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“Onerous” is Not Always A Discovery Defense

by merlin on September 24th, 2015
  • Sumo

An objection made in a Discovery matter recently, which objection was not directly applicable but was instead made by the opposing attorneys as a preventative measure, was against any items that searched for a large quantity of information all at once, only some of which might then be relevant (a “laundry list”).  The objection was made to Requests to Admit, which are answerable by a simple “Admit”, “Deny”, or an indication of a lack of sufficient information to respond, and an objection to the question and/or explanation of the response.  None of this would implicate a “laundry list” of answers in reply, but the nature of the support for this objection needs to be discussed, so that the mistake may be avoided by parties to litigation in the future.

West v. Novdin, 196 Ga.App. 825 (Ga. Ct. App. 1990)  is bad law for this purpose because it specifically refers to the making of a such a “laundry list” of errors in an appellate brief’s “Enumeration of Errors” section.  When those errors are unsupported by the brief, and require the Appellate Courts to pick through a brief and the evidence from the Court below to find the evidence that supports the “laundry list” of points, it violates the rules for appellate briefs.  The specific sentence which the objection actually uses comes from the 1966 case of Horton v. Huiet, 113 Ga. App. 166, but the case cited restates it, and in the same context.  The case is below (look to #2(a) for the Court’s statements concerning the issue):

Counsel: Theodore L. Marcus, for appellant.

                 Richard A. Gordon, for appellee.

                 Marvin P. Nodvin, pro se.

Judges: Birdsong, Judge. Banke, P. J., and Cooper, J., concur.

Opinion by: BIRDSONG

Appellant, Thomas B. West, appeals the order of the trial court granting judgment to appellee, Marvin P. Nodvin, “upon a jury verdict along with all orders granted prior thereto.”

Both appellant and appellee are attorneys. This suit was filed on August 15, 1984, in two counts, one in contract and one in tort (fraud); the complaint was subsequently amended to pray inter alia for punitive damages in the amount of “not less than $ 25,000.”

This suit in essence was based on averments that appellant contracted, with intent to defraud, for certain legal services of an original value of $ 983.70 and thereafter did not pay for them. Pretrial discovery procedures in this case were conducted in such a manner that the appellee moved for sanctions against appellant under the provisions of O.C.G.A. § 9-11-37 (d). On November 17, 1986, the trial court entered an order finding that appellant wilfully failed to appear in the taking of his deposition, awarded attorney fees and costs to appellee in the amount of $2,092, and ordered appellant to give his deposition instanter. In December 1987, appellee moved for sanctions against appellant asserting inter alia that appellant had “wilfully fil[ed] evasive and untrue pleadings, wilfully fil[ed] evasive and false responses to interrogatories and request for production, and wilfully fail[ed] to provide discovery.” By order of June 8, 1988, filed June 12, 1988, the trial court awarded appellee’s attorney $600 in attorney fees for bringing the motion. On June 1, 1988, co-counsel for appellee took appellant’s deposition. On June 9, 1988, appellee again moved for sanctions against appellant, under O.C.G.A. § 9-11-37, requesting inter alia that the appellant’s answer be stricken, that he be declared in default, and that judgment be rendered against him where appropriate for appellant’s wilful failure to obey the court’s order of April 8, 1988, particularly by not making payment of attorney fees as ordered. The trial court, as admitted in judicio in the briefs of both appellant and appellee, subsequently ordered that appellant’s answer be stricken and that appellant be declared in default.

The trial court, upon timely motion by appellee, entered a directed verdict against appellant for $4,295.41 principal and interest and for $8,803 attorney fees. The jury returned a verdict for $72,000 in punitive damages against appellant. Judgment was entered accordingly. Held:

1. Appellee’s motion for damages for frivolous appeal is denied.

2. Appellant asserts that the trial court erred in granting appellee’s motion to quash appellant’s notice to produce and appellee’s motion in limine.

(a) The only notice to produce filed by appellant that has been  adequately identified within the record of trial is a notice to produce served by mailing on October 12, 1989. This notice includes inter alia a request for “[a]ny business books and records” of appellant or his firm and all other related entities where appellant practiced law during the time when he represented appellee, “which reflect payments received for legal services rendered to [appellant] or to any corporation in which [appellant] had an ownership interest. . . .”

Appellee asserts that this notice is so broad and harassing in nature as to require that it be quashed. In its motion to quash appellee asserted the following ground: “Defendant is in default, there is no issue as to the amount of the contractual indebtedness from the [d]efendant to the [p]laintiff, and the documents requested are irrelevant and immaterial and are not admissible.”

