim,” noting that the Conleys’ letter requesting that Ford lift the objections “indicates that [they were] aware of the deficiencies in Ford’s answer and objection.” Boggs Op. at 8, 10. The Boggs Opinion said that the trial court therefore erred in finding a misrepresentation by Ford sufficient to excuse the requirements that the Conleys pursue further discovery and object to the jury’s not being qualified as to Ford s insurers. See id. at 11.
Judge Boggs’s opinion also focused on the “stringent requirements for the grant of an extraordinary motion for new trial,” arguing that Reese did not apply those requirements and should be overruled. Boggs Op. at 11-12 (emphasis in original). The Conleys did not satisfy those requirements, the Boggs Opinion concludes, because they failed to exercise due diligence in identifying Ford’s insurers and also showed no actual harm from the failure to qualify the jurors as to those insurers, contending that Atlanta Coach’s presumption of harm should not apply under these circumstances. See Boggs Op. at 14-15.
Because the Court of Appeals was equally divided, the case was transferred to this Court for decision.
- The Standard for Granting an Extraordinary Motion for New Trial
The core issues in this case are the alleged discovery violation involving Ford s responses to requests about its insurance coverage and the effect of that alleged violation on the qualification of the jury that decided the Conleys’ case at trial. Those issues are presented, however, in the context of an extraordinary motion for new trial in a civil case – the Conleys’ effort to obtain a new trial initiated many months after the entry of judgment against them. It is true, as the Conleys and the Barnes Opinion point out, that appellate courts must accord substantial deference to a trial court’s decision on an extraordinary motion for new trial. We review the trial court’s findings of fact under the clearly erroneous standard, meaning that we must uphold a finding if there is any evidence in the record to support it. See Singh v. Hammond, 292 Ga. 579, 581 (740 SE2d 126) (2013). And we review the trial court’s ultimate ruling on such a motion only for abuse of discretion. See Smith v. Smith, 293 Ga. 563, 566 (748 SE2d 456) (2013); Tedoff v. B & L Service Co., 167 Ga. App. 452, 452 (306 SE2d 719) (1983).7 However, that discretion is not unfettered. As always, the trial court’s discretion must be exercised in conformity with the governing legal principles, and the facts that the court must find and that we must evaluate on appeal are those relevant to determining whether the legal requirements were satisfied. See State v. Pickett, 288 Ga. 674, 679 (706 SE2d 561) (2011) (“If the trial court significantly misapplies the law or clearly errs in a material factual finding, the trial court’s exercise of discretion can be affirmed only if the appellate court can conclude that, had the trial court used the correct facts and legal analysis, it would have had no discretion to reach a different judgment.”). Thus, it is appropriate to begin with a discussion of the fundamental requirements that apply in the procedural posture of this case.
The Georgia Code draws a distinction between timely, or ordinary, motions for new trial and untimely, or extraordinary, motions for new trial. The statute generally authorizing motions for new trial says: “All motions for new trial, except in extraordinary cases, shall be made within 30 days of the entry of the judgment on the verdict or entry of the judgment where the case was tried without a jury.” OCGA § 5-5-40 (a) (emphasis added). Extraordinary motions for new trial are permitted only in limited circumstances. The next section of the Code specifies that “[w]hen a motion for a new trial is made after the expiration of a 30 day period from the entry of judgment, some good reason must be shown why the motion was not made during such period, which reason shall be judged by the court.” OCGA § 5-5-41 (a) (emphasis added). Thus, when a motion for new trial is untimely, before considering the merits of the motion, the court must determine if the delay in filing the motion should be excused by good cause.
Untimely efforts to obtain a new trial have long been disfavored by the law because they work to undermine the finality of judgments and the reliance that litigants are normally entitled to place on final decisions rendered in our courts. See Roddenbery v. Roddenbery, 255 Ga. 715, 717 (342 SE2d 464) (1986) (“Extraordinary motions for a new trial are not favored, and a stricter rule is applied to an extraordinary motion for a new trial based on the ground of newly available evidence than to an ordinary motion on that ground.” (citations and quotation marks omitted)). Accordingly, re-opening judgments in this manner should not be commonplace, but rather is warranted only in truly “extraordinary” circumstances. See Usry v. Cato, 170 Ga. 358, 359 (153 SE 23) (1930) (discussing with approval the trial court’s statement that “[a]n extraordinary motion [for new trial] should be granted within the meaning of the word itself, something extraordinary, something unusual, something which entered into the trial of the case and which was not discovered and could not have been discovered [earlier]”). See also Harris v. Hull, 70 Ga. 831, 838-839 (1883) (“It is certainly to the interest of parties, as well as the public, that there should be an end of litigation. . . . Litigation should never be protracted where this, with due regard to the rights of parties, can possibly be avoided. Interest rei publicce ut sit finis litium is a maxim so old that its origin is hidden in a remote antiquity, and the policy which it inculcates is so essential as not to admit of question or dispute.”).
Except for the requirement in § 5-5-41 (a) that the moving party show a “good reason” for not seeking a new trial within 30 days of the judgment, the requirements for extraordinary motions for new trial are not specified by statute but instead are the product of case law that draws on the statutory requirements for ordinary motions for new trial. See Drane v. State, 291Ga. 298, 300 (728 SE2d 679) (2012). Both Ford and its amicus discuss the six-part test set forth by this Court for the grant of an extraordinary motion for new trial based on the alleged post-trial discovery of new evidence.9 However, “‘the late filing of a motion for new trial may also be predicated on circumstances other than newly discovered evidence.'” Fowler Properties, Inc. v. Dowland, 282 Ga. 76, 79 (646 SE2d 197) (2007) (citation omitted). See also OCGA § 5-5-25 (“In all motions for a new trial on other grounds not provided for in this Code, the presiding judge must exercise a sound legal discretion in granting or refusing the same according to the provisions of the common law and practice of the courts.”).
The Conleys’ motion was based on information that they discovered about Ford’s insurers after trial, but that is not the type of newly discovered evidence contemplated by the cases cited by Ford and its amicus, because it is not evidence related to witnesses and exhibits that allegedly should have been considered by the jury in reaching its verdict. Instead, the new evidence here implicates the Conleys’ right to a “competent and impartial jury,” Atlanta Coach, 178 Ga. at 549, by calling into question the jury’s qualification to decide the case at all.
Thus, the trial court was not required to apply the test used in cases dealing with newly discovered trial evidence, but it was not free to exercise its discretion without constraint. Any party making an extraordinary motion for new trial must meet two fundamental requirements. First, regardless of the basis for an extraordinary motion for new trial, OCGA § 5-5-41 (a) requires the moving party to show a “good reason” why the motion was not filed during the 30-day period after the entry of judgment. Good reason exists only where the moving party exercised due diligence but, due to circumstances beyond its control, was unable previously to discover the basis for the claim it now asserts. See Harper v. Mayes, 210 Ga. 183, 183 (78 SE2d 490) (1953) (“[The] extraordinary state of facts must have been unknown to the movant or his counsel at the time when an ordinary motion for a new trial could have been filed, and impossible to have been ascertained by the exercise of proper diligence for that purpose.”). Compare Martin v. Children’s Sesame, Inc., 188 Ga. App. 242, 242 (372 SE2d 648) (1988) (holding that “good reason” existed where the plaintiffs filed their motion for new trial five days late because the clerk’s office twice informed them that the judgment had been entered five days after it actually was entered), with Mize v. Regions Bank, 265 Ga. App. 635, 635 (595 SE2d 324) (2004) (affirming the denial of an extraordinary motion for new trial where the moving party’s mistake in reading the date on an order was “entirely attributable to . . . himself”).
Second, before any motion for new trial – timely or untimely – may be granted, the moving party must show that the error alleged as the basis for the motion was materially harmful. See OCGA § 9-11-61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”); Atlanta Coach, 178 Ga. at 551 (“This court has several times stated that in order to reverse a judgment both error and injury must affirmatively appear . . . .”); Eberhardt v. Bennett, 163 Ga. 796, 803 (137 SE 64) (1927) (“[I]t is not every error which will warrant the grant of a new trial. To warrant a new trial there must be substantial error, the withholding from a party of a substantial right, which harms him by depriving him of something to which he was entitled in the exercise of his right to a fair and lawful trial.”). If the error alleged was not materially prejudicial – if the party was not thereby deprived of a fair trial – then there is no justification for requiring another trial of the same case.
Several decisions of the Court of Appeals demonstrate the application of these two requirements. For example, in Jones v. Cooke, 169 Ga. App. 516 (313 SE2d 773) (1984), the trial court entered a default judgment against the defendant that exceeded the amount the plaintiff had prayed for, which was a violation of OCGA § 9-11-54 (c) (1), and the defendant did not get notice of the judgment until four months after it was entered. See Jones, 169 Ga. App. at 516-517. The Court of Appeals reversed the denial of the defendant’s extraordinary motion for new trial, explaining that he “had both an excuse for delay in filing his motion . . . and also a sufficient ground to set aside the verdict and judgment.” Id. at 516. In Union Life Insurance Co. v. Aaronson, 109 Ga. App. 384 (136 SE2d 142) (1964), the plaintiff told the defendant that it had requested and received a continuance from the court to allow for settlement negotiations, but the plaintiff did not actually request a continuance, went to trial, and, in the absence of the defendant, introduced evidence and obtained a verdict and judgment in its favor. See id. at 384. After the judgment, the plaintiff continued to tell the defendant that it was open to settlement; the defendant learned of the judgment only when a levy was made on his property. See id. The Court of Appeals held that those facts “constitute (a) an excuse for delay in filing so as to authorize the trial judge to entertain and hear the delayed motion [for new trial], and (b) a sufficient ground to set aside the verdict and judgment.” Id.
In sum, the two basic requirements that the trial court must find to be established before granting any extraordinary motion for new trial are that the error the moving party now asserts (1) could not have been discovered and raised in a timely manner if the party had acted with due diligence and (2) materially harmed the party.
- The Conleys’ Extraordinary Motion for New Trial
We now consider whether the trial court properly determined that the Conleys met the due diligence and material harm requirements for an extraordinary motion for new trial on the jury qualification ground they raised.
(a) Due Diligence
It is undisputed that the Conleys actually learned that Ford had insurers who could have provided coverage for their case only after Ford’s insurance information was revealed during the Young proceedings. The Conleys then promptly sought a new trial, claiming that the jury in their case should have been qualified as to Ford’s insurers. But the Conleys filed their motion for new trial more than a year after trial, after the jury returned its verdict in favor of Ford, and after the judgment was entered, making it an extraordinary motion.
Ford contends that the Conleys could have learned about Ford’s insurers before trial had they exercised due diligence in discovery. As a result, Ford argues, the Conleys waived their right to seek jury qualification as to the insurers at trial and also cannot justify the untimeliness of their motion for new trial. Ford relies on cases like Patterson v. Gunter, 263 Ga. App. 424 (588 SE2d 270) (2003), which held that, “[a]fter verdict, a litigant cannot obtain a new trial by reason of the fact that a juror is disqualified by relationship, unless the litigant can show that before the verdict it and its counsel did not know of the relationship and could not have discovered the relationship by the exercise of ordinary diligence.” Id. at 424. The trial court, however, found that the Conleys’ failure to discover the insurer information earlier was not their fault, but rather was the result of Ford’s having intentionally misled the Conleys into believing that Ford had no insurers. That finding is supported by the record.
(1) Ford’s Misleading Substantive Discovery Responses
During the trial proceedings, the Conleys did not overlook the issue of Ford’s insurers. In their very first set of interrogatories and document requests, the Conleys asked Ford specifically for information about insurers that could provide coverage for their case, and they asked for that information in discovery requests that were reasonably precise, straightforward, and unambiguous. That was information the Conleys were entitled to obtain under OCGA § 9-11-26 (b) (2), as well as information the Conleys would need to seek qualification of potential jurors under OCGA § 15-12-135 (a) based on relationships with insurance companies that could be liable to pay damages the jury awarded. It is now undisputed that Ford in fact had at least six such insurers. Rather than simply and truthfully providing that information, however, the substantive portion of Ford’s answers to the Conleys’ discovery requests was as follows: “Ford states it has sufficient resources to cover any judgment which could be reasonably rendered in this case, if any.” In context, that statement could reasonably be understood as an assertion that Ford was self-insured and did not have any insurers who could be liable for a judgment in this case.
The record also shows that Ford intended its substantive responses to be understood in this way. In the Young case, Ford offered an almost identical substantive discovery response: “Ford has sufficient resources to satisfy any judgment that reasonably could be expected to be awarded as damages in this action, if any.” And Ford’s attorney (one of the same lawyers as in this case) told the trial court (the same judge as in this case) that this response meant that Ford had no insurers who could be liable for a judgment, saying that “consistent with our discovery responses . . . there is no insurance that would be applicable to satisfy a judgment in this case.” Ford had also said that it had “sufficient resources to satisfy any [reasonable] judgment” as its reason for objecting to the Youngs’ pretrial order requesting qualification of jurors as to Ford’s insurers.10
(2) Ford’s Objections
But Ford’s substantive responses did not stand alone in this case, as they did in Young. As Ford and the Boggs Opinion emphasize, the substantive portion of the response to both Interrogatory No. 5 and Document Request No. 10 was preceded by the phrase, “[s]ubject to and without waiving [Ford’s] objections,” and was followed by objections on the ground that the request was “overly broad,” sought “irrelevant” information, and, to the extent it asked for more information than Ford was providing, sought “confidential or proprietary” information. Judge Boggs’s opinion concluded that these objections placed the Conleys “on notice that Ford may have had at least some insurance coverage.” Boggs Op. at 10. Ford’s objections do make this a more complicated case, but they do not alter our conclusion as to how Ford’s answers could reasonably be interpreted.
