City of Pendergrass v. Skelton, A05A1839.

• Decision Date: 07 March 2006
• Docket Number: No. A05A1839.,A05A1839.
• Citation: 278 Ga. App. 37,628 S.E.2d 136
• Parties: CITY OF PENDERGRASS et al. v. SKELTON.
• Court: Georgia Court of Appeals

278 Ga. App. 37

Page 136

628 S.E.2d 136

CITY OF PENDERGRASS et al. v. SKELTON.

No. A05A1839.

Court of Appeals of Georgia.

March 7, 2006.

Freeman, Mathis & Gary, Theodore Freeman, Michelle J. Hirsch, Atlanta, for appellants.

Barry E. King, for appellee.

BARNES, Judge.

The City of Pendergrass, the Pendergrass Police Department, Chief of Police Robert Russell, individually, and as supervisor of Officer Richard Jewell, and Officer Richard A. Jewell (collectively "the defendants") appeal the trial court's grant of a stay of proceeding under the Servicemembers Civil Relief Act, 50 USC Appx. § 522, ("the Act") to Eddie Dion Skelton, the plaintiff below. On appeal, they contend the trial court erred by granting the motion without giving them an opportunity to be heard, that Skelton was not entitled to relief under the Act, the length of the stay was overly broad, and because the order stayed all proceedings, including written discovery. For the reasons discussed below, we agree and remand the case for further proceedings.

Skelton filed a complaint against Jewell for false arrest, battery, kidnapping, false imprisonment, intentional and negligent infliction of emotional distress, and criminal defamation, and against Jewell's supervisor Russell, the Pendergrass Police Department, and the City of Pendergrass for negligent hiring, training, supervision and retention. All the defendants answered and served discovery upon Skelton. Skelton, however, did not respond to the discovery when it was due on December 27, 2004, or at any other time.

When the defendants attempted to obtain answers to the discovery in January 2005, they were advised that Skelton's National Guard unit had been recently activated, that he would be deployed in the near future, and that no response would be made to the previously filed discovery. Upon learning this information, the defendants served notice to take Skelton's deposition, but the deposition could not be scheduled, notwithstanding the promises of Skelton's attorney to provide dates when Skelton would be available for his deposition. Subsequently, on March 30, 2005, the defendants filed a motion for sanctions seeking dismissal of Skelton's complaint or in the alternative motion to compel discovery.

Skelton did not respond to the motion, but instead, on April 6, 2005, filed a motion to stay all the proceedings pursuant to the Act, until 90 days after Skelton's release from his active duty obligation. Attached to the motion was a letter from Skelton's commanding officer stating that "Skelton is a member of my command and is currently attending training at Fort Irwin, CA until 30 April 2005. Due to the circumstances of training SPC Skelton is unable to attend any legal proceedings." Although the motion asserted that Skelton was "in preparation for deployment to Iraq within the next 30 to 60 days," the commander's letter did not confirm that statement. The motion did not contain a certificate of service and the record does not show why the defendants were not informed of the motion.

That same day, and without hearing from the defendants, the trial court granted the motion and stayed all proceedings indefinitely, "but in no event beyond ninety (90) days past Plaintiff's discharge from this current active duty `activation.'". As the motion and the trial court's order show that they were both filed with the clerk at 11: 19 on April 6, 2005, the trial court apparently granted the motion before it was filed.¹

Although the defendants filed a motion for reconsideration, it was not ruled upon before the notice of appeal was filed. The defendants have now appealed² contending the trial court erred by granting Skelton's motion ex parte and by granting relief to which Skelton was not entitled.

Although ordered to do so by this court, Skelton has not filed an appellee's brief. He also waived oral argument.

1. First, the defendants contend that the trial court erred by granting Skelton's motion to stay the proceedings, ex parte, because the motion was not an extraordinary matter which would authorize an ex parte hearing. Ex parte in this context means "`a judicial proceeding, order, injunction, etc. . . . taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested. [Cits.]' Black's Law Dictionary (6th ed.1990), p. 576." (Emphasis omitted.) Cagle v. Davis, 236 Ga.App. 657, 661-662(4)(a), 513 S.E.2d 16 (1999).

Uniform Superior Court Rule 4.1 generally prohibits ex parte communications: "Except as authorized by law or by rule, judges shall neither initiate nor consider ex parte communications by interested parties or their attorneys concerning a pending or impending proceeding." And, ex parte hearings are only authorized

in the case of extraordinary matters such as temporary restraining orders and temporary injunctions. In other judicial hearings, both parties should be notified of the hearing with an opportunity of attending and voicing any objection that may be properly registered. (Citation and punctuation omitted.) Anderson v. Fulton Natl. Bank, 146 Ga.App. 155, 156, 245 S.E.2d 860 (1978).

Biggs v. Heriot, 249 Ga.App. 461, 462, 549 S.E.2d 131 (2001). The exception for temporary restraining orders and temporary injunctions is an acknowledgment that such motions "quite often have to be obtained instanter, otherwise property may change possession, and the matter may become moot." Grizzard v. Davis, 131 Ga.App. 577, 578(1), 206 S.E.2d 853 (1974). Ex parte communications are presumed to have been in error. Arnau v. Arnau, 207 Ga.App. 696, 697(1), 429 S.E.2d 116 (1993).

As nothing in the record, and nothing in the motion itself, contains any basis for concluding that a danger existed that Skelton's legal position would change if the defendants were served with a copy of the motion and given the opportunity to respond and appeal at the hearing, the trial court erred by granting Skelton's motion, ex parte. Moreover, as will be discussed more below in Division 3, it cannot be said that the motion and supporting documents so warranted the relief requested that the trial court's stay should be affirmed on that basis. Accordingly, the trial court's grant of the stay under 50 USC Appx. of the Act § 522 must be vacated and the case remanded for consideration in accordance with the applicable sections of the Civil Practice Act and the Uniform Superior Court Rules.

2. The defendants next contend the trial court erred by granting an indefinite stay until 90 days after Skelton's discharge from his current active duty activation, whenever that might be, without considering their pending motion for sanctions which arose from conduct that occurred before Skelton became entitled to the protection of the Act. A trial court has the inherent power to prescribe the manner in which the business of the court shall be conducted which will not be interfered with unless it has been manifestly abused. In re Schoolcraft, 274 Ga.App. 271, 276(3), 617 S.E.2d 241 (2005).

Nevertheless, in the circumstances of this case, we find such a manifest abuse of discretion. At the time the trial court granted Skelton an indefinite stay, his answers to the defendant's discovery were 100 days overdue, he had totally failed to respond to the discovery, and did not respond to the motion for sanctions. Moreover, nothing in the record shows when Skelton was called to active duty. The motion for the stay, filed April 6, 2005, merely states that Skelton was currently on active duty, the response from Skelton's attorney on January 13, 2005, stated that Skelton's National Guard unit had been recently activated, that he would be deployed to Iraq in the near future,...