Appellant’s notice to produce is so broad in scope that if granted it would potentially necessitate the search for and the production of books and records neither relevant nor in any manner relating to the case sub judice. Moreover, “HN1 Georgia law is clear that, once liability has been established [as in this case], evidence which is proffered for the purpose of establishing the appropriate amount of damages, but which at the same time tends to suggest comparative or contributory negligence [or would otherwise tend to contest the right of recovery] on the part of the plaintiff, is inadmissible. [Cits.]” Fulton County Hosp. Auth. v. Hyman, 189 Ga. App. 613, 615 (4) (376 S.E.2d 689); compare Krystal Co. v. Carter, 180 Ga. App. 667, 669 (350 S.E.2d 306). Appellant’s notice to produce is so broad it includes a request for the production of documents inadmissible in evidence under the rationale of Fulton County Hosp. Auth. and Krystal Co.

As our courts have long held, HN2 “[e]ven if some of these [requested documents] may have been relevant . . . no court should impose upon the opposite party the onerous task of producing great quantities of records which have no relevancy. The notice should be specific enough in its demands to relate the documents sought to the questions at issue.” Horton v. Huiet, 113 Ga. App. 166, 169 (1) (147 S.E.2d 669); compare Master Mtg. Corp. v. Craven, 127 Ga. App. 367 (2) (193 S.E.2d 567). Appellant’s notice of production is not specific within the meaning of Horton, and accordingly, the trial court did not abuse its discretion in denial of the order to produce. HN3 A correct ruling of the trial court will not be reversed regardless of the reason given therefor. National Consultants v. Burt, 186 Ga. App. 27, 33 (366 S.E.2d 344), writ vacated, 258 Ga. 645 (374 S.E.2d 532).

(b) During the hearing on the motion to quash, appellee made an oral motion seeking “an order in limine against [appellant’s] introduction of any documents.” The record reflects that on the day of trial appellant attempted to tender four statements of account from appellee’s office; upon certain of these statements, appellant West had  [827]  made a handwritten notation that the obligation had been paid, stating the payment date, and a check number. The trial court ruled these documents would be excluded because of the lateness of their production and because the notations thereon were self-serving.

Appellant cites us to no express ruling by the trial court granting appellee’s oral motion in limine. “HN4 It is not the function of this court to cull the record on behalf of a party in search of instances of error.” Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (386 S.E.2d 709). “This court can not read every line of the record and transcript to hunt for error.” Benefield v. Benefield, 224 Ga. 208, 209 (5) (160 S.E.2d 895).

Moreover, the trial court did not err in refusing to admit the statements in question for several reasons. Those statements bearing the notation of appellant that the bill had been paid would be inadmissible under the rule of Krystal Co., supra; and we agree with the trial court that they are self-serving. Assuming arguendo the statements were relevant for any purpose, HN5 a trial judge may exercise his discretion in excluding relevant evidence if he finds that its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice or of misleading the jury. Friedman v. Friedman, 259 Ga. 530, 532 (3) (384 S.E.2d 641). Thirdly, as a general rule, admission of evidence is a matter which rests largely within the sound discretion of the trial court and an appellate court will not interfere with its rulings absent abuse of that discretion. Whisnant v. State, 178 Ga. App. 742 (1) (344 S.E.2d 536). We find that, under the circumstances of this case, the trial court did not abuse its discretion in refusing to admit documents which purportedly had been discovered and made available only on the day of trial.

3. Appellant asserts in his third and fourth enumerations of error that the trial court committed reversible error in admitting certain evidence of “stubborn litigiousness” and of other transactions. We disagree.

(a) Appellant refers to evidence, concerning his conduct and demeanor, introduced during the taking of his deposition. The record reflects that his objection to the admission of this particular evidence at this particular point in time was sustained. Subsequently, in an attempt to impeach appellant’s testimony to the effect he was not abusive during this litigation, appellant was asked whether during the taking of his deposition he had responded to appellee’s co-counsel by saying, “Jesus Christ! Bitch!” Appellant made no timely objection to this procedure. HN6 On appeal only those issues properly raised before the trial court will be considered. Department of Transp. v. Hillside Motors, 192 Ga. App. 637, 638 (1) (385 S.E.2d 746).

(b) Regarding the remaining incidents where evidence of “stubborn litigiousness” was admitted, appellant in essence asserts that his “liability for stubborn litigiousness was deemed admitted and was not an issue. The only evidence that would have been properly admitted on Count I was the amount of attorney’s fees.” Pretermitting the question of whether the evidence could properly have been admitted as being relevant to establish appellant’s stubborn litigiousness for purposes of award of attorney fees is the issue of whether it was relevant to establish the amount of attorney fees to be awarded. We hold that it is. The trial court could consider the type and nature of appellant’s acts of stubborn litigiousness in determining whether the amount of attorney fees claimed was excessive. HN7 Acts of stubborn litigiousness have some relevancy in supporting an attorney’s claims both as to the number and type of billable hours spent upon a case. Unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, “[t]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.” (Citations and punctuation omitted.) Department of Transp. v. Swanson, 191 Ga. App. 752, 754 (3) (382 S.E.2d 711). Moreover, considering the posture of the record, we are satisfied to the extent, if any, that any evidence of “stubborn litigiousness” either was not relevant as to matters in issue or was not admissible for purposes of impeachment (see generally O.C.G.A. § 24-9-82), the introduction of such evidence was harmless within the meaning of O.C.G.A. § 9-11-61.