If Ford had simply denied the existence of insurance without objection, this would be an easy case for the Conleys to show due diligence. Where a party simply answers a discovery request, the requesting party is entitled to believe the answer. Due diligence does not require the requesting party to disbelieve the substantive answers an opposing party has provided in discovery, nor must the requesting party file a motion to compel and then show non-compliance with an order to compel before the trial court can sanction the responding party for its discovery abuse, as must be done if the responding party refuses to answer the request at all. See OCGA § 9-11-37; MARTA v. Doe, 292 Ga. App. 532, 537 (664 SE2d 893) (2008) (“‘To condone [false or erroneous responses] would force parties to assume the falsity of every sworn interrogatory response and file endless motions preserving their right to relief.'” (citation omitted)). As our Court of Appeals has cogently explained, in accord with the position of courts nationwide:
“An interrogatory answer that falsely denies the existence of discoverable information is not exactly equivalent to no response. It is worse than no response. When there is no response to an interrogatory or the response is devoid of content, the party serving the interrogatory at least knows that it has not received an answer. It can move the court for an order to compel a response. . . . . If the response is false, however, the party serving the interrogatory may never learn that it has not really received the answer to the interrogatory. . . .”
Id. at 536 (emphasis in original; citation omitted).
On the other hand, if Ford had responded to the Conleys’ insurance inquiries only with its objections, instead of with answers qualified by the objections, this would be an easy case in Ford’s favor, as the Conleys would not be heard to complain now that Ford led them to believe that it had no insurers. If a party responds to a discovery request simply with objections to the request, the requesting party is given no substantive answer at all. In this situation, the law is clear: if the requesting party wants an answer upon which it can rely (or sanctions for the failure to provide such an answer), it must file a motion to compel, obtain an order from the court compelling an answer, and then seek sanctions if the responding party still refuses to comply. See OCGA § 9-11-37; Strejc v. MARTA, 197 Ga. App. 88, 89 (397 SE2d 501) (1990).
Because Ford coupled its substantive answers with objections, this case does not fall neatly into either of these easier scenarios. The trial court reasonably concluded, however, that even with the objections, Ford’s answers were misleading. The Conleys were not required to read Ford’s objections as a distinct refusal to say whether or not Ford carried insurance to cover the Conleys’ claim, because the substantive responses that Ford provided could reasonably be understood to indicate that the company was self-insured. Moreover, the objections asserted by Ford suggest this understanding of the substantive responses. If Ford carried insurance policies, Ford could not reasonably refuse entirely to provide any information about them, in light of OCGA §§ 9-11-26 (b) (2) and 15-12-135 (a). Moreover, the objections that any further information about which resources Ford would use to cover a judgment was irrelevant, proprietary, or confidential are difficult to understand with respect to, for instance, the identity of a third-party insurer. Such objections would make much more sense if Ford were truly self-insured. Thus, the Conleys, and the trial court, could read Ford’s discovery responses, as a whole, as asserting that Ford was self-insured and would not look to any insurance policy to cover a judgment in this case. The Conleys, having no reason to suspect those responses were false, were not obliged to question them or to seek different responses. The Conleys asked; Ford answered; and the Conleys were entitled to rely upon those answers as truthful, rather than going to the trial court to compel Ford to answer again.
(3) The Conleys’ Understanding of Ford’s Responses
Even if the Conleys could reasonably (objectively) read Ford’s discovery responses as indicating, misleadingly, that Ford had no insurers, if the Conleys actually (subjectively) believed that Ford was non-responsive on the insurance issue, they would not be entitled to a new trial. If that were the case, due diligence would have obliged the Conleys to move to compel Ford to properly answer the requests. See Strejc, 197 Ga. App. at 89. Ford contends that the Conleys’ understanding that the responses to Interrogatory No. 10 and Document Request No. 5 were evasive or incomplete, rather than misleading, is demonstrated by the March 1, 2008 letter the Conleys sent to Ford complaining about the company’s responses to the initial set of discovery requests. That letter is Ford’s best piece of evidence, but it does not compel a different conclusion than the trial court reached.
The Conleys’ March 2008 letter, which was sent about six weeks after receiving Ford’s responses, was not focused on the interrogatory and document request seeking insurance information. Instead, the letter asked Ford to “withdraw all general objections that it incorporates into each interrogatory,” noting that “Ford has basically lodged an objection to each interrogatory.” The letter also asked Ford to “withdraw the specific objections and answer the questions posed instead of providing self-serving answers that do not respond to the question posed” for 19 interrogatories (including No. 5), and further requested that Ford withdraw its objections to and answer 15 other interrogatories for all vehicles, meaning that the Conleys requested answers without objections for 34 of the 37 interrogatories to which Ford had objected. Finally, the letter requested that Ford “withdraw specific objections, respond to the requests as written, . . . and/or fully respond to” 54 of the 68 document requests to which Ford had objected (including No. 10).
Thus, the Conleys’ letter was not directed at the two discovery requests regarding insurance, but rather was a broadside complaint about Ford’s objection-laden responses, which essentially asked Ford to review the initial set of discovery requests again and to answer the questions without the blunderbuss objections. Indeed, Ford acknowledged the unfocused nature of the Conleys’ letter in its March 21 reply, which said the Conleys had raised “general, broad complaints regarding Ford ‘s answers and objections but fail[ed] to address particular interrogatories with the specific grounds for [their] complaints.” As time went on and the Conleys focused more precisely on the initial responses that Ford had provided, the Conleys could reasonably conclude, for the reasons discussed previously, that Ford had asserted that it was self-insured and that no further information about such self-insurance was required.
To support the argument that the Conleys did not diligently pursue insurance information, Ford also points out that the Conleys filed three motions to compel other information sought in discovery. Those three motions, which were filed much later in the pretrial period, show that the Conleys knew how to seek to compel discovery. But the motions do not indicate that the Conleys were ferreting out misinformation provided by Ford and demanding that it be corrected, much less that the Conleys knew that Ford’s initial answers regarding its insurance coverage – as the Conleys reasonably understood those answers – were incomplete or untrue. None of the motions sought to compel further responses to the Conleys’ initial interrogatories and document requests; they instead addressed subsequent discovery items that Ford had unambiguously refused to produce and questions Ford had squarely refused to answer.11
(4) Deference to the Trial Court
The trial court’s finding that Ford ‘s discovery responses intentionally misled the Conleys into actually and reasonably believing that Ford had no insurers is entitled to substantial deference on appeal. Unlike this Court or the Court of Appeals, the trial court directly supervised the ebb and flow of the discovery and trial process in this case and had the opportunity to observe and assess the conduct, demeanor, and credibility of the parties and their counsel throughout the proceedings, as well as the witnesses presented on this specific issue at the motion for new trial hearing. See Singh, 292 Ga. at 581 (“‘[T]his Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses.'” (citations omitted));Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 734 (698 SE2d 19) (2010) (“‘[T]rial judges, through their direct involvement with the case, the parties, and the attorneys, and their familiarity with the actions of the parties in the conduct of discovery in similar cases that are properly brought to their attention, are in the best position to evaluate the parties’ conduct and to determine the appropriate level of [discovery] sanctions.'” (citation omitted)); Santora v. American Combustion, Inc., 225 Ga. App. 771, 772 (485 SE2d 34) (1997) (“In determining whether a party has abused discovery, the trial court sits as trier of fact, and this Court will uphold a finding of wilful discovery abuse if there is any evidence to support it.”).
Ford maintains that the trial court’s involvement in the Young case impermissibly colored its decision in this case and the court “conflated the two proceedings.” It is true that the trial court found that Ford’s discovery responses were intentionally misleading based in large part on the deposition testimony of Ford’s in-house lawyer introduced during the sanctions hearing held in Young. But the court was entitled to consider that evidence, because the Conleys admitted the transcript of the Young hearing at the motion for new trial hearing in this case without objection by Ford.
Ford further claims that the trial court failed to consider that in this case, unlike in Young, Ford objected to the requests for insurance information. In fact, the court specifically acknowledged Ford’s argument that the Conleys should have known that the company had insurance “based upon Ford’s objections to Plaintiffs’ discovery requests seeking disclosure of insurance information.” The court simply did not find those objections sufficient to put the Conleys on notice that Ford might have insurers – a finding with which we agree, as discussed previously, because the objections were made alongside substantive answers that reasonably could be read to indicate that Ford was self-insured, and indeed, the objections could be understood to suggest that very reading of the substantive answers.
Ford also quarrels with the trial court’s statement that Ford’s in-house counsel testified to “a general corporate practice” of not disclosing insurance information in discovery, asserting that “[t]he actual testimony was that Ford had produced insurance information where Ford’s objections had been overruled.” But Ford’s lawyer testified that insurance information “isn’t produced as a matter of course in our cases,” indicating that the general practice of the corporation was to refuse to provide insurance information when first requested even in states, like Georgia, where such information should be disclosed if requested. The trial court’s statement was therefore a fair characterization of the evidence.
As indicated by the equal division of the Court of Appeals, whether the Conleys exercised due diligence in this case is a pretty close question, and the trial court could have reached a different conclusion, to which we likely also would have deferred. But the conclusion the trial court reached is supported by the record viewed as a whole. Ford’s responses to the Conleys’ initial discovery requests for insurance information affirmatively misled the Conleys into actually and reasonably believing that Ford was entirely self-insured for any judgment in their case, and the Conleys therefore did not fail to act with due diligence in not moving to compel further responses from Ford, in not asking the trial court to qualify the prospective jurors as to insurers that Ford had failed to identify, and in not moving for a new trial until after the truth about Ford’s insurers was revealed during the subsequent Young litigation. See Aaronson, 109 Ga. App. at 384 (finding good cause for the untimely filing of a motion for new trial where the movant failed to present evidence at trial because he was misled by the other party into believing that the trial had not yet happened). Accordingly, the Conleys did not waive their right to qualify the jury as to Ford’s insurers that may have been liable for a judgment, and the Conleys have met the due diligence requirement for the grant of an extraordinary motion for new trial.
(b) Material Harm
To obtain a new trial, in addition to showing that they had good reason for the late filing of their motion for new trial, the Conleys were required to show that the error they identified caused them material harm. This is usually a difficult showing to make, but it is not for the particular claim that the Conleys presented, as the trial court correctly held. When the error is the failure to qualify the jurors in a civil trial as to their relationship with the defendant’s insurers that may be liable for a judgment, then after the verdict is returned, harm must be presumed.
Ford ‘s in-house counsel testified that the company routinely answered discovery requests for insurance information by saying that Ford had sufficient resources to cover any reasonable judgment, and that opposing parties generally found that response sufficient. Ford may be right that such an answer is sufficient to satisfy the main purpose of OCGA § 9-11-26 (b) (2), because plaintiffs like the Conleys are notified that Ford will be able to pay an adverse judgment or settlement in the case (whether directly or from insurance).12 In Georgia, however, information about a civil defendant’s insurers is required for a second, and perhaps even more important, purpose: qualifying the jury. Ford’s national discovery practice apparently failed to take into account Georgia’s rule and the right it provides to plaintiffs.
It is the longstanding rule in Georgia that, to ensure the right of trial by an impartial jury, a party to a civil case is entitled to have the jury qualified by the court as to any insurance carrier with a financial interest in the case. See Atlanta Coach Co. v. Cobb., 178 Ga. at 549-550; Weatherbee v. Hutcheson, 114 Ga. App. 761, 764 (152 SE2d 715) (1966) (“It is proper to qualify the jury relative to the possible interest which the members may have in an insurance carrier having a financial interest in the outcome of the suit.”). See also OCGA § 15-12-135 (a) (“All trial jurors in the courts of this state shall be disqualified to act or serve in any case or matter where such jurors are related by consanguinity or affinity to any party interested in the result of the case or matter . . . .”). It is an equally longstanding Georgia rule that where a civil jury was not properly qualified in this way, and where the party seeking such qualification has properly preserved the issue for review, prejudice to that party will be presumed, and in the absence of proper rebuttal, a new trial must be ordered. See Atlanta Coach, 178 Ga. at 550-552.
The issue is not whether or not the juror can be fair and impartial while having the interest; if this were the issue, then ignorance would prevent prejudice. The issue is the per se disqualification under OCGA § 15-12-135, as a matter of law, with the presumption of prejudice.
Smith v. Crump, 223 Ga. App. at 56.
The reason for this unusual presumption of harm involves yet another longstanding Georgia rule – the prohibition against jurors impeaching their verdict by showing their own disqualification. See Atlanta Coach, 178 Ga. at 551-552; Reece v. State, 208 Ga. 690, 691 (69 SE2d 92) (1952) (“It is well settled, as a matter of public policy, that a juror will not be heard to impeach his verdict by showing his own incompetency or disqualification.”); former OCGA § 9-10-9 (“The affidavits of jurors may be taken to sustain but not to impeach their verdict.”).13 In voir dire, prospective jurors may be questioned about their relationships with insurers that face potential liability from a judgment in the case and may provide truthful answers, whatever they may be; but once the jury is seated and renders its verdict, although jurors could testify to a lack of disqualifying relationships, they could not impeach the verdict by testifying to any disqualifying relationship.
