Hickey v. Rref BB SBL Acquisitions, LLC.

• Decision Date: 25 March 2016
• Docket Number: No. A15A1969.,A15A1969.
• Citation: Hickey v. Rref BB SBL Acquisitions, LLC., 336 Ga.App. 411, 785 S.E.2d 72 (Ga. App. 2016)
• Parties: HICKEY et al. v. RREF BB SBL ACQUISITIONS, LLC.
• Court: Georgia Court of Appeals

336 Ga.App. 411

785 S.E.2d 72

HICKEY et al.

v.RREF BB SBL ACQUISITIONS, LLC.

No. A15A1969.

Court of Appeals of Georgia.

March 25, 2016.

Slotkin & Caiola, Fred Robert Slotkin Jr., for Appellants.

Schulten, Ward & Turner, Andrea Lynn Pawlak, Kevin L. Ward, Atlanta, for Appellee.

ELLINGTON, Presiding Judge.

RREF BB SBL Acquisitions, LLC (“SBL Acquisitions”) obtained a judgment against Robert Hickey, Jr., and other defendants, in May 2013. As part of its post-judgment discovery efforts, SBL Acquisitions served a subpoena on nonparty SunTrust Banks, Inc. for deposition and request to produce documents upon appearance (the “Subpoena”). The schedule of documents requested to be produced included documents related to checking accounts, savings accounts, and money market accounts associated with Robert Hickey's wife, nonparty Caroline Hickey,¹ and accounts on which she was listed as signatory or owner.² The Hickeys filed a motion to quash the Subpoena and for sanctions. The trial court denied the motion. The Hickeys sought unsuccessfully to obtain a certificate of immediate review from the trial court, after which they filed this direct appeal. The Hickeys contend that the trial court erred in denying their motion to quash because the Subpoena sought documents that were not relevant to the collection of the judgment, exceeded the scope of permissible post-judgment discovery, and infringed upon Caroline Hickey's privacy rights. For the reasons set forth below, we disagree and affirm.

1. As a threshold issue, we address SBL Acquisitions's motion to dismiss this appeal. SBL Acquisitions contends that an order involving a discovery dispute may not be directly appealed under OCGA § 5–6–34(a), but may only be appealed under the procedures for interlocutory appeals under OCGA § 5–6–34(b). It follows, SBL Acquisitions argues, because the Hickeys failed to follow the interlocutory appeal procedures, this Court must dismiss the appeal for lack of appellate jurisdiction.

We have “applied to post-judgment discovery the general rule that orders regarding discovery during the pendency of litigation must be appealed under the application procedures outlined in OCGA § 5–6–34(b).” (Citation and punctuation omitted.) Sipple v. Atwood, 223 Ga.App. 677, 678, 478 S.E.2d 473 (1996). See Cornelius v. Finley, 204 Ga.App. 299, 300–301, 418 S.E.2d 815 (1992) (accord). Here, as it appears the disputed discovery remains unanswered, matters remain pending in the trial court. See Cornelius v. Finley, 204 Ga.App. at 301, 418 S.E.2d 815 ; OCGA § 5–6–34(a)(1) (Appeals may be taken from “[a]ll final judgments, that is to say, where the case is no longer pending in the court below.”).

The Hickeys contend that the trial court's order is nevertheless directly appealable under the collateral order doctrine, which

is to be applied if the order being appealed (1) resolves an issue that is “substantially separate” from the basic issues to be decided at trial, (2) would result in the loss of an important right if review had to await final judgment, and (3) completely and conclusively decides the issue on appeal such that nothing in the underlying action can affect it.

(Citation and punctuation omitted.) Britt v. State, 282 Ga. 746, 748(1), 653 S.E.2d 713 (2007). SBL Acquisitions, on the other hand, maintains that the collateral order doctrine in Georgia does not extend to discovery orders, with narrow exceptions not applicable here.

SBL Acquisitions relies primarily on Johnson & Johnson v. Kaufman, 226 Ga.App. 77, 485 S.E.2d 525 (1997), a case in which “a majority of this Court adopted the United States Supreme Court's rationale in finding discovery disputes not subject to the collateral order doctrine.”³ General Motors Corp. v. Hammock, 255 Ga.App. 131, 132, 564 S.E.2d 536 (2002). In doing so, we followed the United States Supreme Court's reasoning⁴ that

in the rare case when appeal after final judgment will not cure an erroneous discovery order, a party may defy the order, permit a contempt citation to be entered against him, and challenge the order on direct appeal of the contempt ruling. Firestone Tire & c. Co. v. Risjord, 449 U.S. 368, 377, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981).