(c) Appellant testified that “I pay all my bills.” The trial court did not err in admitting in evidence a number of tax fi. fas. to impeach the asserted fact that appellant paid all his bills. O.C.G.A. § 24-9-82.

(d) “It is well settled that HN8 motive and intent may be shown by conduct in other transactions of a similar nature to that under investigation.” Terry v. Fickett, 199 Ga. 30, 38 (8) (33 S.E.2d 163); Green, Ga. Law of Evidence (3d ed.), Relevancy, § 68. Such evidence also is admissible to show malice (Worn v. Warren, 191 Ga. App. 448 (1) (382 S.E.2d 112)) and good faith or bad faith (Tapley v. Youmans, 95 Ga. App. 161, 175 (97 S.E.2d 365)); and, it is admissible when it provides probative evidence of wilful misconduct, fraud, wantonness, oppression, or a course or pattern of conduct which would raise the presumption of conscious indifference to consequences. “‘Evidence of other transactions or occurrences is admissible if it is relevant to the particular instance and does not place too great a danger of undue consumption of time, confusion of issues, undue prejudice or unfair surprise.'” Worn, supra. The evidence of appellant’s other allegedly  fraudulent or similarly related conduct was relevant in this particular case, to show wilful misconduct, motive, fraud, oppression, or conduct evidencing an entire want of care evidencing conscious indifference to consequences; and as such would be relevant regarding the amount of punitive damages, if any, to be awarded.  See Jackson v. Co-op Cab Co., 102 Ga. App. 688, 692 (3) (117 S.E.2d 627); see also O.C.G.A. § 51-12-5.

The trial court did not abuse its discretion in admitting the evidence in question; moreover, the admission in evidence inherently contained the ruling of the trial court that any danger of undue consumption of time, confusion of issues, undue prejudice, or unfair surprise did not substantially outweigh the probative value of the testimony. Accordingly, we will not interfere with the ruling of the trial court’s admission of this evidence of similar transactions. Whisnant, supra.

(e) Appellant in essence asserts that it was fundamentally unfair to him to have precluded him from introducing documentary evidence in his behalf when “the trial court gave [appellee] a virtual field day” in introducing evidence. Suffice it to say that HN9 “[o]ne cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.” Rush v. Southern Prop. Mgmt., 121 Ga. App. 360, 361 (2)(a) (173 S.E.2d 744). Appellant’s second and third enumerations of error are without merit.

4. Appellant asserts that the trial court “erred and abused its discretion in entering an amended judgment, ex parte, purporting to award both ex contractu damages and ex delicto damages after having granted appellee’s motion for directed verdict which could only have been granted with respect to liquidated, ex contractu damages.”

(a) At the onset, we note that HN10 this court cannot consider factual representations contained in appellate briefs when such evidence does not appear on the record. Behar v. Aero Med Intl., 185 Ga. App. 845, 847 (366 S.E.2d 223).

The record fails to establish that the trial court entered an amended judgment, ex parte. In the resolution of this issue, we cannot consider the documents attached to the appellee’s brief, because HN11 a brief or attachments thereto cannot be used to add evidence to the record. Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 S.E.2d 33).

Appellant cites this court to the judgment at page 394 of the trial record, as evidence that appellee presented the court with the typewritten order on an ex parte basis and thereby deprived appellant of his opportunity to object or to raise various issues on appeal in support of this enumeration of error. The judgment on its face does not establish any of the assertions contained in the enumerations of error, particularly the assertion that damages both ex contractu and ex  delicto were being awarded. Rather, the judgment reflects that there was a prior judgment entered upon verdict which failed to reflect that appellee did “after the verdict, and upon the presentation of the original . . . judgment, elect [as a remedy] to recover upon the fraud claim in accordance with the jury verdict.” (Emphasis supplied.) Moreover, HN12 in the absence of a showing that the procedure caused specific prejudice to an appellant, an election of remedies that occurs even after judgment is rendered will not result in reversible error. See All Risk Ins. Agency v. Belk, 191 Ga. App. 576 (1) (382 S.E.2d 361).

Appellant refers to a certain handwritten judgment in his brief that is not contained in the record. Suffice it to say HN13 it is the appellant’s responsibility to prove both harm and error (Baker v. Baker, 194 Ga. App. 477, 480 (390 S.E.2d 892)), and we cannot presume error from the absence of the original judgment in the record.

(b) Appellant asserts numerous matters in its brief which are not reasonably contained within this or any other enumeration of error. These matters will not be considered on appeal. HN14 An enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration. . . . One cannot expand the scope of review or supply additional issues through a process of switching, shifting, and mending your hold.” (Citations and punctuation omitted.) City of College Park v. Ga. Power Co., 188 Ga. App. 223, 224 (372 S.E.2d 493).