Thus, the party seeking to examine the jury regarding disqualifying ties to insurance companies must be permitted to pose the questions before the verdict, and an error in this regard cannot be cured or deemed harmless after verdict.
If the plaintiff was entitled to have the examination as to relationship conducted in open court and before verdict while the jurors were competent to testify against as well as for their qualification, the error in denying this right was not cured by the submission of affidavits procured by the defendant out of court and after verdict, when the jurors could legally testify only one way on the question, and by offering to permit the plaintiff to make a counter-showing [that cannot legally be made].
Atlanta Coach, 178 Ga. at 552. See also Lewis v. Emory Univ., 235 Ga. App. 811, 815 (509 SE2d 635) (1998) (“[T]he law itself provides the negative factual answer [after verdict], without an opportunity to discover whether it is true factually or not.”).14 In short, if prejudice were not presumed in this way, a trial court’s improper ruling refusing to allow jurors to be qualified as to insurers would be immune from correction on appeal after verdict.
Ford seeks to avoid the application of Atlanta Coach in three ways, none of which are convincing.
(1) First, Ford points out that Atlanta Coach involved a timely request to the trial court to qualify the jury as to the defendant’s insurer, which was erroneously denied; Judge Boggs’s opinion adds that in Atlanta Coach and some similar cases granting new trials, not only was a timely objection to the lack of jury qualification made at trial, but a timely new trial motion was filed challenging that ruling. See Boggs Op. at 15. In this case, by contrast, the jury qualification issue was first raised in an untimely, extraordinary motion for new trial.
The timeliness of the challenge, however, goes to the issues of waiver and due diligence, not harm. And as discussed in the previous subdivision, the Conleys’ failure to raise the issue of qualifying Ford’s insurers earlier was excused because Ford misled them into believing no such issue existed. As for harm, the same reasoning that supports a presumption of harm when the failure to properly qualify a jury is raised in an ordinary motion for new trial requires the same presumption to be applied in an extraordinary motion: in both situations, without presuming such harm, errors regarding jury qualification would be immune from correction, because after the verdict, the party entitled to jury qualification would be precluded from showing actual harm by the rule prohibiting jurors from impeaching their verdict. Accordingly, we see no reason to distinguish between ordinary and extraordinary motions for new trial in this regard.
This conclusion is consistent with the Court of Appeals’s decision in Patterson v. Lauderback, 211 Ga. App. 891 (440 SE2d 673) (1994), overruled on other grounds by Warren v. Ballard, 266 Ga. 408, 410 (467 SE2d 891) (1996). Patterson held that the Atlanta Coach presumption of harm applied in reversing the denial of an extraordinary motion for new trial based on the failure to qualify the jury as to the defendant’s insurer. See Patterson, 211 Ga. App. At 894-896. The plaintiffs’ failure to raise the claim sooner was excused because defense counsel misled the trial court into believing the insurer was a stock company rather than a mutual company as to which qualification as to juror policyholdings would be necessary, and the plaintiffs made a diligent effort after trial to discover and produce evidence that the insurer was in fact a mutual company. See id. The Court of Appeals concluded, “Defense counsel may state he does not know, or is not sure, but he may not provide erroneous [insurer] information upon which the trial court relies, and escape responsibility for resulting error in the qualification of the jury.” Id. at 896. The same can be said of erroneous insurer information provided by the defendant in discovery, upon which the plaintiffs reasonably rely, as occurred in this case.15
(2) Ford next points out that the right to challenge juror qualifications may be waived, and when so waived, it is conclusively presumed that no harm resulted:
“The disqualification of a juror . . . may be expressly or impliedly waived by a party having cause to complain, and if expressly or impliedly waived, it is conclusively presumed that no harm or benefit to either party resulted from the disqualification, and where it appears that the party having cause to complain either knew of the relationship or could have discovered it by the timely exercise of ordinary diligence, and remained silent, that party will be presumed to have waived the disqualification.”
Lewis v. State, 291 Ga. 273, 275 (731 SE2d 51) (2012) (citation omitted). See also Citizens & S. Nat. Bank v. Haskins, 254 Ga. 131, 138 (327 SE2d 192) (1985) (holding that the plaintiffs had shown no harm from the failure to qualify the jury as to banking relationships with the defendant bank, when the plaintiffs failed to object to the omission of that qualification at trial); Bean v. Barron, 176 Ga. 285, 285 (168 SE 259) (1933) (“‘When parties are furnished with a list of the jury, it is their duty, if they know that any of the jurors are disqualified, to call attention to the same, or the disqualification will be held to have been waived.'” (citation omitted and emphasis added)).
Once again, however, this is not a case in which the Conleys either knew of the ground for qualifying the jury that they now raise, or could have discovered that ground by the timely exercise of ordinary diligence, before the jury was empaneled. The Conleys are not complaining about the failure to qualify the jury as to relationships with specific persons or entities that the Conleys knew or should have realized had an interest in the case, like the parties or counsel that appeared on their behalf or witnesses identified on lists exchanged before trial. Compare, e.g., Usry, 170 Ga. at 360; Hardy v. Tanner Med. Ctr., Inc., 231 Ga. App. 254, 255-256 (499 SE2d 121) (1998). Instead, the Conleys complain that the jury should have been qualified as to Ford’s insurers. As to that issue, as discussed in Division 3 (a) above, the Conleys did not know whether and with whom Ford had insurance coverage for their case; the Conleys acted diligently in asking for such information in their initial discovery requests; Ford’s answers affirmatively misled the Conleys into believing that Ford was self-insured; and the Conleys therefore were excused from raising this qualification issue with the trial court before the jury was selected.
(3) Finally, Ford forthrightly asks this Court to overrule Atlanta Coach. Ford contends that Atlanta Coach has been subject to criticism in the Court of Appeals, citing Floor Pro Packaging, Inc. v. AICCO, Inc., 308 Ga. App. 586, 588 (708 SE2d 547) (2011), and Presiding Judge Beasley’s special concurrence in Franklin v. Tackett, 209 Ga. App. 448, 450-454 (433 SE2d 710) (1993). In Floor Pro, the Court of Appeals held that for corporations other than an insurer of a party, the presumption of harm arises only where the proponent of qualification showed “a strong probability” that the corporation had “a direct, demonstrable financial stake in the outcome of the case.” 308 Ga. App. at 588. The court did not question Atlanta Coach’s presumption of harmful error when the jury is not qualified as to insurance companies that directly insure a party. See id.
The special concurrence in Franklin challenged the view that a jury should be qualified based on a party’s insurers when the jury is unlikely to discover who those insurers are or even if the party has insurance during the trial, observing that “[w]ithout the link of knowledge, there is no disqualifying interest, because the interest will not affect the decision-making.” 209 Ga. App. at 453 (Beasley, P.J., concurring specially) (emphasis in original). Thus, the concurrence highlighted the problem that asking jurors if they are related to a particular insurer, as Atlanta Coach suggested, communicates to the jury that the insurer’s interests are at stake in the case, potentially creating a need for disqualification that would not exist and injecting the issue of insurance into the case even though evidence of a defendant’s insurance coverage has long been prohibited in tort trials. See Franklin, 209 Ga. App. at 450-451 (Beasley, P.J., concurring specially). Presiding Judge Beasley suggested that questioning potential jurors about their employment and stock interests would be a better, more circumspect way to discover their connections to insurance companies. See id. at 453.
In several cases after Franklin, the Court of Appeals debated whether a defendant’s specific insurers should be directly identified in qualifying the jury. Compare, e.g., Arp v. Payne, 230Ga. App. 840, 841 n.2 (497 SE2d 810) (1998) (“[T]he better approach would be to question the jury as to any financial interest in the outcome of the case without directly identifying the insurer.'” (citation omitted)), and Patterson, 211 Ga. App. at 895 n.2 (noting that trial courts have discretion to qualify jurors as to insurer relationships by following Presiding Judge Beasley’s suggestions or using written juror questionnaires to discover such disqualifications rather than doing so orally in the presence of all jurors), with Arp, 230 Ga. App. at 841 (Pope, P.J., concurring specially) (“[F]ailing to qualify prospective jurors regarding any relationship they might have with a specific insurer having an interest in the outcome of a case, itself, poses its own risk to the right of trial by an impartial jury.”), and Smith v. Crump, 223 Ga. App. at 55-56 (squarely rejecting Presiding Judge Beasley’s position, explaining that jurors may learn the identity of a defendant’s insurers at trial in ways other than through voir dire). None of those cases, however, advocate overruling Atlanta Coach or challenge its holding that harm must be presumed when a jury was not qualified as to a defendant’s insurers.
The question presented in this case is not whether there is any way to adequately qualify jurors in civil cases as to a defendant’s potentially liable insurers short of directly asking the jurors about relationships with the particular insurance companies at issue. The question is whether to reconsider the rule that harm to the plaintiff must be presumed where, as here, there was a complete failure to qualify the jury as to a defendant’s insurance carriers – a rule based, as explained above, on the need to provide a remedy to plaintiffs who are not permitted to show actual harm because that would require them to impeach the jury’s verdict. That rule has been the law in Georgia for 80 years now, and we see no compelling reason to change it at this time.
Because the Conleys acted with due diligence to raise their claim that the jury should have been qualified as to Ford’s insurers, because the jury should have been so qualified, and because the failure to do so raises an unrebutted presumption that the Conleys were materially harmed, the trial court did not abuse its discretion in granting the Conleys’ extraordinary motion for new trial on this ground.
- The Trial Court’s Pretrial Order
The trial court indicated that the Conleys also were entitled to a new trial on the ground that Ford violated the court’s scheduling order, which required the parties to prepare a consolidated pretrial order pursuant to the Uniform State Court Rules. The court asserted that the pretrial order obligated “each party to disclose the individuals or entities for which the jury should be qualified,” and concluded that Ford violated this obligation by not disclosing its insurers that could be liable for a judgment. We disagree.
Neither the statute regulating pretrial orders, see OCGA § 9-11-16, nor the uniform court rule regarding pretrial orders, nor the case law requires a party to ask the trial court to qualify the jury on behalf of its adversary. Like its superior court counterpart, Uniform State Court Rule 7.2 requires each party to file a proposed pretrial order in which the party must, among other things, complete the statement: “The jury will be qualified as to relationship with the following: _.” This allows a party to list all of the individuals and entities, including insurers, that the party wants the court to consider in qualifying the jury, and indeed the party’s failure to do so may waive its right to complain later about the failure to so qualify the jury. See Ga. Dept. of Human Resources v. Phillips, 268 Ga. 316, 318, 320 (486 SE2d 851) (1997); Thurmond v. Bd. of Commrs. of Hall Cty., 174 Ga. App. 570, 571 (330 SE2d 787) (1985).16
Rule 7.2 does not indicate, however, that a party must list in the pretrial order individuals and entities as to which it believes the other party might want the jury qualified. For the proposition that such an obligation exists, the Conleys relied at oral argument on Phillips, but that case just says generally that “[t]he Code imposes a duty on each party to assist the trial court in formulating the pretrial order by defining the issues for trial, and deciding ‘such other matters as may aid in the disposition of the action.'” 268 Ga. at 318 (quoting OCGA § 9-11-16 (a)). The trial court cited only Weatherbee v. Hutcheson, 114 Ga. App. 761 (152 SE2d 715) (1966), which reiterates that it is “proper” for the court to qualify the jury in a negligence action as to the defendant’s insurers, adding that the court “should inquire as to the existence of insurance and the name of the company, or comp[anies], so that the information will be available for qualifying the jury,” and “[w]hen requested by the court, counsel should make full and fair disclosure of the [insurance] information,” so long as that colloquy occurs outside the presence of the jury. Id. at 761. But in this case – unlike in Young – there is no evidence that the trial court ever made such a
specific inquiry about Ford ‘s insurers. No case cited to us, or that we have found, holds that a party with insurers that may cover the claims against it has an affirmative duty to volunteer that information to the court in the pretrial order (or otherwise), much less that the failure to do so warrants a new trial. We therefore hold that the trial court erred as a matter of law to the extent that the court ruled that the Conleys were entitled to a new trial because Ford failed to list its insurers in the pretrial order.
On the other hand, it is clear that a party may, if it chooses, list its own insurers in the pretrial order, thereby unambiguously notifying the opposing party and the trial court of the potential jury qualification issue and insulating itself from challenge on the issue if the court then qualifies the jury as to those insurers or if the opposing party fails to object to the lack of such qualification. At a minimum, in drafting its pretrial order and reviewing the Conleys’ draft, and in discussing the pretrial order with the trial court, Ford was required to focus on the issue of jury qualification, and indeed the consolidated pretrial order listed numerous individuals, entities, and witnesses as to whom the parties wanted the jury qualified.
In this regard, Ford – the party corporation, if not its trial counsel at that point in time – indisputably knew that it had insurers which were liable to cover a reasonable judgment in this case, and Ford was charged with knowledge of the law – that under settled Georgia law, the trial court’s failure to qualify the jury as to such insurers would be deemed harmful error if raised after a defense verdict, unless it was then concluded that the Conleys were aware or should have been aware of the insurers. Thus, while the pretrial order did not obligate Ford to list its insurers, Ford had good reason and ample opportunity at these points of the pretrial process to ensure that the Conleys (and the court) understood that Ford in fact had numerous insurers, and in making its overall findings regarding what the Conleys understood about Ford’s insurance coverage and what Ford intended the Conleys to understand, the trial court could take into account the parties’ failure to address Ford’s insurance with respect to the pretrial order.
