Nickerson v. Candler Bldg., Inc., s. 60263
| Decision Date | 12 November 1980 |
| Docket Number | 60264,Nos. 60263,s. 60263 |
| Citation | 156 Ga.App. 396,274 S.E.2d 582 |
| Parties | NICKERSON v. CANDLER BUILDING, INC. CANDLER BUILDING, INC. v. NICKERSON. |
| Court | Georgia Court of Appeals |
Thomas H. Nickerson, Atlanta, for appellant.
William N. Withrow, Jr., N. Karen Deming, Atlanta, for appellee.
These appeals result from a landlord-tenant dispute as to the extent of the tenant's obligation for the payment of rent. Nickerson, defendant below and appellant and cross-appellee here, entered into a written lease with Candler Building, Inc. The lease was for a period of three years, to commence on October 1, 1974 and to end on September 30, 1977. The lease also contained an "automatic extension" provision to the effect that it would "continue in force from year to year after expiration of the initial term, provided, however, that the parties hereto, or either of them, can terminate this lease at the end of the initial term, or of any year thereafter, by giving at least thirty (30) days' previous notice thereof in writing." At the end of April, 1978, after the initial three-year term had expired but before the expiration of the one-year automatic extension period, Nickerson vacated the leased premises.
In July of 1978 Candler Building filed suit, alleging that Nickerson was indebted "for rental due for May, June and July, 1978 totalling $2,835.99" and that "(m)onthly rental will continue to accrue for August and September, 1978 at the rate of $945.33 per month." Candler Building prayed for judgment against Nickerson in the amount of $2,835.99 "representing rental payments due for the period of May, 1978 through July, 1978," "such additional rent as may be due at time of trial" and, pursuant to the terms of the lease, "attorney's fees in the amount of 15% of the rent due." Nickerson answered the complaint and the case then proceeded to the discovery stage.
Thereafter, both Nickerson and Candler Building filed motions pursuant to Code Ann. § 81A-137(a)(2) to compel compliance by the other with discovery procedures. A hearing was held in September of 1979 and Candler Building's motion to compel Nickerson's compliance was granted in some particulars and denied in others. Nickerson's motion was denied in all respects. It was "further ordered that complete compliance with this order shall be accomplished on or before October 15, 1979." The trial court also found that Nickerson had "abused" the discovery procedures and ordered that he pay $300 in attorney's fees to Candler Building. Although Nickerson paid the $300 in attorney's fees, he failed to comply with the order insofar as it directed that he make the appropriate response to the discovery procedures instituted by Candler Building. In December, the attorney representing Candler Building phoned and wrote to Nickerson, reminding him that his compliance with the order compelling discovery had not been forthcoming. Nickerson was advised that unless he furnished the "required discovery within ten days," a motion for sanctions pursuant to Code Ann. § 81A-137(b)(2) would be made. On January 16, 1980, no response by Nickerson having been made, Candler Building moved to strike the answer and enter default judgment in its favor. Thereafter, on January 21, 1980, Nickerson filed his response.
On the day of the hearing on the motion for sanctions, Nickerson filed his own affidavit in which he attempted to explain his conduct with regard to the failure to comply with the order compelling his response by October 15, 1979. After the hearing, the trial court found Nickerson's failure was wilful and intentional and, accordingly, ordered his answer stricken and default judgment entered for Candler Building in the principal amount of $2,835.99, representing rent for May, June and July of 1978, and $425.39 in attorney's fees. Nickerson appeals from the September 1979 order insofar as it required that he pay $300 in attorney's fees and from the March 1980 order striking his answer and entering default judgment against him. Candler Building cross-appeals from the order entering default judgment against Nickerson insofar as it was not in the principal amount of $4,726.65, representing the full five months' rent due on the balance of the lease, and fifteen percent of that figure as attorney's fees.
1. Nickerson's argument that the judgment is void for uncertainty as to the amount is meritless. The record before us contains a copy of the order entering default judgment in favor of Candler Building in the principal amount of $2,835.99 and $425.39 in attorney's fees, signed by the trial judge and filed with the Clerk. Compare Hutcheson v. Hutcheson, 197 Ga. 603, 30 S.E.2d 107 (1944).
2. As discussed above, both Candler Building and Nickerson had filed motions to compel responses by the other to discovery. On appeal Nickerson does not attack the trial court's final disposition of either motion, only the assessment against him of attorney's fees. Nickerson argues that simply because his motion to compel responses from Candler Building was denied in its entirety does not support a finding that he "abused" the discovery process. However, this argument presents only a one-sided view of the facts. The record also demonstrates that as to Candler Building's motion to compel Nickerson's response, the trial judge ordered Nickerson's compliance in several particulars. Our review of the record indicates that the discovery procedures with which Nickerson was ordered to comply appear pertinent and relevant to the issues involved in the case. Thus, not only did the trial judge deny Nickerson's motion in toto, he properly granted the Candler Building's motion in several particulars. ...
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