(c) Appellant’s fourth enumeration unequivocally asserts at least two separate and distinct errors. First, appellant has asserted that the amended judgment was entered ex parte. This error we have addressed above. Secondly, he asserts the judgment purports to be an award of both ex contractu damages and ex delicto damages when appellee’s motion for directed verdict could only have been granted with respect to liquidated ex contractu damages. This court has long recognized that HN15 O.C.G.A. § 5-6-40 requires that an enumeration of errors “shall set out separately each error relied upon.” The unauthorized practice of lumping more than one assertion of error within a single enumeration creates a fair risk that ambiguity, misdirection, or confusion as to the errors asserted will occur, thereby giving rise to an increased likelihood of generating inadvertent appellate error. Such practice also may result in unnecessary appellate delay. Therefore for the purpose of protecting our judgments on appellate review (see generally Ga. Const., Art. VI, Sec. I, Par. IV) this court, in the exercise of our sound discretion, may elect to review any one or more of the several assertions of error contained within a single enumeration and to treat the remaining assertions of error therein as abandoned.

Pursuant to Ga. Const., Art. VI, Sec. I, Par. IV and O.C.G.A. § 5-6-40, we elect to treat all enumerations of error contained in appellant’s fourth enumeration of error as abandoned, except for the ex parte  judgment issue above addressed.

In any event appellant’s assertion in this enumeration that the motion for directed verdict could only have been granted properly with respect to liquidated ex contractu damages in this instance also is without merit. Appellee’s complaint averred in its tort count that “[p]laintiff has been damaged in the amount of $983.70, together with interest at one and one-half percent per month from July 30, 1981 until paid.” This amount of damage averred in the ex delicto claim is identical to the indebtedness averred under the ex contractu claim in the complaint. Moreover, appellee testified as to the amount of the initial bill and the pertinent interest rate, and that the bill had not been paid. Appellant made an admission at trial that he knew of “no reason why [the bill] should not have been paid.” HN16 A claim is liquidated when it is for an amount certain and fixed. Arora v. Thakrar, 187 Ga. App. 170 (369 S.E.2d 524); Cobb & Eldridge, Ga. Law of Damages (2d ed.), § 5-1. Appellant’s liability was not in issue because the sanctions imposed against him resulted in default. The trial court directed a verdict for appellee for $4,295.41 principal and interest and $8,803 attorney fees. “HN17 A directed verdict is demanded when there is no conflict in the evidence as to any material issue and a particular verdict is demanded as a matter of law.” St. Paul Fire &c. Ins. Co. v. Ga. Interstate Elec. Co., 187 Ga. App. 579 (370 S.E.2d 829). “HN18 Where the amount of damages recoverable appears from the undisputed evidence to be certain, it is proper for the court to direct the verdict.” Cobb & Eldridge, supra at § 11-31. We are satisfied in view of the evidence of record and the effect of appellant’s default that the trial court did not err in directing a verdict for appellee as above indicated.

Further, the $4,295.41 amount was not limited in application to the ex contractu claim. It may be inferred from the wording of the directed verdict and the conduct of the parties that the $4,295.41 amount represented an award applicable to both the indebtedness under the ex contractu claim and to the damages under the ex delicto claim. Assuming arguendo, the directed verdict was ambiguous and susceptible of two constructions, one of which would uphold the judgment of the trial court and one which would not, that construction which would uphold both the verdict and judgment is to be applied. See Department of Transp. v. Hillside Motors, supra at 640; Haughton v. Judsen, 116 Ga. App. 308, 310 (157 S.E.2d 297). It is clear from their conduct at trial that the parties and court considered the $4,295.41 principal and interest award contained in the directed verdict to apply to both the ex contractu and the ex delicto claims. Particularly, following the granting of directed verdict, the trial court inquired whether the only issue to be sent to the jury would be that of punitive damages, and appellant responded: “That’s correct.” Inherent in this response is the contention that all other issues were resolved.  A party cannot subsequently complain of a judgment that his own conduct aided in causing. Rush v. Southern Prop. &c., supra.

5. Appellant asserts that the trial court erred in entering a judgment on an excessive verdict for punitive damages for $72,000 when the amount of punitive damages sought in the complaint was $25,000.

Appellant cites several cases which hold that HN19 a default judgment may not exceed the amount prayed for in the demand for judgment. This is, of course, a correct statement of law. O.C.G.A. § 9-11-54 (c) (1). In this instance, however, the record conclusively reflects that appellee’s amended complaint expressly prayed for punitive damages “in the amount of not less than $25,000.00.” (Emphasis supplied.) Accordingly, the amount of punitive damages awarded did not exceed the amount prayed for by appellee, and appellant’s enumeration of error is without merit.