We close by addressing the contention of Ford and its amicus that if we affirm the trial court’s ruling, the floodgates will be opened for countless more extraordinary motions for new trial to be granted, and final judgments undermined, where parties who lost at trial comb back through discovery materials and find some vague response to use as the basis for such a motion. However, outside the circumstances of this case, which we certainly hope are unusual, such efforts are unlikely to be successful, because of the strict requirements for granting extraordinary motions for new trial that we have reiterated in Division 2 above.
To begin with, absent good evidence, and a finding by the trial court, that the opposing party’s discovery responses, made in response to reasonably precise, straightforward, and unambiguous requests, were not just vague or incomplete but affirmatively misleading, the moving party will normally be unable to explain why it did not pursue a definitive response with a motion to compel and therefore will not be able to satisfy the due diligence requirement. We fully agree with Ford that “‘[a] party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.'” Johnson v. State, 282 Ga. 96, 98 (646 SE2d 216) (2007) (citation omitted). A party that ignores a discovery violation or jury qualification issue of which it is aware – or of which it should be aware – at the time of trial waives the right to rely on that issue in a motion for new trial, and such waiver will indeed defeat many new trial motions. See, e.g., Sibley v. Dial, 315 Ga. App. 457, 459 (723 SE2d 689) (2012) (holding that Sibley waived his complaint that, “although prospective jurors were asked about their relationship with [the defendant’s insurer] State Farm, they were asked without having taken the statutory oath,” because “Sibley and his lawyer knew that prospective jurors had been qualified as to any relationship with State Farm outside their presence, but they failed to object to this procedure or to even inquire whether the oath had been administered before the prospective jurors had been so qualified”). In this case, however, the Conleys’ awareness of Ford’s insurers was precluded by Ford’s misleading discovery responses.
We also note in this respect that Ford and its amicus have offered no evidence that discovery responses that courts would find to be affirmatively misleading are routinely made. Ford does not admit engaging in such a discovery practice even in this case, much less on a regular basis, and the amicus does not suggest that the businesses for whom it speaks frequently commit discovery violations that can and would be reasonably construed by courts as providing false and misleading answers. Indeed, there is no indication that other defendants in Georgia civil cases have engaged in Ford’s former practice – we assume it has now been stopped – of customarily indicating that the defendant is self-insured (sometimes with obfuscating objections) when asked for basic and entirely appropriate information about insurance coverage for claims. In the absence of evidence to the contrary, we hesitate to broadly attribute a lack of fundamental honesty and professionalism in discovery practice to litigants and lawyers in this State. Moreover, we trust our trial courts to review claims of such misconduct carefully to ensure that the requirement to diligently pursue requested discovery, and to bring complaints about discovery and other matters to the attention of the court in a timely fashion, are not eroded.
Even if the moving party could satisfy the due diligence requirement, the party must also show harm from the asserted error. See Eberhardt, 163 Ga. at 803. In the great majority of cases, this requires a showing of actual harm, and again we have been offered no evidence suggesting that the results of trials are regularly affected even where some discovery violation occurred. Even in the rare situations where harm must be presumed, as with the failure to properly qualify the jury in a civil case, many claims will have foundered under the due diligence requirement. For example, as mentioned previously, many potential jury qualification issues – like relationships with the parties or their counsel – would normally be apparent from the record to any diligent party and thus must be raised before the jury is seated or deemed waived for later review.
Accordingly, our decision today should be not be read as breaking any new ground, but rather as simply affirming the grant of an extraordinary motion for new trial based on the application of settled rules of law to a set of facts that may well be peculiar to Ford’s ill-considered discovery practice. If this case is to teach any lesson, it is that the civil discovery process is supposed to work to allow the parties to obtain the information they need to prove and defend their cases at trial before impartial juries. Discovery is not supposed to be a game in which the parties maneuver to hide the truth about relevant facts, and when a party does intentionally mislead its adversary, it bears the risk that the truth will later be revealed and that the judgment it obtained will be re-opened to allow a new trial based on the truth.
Judgment affirmed. All the Justices concur.
S13A1601. FORD MOTOR CO. v. CONLEY et al.
MELTON, Justice, concurring.
Although I agree with the outcome of the majority opinion, I write separately to emphasize that the presumption of harm raised by the failure to qualify a jury with regard to insurance coverage is a rebuttable one. Atlanta Coach Co. v. Cobb, 178 Ga. 544 (174 SE 131) (1934). For example, under circumstances in which a trial is conducted from start to finish with no mention of any insurance carrier, harm would appear to be highly unlikely, given the fact that the jurors could not be adversely affected by information never disclosed to them. Under such circumstances, the presumptive harm associated with the lack of qualification might properly be rebutted. To accomplish this rebuttal, however, a party must raise a timely and proper argument. Because the evidence is not dispositive that any such rebuttal was both timely and properly made, I agree with the majority’s conclusion that the trial court did not abuse its discretion by granting an extraordinary new trial in this case.
- Renee Conley brought the lawsuit as the next friend of Jordan Conley, her minor child who was severely injured in the accident, and as the survivor of her mother, Martha Pendleton, a passenger who died in the accident.
- The case was actually in state court, but Uniform Superior Court Rule 6.4 (B) is identical to Uniform State Court Rule 6.4 (B). The rule says, in relevant part:
Prior to filing any motion seeking resolution of a discovery dispute, counsel for the moving party shall confer with counsel for the opposing party 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.
- The attorneys appealed, and the Court of Appeals vacated the revocation order and remanded the case, holding that the trial court failed to give the attorneys notice and a meaningful opportunity to be heard before deciding the revocation issue. See Ford Motor Co. v. Young, 322 Ga. App. 348 (745 SE2d 299) (2013).
- At the motion for new trial hearing, the Conleys submitted as evidence the transcript of the Young sanctions hearing, without objection from Ford. During that sanctions hearing, the Youngs presented excerpts from the video deposition of Ford ‘s in-house lawyer who managed product liability litigation and previously managed the discovery for all of Ford ‘s litigation nationwide.
- Five judges voted to reverse the trial court’s judgment, and a total of five judges voted to affirm; Judges Miller and Dillard were disqualified. Although the unpublished opinions of Presiding Judge Barnes (joined by Presiding Judge Doyle and Judge McFadden) and Presiding Judge Ellington (joined by Chief Judge Phipps, Presiding Judge Barnes, and Judge McFadden) were both referred to as “dissents” and referred to the opinion of Judge Boggs (joined by Presiding Judge Andrews and Judges Ray, Branch, and McMillan) as the “majority,” the equal division of the court means that no opinion was truly a majority or a dissent. For ease of reference, we will refer simply to the “Barnes Opinion,” the “Ellington Opinion,” and the “Boggs Opinion.”
- In Reese, the trial court granted the plaintiffs’ extraordinary motion for new trial after proceedings similar to those in this case. See id. at 81. The Court of Appeals affirmed that ruling, holding that the trial court had not abused its discretion because Ford had “intentionally provided misleading discovery responses, which resulted in the jury not being properly qualified.” Id. at 80-81. Ford ‘s petition for certiorari in Reese is pending before this Court. See Case No. S13C1019.
- In its amicus curiae brief in support of Ford, the Georgia Chamber of Commerce argues that we should apply the de novo standard of review because the new trial grant in this case was based on a “special ground” rather than the “general grounds.” See Stevens v. Wright Contracting Co., 92 Ga. App. 373, 378-379 (88 SE2d 511) (1955) (treating the failure to qualify the jury as to an insurer as a “special ground”). But special grounds are properly reviewed de novo only when they involve pure questions of law. See O’Neal v. State, 285 Ga. 361, 363 (677 SE2d 90) (2009) (holding that we review “special grounds involving a question of law . . . de novo and reverse if the trial court committed legal error” (emphasis added; citation omitted)). The Conleys’ motion did not present a pure question of law, but rather a mixed question of law and fact to which the abuse of discretion standard applies.
- Interest rei publics ut sit finis litium is Latin for “it concerns the state that there be an end to lawsuits.” Black’s Law Dictionary 730 (5th ed. 1979).
- The six requirements that must all be met before a motion brought on this ground can succeed are well-settled: the moving party must show (1) that the newly discovered evidence has come to his knowledge since trial; (2) that want of due diligence was not the reason the evidence was not acquired sooner; (3) that the evidence was so material it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is attached to the motion or its absence accounted for; and (6) that the new evidence does not operate solely to impeach the credibility of a witness. See, e.g., Smith, 293 Ga. at 566; Drane, 291 Ga. at 300. See also OCGA § 5-5-23 (“A new trial may be granted in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial.”).
- It is worth noting that the trial judge in Reese – a different judge than in this case and Young – interpreted an almost identical discovery response by Ford “as meaning that Ford was entirely self-insured” and similarly found that the response was “designed to be misleading.” Reese, 320 Ga. App. at 80.
- The first motion sought to compel the depositions of two engineers to which Ford had consistently objected. The second motion sought to compel Ford’s answers to the Conleys’ third set of interrogatories and twelfth set of document requests after Ford “stated unequivocally that it will not be answering any of this discovery” on the ground that it was untimely. The final motion sought to compel video clips and test protocols that Ford had repeatedly failed to produce.
- OCGA § 9-11-26 (b) (2), which was added to the Georgia Civil Practice Act in 1972, see Ga. L. 1972, p. 510, § 1, tracks an amendment to the Federal Rules of Civil Procedure enacted in 1970. That amendment resolved uncertainty as to whether insurance information had to be disclosed in discovery in favor of disclosure, on the ground that “[d]isclosure of insurance coverage will enable counsel for both sides to make the same realistic appraisal of the case, so that settlement and litigation strategy are based on knowledge and not speculation.” Fed. R. Evid. 26 Advisory Committee’s Note, 1970 Amendment. For more than 20 years now, insurance agreements have been included in the initial disclosures that must be made in most federal civil cases without even awaiting a discovery request. See Fed. R. Civ. P. 26 (a) (1) (A) (iv). See also Fed. R. Evid. 26 Advisory Committee’s Note, 1993 Amendment (“As the functional equivalent of court-ordered interrogatories, this paragraph requires early disclosure, without need for any request, of four types of information that have been customarily secured early in litigation through formal discovery.”). OCGA § 9-11-26 has not been amended to require such initial disclosures without request.
- This case was tried under Georgia’s old evidence code, which applied to trials commencing before January 1, 2013. See Ga. L. 2011, p. 99, § 101. The statutory limitation on questioning jurors after their verdict is now found in OCGA § 24-6-606 (b), which says:
Upon an inquiry into the validity of a verdict or indictment, a juror shall not testify by affidavit or otherwise nor shall a juror’s statements be received in evidence as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon the jury deliberations or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith; provided, however, that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the juror’s attention, whether any outside influence was improperly brought to bear upon any juror, or whether there was a mistake in entering the verdict onto the verdict form.
- Thus, contrary to the suggestion of Justice Melton’s concurrence, only juror affidavits or similar evidence obtained before the verdict could rebut the presumption of harm from a failure to properly qualify the jury. See Wallace v. Swift Spinning Mills, Inc., 236 Ga. App. 613, 615 (511 SE2d 904) (1999) (“Such presumption must be rebutted, if at all, prior to the verdict.”). As the trial court correctly noted, Ford has offered no such evidence seeking to rebut the presumption of prejudice to the Conleys.
- Ford contends that the requirement of showing harmful error has been applied to jury qualification-based motions for new trial, but the company cites only felony criminal cases. See Allen v. State, 235 Ga. 709, 714 (221 SE2d 405) (1975) (“There was no showing that any juror who tried appellant was so related. A new trial, therefore, will not be granted without a showing of harm.”); Peek v. State, 247 Ga. App. 364, 366 (542 SE2d 517) (2000). It is true that in 1899, this Court held that a defendant seeking a new trial based on a failure to properly qualify the jury in a felony case must prove that there was, in fact, a juror who was disqualified. See Carter v. State, 106 Ga. 372, 377 (32 SE 345) (1899). Carter and its progeny involved felony cases, however, and in Atlanta Coach, this Court expressly distinguished civil and misdemeanor cases, where the harm from failure to qualify the jury is presumed, from felony cases, where the defendant must prove actual harm. See Atlanta Coach, 178 Ga. at 555 (“[A] different rule for the selection of a jury applies in felony cases from that which obtains in civil and misdemeanor cases.”). Under Georgia statutory law at that time, the parties in a civil or misdemeanor case were entitled to a panel of 24 “competent and impartial jurors from which to strike a jury,” whereas parties in a felony case were entitled only to have the trial court “impanel forty-eight jurors” whom they could then question and seek to disqualify. Id. at 555-556. The Court reasoned that in civil and misdemeanor cases, the error was the failure of the trial court to qualify the jury panel, but the error in a felony case involved “the disqualification itself, and not the [court’s] refusal to make inquiry,” because the parties did not have the legal right for the panel to be pre-qualified by the court. Id. at 556.
Although Carter was relied on in Allen, it has not been cited by this Court in almost 40 years, and under the reasoning of Atlanta Coach, it is not clear whether the holding in Carter survived the 1951 change in the ability of parties in criminal cases to challenge jurors, which provided, in part, that “[i]n all criminal cases both the State and the defendant shall have the right to an individual examination of each juror from which the jury is to be selected prior to interposing a challenge.” Ga. L. 1951, p. 214, § 2 (now codified as OCGA § 15-12-133). This Court has read that language to mean that a “defendant in a felony case is entitled to have 45 qualified jurors put upon him.” Britten v. State, 221 Ga. 97, 100 (143 SE2d 176) (1965) (emphasis added). In any event, to decide this case, which involves the failure to qualify a jury in a civil case, it is sufficient to recognize that Carter’s holding, even if still good law, never applied to civil cases.
