Cohran v. Carlin
| Citation | 331 S.E.2d 523,254 Ga. 580 |
| Decision Date | 19 June 1985 |
| Docket Number | No. 41724,41724 |
| Parties | COHRAN v. CARLIN et al. |
| Court | Georgia Supreme Court |
Fletcher Thompson, Atlanta, for Larry Cohran.
Larry Cohran, Atlanta, pro se.
Taylor W. Jones, Jones, Ludwick & Malone, and M. Jerome Elmore, Trotter, Bondurant, Miller & Hishon, Mitchell A. Gross, Atlanta, for Stan Carlin et al.
This is an appeal from a judgment awarding compensatory and punitive damages. The procedural history of the case is quite complex, involving several reassignments of trial judges 1 and numerous superior court hearings and interlocutory appeals. In order to lay the foundation for consideration of this appeal, it is necessary to first summarize the relevant aspects of the case history, especially the discovery proceedings. Although this opinion may be to some extent repetitive of earlier opinions in this case, we deem it helpful to consolidate in this manner.
This suit arose from the attorney-client relationship between Larry Cohran, defendant-appellant, and Stan Carlin and his wife, plaintiffs-appellees. On March 29, 1979, Stan Carlin was arrested by federal authorities for allegedly stealing one million dollars from Brown & Root, Inc. under a check fraud scheme. 2 Appellees sought Cohran's services, and on April 2 they and Cohran entered into a written employment contract. This written contract provided that the Carlins would pay Cohran a flat fee of one million dollars. The contract provided further that Cohran would represent Stan Carlin on the criminal charges, and would represent the Carlins for one year in any matters arising out of transactions between the Carlins and Brown & Root. After signing the contract the Carlins transferred title to money, real estate and a gun collection to Cohran. Two months later the Carlins terminated the attorney-client relationship and requested Cohran to reconvey their property, but he refused.
The Carlins filed this suit on August 23, 1979, seeking damages for wrongful conversion of their property (including attorney fees for bad faith) and compensatory and punitive damages for legal malpractice and tortious fraud. The Carlins alleged that the written employment contract was a sham, the true contract having been a contemporaneous oral contract which provided that the Carlins would pay Cohran $60 per hour in attorney fees for representing Stan Carlin on the criminal charges and for assisting the Carlins in hiding their assets from Brown & Root. The Carlins asserted that Cohran had orally agreed to withdraw money from their bank accounts and immediately deliver it to them. The Carlins also asserted that by the terms of their oral contract Cohran was to record warranty deeds to their real estate in his name, but then reconvey to the Carlins by unrecorded warranty deeds, which they were to hold until litigation with Brown & Root ended. 3 The Carlins further asserted that under a similar term of their oral agreement Cohran was supposed to secretly return their gun collection.
On October 22, 1979, Cohran filed his answer; 4 a counterclaim for breach of the written employment contract and fraud; and a third-party complaint against the Carlins' attorneys. 5 In his pleadings Cohran outlined his own version of his April 1979 negotiations with the Carlins. He maintained that the only contract between the parties had been the written employment contract, and that the Carlins transferred the money and property to him as partial payment of his attorney fees. Cohran asserted that Stan Carlin had told him that Carlin had an enforceable contract with Brown & Root to sell mineral rights to Brown & Root for sixteen million dollars and that Carlin had already received one million dollars under that contract. Cohran attempted to justify his one-million-dollar fee by alleging that it included representation of the Carlins against Brown & Root in the separate suit to recover the remaining fifteen million dollars under the mineral rights contract. See fn. 3, supra.
On August 23, 1979 the Carlins served Cohran with a notice to produce documents and to depose. On October 2, 1979, Cohran moved to quash the notices, and also sought a protective order. A hearing on October 18, 1979, resulted in an order requiring Cohran to produce certain documents and submit to a deposition. The Carlins subsequently moved to compel discovery and impose sanctions, alleging Cohran had not complied with the order. During the December 10, 1979, hearing of this motion, Cohran was orally directed to produce documents and submit to a deposition. One week later Cohran submitted to the taking of his deposition, but he refused to produce documents or answer approximately 90 questions, and on May 19, 1980, the Carlins filed their second motion to compel discovery and impose sanctions.
On May 4, 1981 (after considerable delay involving reassignment of the case to another judge, see fn. 1, supra), a hearing was held which resulted in orders for Cohran to produce a specific list of documents and to answer 71 of the approximately 90 questions which he had failed to answer at the December 17, 1979, deposition. Cohran was further ordered to comply with these orders before May 10, 1981. In addition, Cohran's third-party complaint was dismissed, from which dismissal he filed a notice of appeal on May 8, 1981.