Moreover, we find the award of punitive damages in light of the evidence of record, which included volunteered testimony by appellant regarding an escrow established on behalf of appellee from appellant’s recent sale of 159 acres of land at $15,000 an acre with “one-third” down and the balance due within the next two years, was not so excessive as to “‘shock the judicial conscience,'” and allow this court to set aside the award. Hospital Auth. of Gwinnett County v. Jones, 259 Ga. 759, 766 (386 S.E.2d 120).

Judgment affirmed.

The case that makes it bad law is Felix v. State, 271 Ga. 534 (1999 case that says that Enumerations of Error that set out more than one possible point of error must still be considered by the appellate courts, in that they must rule on ALL points of error raised by appellants):

Counsel: Ellis C. Smith, James C. Thornton, for appellants.

Peter J. Skandalakis, District Attorney, Monique L. Fouque, Todd A. Orston, Assistant District Attorneys, for appellee.

Judges: BENHAM, Chief Justice. All the Justices concur.

BENHAM, Chief Justice.

While awaiting trial on an indictment charging them with possession of cocaine, appellants Gladys Felix and Leonard Lee filed a motion to suppress the contraband found by law enforcement officers executing a search warrant in the room in which appellants were sleeping. The trial court denied the motion, and appellants were convicted. On appeal to the Court of Appeals of Georgia, appellants asserted in their enumeration of errors that “the trial court erred in denying Appellants’ motion to suppress.” In their brief filed with the appellate court, appellants set forth and argued separately four reasons why the motion to suppress should have been granted: because the search warrant allegedly suffered from three defects (the address was incorrect, the warrant appeared to have been issued by a court that did not exist, and the warrant was not supported by probable cause) and because the officers allegedly had executed the warrant illegally by using force to enter the occupied premises. See O.C.G.A. § 17-5-27. The Court of Appeals found appellants’ multifarious attack on the trial court’s ruling to be a “compound enumeration” in violation of § 5-6-40, and issued an opinion which addressed only the merits of the contention questioning the sufficiency of the search warrant’s description of the premises to be searched. Felix v. State, 234 Ga. App. 509 (1) (507 S.E.2d 172) (1998). We granted a writ of certiorari to examine the propriety of the Court of Appeals’ invocation of § 5-6-40, which requires an appellant to file with the clerk of the appellate court “an enumeration of the errors which shall set out separately each error relied upon.”

HN1 O.C.G.A. § 5-6-40 is a part of the Appellate Practice Act of 1965 (“APA”), described by one commentator as “probably the most substantial change in appellate procedure since creation of the Supreme Court.” E. Freeman Leverett, “The Appellate Procedure Act of 1965,” 1 Ga. State Bar J. 451 (1965). The Act was passed “to simplify the procedure for bringing a case to the appellate court” (Taylor v. R.O.A. Motors, 114 Ga. App. 671 (3) (152 S.E.2d 631) (1966)), and to secure “speedy and uniform justice in a uniform and well-ordered manner; [535]  . . . not . . . to set traps and pitfalls by way of technicalities for unwary litigants.” Chambliss v. Hall, 113 Ga. App. 96, 98 (147 S.E.2d 334) (1966). HN2 A principal objective of the Act was to “get away from the harsh practice of treating every minor departure from prescribed procedures as a jurisdictional defect on the same level as a violation of the Bill of Rights.” E. Freeman Leverett, “1966 Amendments to the Appellate Procedure Act of 1965,” 2 Ga. State Bar J., 433, 443 (1966). To this end, the General Assembly expressly abolished bills of exceptions, exceptions pendente lite, assignments of error and all rules relating thereto (O.C.G.A. § 5-6-49), and mandated that the Act “be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein, except as may be specifically referred to in [the Act]. ” O.C.G.A. § 5-6-30.