As for Peek, that was a felony case that did not rely on Carter or involve a claim that the jury should have been qualified generally as to a particular type of relationship. Instead, the Court of Appeals rejected the argument that the defendant’s stepfather had been improperly allowed to sit on the jury on the ground that nothing in the record showed that the juror actually was the defendant’s stepfather. See 247 Ga. App. at 366.
- Ford cites such waiver cases in arguing that the Conleys’ failure to ask the trial court to qualify Ford’s insurers in the pretrial order waived their right to complain about the lack of qualification in their motion for new trial. But the Conleys’ waiver in this regard is again excused because Ford affirmatively misled them into believing that Ford had no such insurers. See Division 3 (a) above.
One important method of Civil Discovery which can be useful to employ is known as the Request to Admit. It often involves asking questions that are drawn directly from the Complaint or Petition that began the case, or the Answer/Response if sent on behalf of the defendant/respondent, but there is an art to it. They involve making a statement, preferably drawn directly from the documents but rephrased in such a way as to make a general statement of fact, or to refer to a specific event, seeking an affirmation, a denial, or an objection, and an explanation where an explanation is needed. Some things will obviously be denied and it is a waste of time to even put them out there (i.e. a loud, ugly statement like “Admit that you are a bad parent”, which you already know will be justifiably denied, no matter what). However, some questions seek foundational information that there is an objective record to support, which provides the inference and associated information that is needed to prove your point (such as stating that a person was arrested for drug possession at a particular location and particular time, thereby implying that they are a drug user, and possibly going toward an argument that they are not a good parent; more importantly, a police report will have been written documenting this incident, and their denial makes it relevant to bring up in Court against them; you will be able to introduce both of these things to impeach their credibility, showing both their untruthfulness and the bad thing that they are hiding).
The actual Georgia Code Section that defines Requests to Admit is 9-11-36, which reads as follows:
(a) Scope; service; answer or objection; motion to determine sufficiency.
(1) A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of subsection (b) of Code Section 9-11-26 which are set forth in the request and that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.
(2) Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney; but unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon him. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission; and, when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to subsection (c) of Code Section 9-11-37, deny the matter or set forth reasons why he cannot admit or deny it.
(3) The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this subsection, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. Paragraph (4) of subsection (a) of Code Section 9-11-37 shall apply to the award of expenses incurred in relation to the motion.
(b) Effect of admission. Any matter admitted under this Code section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. Subject to Code Section 9-11-16 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Any admission made by a party under this Code section is for the purpose of the pending action only and is not an admission by him for any other purpose, nor may it be used against him in any other proceeding.
Something that is often overlooked when folks are analyzing or responding to the Requests Section 9-11-36(2) of the Official Code of Georgia requires that “[t]he answer shall specifically deny the matter…AND fairly meet the substance of the requested admission; and, when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder.” What this means, though sharp minds have tried to qualify it a little, is that there needs to be more than just a bald denial of the truth of the statement; rather, they need to say why they dispute its truth.
This gets really ugly if the party asking is actually in possession of, or can easily obtain, the proof of the matter. Then, they have a remedy (disclaimer – I have never actually had to use this remedy before a case in which I am currently involved, and the things I write below are based only on what I was originally taught, but which I have already discovered to be faulty; hence this guide based on my own research into the topic, which will be correct, hopefully), which is set down at subsection (3). “The party who has requested the admissions may move to determine the sufficiency of the answers or objections.” More interestingly, this subsection has some teeth built into it – “Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this subsection, it may order either that the matter is admitted or that an amended answer be served.” For obvious reasons, the former remedy is preferable to the latter.
Subsection (a)(3) above sates that Paragraph (4) of subsection (a) of Code Section 9-11-37 shall apply to the award of expenses incurred in relation to the motion. That section is quite plainly identified as “Award of Expenses of Motion”, and it reads as follows:
“(A) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent 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.
(B) If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
(C) If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.”
In subsection (A) above, I emphasized certain terms. This section shows that the winner gets costs and fees; the judge MUST grant “the reasonable expenses incurred…including attorney’s fees” unless the judge actually expressly “finds” (a term of art) that the motion is granted but opposition to the motion was substantially justified, or that bringing the motion was substantially justified but the motion is denied, or the Court can mix and match the fees “among the parties and persons in a just manner.”
Something that also needs to be pointed out is the provision made for proving the other part wrong (and getting the cost paid back for proving them wrong) found in Section 9-11-37(c): “[i]f a party fails to admit the genuineness of any document or the truth of any matter as requested under Code Section 9-11-36 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. The court shall make the order unless it finds that the request was held objectionable pursuant to subsection (a) of Code Section 9-11-36, or the admission sought was of no substantial importance, or the party failing to admit had reasonable ground to believe that he might prevail on the matter, or there was other good reason for the failure to admit.”
I have again placed emphasis on certain terms in the above section, because the section is largely mandatory, and really requires that the party who lied but who needs to be disproven pay for the cost of showing that they are liars. There is an “out” for the Court to keep from having to assess costs against the untruthful party, but it requires that it formally “hold” the request to admit objectionable (again, a term of art), find that the request was seeking an admission that lacked “substantial importance” (and well-drafted admissions won’t be seeking anything trivial, generally), agree with the party that was defending their fib that they could have prevailed, or – and this is largely a catch-all, that needs to be debunked pretty thoroughly when it is used – “there was other good reason for the failure to admit.”
Section 9-11-36(b) details the effect of an admission, which gives a taste of the power of this Civil Discovery method. According to that subsection, “[a]ny matter admitted under this Code section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. Subject to Code Section 9-11-16 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”
Again, certain terms have been emphasized above. They are there to note that there must be a motion made before the Court can allow an admission to be withdrawn or amended, and also to note that this can only be done “when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.” This is a two-step showing, and it needs to be affirmatively made by the party seeking to prevent the withdrawal, apparently.
A2L Webinar – 12 Things Every Mock Juror Ever Has Said
Wednesday, December 9, 2014
I only wrote down and took notes on 10 of them (missed a couple), but this was a great refresher, and some wise words to remember!
Dr. Lori Kuslansky:
Make-or-break points for a case:
1. “Why did the Plaintiff wait so long to sue?”
Legal reasons (ex. Discovery, issues being appealed, etc.)
May not seem slow at all FROM A LEGAL PERSPECTIVE, but might seem to take a long time from a juror perspective – “When my toe gets stubbed, that’s when I say ‘ouch'”.
Be sure to address this issue, because DELAY IS DEATH TO CREDIBILITY
2.“That doesn’t make sense.”
Same thing: Why did the person put up with the bad situation for such a long time before they did something about it?
3.“How much should we give them?”
Need to be both cause-driven and results-driven, and what about “sending a message”? This should be addressed from or against, but MAKE IT RELATE TO THE JURY.
- What does everyone want?
- How, then, should damages be divided?
- A method is to ask each juror what they want to award, and divide it by the number of jurors (the #1 way that they do it)
4.“That may be true, but they didn’t prove it.”
- Folks have often raised their level of the burden of proof due to exposure to popular media
- Can be drawn out through voir dire (ex. asking if they watch crime dramas)
- Set the stage for the measure of damages and the burden of proof via this (jury selection is a means of juror de-selection)
- Careful development of the verdict form (needs to be careful wording)
5.“The defense didn’t prove…”
Remember – defense has a psychological burden, even if it isn’t a legal one.
- Defense may dismiss Plaintiff’s theory WITHOUT ADDRESSING IT.
- Don’t IGNORE other side’s version.
- In voir dire, set the stage for this: “Should Defendant prove it’s case, and if so then how?” “Would you be uncomfortable if the defense didn’t produce any evidence?”
- USE GRAPHICS FOR REFERENCE AND CONSENSUS (they might disagree over their conclusions, but this is something they can all agree they saw)
- Make sure your numbers add up in a way that jurors can calculate THEMSELVES.
- Make sure consistent message is conveyed via this graphical information
6.“Do we have to be unanimous?”
If CONSENSUS is necessary, address that issue in summation (ex. “Everyone can see…” and “Everyone should have all the evidence they need to unanimously award…”)
7.“Where is it in writing?”
Ex. if it must be written, PRODUCE THE WRITING, or ESTABLISH THE TERMS IN THEIR FINAL FORM
- Demonstrative graphics (including “what it would have looked like if it WERE in writing”)
- If it is from a deposition, best thing would be to take the actual written document, instead of just reading it or quoting it
8. “We should give them something.”
This urge is driven by a “sympathy factor”, or a Robin Hood urge (ins. company might’ve paid something, but jurors will expect them to pay more after all of that)
- When one side has less knowledge and control and one side has more knowledge and control, jurors will be more inherently sympathetic toward the one with less.
- “Do you have any doubt or discomfort awarding nothing if Plaintiff fails to prove their case ENTIRELY”.
9. “It may be legal but it just isn’t right.”
Conversely – “it’s just business.”
Potential to anger jurors, though – make sure that all arrogance is checked at the door. Address this IN VOIR DIRE. “There’s nothing the matter with making decisions based on your values and morals, BUT SOME THINGS ARE NOT ABOUT “RIGHT” AND “WRONG”.
“If you have any religious or moral beliefs that might stand in the way of making a decision ONLY based on the law the judge gives you, PLEASE RAISE YOUR HAND.”
To spot moralistic people in jury selection:
- Tend to be religious (more than usual)’;
- Tend to be more “law and order”;
- Tend to be “do-gooders”/SJW – do volunteer work!
- Do they act in Court like they are coming to do business or coming to play?
- What kind of reading material/entertainment did they bring?
- People who seek rule-based environments might tend to need the outside orders, and be a little less flexible in their decision-making
- More provincial/less educated or informed
- Do they read? What kinds of things interest them in reading? (“What do you read? What do you like about it?”)
10. “I remember that graphic.”
- Again, something THEY ALL SAW (people remember visual cues better than spoken words)
After an interesting conversation brought this issue to the forefront of my research, it appears that the extensive research I did on this issue for another case back in 2010 was never discussed on this site. Property Insurance has some odd and difficult rules associated with it, and this is only a generalized overview of the issues associated with it. However, as concerns the particular initial issue that the problem presents, the general rules are as follows:
Section 33-24-4 of the Official Code of Georgia lists property interests under “insurable interests”:
“(a) As used in this Code section, “insurable interest” means any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.
(b) No insurance contract on property or of any interest therein or arising therefrom shall be enforceable except for the benefit of persons having, at the time of the loss, an insurable interest in the things insured.
(c) The measure of an insurable interest in property is the extent to which the insured might be damnified by loss, injury, or impairment of such interest in such property.”
The section itself states how much the measure of value would be in subsection (c).
However, “property insurance” itself is expressly defined in Section 33-7-6(a). That section states that it is “insurance on real or personal property of every kind and interest therein against loss or damage from any or all hazards or causes and against loss consequential upon such loss or damage other than noncontractual legal liability for any such loss or damage.” The subsection goes on to say that it “shall also include miscellaneous insurance as defined in paragraph (10) of Code Section 33-7-3, except as to any noncontractual liability coverage includable therein.”