On May 20, 1981, the Carlins filed their third motion to compel discovery and impose sanctions, asserting that Cohran had not produced documents and answered questions as ordered. This motion was argued at a hearing on June 15, 1981. Cohran asserted at this hearing that he had not complied with the May 4 discovery order because he believed that a supersedeas was in effect due to his notice of appeal filed on May 8. The court did not accept this defense, and issued an order holding Cohran in contempt and striking Cohran's "defensive pleadings" on the ground that Cohran had wilfully failed to comply with the May 4 discovery orders. See OCGA § 9-11-37(b). That same day Cohran filed a notice of appeal from the imposition of sanctions.
In Cohran v. Jones, 160 Ga.App. 761, 288 S.E.2d 80 (1981), the Court of Appeals dismissed Cohran's appeal of the dismissal of his third-party complaint. We initially granted certiorari but subsequently dismissed the writ. Cohran v. Carlin, 249 Ga. 510, 291 S.E.2d 538 (1982).
In Cohran v. Carlin, 160 Ga.App. 762, 288 S.E.2d 81 (1981), the Court of Appeals considered whether the trial court retained jurisdiction to impose sanctions after Cohran filed his May 8, 1981, notice of appeal in Cohran v. Jones, supra, 160 Ga.App., 288 S.E.2d 80. The Court of Appeals answered this question affirmatively, holding that Cohran's appeal in Cohran v. Jones had not served as a supersedeas. We granted certiorari and affirmed. Cohran v. Carlin, supra, 249 Ga., 291 S.E.2d 538.
When the remittitur affirming the contempt order was returned to the trial court, Cohran was redeposed and answered most of the previously unaddressed 71 questions. However, Cohran refused to answer some 15 questions and moved to discharge the contempt order, relying for the first time on his Fifth Amendment privilege. This motion was denied and he appealed the Fifth Amendment issue. The Court of Appeals affirmed, holding that Cohran had waived the Fifth Amendment privilege by his failure to invoke it in a timely and proper fashion, Cohran v. Carlin, 165 Ga.App. 141, 297 S.E.2d 54 (1982), and this court denied certiorari, see 165 Ga.App. 895 (1982).
On November 15, 1982, a pre-trial order was entered declaring the case in default and limiting the issues for trial to damages. The jury verdict and subsequent judgment were for the Carlins, awarding $45,007 in compensatory damages, $19,949 as interest, $75,000 as attorney fees, and $1,000,000 as punitive damages. The judgment also voided the deed from the Carlins to Cohran. The instant appeal is from that judgment. 6 We affirm. 7
1. The first issue we address is the imposition of sanctions by the trial court. Cohran contends that his refusal to comply with the May 4, 1981, discovery order was justified on three grounds: (a) the Carlins' alleged failure to arrange for the taking of Cohran's deposition during the ordered time; (b) objections, based on claims of privilege and other grounds, to the deposition questions he refused to answer; and (c) his belief that his appeal of the May 4, 1981, order granting the third-party motion to dismiss acted as a supersedeas which rendered the subsequent discovery proceedings a nullity. However, we find that these contentions are patently fatuous.
a. As to the first ground, a review of the record reveals that Cohran has raised this issue for the first time in this appeal. Since this argument was not raised below, it will not be considered here. Hammond v. Paul, 249 Ga. 241(1), 290 S.E.2d 54 (1982); Sawyer v. Citizens and Southern Nat. Bank, 164 Ga.App. 177, 183, 296 S.E.2d 134 (1982); Carter v. Pruitt, 235 Ga. 204, 219 S.E.2d 114 (1975).
Furthermore, this ground must be deemed abandoned pursuant to our Rule 45, as Cohran provides no argument in support of it. See also Wilkie v. State, 153 Ga.App. 609(1), 266 S.E.2d 289 (1980).
b. We likewise deem the second ground abandoned under Rule 45. Cohran asserted this ground in his original brief, but provided no argument therein to support it. Neither did he argue this enumeration in his oral argument. He first provided support for it in a post-oral argument supplemental brief, which he filed more than two months after the case was docketed in this court. Arguments asserted for the first time in a post-oral argument brief are untimely, and will not be considered. Savage v. Savage, 234 Ga. 853, 856, 218 S.E.2d 568 (1975); Savage v. Savage, 238 Ga. 16(2), 230 S.E.2d 851 (1976). 8
Moreover, we find that Cohran's objections to the deposition questions have already been reviewed adversely to him, and are therefore...
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