In the last decade, the composition of the enumeration of the errors has become an important feature of the Court of Appeals’ review of a lower court’s judgment. O.C.G.A. § 5-6-40’s requirement that the appellant and cross-appellant file “an enumeration of the errors which shall set out separately each error relied upon” has been a focal point of appellate attention. HN3 Concerned that “lumping more than one assertion of error within a single enumeration creates a fair risk that ambiguity, misdirection, or confusion as to the error asserted will occur, thereby giving rise to an increased likelihood of generating inadvertent appellate error[,]” the Court of Appeals announced that, in order to protect its judgments on appellate review, it would exercise its discretion whether to review any of the several assertions of error when faced with an enumerated error it found to assert more than one error. West v. Nodvin, 196 Ga. App. 825 (4) (c) (397 S.E.2d 567) (1990).The assertions of error not addressed by the appellate court would be treated as abandoned by the appellant. Id. Since then, in over seventy published opinions, the Court of Appeals has informed appellate attorneys that at least one of the errors enumerated by appellate counsel violates O.C.G.A. § 5-6-40 because it includes more than one error. In several of these cases, the Court of Appeals has exercised its discretion and reviewed none of the assertions contained in what it found to be a multifarious enumeration of error. See Bean v. State, 239 Ga. App. 106 (1) (521 S.E.2d 19) (1999); Carl v. State, 234 Ga. App. 61 (3) (506 S.E.2d 207) (1998); Stubbs v. Harmon, 226 Ga. App. 631 (2) (487 S.E.2d 91) (1997); 1Link to the text of the note Duggan v. State, 225 Ga. App. 291 (7) (483 S.E.2d 373) (1997); Arrington v. State, 224 Ga. App. 676 (1) (482 S.E.2d 400) (1997); White v. State, 221 Ga. App. 860 (1)  [536]  (473 S.E.2d 539) (1996); 2Link to the text of the note HAP Farms v. Heard, 209 Ga. App. 684 (1) (c) (434 S.E.2d 118) (1993); Wilson v. Southern R. Co., 208 Ga. App. 598 (6) (431 S.E.2d 383) (1993). In other cases, the Court of Appeals has used a variety of standards to exercise its discretion to review all assertions of errors contained in the questioned enumerated error: if the court is unable to “address any one of these errors without touching upon the others . . .” (Versico v. Engineered Fabrics Corp., 238 Ga. App. 837 (2) (520 S.E.2d 505 ) (1999)); if each of the errors is “easily distinguished and separated in [appellant’s] brief . . .”(Wingfield v. State, 229 Ga. App. 75 (4) (493 S.E.2d 235) (1997)); if the issues are “sufficiently related to one another and were jointly raised and ruled on below . . .” (In the Interest of B. C. P., 229 Ga. App. 111 (3) (493 S.E.2d 258) (1997)); if a party would otherwise “suffer for what his counsel neglected to do[,]” (Griffin v. State, 228 Ga. App. 200 (491 S.E.2d 437) (1997)); “to the extent it is necessary to do so to resolve this appeal[,]” (Mann v. Atlanta Cas. Co., 215 Ga. App. 747 (452 S.E.2d 130) (1994)); or, if given “a liberal reading of [the enumeration of errors] and a review of [the] appellate brief . . . [it is] clear [what] defendant challenges on appeal . . .” (Carver v. State, 208 Ga. App. 405 (1) (430 S.E.2d 790) (1993)). See also Oliver v. State, 232 Ga. App. 816 (2) (503 S.E.2d 28) (1998), and Sanders v. State, 212 Ga. App. 832 (442 S.E.2d 923) (1994) (where all the issues raised in one enumeration were addressed without explanation). In the vast majority of cases, however, the Court of Appeals has decided to address only a single assertion which it selects from the enumeration found to be multifarious. See, e.g., Reid v. State, 237 Ga. App. 690 (515 S.E.2d 201) (1999); Mays v. Farah USA, 236 Ga. App. 1 (2) (510 S.E.2d 868) (1999); Atwood v. Southeast Bedding Co., 236 Ga. App. 116 (2) (511 S.E.2d 232) (1999); Richardson v. State, 233 Ga. App. 233 (2, 3) (504 S.E.2d 65) (1998); Union Planters Nat. Bank v. Crook, 225 Ga. App. 578 (3) (484 S.E.2d 327) (1997); Howard v. State, 220 Ga. App. 267 (4) (469 S.E.2d 396) (1996); Toledo v. State, 216 Ga. App. 480 (4) (455 S.E.2d 595) (1995); McGee v. State, 205 Ga. App. 722 (7) (423 S.E.2d 666) (1992).

HN4 The disparate application of O.C.G.A. § 5-6-40 has resulted from the Court of Appeals’ exercise of discretion in furtherance of its perceived need to protect its judgments “on appellate review.” West v. Nodvin, supra, 196 Ga. App. at 830. HN5 The constitutional authority of a court to “exercise such powers as necessary … to protect or effectuate its judgments” (1983 Ga. Const., Art. VI, Sec. I, Par. IV) enables a court to take action to protect the efficacy of its judgment from a party’s actions that endanger that judgment. See, e.g.,Mitcham v. Blalock, 268 Ga. 644 (1) (491 S.E.2d 782) (1997) (court could enjoin parties from engaging in arbitration of matters previously resolved in litigation before the court); McDaniel v. State, 202 Ga. App. 409 (1) (414 S.E.2d 536) (1992) (court may use contempt powers to protect judgment). This provision of the Georgia Constitution is not authority for an appellate court to protect an appellate adjudication from further appellate review by declining to reach the merits of an allegation of trial court error sufficiently set forth pursuant to the APA in the enumeration of errors. We hereby disapprove language in appellate opinions which premises an appellate court’s exercise of discretion to decline to address the merits of an allegation of trial court error on such authority.