Section 33-7-3 defines “casualty insurance”, which includes vehicle insurance. However, it is the rest of Section 33-7-6 that is placed here, because it was most relevant to the issue at hand:
“(b) Property insurance also includes:
(1) Any contract, agreement, or instrument whereby a person assumes the risk of and the expense or portion thereof for:
(A) The mechanical breakdown or mechanical failure of a motor vehicle; or
(B) The repair of certain reasonable motor vehicle wear and tear sustained in ordinary use, such as:
(i) The removal of dents, dings, or creases in a motor vehicle without affecting the existing paint finish using paintless dent repair techniques;
(ii) The removal of small windshield chips and cracks without replacement of the entire windshield;
(iii) The repair of rips, burns, tears, holes, and punctures to interior fabric or carpet;
(iv) Cosmetic repair of minor scuffs, scratches, scrapes, or rash on exterior plastic surfaces, including, but not limited to, bumpers;
(v) Cosmetic repair to aluminum or painted wheels when the normal appearance of the wheel is altered with minor curb scuffs, scratches, scrapes, or rash; or
(vi) Exterior reconditioning of foggy or yellowed headlights to restore clarity and luster, and shall include those agreements commonly known as vehicle service agreements or extended warranty agreements, if made by a person other than the motor vehicle manufacturer in exchange for a separately stated charge or the cost of the contract or contracts is included on a nonidentifiable basis in the cost of a motor vehicle sold in conjunction therewith, except that this provision shall not apply to an agreement underwritten by an insurer licensed to transact insurance in this state, either directly or through a reinsurance contract or, without regard to the requirement that the insurance cannot be obtained from an insurer authorized to do business in this state as required by Code Section 33-5-21, to an agreement underwritten by a surplus lines insurer which has not been rejected by the Commissioner for such purpose;
(2) Any contract, agreement, or instrument whereby a person assumes the risk of and the expense or portion of such expense for the structural or mechanical breakdown, loss of, or damage to a one-family or two-family residential building structure or any part thereof from any cause, including loss of or damage to or loss of use of the building structure or major components thereof which are attached to and become a part of said structure, if made by a person other than the constructing contractor or manufacturer of the building structure or part thereof in exchange for a separately stated charge or the cost of the contract or contracts is included on a nonidentifiable basis in the cost of such building structure sold in conjunction therewith, except that this provision shall not apply to an agreement underwritten by an insurer licensed to transact insurance in this state, either directly or through a reinsurance contract or underwritten by a surplus line insurer approved by the Commissioner nor shall this provision apply to an agreement: (A) the performance of which is guaranteed by a surety bond executed by an authorized corporate surety insurer in favor of and approved by the Commissioner in an amount of not less than $1.5 million; provided further that a surety bond of an additional $100,000.00 shall be required for every additional $500,000.00 in written premium above $2 million in written premium. Any company relying upon one or more bonds pursuant to this subsection shall keep such bonds or equivalent coverage in place until the expiration of the contract, agreement, or instrument contemplated in this paragraph; or (B) notwithstanding with a duration of 13 months or less covering damage to or loss of use of the major appliances located in an existing or resold home where the performance of any covered repair is guaranteed by a surety bond executed by a corporate surety insurer authorized to offer surety insurance in this state in favor of the Commissioner and in an amount which in the discretion of the Commissioner will provide adequate protection to all the residents of this state who are covered by such agreements, provided that such amount shall not be less than $100,000.00; or
(3) Any contract, agreement, or instrument, other than an agreement, contract, or instrument covered by paragraphs (1) and (2) of this subsection, whereby a person assumes the risk of and the expense or portion thereof for the cost of repair or replacement of a product if such contract, agreement, or instrument is made by a person other than the manufacturer in exchange for a separately stated charge or the cost of the contract or contracts is included on a nonidentifiable basis in the cost of the product sold in conjunction therewith, except that this provision shall not apply to:
(A) An agreement underwritten by an insurer licensed to transact insurance in this state, either directly or through a reinsurance contract;
(B) Any contract, agreement, or instrument relating to similar services furnished by any air carrier that provides interstate air transportation;
(C) Any tire replacement contract, agreement, or instrument;
(D) A contract, agreement, or instrument whereby a retailer in the business of selling consumer products or a wholly owned subsidiary of such retailer assumes the risk of and the expense or portion thereof for the cost of repair or replacement of consumer products where such contract, agreement, or instrument is guaranteed by a surety bond executed by a corporate surety insurer authorized to offer surety insurance in this state in favor of and approved by the Commissioner in an amount of not less than $100,000.00; or
(E) Any contract, agreement, or instrument whereby any person assumes the risk of and the expense or portion of such expense for the breakdown, service, repair, or replacement due to normal wear and tear or structural or inherent defect to the major appliances, utility systems, and roofing system of any one-family or two-family residential building structure in exchange for a separately stated consideration and does not otherwise provide direct or consequential coverage under a property contract defined in paragraph (1) or (2) of this subsection or the introductory language of this paragraph and such contract, agreement, or instrument is guaranteed by a surety bond executed by a corporate surety insurer authorized to offer surety insurance in this state in favor of and approved by the Commissioner in an amount of not less than $100,000.00.
(c)(1) Any contract, agreement, or instrument, as regulated under paragraphs (1), (2), and (3) of subsection (b) of this Code section, shall state clearly and conspicuously in the contract the name and address of the insurer or surety which has guaranteed or underwritten the contract, agreement, or instrument, either directly or through a reinsurance contract.
(2) In the event a regulated contract, agreement, or instrument is issued by a party other than an insurer so that the holder thereof, in the first instance, must make a claim or request for refund pursuant to paragraph (3) of this subsection against a party other than the insurer, the contract, agreement, or instrument shall provide that the holder shall be entitled to make a direct claim against the insurer upon the failure of the issuer to pay any claim or to refund the consideration paid by the holder for the contract, agreement, or instrument within 60 days after proof of loss has been filed with the issuer.
(3) The regulated contract, agreement, or instrument shall be noncancelable by the issuer except for fraud, material misrepresentation, or failure to pay the consideration due therefor. The cancellation shall be in writing and shall conform to the requirements of Code Section 33-24-44. The holder may cancel at any time upon demand and surrender of the contract, agreement, or instrument whereupon the issuer shall refund the excess of the consideration paid for the contract, agreement, or instrument above the customary short rate for the expired term of the contract, agreement, or instrument.
(4) Any contract, agreement, or instrument exempt under subparagraph (b)(3)(D) or (b)(3)(E) of this Code section shall state clearly and conspicuously substantially the following: “This is not a contract of insurance.”
(d) The Commissioner shall have the power and authority to promulgate rules and regulations regarding vehicle service agreements or extended warranty agreements as described in paragraph (1) of subsection (b) of this Code section. Such rules and regulations shall include filing requirements, disclosures for the benefit of the agreement holder, record keeping, and procedures for public complaints. Such rules and regulations shall also include the conditions under which surplus lines insurers may be rejected for the purpose of underwriting vehicle service agreements and extended warranty agreements.
(e)(1) As used in this subsection, the term “heavy equipment dealer” means a person, firm, or corporation which is primarily engaged in the business of selling, renting, leasing, and servicing heavy equipment, engines, power generation equipment, and parts and attachments to such heavy equipment which is primarily used for construction, industrial, maritime, mining, agriculture, or similar purposes and who is not required to be licensed.
(2) The provisions of this Code section shall not apply to heavy equipment dealers.
(f) Property insurance does not include those agreements commonly known as vehicle service agreements or extended warranty agreements which are issued, sold, or offered for sale by a retail installment seller, as defined in Code Section 10-1-31 in connection with the sale of a motor vehicle by such retail installment seller, provided that such retail installment seller:
(1) Maintains, or has a parent company maintain, a net worth or stockholders’ equity of at least $50 million, provided the parent company guarantees the obligations of the retail installment seller arising from vehicle service agreements or extended warranty agreements underwritten pursuant to this subparagraph;
(2) Complies with the registration requirement prescribed by the Commissioner through regulation;
(3) Files with the Commissioner a true and correct copy of the vehicle service agreement or extended warranty agreement that has a term of and is no longer than nine months in a form that is consistent with the terms prescribed by the Commissioner through regulation;
(4) Files a copy of its Form 10-K or Form 20-F disclosure statements, or if it does not file such statements with the United States Securities and Exchange Commission, a copy of its audited financial statements reported on a GAAP basis. If the retail installment seller’s financial statements are consolidated with those of its parent company, then the retail installment seller may comply with this provision by filing the statements of its parent company. The statement shall be filed with the Commissioner 30 days prior to the retail installment seller’s initial offering or delivering of a service agreement or extended warranty agreement, and thereafter, the statement shall be filed with the Commissioner annually; and
(5) Upon the request of the Commissioner, posts a security deposit or surety bond in an amount not to exceed $250,000.00 and in the manner prescribed by the Commissioner through regulation.”
That Code also provides for certain mandatory provisions that must be included in a contract for property insurance. Because there are certain specific rules for property insurance, governed by a specific Title of the Georgia Code, the potential for specific deviations from the ordinary applicable rules of contractual interpretation was there. However, the prevailing cases on the issue are clear that the intent of the parties, expressed through the written contract (with ambiguities resolved by final resort to parol evidence only when it does not contradict the written contract and is necessary to explain an ambiguous term) will govern. The case of State Farm Fire and Casualty Company v. Rowland, 111 Ga.App. 743, dates back to 1965, but still provides a good, no-nonsense explanation of this common-sense contract rule:
Syllabus by the Court
A fire insurance policy provision that the insured may apply 10% of the insurance applicable to the principal dwelling as additional insurance to cover private structures on the premises, but not structures used in whole or in part for mercantile, manufacturing, or farming purposes, does not exclude from coverage a garage located on the premises in which the insured paints and repairs automobile bodies for others, since such use does not render the garage a public mercantile or manufacturing establishment.
Rowland had a policy of fire insurance on his residence containing the following clause: ‘The insured may apply up to 10% of the amount of insurance applicable to the principal dwelling item as an additional amount of insurance to cover private structures appertaining to the premises described for that dwelling and located thereon, but not to (1) structures used in whole or in part for mercantile, manufacturing or farming purposes.’ The insured had on the premises a garage outfitted as an automobile body paint and repair shop, in which he painted and repaired automobiles for customers. A fire loss to this structure was sustained, and, after the insurer refused to pay, this suit was brought, resulting in a verdict for the plaintiff for the loss plus attorney fees. The motion for judgment notwithstanding the verdict was overruled as to the amount of the loss and sustained as to the sum awarded for attorney’s fees.
Chris B. Conyers, Conyers, Fendig, Dickey & Harris, Brunswick, for plaintiff in error.
Ronald F. Adams, Brunswick, for defendant in error.
A portion of the well reasoned opinion of the trial court overruling the motion for judgment n. o. v. is here quoted:
‘Our courts have held that ‘in the construction of a contract, the words used therein will generally be accepted in their usual common significance,’ Insurance Company of North America vs. Samuels, 31 Ga.App. 258 [120 S.E. 444]. [Public] Indemnity Company of Newark, N. J., vs. Yearwood, 50 Ga.App. 646 [179 S.E. 232]. and that ‘in construing a policy of insurance so as to arrive at the true intention of the parties, the ordinary legal and literal meaning of the words must be given effect when it is possible to do so without destroying the substantial purpose and effect of the contract.’ Liverpool and London and Globe Ins. Co. vs. Automobile & Supply Co., 29 Ga.App. 334 [115 S.E. 138].
‘These decisions raise the question, therefore as to what is the meaning of the words ‘private structure’ as used in this policy. After a diligent search, we have found no Georgia case in point * * * nor have we found any express definition of the term ‘private structure’. We apparently do not have, therefore, any definite ruling of our courts upon which to predicate this decision. We do find, however, the following from another State as a definition of a ‘public building’ as distinguished from a private building: ‘One, of which the possession and use, as well as the property in it, are in the public.’
‘Webster’s dictionary says: ‘In general, ‘public’ expresses something common to mankind at large, to a nation, state, city or town, and is opposed to ‘private’ which denotes what belongs to an individual, to a family, to a company or corporation.’ Quoted in Chamberlan vs. Berlington, 19 Iowa 395, 403.
‘Words and Phrases, Volume 33, page 706, defines ‘private property as that which is one’s own; something that belongs or inheres exclusively in an individual party.’ While Bouvier’s Law Dictionary, Volume 2, page 753 , in speaking of ‘private property’ says: ‘The term applies to such as belongs absolutely to an individual, and of which he has the exclusive right of disposition; property of a specific, fixed and tangible nature, capable of being had in possession and transferred to another, as houses, lands and chattels.’
‘That this was a personally owned piece of property is not disputed. It belonged to the plaintiffs and the general public had no interest in it. Would the fact that the owner chooses to use it for the purpose of painting or repairing cars therein for those who might seek his service, change its character from a ‘private structure’? * * *
‘Our courts hold that contracts of insurance are to be construed most strongly against the insurer and in favor of the insured. Penn Mutual Life Ins. Co. vs. Milton, 160 Ga. 168, 127 S.E. 140, 40 A.L.R. 1382. Pacific Life Ins. Co. vs. Meldrim, 24 Ga.App. 487. Hartford Steamroller Inspection & Ins. Co. vs. Cochran Oil Mill Co., 26 Ga.App. 288, 105 S.E. 856. Johnson vs. Mutual Life Ins. Co. of N. Y., 154 Ga. 653, 115 S.E. 14. Mo. State Life Ins. Co. vs. Lovelace, 1 Ga.App. 446, 58 S.E. 93. Royal Union Life Ins. Co. vs. McLendon, 4 Ga.App. 620,62 S.E. 101. Empire Life Ins. Co. vs. Einstein, 12 Ga.App. 380, 77 S.E. 209. Perkins vs. Empire Life Ins. Co., 17 Ga.App. 658, 87 S.E. 1094.
‘Also, that where the terms of an insurance policy will bear two interpretations, that one will be adopted which sustains the claim for indemnity. Etna [Aetna] Life Ins. Co. vs. Palmer, 159 Ga. 371, 125 S.E. 829. Insurance Company of North America vs. Samuels, 31 Ga.App. 258, 120 S.E. 444.
Corpus Juris also says: ‘The language of the policy being chosen by the insurer, it should be construed, if practical, so as to cover the subject matter intended to be covered, and a policy which describes the property in comprehensive terms or under a general designation, covers whatever is commonly known by such general name or is necessarily or reasonably presumed to be within the terms used and within the intention of the parties. But a clear description will not be extended so as to include property plainly not within the terms of the policy and which could not reasonably have been within the contemplation of the parties. 86 C.J., Section 84.
‘Now the next question is, was this structure used in whole or in part for mercantile purposes.
‘Webster defines ‘mercantile as pertaining to merchants or to the business of merchants.’ (Quoted in Re San Gabriel Sanitorium Company, 95 F. 276 .)
‘In addition to this, we have these further definitions: ‘The word ‘mercantile’ in its original acceptation pertains to the business of merchants and has to do with trade or buying and selling of commodities.’ In Re Cameron Town Mutual Fire, Lightning & Windstorm Ins. Co., 96 Fed. 756, 757. People vs. Fed. Security Co. (Cited in Words & Phrases, Vol. 27, page 95.)
“The term ‘mercantile business’ is defined to mean the buying and selling of articles of merchants as an employment.’ Veazey Drug Co. vs. Breeza, 169 Okla. 418, 37 P.2d 294.
