Southern Outdoor Promotions, Inc. v. National Banner Co., Inc., s. A94A2607

• Decision Date: 03 November 1994
• Docket Number: A94A2608,Nos. A94A2607,s. A94A2607
• Citation: 449 S.E.2d 684,215 Ga.App. 133
• Court: Georgia Court of Appeals
• Parties: A SOUTHERN OUTDOOR PROMOTIONS, INC. v. NATIONAL BANNER COMPANY, INC. NATIONAL BANNER COMPANY, INC. v. A SOUTHERN OUTDOOR PROMOTIONS, INC.

Page 684

449 S.E.2d 684

215 Ga.App. 133

A SOUTHERN OUTDOOR PROMOTIONS, INC. v. NATIONAL BANNER COMPANY, INC.

NATIONAL BANNER COMPANY, INC. v. A SOUTHERN OUTDOOR PROMOTIONS, INC.

Nos. A94A2607, A94A2608.

Court of Appeals of Georgia.

Nov. 3, 1994.

Stuart A. Kurtz, Marietta, for appellant.

H. Darrell Greene & Associates, Paul Shimek III, Marietta, for appellee.

BIRDSONG, Presiding Judge.

Appellant, A Southern Outdoor Promotions, Inc. f/k/a Southern Outdoor Promotions, Inc. filed an application for interlocutory review. Expressly exercising the constitutional power vested in this court to aid our jurisdiction and to protect and effectuate our judgments, we granted a limited interlocutory review. By written order, this court expressly limited interlocutory review to the sole appellate issues whether the trial court erred by authorizing the production (without limiting said production to matters relevant to the account at issue) of documents listed in Items 2 and 11 of Exhibit A of appellee National Banner Company, Inc.'s notice to take deposition and notice to produce, to-wit: "2. All correspondence between the Internal Revenue Service and the defendant concerning the defendant's recent audit, and a copy of IRS's audit result and/or report"; "11. Copy of the defendant's most current balance sheet with supporting schedules, ledgers, etc." Notwithstanding the limited scope of the granted interlocutory review, appellee National Banner Company, Inc. has filed a cross-appeal with a single enumeration specifying that the trial court erred in denying its motion for summary judgment on July 22, 1993; the record does not reveal that cross-appellant previously filed and had been granted an application for interlocutory review of this order. Held:

Case No. A94A2608

1. In summary judgment the evidence and all reasonable inferences and conclusions arising therefrom are construed in favor of the opposing party. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 596, 370 S.E.2d 843. Although cursory examination reveals that cross-appellant's enumeration of error is without merit, for the following reason we do not reach an adjudication of the merits of the cross-appeal. By order of this court, dated May 16, 1994, wherein the constitutional power of this court (Ga. Const.1983, Art. VI, Sec. I, Par. IV) was expressly invoked to restrict the scope of our interlocutory review so as to aid directly our jurisdiction and to protect and effectuate our judgments, we granted interlocutory review "but only as to" those limited legal issues regarding discovery as above-listed. By this order, this court limited its jurisdiction to the resolution only of the appellate issues for which permission was affirmatively granted to file an interlocutory review. The laws of this state are graduated with reference to their obligation or authority; in the hierarchy of such legal graduation the provisions of the constitution of this state are paramount to and controlling over state statutes. See Warren v. State, 255 Ga. 151, 156, n. 11, 336 S.E.2d 221. Therefore OCGA § 5-6-34(d) notwithstanding, this court in its judicial discretion and by the express invocation of its constitutional power did and hereby continues to elect to remain without jurisdiction to address cross-appellant's enumeration that the trial court erred in denying cross-appellant's motion for summary judgment. Martin v. Williams, 263 Ga. 707, 438 S.E.2d 353; Southeast Ceramics v. Klem, 246 Ga. 294(1), 271 S.E.2d 199; Aetna Cas., etc., Co. v. Cantrell, 197 Ga.App. 672(1), 399 S.E.2d 237; and their progeny, which do not involve cases where this court expressly has invoked its constitutional powers to limit the scope of interlocutory review or discretionary appeal in aid of its jurisdiction or to protect or effectuate its judgments, are distinguishable and not controlling. The appeal in Case No. A94A2608 is dismissed.

Case No. A94A2607

2. Appellee's motion to strike and for sanctions is denied.

3. In the disposition of this appeal judicial notice is taken of the record of Case No. A94A2608 currently on file with this court. See Backus Cadillac-Pontiac v. Ernest, 195 Ga.App. 579, 394 S.E.2d 367. In general, parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. OCGA § 9-11-26. Examining the record before us and the relevant documents, including the pretrial order in the record of Case No. A94A2608 and the uncontroverted evidence that a substantial portion of the documents sent to the IRS for examination have been returned to appellee/taxpayer, we conclude that the IRS documents at issue are of de minimis relevancy within the meaning of E.H. Siler Realty, etc., v. Sanderlin, 158 Ga.App. 796(1), 282 S.E.2d 381. Such records are not automatically discoverable upon a de minimis showing of relevancy. " 'Certainly the competing interest in an individual's right to privacy must be accommodated in the discovery process. Otherwise, the discovery process would become a device for the unscrupulous litigant to squeeze concessions from the opposing side in cases where such concessions were totally unwarranted. This sort of abuse simply cannot be tolerated in an ordered system of justice.' Borenstein v. Blumenfeld, 151 Ga.App. 420, 421 (260 SE2d 377)." E.H. Siler Realty at 797, 282 S.E.2d 381. Under the facts of this appeal, we find that appellant's right to privacy substantially outweighs the de minimis relevancy of this particular discovery request. See E.H. Siler Realty, supra. Moreover, the request for all correspondence between taxpayer and the IRS and a copy of the IRS audit result...