There remains the question of how O.C.G.A. § 5-6-40 should be interpreted. As noted above, the Court of Appeals exercised its discretion not to address assertions of error when it determined that an appellant had violated § 5-6-40 by failing to “set out separately” “errors” in the enumeration of errors. O.C.G.A. § 5-6-40 defines neither “separately” nor “error.” 3Link to the text of the note A suggested form declared by the General Assembly to be “sufficient” 4Link to the text of the note indicates “that the subject matter [of an enumerated error] need be indicated only in [a] general way.” Wall v. Rhodes, 112 Ga. App. 572 (1) (145 S.E.2d 756) (1965). HN6 This Court has ruled that the APA authorizes “practically unlimited looseness” in an appellant’s enumeration of errors (Thomas v. Scott, 221 Ga. 875 (1) (148 S.E.2d 300) (1966)), and that an enumeration of error “need be only sufficient to point out the error complained of. . . .”(Cit.) “The subject matter need be indicated only in the most general way. . . .”Adams-Cates Co. v. Marler, 235 Ga. 606 (221 S.E.2d 30) (1975). In Mull v. Emory Univ., 114 Ga. App. 63 (2) (150 S.E.2d 276) (1966), the Court of Appeals ruled that the statutory requirement of separateness did not require separate numbering for each individual assertion of error concerning the trial court’s sustaining of demurrers, and held that an enumeration complaining of the sustaining of demurrers and “setting forth each demurrer by its paragraph number” constituted a “sufficient ‘separate enumeration.'” In essence, under Mull, HN7 an error is “set out separately” when the trial court’s purportedly erroneous ruling is identified and, if the same erroneous ruling occurred more than once, when each instance of error is identified by a particularized designation, i.e., a number or a name. 5Link to the text of the note

Recent case law makes it necessary for us to update the holding in Mull. The General Assembly has made it clear that all points raised in an appeal are to be considered by the appellate court. HN8 In addition to the statutory mandate that the APA be “liberally construed so as to bring about a decision on the merits of every case appealed and to avoid … refusal to consider any points raised therein” (O.C.G.A. § 5-6-30), the legislature, in enacting O.C.G.A. § 5-6-48 (f), has imposed on the appellate courts a statutory duty to discern what errors an appellant is attempting to articulate. “[If] the enumeration of errors fails to enumerate clearly the errors sought to be reviewed[,]” the appellate court is nonetheless required to consider the appeal “where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, … what errors are sought to be asserted upon appeal. . . .” O.C.G.A. § 5-6-48 (f). In keeping with the statutory mandates that we construe the APA liberally so that points raised in an appeal are considered and that we carefully examine the appellate record to understand better the trial court errors an appealing party is holding up to appellate scrutiny, we take this opportunity to expand the definition of “set out separately” given us by the Court of Appeals in Mull v. Emory Univ. in order to take into account the duty imposed by § 5-6-48 (f). HN9 We conclude that where the enumeration of errors filed in the appellate court identifies the trial court ruling asserted to be error, the error relied upon is sufficiently “set out separately” to require the appellate court to shoulder its constitutional responsibility to be a court of review (1983 Ga. Const., Art. VI, Sec. V, Par. III; Art. VI, Sec. VI, Par. II), and its statutory duty “to bring about a decision on the merits of every case appealed….” O.C.G.A. § 5-6-30. 6Link to the text of the note

As stated earlier, another issue revealed by our review of the opinions in which the Court of Appeals found a violation of O.C.G.A. § 5-6-40 is that there has not been a clear appellate determination of what constitutes an “error” which must be set forth in the enumeration of errors. We endeavor to do so now. HN10

This Court and the Court of Appeals are courts of review. 1983 Ga. Const., Art. VI, Sec. V, Par. III; Art. VI, Sec. VI, Par. II. As appellate courts, we are courts for the correction of errors of law made by the trial courts. Mills v. State, 188 Ga. 616, 623 (4 S.E.2d 453) (1939). In appellate practice, an error of law is “a false or mistaken conception or application of the law. Such a mistaken or false conception or application of the law to the facts of a cause as will furnish ground for a review of the proceedings….” Black’s Law Dictionary (5th ed.). HN11 An error of law has as its basis a specific ruling made by the trial court. In order for a Georgia appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling. O.C.G.A. § 5-6-40. The appellate court is precluded from reviewing the propriety of a lower court’s ruling if the ruling is not contained in the enumeration of errors. Lee v. State, 265 Ga. 112 (8) (454 S.E.2d 761) (1995); Irvin v. Askew, 241 Ga. 565 (2) (246 S.E.2d 682) (1978).

In the case at bar, the error of law alleged to have been made by the trial court was the denial of appellants’ motion to suppress. Appellants set forth in the enumeration of errors their contention that the trial court’s ruling on their motion to suppress was error. Appellants mounted a multi-pronged attack on the propriety of the ruling they asserted was erroneous. The individual facets of appellants’ attack on the legal ruling with which they took issue are arguments in support of a legal position and are not, in and of themselves, errors of law. Because the arguments supporting a position concerning  [540]  a legal ruling are not themselves legal rulings, they do not have to be enunciated in the enumeration of errors in order to merit appellate consideration. Such arguments, however, must be addressed by the appellate court if necessary to its decision on the issue of the propriety of the trial court’s ruling. To the extent the following cases can be read as requiring each argument made in support of an enumeration of error to be set forth in the enumeration of errors, they are overruled. Herndon v. State, supra, 229 Ga. App. 457 (5) (b); Wingfield v. State, supra, 229 Ga. App. 75 (4); Howard v. State, supra, 220 Ga. App. 267 (4); Ellerbee v. State, 215 Ga. App. 312 (3) (450 S.E.2d 443) (1994); Robinson v. State, 212 Ga. App. 613 (2) (442 S.E.2d 901) (1994); Carver v. State, supra, 208 Ga. App. 405, n. 1; Bounds v. State, 207 Ga. App. 665 (428 S.E.2d 673) (1993).