“A merchant’ is one who is engaged in buying and selling [111 Ga.App. 746] goods, wares or merchandise for gain or profit. ‘Mercantile’ pertains to the business of merchants. Cleve vs. Mazzoni, Ky., 45 S.W. 88, 89.
‘A shoe shine parlor and hat cleaning establishment is not a ‘mercantile establishment’, within the meaning of a lease providing that the premises shall not be used for other than mercantile purposes. Cesar vs. Virgin, 207 Ala. 148, 24 A.L.R. 715, 92 So. 406, 407.
‘Where a business was essentially an automobile repair shop in which it was necessary to keep various parts for use in repairing cars, which parts were usually adjusted to cars of purchasers, and the sale of such parts constituted an inconsequential part of the business, it was held that the business was not a mercantile business within the meaning of the law under consideration. Fisk R. Co. vs. Hinson Automobile Co., 168 Ark. 418, 270 S.W. 605, 607.
‘A restaurant has been held both to be (Craig v. Bourdouris, 241 Ill.App. 392) and not to be a mercantile establishment. In Re Excelsior Cafe Co., [D.C.], 176 F. 294, 296.
‘In view of these decisions * * * I am, therefore overruling the motion in so far as the recovery on the outbuilding is concerned.’
It is only left to comment on Ziebarth v. Fidelity & Guaranty Fire Corp., 256 Wis. 529, 41 N.W.2d 632 upon which the defendant strongly relies. Under identical policy provisions it was there held that a garage on the insured premises used by the owner as an automobile repair shop was not a ‘private structure’ because it was ‘open to the public’, or, as construed in Coffey v. Girard Ins. Co., 182 Kan. 579 , 322 P.2d 345, because it was ‘in public commerce’. However, having regard to the policy language (‘* * * to cover private structures * * * but not * * * structures * * * used in whole or in part for mercantile * * * purposes’ we prefer the rationale of Dyer v. Standard Fire Ins. Co. of N. J., (Mo. [App.]) 227 S.W.2d 520, 523, where the line of distinction was drawn not between a ‘private structure’ and a ‘structure privately owned but in public commerce,’ but rather between a ‘private structure’ and a ‘public mercantile establishment.’ It was there held that a garage in which fuel oil and wood were stored, having a sign on the garage door reading ‘Ice and Oil,’ and from which occasional sales of oil or wood were made, was not a public mercantile establishment. We agree with the trial court that under the wording of the policy the exclusion of structures used for ‘mercantile, manufacturing, or farming purposes’ is ejusdem generis with and places limits upon the general idea of ‘private structures.’ ‘Where general words are followed by a description of specified subjects, the meaning of the general words ordinarily will be presumed to be limited to the enumerated special subjects, and to include only those things of the same nature as those specially enumerated, unless a clear manifestation of a contrary intent appears.’ Jenkins v. Jones, 209 Ga. 758, 761, 75 S.E.2d 815, 818; Beck v. Wade, 100 Ga.App. 79, 82, 110 S.E.2d 43. We also agree with the trial court that the use of the garage by the insured as a shop in which he could paint and repair automobiles did not render it a mercantile or manufacturing establishment.
The trial court properly overruled the motion for judgment notwithstanding the verdict.
FELTON, C. J., and JORDAN, J., concur.
To you and yours, a very merry Thanksgiving. May the blessings you have been given multiply, and may you bless many, many others, in turn.
Let us give thanks for the bountiful and beautiful world we live in, where even our suffering is itself a blessing.
Recently, a case has brought into question the strength and power of a voluntary acknowledgment of paternity, so it is necessary to present exactly how much power that kind of document has. Essentially, even if the facts show it is a lie, it has power. The case below demonstrates this – Venable v. Parker, 307 Ga. App. 880 (Ga. App. 2011) involves a situation where there was no genetic testing or revocation before the 60-day window allowed by statute, and the Court upheld the voluntary acknowledgment even over factual evidence to the contrary. The case is below:
Cauthorn, Nohr & O’Dell, Leslie A. Dean and Thomas E. Cauthorn III, Marietta, for appellant.Peggy L. Brown, Lawrenceville, for appellee.BARNES, Presiding Judge.
After Mark Parker executed a voluntary acknowledgment of paternity stating that he was the natural father of the child born to Meranda Venable, the trial court entered a final order establishing paternity and child support. Several months after the final order establishing paternity, Parker filed a motion to set aside his voluntary acknowledgment of paternity and the final order on the grounds [307 Ga.App. 881] of fraud and material mistake of fact. Following an evidentiary hearing, the trial court denied Parker’s motion to set aside but nevertheless ordered the parties to undergo genetic testing to establish paternity of the child. We granted Venable’s application for discretionary review of the trial court’s order and now reverse.
The record shows that on May 9, 2008, Venable gave birth to a son. It is undisputed that Venable and Parker engaged in one sexual encounter approximately nine months prior to the child’s birth.
On June 4, 2008, Venable and Parker signed a voluntary acknowledgment of paternity indicating that Parker was the natural father of the minor child (the “Paternity Acknowledgment”). See OCGA § 19–7–46.1(b).1 The Paternity Acknowledgment expressly stated that Parker could rescind his acknowledgment within 60 days of his signature on the form, or up to the date of an order establishing paternity, whichever occurred first. It further provided that after the rescission period ended, the signed acknowledgment would “constitute a legal determination of paternity and [could] be challenged in a court of law only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the person challenging the acknowledgment.” Additionally, the Paternity Acknowledgment stated that by signing the form, and after 60 days had passed, Parker would “have given up [his] rights to DNA testing.” The Paternity Acknowledgment was duly recorded in Georgia’s putative father registry, and Parker did not seek rescission within 60 days from signing it.
On December 5, 2008, Venable filed a verified petition to establish paternity and child support, pointing out that Parker had signed the duly recorded Paternity Acknowledgment. That same day, the parties entered into a settlement agreement establishing paternity and child support. On December 11, 2008, the trial court entered a final order establishing paternity and child support that incorporated the terms of the parties’ settlement agreement by express reference (the “Final Order”). The Final Order noted that the Paternity Acknowledgment had been signed by both parties and recorded in the putative father registry “and therefore constitute[d] a legal determination of paternity.” The Final Order also obligated Parker to pay monthly child support.
On April 28, 2009, Parker consented to an order allowing for an automatic deduction of child support payments from his wages. One month later, however, Parker moved to set aside the Paternity Acknowledgment and the Final Order based upon fraud and material mistake of fact pursuant to OCGA §§ 19–7–46.1(c) and 9–11–60(d)(2). According to Parker, he had recently learned that Venable was involved with another man at the time of their sexual encounter, raising “a strong probability” that he was not the father of her child. Parker further alleged that because Venable had fraudulently misrepresented the child’s paternity, he was “entitled to have the paternity acknowledgment and judgment set aside and be given an opportunity to have a paternity test.”
The trial court held an evidentiary hearing on the motion to set aside, at which both Venable and Parker testified. Venable testified that she had no sexual partners, other than Parker, around the time that her son was conceived. She further testified that Parker had declined to undergo genetic testing on two separate occasions after her son was born.
Parker testified that he filed his motion to set aside upon learning that Venable had “multiple sex partners” around the time of their sexual encounter. Parker further claimed that he would not have signed the Paternity Acknowledgment if he had doubted that he was the father of the child. At other points in his testimony, however, Parker stated that he already knew that Venable had other sexual partners, and thus was doubtful that he was the father of the child, when he signed the Paternity Acknowledgment. According to Parker, he signed the Paternity Acknowledgment despite his doubts over paternity because Venable had threatened to tell his wife about the sexual encounter and the child if he did not sign it.
Following the hearing, the trial court found that Parker’s testimony was contradictory and did not support an order setting aside the Paternity Acknowledgment and Final Order on the ground of fraud or material mistake of fact. The court further found that Parker had not met the statutory requirements for disestablishing paternity under OCGA § 19–7–54.2 Based upon these findings, the [307 Ga.App. 883] trial court denied the motion to set aside. Nevertheless, in the same order, the trial court required the parties to undergo genetic testing on the ground that it would be in the best interests of the child to establish whether Parker was the biological father.
1. On appeal, Venable argues that the trial court lacked authority to order the genetic testing, given the court’s denial of Parker’s motion to set aside the Paternity Acknowledgment and Final Order. We agree.
Under Georgia law, genetic testing can be ordered only in cases “in which the paternity of a child or children has not been established,” OCGA § 19–7–43(d), (e), and such testing cannot be required if the issue of paternity is res judicata. See Dept. of Human Resources v. Hambrick, 216 Ga.App. 606, 606–607, 455 S.E.2d 120 (1995); Dept. of Human Resources v. Maddox, 198 Ga.App. 650, 651, 402 S.E.2d 771 (1991); Dept. of Human Resources v. Brown, 196 Ga.App. 875, 875–876(1), 397 S.E.2d 73 (1990). See also Dan E. McConaughey, Ga. Divorce, Alimony and Child Custody § 11:62 (2010–2011 ed.). As we have repeatedly held, “public policy is not advanced by the disestablishment of legitimacy and paternity.” In the Interest of T.W., 288 Ga.App. 386, 389(1), 654 S.E.2d 218 (2007).
Here, the unappealed and unmodified Final Order, which was predicated on the settlement agreement and Paternity Acknowledgment expressly consented to by Parker, adjudged that Parker was the father of Venable’s child. And while Parker moved to set aside the Final Order, the trial court found that Parker had failed to meet his burden in this regard and denied the motion. A judgment not void on its face is valid and binding upon the parties until set aside or reversed. See Costello v. Costello, 230 Ga. 40, 41, 195 S.E.2d 408 (1973); State Auto Mut. Ins. Co. v. Relocation & Corporate Housing Svcs., 287 Ga.App. 575, 577(1), 651 S.E.2d 829 (2007). “Thus, the application of the doctrine of res judicata clearly proscribe[d] the trial court’s reconsideration of the issue of paternity. Accordingly, the trial court’s order requiring that the [parties] submit to paternity blood testing [was] erroneous[.]” (Citations omitted.) Brown, 196 Ga.App. at 875–876(1), 397 S.E.2d 73. See Hambrick, 216 Ga.App. at 606–607, 455 S.E.2d 120; Maddox, 198 Ga.App. at 651, 402 S.E.2d 771. See also In the Interest of T.W., 288 Ga.App. at 388–389(1), 654 S.E.2d 218 (trial court erred in ordering genetic testing where the parties had signed a voluntary acknowledgment of paternity that was duly recorded and had not been successfully challenged). We therefore must reverse the trial court’s order to the extent that it required the parties to undergo genetic testing.
BLACKWELL, J., concurs DILLARD, J., concurs fully and specially. DILLARD, Judge, concurring fully and specially.
I concur fully in the majority opinion. I do so with the understanding that our holding rests squarely on the fact that the trial court ordered genetic testing after it had already denied Venable’s motion to set aside the Paternity Acknowledgment and Final Order; thus, leaving no basis for such a ruling.
As I understand it, our decision leaves open for another day whether a putative biological father might, in certain circumstances,3 have standing to ask a court to compel genetic testing—before or contemporaneous with the filing of a motion challenging a judgment of paternity 4—based upon a constitutional right to familial relations with the child, notwithstanding the lack of any statutory authority for doing so.
1. OCGA § 19–7–46.1(b) provides in relevant part:
When both the mother and father have signed a voluntary acknowledgment of paternity and the acknowledgment is recorded in the putative father registry established by subsection (d) of Code Section 19–11–9, the acknowledgment shall constitute a legal determination of paternity, subject to the right of any signatory to rescind the acknowledgment prior to the date of the support order, any other order adjudicating paternity, or 60 days from the signing of the agreement, whichever is earlier….
Once the window for rescission closes, “the signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the person challenging the acknowledgment.” OCGA § 19–7–46.1(c).
2. OCGA § 19–7–54 sets forth the statutory criteria for a male paying child support to disestablish a prior determination of paternity, but one of the criteria is that he must not have signed a voluntary acknowledgment of paternity under OCGA § 19–7–46.1, as Parker did in this case. See OCGA § 19–7–54(b)(5)(F); Baker v. Baker, 276 Ga. 778, 782–783(4), 582 S.E.2d 102 (2003). A prior judgment establishing paternity also can be set aside through an extraordinary motion for new trial based upon newly discovered evidence, but Parker did not file such a motion in this case. See Roddenbery v. Roddenbery, 255 Ga. 715, 715–717, 342 S.E.2d 464 (1986); Cohen v. Nudelman, 269 Ga.App. 517, 522(2), 604 S.E.2d 580 (2004).
In order to obtain service by publication, one of the methods for service of pleadings and process described by Section 9-11-4 of the Official Code of Georgia, Annotated, a person is required to demonstrate “due diligence”. The method itself is described in Section 9-11-4(f), and reads as follows:
“(f) Summons — Other service.
(1) Service by publication.
(A) General. When the person on whom service is to be made resides outside the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of the summons, and the fact shall appear, by affidavit, to the satisfaction of the judge or clerk of the court, and it shall appear, either by affidavit or by a verified complaint on file, that a claim exists against the defendant in respect to whom the service is to be made, and that he or she is a necessary or proper party to the action, the judge or clerk may grant an order that the service be made by the publication of summons, provided that when the affidavit is based on the fact that the party on whom service is to be made resides outside the state, and the present address of the party is unknown, it shall be a sufficient showing of such fact if the affiant shall state generally in the affidavit that at a previous time such person resided outside this state in a certain place (naming the place and stating the latest date known to affiant when the party so resided there); that such place is the last place in which the party resided to the knowledge of affiant; that the party no longer resides at the place; that affiant does not know the present place of residence of the party or where the party can be found; and that affiant does not know and has never been informed and has no reason to believe that the party now resides in this state; and, in such case, it shall be presumed that the party still resides and remains outside the state, and the affidavit shall be deemed to be a sufficient showing of due diligence to find the defendant. This Code section shall apply to all manner of civil actions, including those for divorce.