(Punctuation omitted.) Johnson & Johnson v. Kaufman, 226 Ga.App. at 82, 485 S.E.2d 525.⁵

The rationale of the United States Supreme Court that we adopted in Johnson & Johnson does not apply, however, to a discovery order directed at a disinterested third party. Rather, “under the so-called Perlman doctrine, a discovery order directed at a disinterested third party is treated as an immediately appealable final order because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance.” Church of Scientology v. United States, 506 U.S. 9, 18 n. 11, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (citing Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918) ).⁶ This Court implicitly followed the Perlman doctrine in In re Hall County Grand Jury Proceedings, 175 Ga.App. 349, 350(1), 333 S.E.2d 389 (1985), wherein we allowed the intervenors to directly appeal an order denying a motion to quash a grand jury subpoena in order to assert a privilege in the matters sought. And in In re DeKalb County Special Grand Jury Proceedings, 252 Ga.App. 359, 360, 555 S.E.2d 791 (2001), we explained that

[u]nder the Perlman exception, an intervenor may immediately appeal an order denying a motion to quash a subpoena duces tecum which was served upon a third-party custodian of records because that third party presumably lacked a sufficient stake in the proceedings to risk contempt for its noncompliance.

In light of Church of Scientology, supra, we disagree with SBL Acquisitions that the Perlman doctrine should be limited in Georgia to matters involving grand jury subpoenas or claims of privilege.

Here, the Subpoena in dispute requires the production of documents by a disinterested third party, SunTrust Bank, and the Hickeys could not have challenged the Subpoena through a direct appeal of a contempt order. We therefore find Johnson & Johnson distinguishable. The Subpoena was directed at obtaining documents and information associated with Caroline Hickey, who is not a judgment debtor. She claims a privacy interest in this information, which is an important claim of right substantially separate from, and collateral to, other issues in the case. If her information is not subject to disclosure, it cannot be undisclosed by a later reversal of an erroneous order. See Britt v. State, 282 Ga. at 748, 653 S.E.2d 713 (finding that, once requested information was revealed, the damage would have been done, and no appeal after final judgment could rectify the harm). An appeal from the order refusing to quash the Subpoena would conclusively resolve that claim of right. Accordingly, we find the order denying the Hickeys' motion to quash to be directly appealable under the collateral order doctrine and deny SBL Acquisitions's motion to dismiss the appeal.

2. The Hickeys contend that the trial court erred in denying their motion to quash the Subpoena insofar as it required the production of documents by SunTrust. OCGA § 24–13–23(b)(1) “gives the trial court discretion upon timely motion to quash or modify such a subpoena if it is unreasonable and oppressive. This standard is tested by the peculiar facts arising from the subpoena itself and other proper sources.” (Citation and punctuation omitted.) Walker v. Bruhn, 281 Ga.App. 149, 151(2), 635 S.E.2d 322 (2006). See Blake v. Spears, 254 Ga.App. 21, 23(2), 561 S.E.2d 173 (2002) (accord). The Hickeys contend that the Subpoena was unreasonable and oppressive in that it requested documents that were not relevant and was harassing and overbroad in its nature and scope. They further assert that the Subpoena is oppressive because it infringes on Caroline Hickey's privacy rights.

(a) We disagree with the Hickeys that the trial court erred in failing to grant the motion to quash because the documents sought by SBL Acquisitions were not relevant. “[T]he only requirements placed by the Georgia legislature on discovery requested from nonparties is that the documents must be relevant and nonprivileged.” Sechler Family Partnership v. Prime Group, Inc., 255 Ga.App. 854, 857(2), 567 S.E.2d 24 (2002). See OCGA § 9–11–34(c)(1). In the context of discovery, “courts should and ordinarily do interpret ‘relevant’ very broadly to mean matter that is relevant to anything that is or may become an issue in the litigation.” (Citation and punctuation omitted.) Bowden v. Medical Center, Inc., 297 Ga. 285, 291(2)(a), 773 S.E.2d 692 (2015).

The purpose of post-judgment discovery is to aid a litigant in obtaining satisfaction of a judgment, “and any question that seeks information which would lead to any property or sources of income of the judgment debtor is pertinent and allowable.” Aldridge v. Mercantile Nat. Bank, 132 Ga.App. 788, 789(2), 209 S.E.2d 234 (1974). OCGA § 9–11–69 provides, in relevant part:

... In aid of the judgment or execution, the judgment creditor ... may ... (1) Examine any person, including the judgment debtor by taking depositions or propounding interrogatories; and (2) Compel the production of documents or things ... in the manner provided in this chapter for such discovery measures prior to judgment.

We have previously found that OCGA § 9–11–69(2), which allows the judgment debtor to compel the production of documents, is not limited to documents in the possession of the judgment debtor. See In re Callaway, 212 Ga.App. 500, 501, 442 S.E.2d 309 (1994). Rather, “[t]he spouse of a judgment debtor is ... within the scope of the post-judgment discovery process, subject to the limitations created by the Civil Practice Act provisions governing discovery generally.” Id. In considering the claim of the spouse of a judgment debtor that a trial court erred in requiring the spouse to respond to a request to produce, we found that a ...