Inasmuch as appellants Felix and Lee adequately set out in their enumeration of errors that they sought appellate review of the trial court’s denial of their motion to suppress and the Court of Appeals did not address all the arguments raised by appellants in support of their enumerated error, we remand the case to the Court of Appeals in order that appellants’ remaining arguments be addressed.

Judgment vacated and case remanded with direction. All the Justices concur.

Footnotes
  • 1Link to the location of the note in the document

    After the Court of Appeals stated it was exercising its discretion to review none of the assertions raised in the enumeration in question, it went on to hold, “in the interest of judicial economy,” that, assuming one of the alleged errors had occurred, it was harmless error.

  • 2Link to the location of the note in the document

    After announcing it elected not to review any of the asserted errors, the Court of Appeals found that the multiple errors “had not been preserved for appeal” since one of the issues had been ruled on adversely to appellant in an earlier appeal and appellant had conceded in the enumeration of error that no timely objection had been made at trial.

  • 3Link to the location of the note in the document

    Nor has there been a clear appellate determination of what constitutes an “error” which must be set forth in the enumeration of errors. See, e.g., Versico Corp. v. Engineered Fabrics, supra, 238 Ga. App. 837 (2) (where the contention that the trial court had erred in finding an ambiguity in the contract, in applying the rules of contract construction, and in concluding that there was an intended third-party beneficiary of the contract was ruled to be more than one enumeration of error); Sheffield v. State, 237 Ga. App. 701 (2) (516 S.E.2d 563) (1999) (assertion that the trial court erred three ways in admitting evidence of a similar transaction ruled to contain more than one error); Mays v. Farah USA, supra, 236 Ga. App. 1 (2); Oliver v. State, supra, 232 Ga. App. 816 (2); Wozniuk v. Kitchin, 229 Ga. App. 359 (2) (494 S.E.2d 247) (1997); Griffin v. State, supra, 228 Ga. App. 200 (enumeration contending trial court erred in failing to give certain requested charges ruled to contain more than one error); Payne v. Thompson, 234 Ga. App. 533 (507 S.E.2d 257) (1998) (appellate court ruled enumeration claiming the trial court erred in charging the jury on certain principles of negligence and liability should have been separated into separate enumerations); Willis Mining v. Noggle, 235 Ga. App. 747 (1) (509 S.E.2d 731) (1998) (appellate court ruled the denial of a motion for directed verdict and the denial of motion for new trial must be separate enumerations of error); Rocha v. State, 234 Ga. App. 48 (3) (506 S.E.2d 192) (1998) (the trial court’s refusal to admit different evidence by which a party attempted to prove a particular fact ruled to constitute more than one error); Richardson v. State, supra, 233 Ga. App. 233 (3) (enumeration raising multiple allegations of prosecutorial misconduct and trial court error ruled to contain more than one error); Gibson v. State, 233 Ga. App. 838 (4) (505 S.E.2d 63) (1998) (enumeration asserting error in the trial court’s denial of a motion for directed verdict concerning specified counts of the indictment ruled to improperly combine several errors into one enumeration); Herndon v. State, 229 Ga. App. 457 (5) (b) (494 S.E.2d 262) (1997) (enumeration asserting error in the admission of a deposition violative of O.C.G.A. §§ 24-10-130 and 24-10-135 ruled to assert two errors).

  • 4Link to the location of the note in the document

    Suggested forms for several documents pertinent to the APA are found in O.C.G.A. § 5-6- 51.

  • 5Link to the location of the note in the document

    Accordingly, an enumeration of errors which contains an assertion that the trial court erred in refusing to give certain identified requests to charge, or one which asserts that the trial court erred in permitting certain identified witnesses to testify about a particular matter (e.g., similar transaction evidence) sufficiently “sets out separately each error relied upon.”

  • 6Link to the location of the note in the document

    Of course, if the assertion that a particular trial court ruling was error is not supported by argument or citation of authority, it is deemed abandoned under the rules of each of the Georgia appellate courts. See Court of Appeals Rule 27 (c) (2) and Supreme Court Rule 22. Furthermore, an appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of the errors. See, e.g., Williams v. State, 208 Ga. App. 153 (1) (430 S.E.2d 42) (1993); Moore v. Sinclair, 196 Ga. App. 667 (2) (396 S.E.2d 557) (1990).

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