(B) Property. In any action which relates to, or the subject of which is, real or personal property in this state in which any defendant, corporate or otherwise, has or claims a lien or interest, actual or contingent, or in which the relief demanded consists wholly or in part of excluding such defendant from any interest therein, where the defendant resides outside the state or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of summons, the judge or clerk may make an order that the service be made by publication of summons. The service by publication shall be made in the same manner as provided in all cases of service by publication.
(C) Publication. When the court orders service by publication, the clerk shall cause the publication to be made in the paper in which sheriff’s advertisements are printed, four times within the ensuing 60 days, publications to be at least seven days apart. The party obtaining the order shall, at the time of filing, deposit the cost of publication. The published notice shall contain the name of the parties plaintiff and defendant, with a caption setting forth the court, the character of the action, the date the action was filed, the date of the order for service by publication, and a notice directed and addressed to the party to be thus served, commanding him or her to file with the clerk and serve upon the plaintiff’s attorney an answer within 60 days of the date of the order for service by publication and shall bear teste in the name of the judge and shall be signed by the clerk of the court. Where the residence or abiding place of the absent or nonresident party is known, the party obtaining the order shall advise the clerk thereof; and it shall be the duty of the clerk, within 15 days after filing of the order for service by publication, to enclose, direct, stamp, and mail a copy of the notice, together with a copy of the order for service by publication and complaint, if any, to the party named in the order at his or her last known address, if any, and make an entry of this action on the complaint or other pleadings filed in the case. The copy of the notice to be mailed to the nonresident shall be a duplicate of the one published in the newspaper but need not necessarily be a copy of the newspaper itself. When service by publication is ordered, personal service of a copy of the summons, complaint, and order of publication outside the state in lieu of publication shall be equivalent to serving notice by publication and to mailing when proved to the satisfaction of the judge or otherwise. The defendant shall have 30 days from the date of such personal service outside the state in which to file defensive pleadings.”
However, as the method above specified, this cannot be resorted to until it can be shown that “due diligence” was used to try to locate the person within the limits of the State and they still could not be found, begging the question: What, exactly, would be considered “due diligence”? More importantly, as this case shows, it is not necessary that service be attempted and fail but only that due diligence be shown.
This case is Taylor v. Padgett, 684 S.E.2d 434, 300 Ga. App. 314, decided by the Court of Appeals in 2009, and it describes an example of due diligence:
Shawn D. Bible, for appellant.
John S. Husser, Rome, for appellees.
MILLER, Chief Judge.
Tonya and Dan Padgett (“the Padgetts”), paternal grandparents of the minor children, M.T. and K.T. (“the children”), filed a deprivation petition in Catoosa County Juvenile Court. The children’s mother, Morgan Taylor, appeals from the juvenile court’s order of adjudication and disposition granting custody of her children to the Padgetts, arguing that the juvenile court erred in (i) authorizing service by publication on her without determining whether the Padgetts had made diligent efforts to find her, in violation of her rights to due process and counsel; (ii) exercising personal jurisdiction over her despite insufficient service of process; (iii) failing to set aside its adjudication order based on insufficient service of process; (iv) exercising subject-matter jurisdiction over what is, in fact, a custody controversy, which is within the exclusive jurisdiction of the superior court; and (v) awarding custody to the Padgetts until the children reach the age of 18 in violation of OCGA § 15-11-58(i). Taylor also appeals from the juvenile court’s order denying Taylor’s motion for review and modification. Given that the Padgetts failed to exercise reasonable diligence to find Taylor, the trial court erred in granting service by publication, and we therefore reverse.
The record shows that on March 30, 2007, the Padgetts filed a deprivation petition in juvenile court, alleging that the children were deprived because Taylor “is failing to provide necessities for the [children]” and because their father, Michael Zachary Taylor (“Zachary”), “has no driver’s license and is unable to transport said children[,] if necessary.” On the same day, the juvenile court held a 72-hour hearing on the Padgetts’ petition, in which the Padgetts, their counsel, and Zachary were present. Taylor was not present. Tonya Padgett (“Tonya”) testified that Zachary and his wife, Taylor, were separated, and Taylor was living in Rome with the children. According to Tonya, she and her husband had been caring for the children every other weekend, but a few days after Christmas 2006, Taylor called her and asked her to pick up the children. Tonya testified that the children’s stepfather told her that Taylor had left with a truck driver a couple of days before, and Taylor told him that Tonya “would be there to pick up [M.T.].” Thereafter, the Padgetts picked up both children from the stepfather with two garbage bags full of clothes and toys and two social security cards.
Zachary testified that he called Taylor to notify her about the 72-hour hearing, and she told him that she was not coming “without her papers being served.” When the Padgetts’ counsel asked Zachary whether he had an address where Taylor could be served, he stated that Taylor told him that she had been “living in a truck” for a while and that was another reason she could not attend the hearing. Thereafter, the juvenile court issued an order awarding temporary custody of the children to the Padgetts, and scheduled a date for an adjudicatory hearing. The juvenile court also granted the Padgetts’ motion for service by publication upon Taylor although no written motion for service by publication or affidavit in support had been filed with the juvenile court.
After the Padgetts effected service by publication on Taylor in Catoosa County, the juvenile court held an adjudicatory hearing on June 11, 2007 and found that the children were deprived in that Taylor lacked stable housing, had no job or means of income, and had not seen the children since January 2007, and Zachary was unable to care for the children. The juvenile court granted permanent custody of the children to the Padgetts until the children reached the age of 18. Taylor was not present for the hearing.
Thereafter, Taylor filed a motion for review and modification to obtain custody of her children, which the juvenile court denied following a hearing. During the hearing on her motion, Taylor testified that on June 11, 2007, she was living at her grandmother’s house in Rome. Contrary to Zachary’s prior testimony, Taylor indicated that she had no notice of the 72-hour hearing. Further, Taylor testified that she had not been served with a summons of the Padgetts’ deprivation petition and never received notice of the adjudicatory hearing. Zachary testified that he never informed Taylor about the Padgetts’ deprivation petition, and that both he and Tonya knew that Taylor was living in Rome with her grandmother before June 11, 2007.
1. Taylor argues that the juvenile court erred in authorizing service by publication when it failed to determine if the Padgetts were diligent in their efforts to find her, in violation of her rights to due process and counsel. Given that the Padgetts failed to exercise any effort to find Taylor despite having a reasonable means to contact or locate her, we agree.
[A]lthough it is the trial court which first passes upon the legality of notice [to a defendant], the appellate courts must independently decide whether under the facts of each case the search for the absentee interested party was legally adequate, . . . in that a proper balance was struck between the procedural ideal that actual notice be given to all interested persons and the practical exigencies that inhibit the realization of that ideal.
(Citations and punctuation omitted.) Abba Gana v. Abba Gana, 251 Ga. 340, 343-344(1), 304 S.E.2d 909 (1983).
“[D]ue process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Saxton v. Davis, 262 Ga.App. 72, 73(1), 584 S.E.2d 683 (2003).
Because notice by publication is a notoriously unreliable means of actually informing interested parties about pending suits, the constitutional prerequisite for allowing such service when the addresses of those parties are unknown is a showing that reasonable diligence has been exercised in attempting to ascertain their whereabouts.
(Citations omitted; emphasis supplied.) Abba Gana, supra, 251 Ga. at 343(1), 304 S.E.2d 909. “[T]he decision whether due diligence has been exercised cannot be left to the movant for publication service.” Id. Rather, “it is the duty of the courts to determine whether the movant has exercised due diligence in pursuing every reasonably available channel of information.” Id.
These due process requirements are reflected in OCGA § 15-11-39.1(b), which authorizes service by publication in juvenile court proceedings:
If, after reasonable effort, a party to be served with a summons cannot be found and such party’s post office address cannot be ascertained, whether he or she is within or outside this state, the court may order service of the summons upon him or her by publication in accordance with Code Sections 9-11-4 and 9-11-5. The hearing shall not be earlier than five days after the date of the last publication.
(Emphasis supplied.) See also Williams v. Jackson, 273 Ga.App. 207, 208, 614 S.E.2d 828 (2005) (service by publication “does not require a showing that service has been attempted but only that the party to be served has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of summons”) (citation and punctuation omitted). OCGA § 9-11-4(f)(1)(A) authorizes service by publication upon a defendant if he or she “cannot, after due diligence, be found within the state, . . . and that fact shall appear, by affidavit, to the satisfaction of the judge or clerk of the court.”
Here, the juvenile court concluded that Taylor “cannot be found with due diligence within the State of Georgia” without any competent evidence to support that finding. The Padgetts did not file a written motion for service by publication and supporting affidavit as required by statute. Nor does the brief evidence adduced at the 72-hour hearing indicate that the Padgetts could have shown the requisite due diligence. The transcript reflects that Taylor previously lived in Rome, Georgia; that Zachary had called Taylor to notify her of the 72-hour hearing; and during that conversation, Taylor told him she was living in a truck. Given that Zachary had Taylor’s telephone number and, in fact, was able to notify her by phone of the 72-hour hearing, the Padgetts had some means of communicating with Taylor. Tonya also indicated that Taylor tried to see the children on March 17, 2007, less than two weeks before the 72-hour hearing. The Padgetts also could have contacted Taylor’s relatives to ascertain Taylor’s whereabouts. For example, the record reflects that Taylor lived with her grandmother in Rome on or around June 11, 2007, and her grandmother might have had information about Taylor’s whereabouts. Further, the Padgetts could have attempted to serve Taylor personally or by registered or certified mail at her prior address in Rome. OCGA § 15-11-39.1(a).1 Despite the existence of these reasonably available channels of information, the Padgetts pursued none of them prior to obtaining an order for service by publication upon Taylor. Pierce v. Pierce, 270 Ga. 416, 418, 511 S.E.2d 157 (1999) (because movant for service by publication had several ways to find his wife, including contacting wife’s attorney or her parents or directing mail to her former marital address, movant did not use reasonably diligent and honest efforts to find his wife). The juvenile court, moreover, failed to place any burden on the Padgetts to determine what notice they had given to Taylor of their deprivation petition and simply relied on evidence about the father’s efforts to contact Taylor. Finally, in its order granting service by publication, the juvenile court stated that it was relying on the oath made by the Padgetts’ counsel in concluding that Taylor “cannot be found with due diligence within the State. . . [.]” The transcript from the 72-hour hearing, however, is devoid of any testimony from, or any oath given by, the Padgetts’ counsel concerning any efforts she made to find Taylor.
Accordingly, the record fails to support the juvenile court’s determination that service by publication was proper. See In the Interest of E.C., 271 Ga.App. 133, 135(1), 609 S.E.2d 381 (2004) (juvenile court commits reversible error “where there is no legal evidence to support [its] ruling”) (punctuation and footnote omitted); see also In the Interest of J.B., 140 Ga.App. 668, 674, 231 S.E.2d 821 (1976) (“service by publication is statutorily recognized and constitutionally permissible [upon father] if the father’s address is unknown and cannot be ascertained with reasonable diligence”) (emphasis in original). Compare In the Interest of M.J.B., 238 Ga. App. 833, 834(1), 520 S.E.2d 497 (1999) (Department made a reasonable effort to locate the mother where it filed an affidavit showing its efforts to locate the mother and the caseworker testified at the hearing that mother’s whereabouts were unknown and the mother failed to contact the Department about the child for more than a year).
2. Taylor argues that the juvenile court erred in entering a custody award when it lacked personal jurisdiction over her due to insufficient service of process. In light of our disposition in Division 1, we agree that the juvenile court lacked personal jurisdiction over Taylor based on its improper grant of service by publication. McDade v. McDade, 263 Ga. 456, 458(2), 435 S.E.2d 24 (1993) (where there was no showing that defendant had received, or waived receipt of, actual notice of the lawsuit, or that reasonable diligence had been exercised in attempting to find her, the trial court erred when it exercised jurisdiction over defendant by entering its order and judgment); Abba Gana, supra, 251 Ga. at 344(1), 304 S.E.2d 909.
3. Taylor argues that the trial court erred in failing to set aside its adjudication order when her physical location was known and service was never attempted. Given that the juvenile court lacked personal jurisdiction over Taylor for insufficient service of process, we agree. OCGA § 15-11-40(a)(2) (juvenile court order may be set aside if the court lacked jurisdiction over a necessary party).
For the reasons set forth above, we are constrained to reverse and vacate the juvenile court’s order of adjudication and disposition based on its improper grant of service by publication upon Taylor. In light of our disposition, we need not reach the remaining enumerations of error.
ANDREWS, P.J., and BARNES, J., concur.
1. OCGA § 15-11-39.1(a) provides:
If a party to be served with a summons is within this state and can be found, the summons shall be served upon him or her personally at least 24 hours before the hearing. If a party to be served is within this state and cannot be found but his or her address is known or can with reasonable diligence be ascertained, the summons may be served upon such party by mailing him or her a copy thereof by registered or certified mail or statutory overnight delivery at least five days before the hearing. . . . (Emphasis supplied).