West v. Nodvin

Decision Date10 September 1990
Docket NumberNo. A90A1205,A90A1205
Citation397 S.E.2d 567,196 Ga.App. 825
PartiesWEST v. NODVIN.
CourtGeorgia Court of Appeals

Theodore L. Marcus, Atlanta, for appellant.

Richard A. Gordon, Atlanta, for appellee.

Marvin P. Nodvin, pro se.


Appellant, Thomas B. West, appeals the order of the trial court granting judgment to appellee, Marvin P. Nodvin, "upon a jury verdict along with all orders granted prior thereto."

Both appellant and appellee are attorneys. This suit was filed on August 15, 1984, in two counts, one in contract and one in tort (fraud); the complaint was subsequently amended to pray inter alia for punitive damages in the amount of "not less than $25,000."

This suit in essence was based on averments that appellant contracted, with intent to defraud, for certain legal services of an original value of $983.70 and thereafter did not pay for them. Pretrial discovery procedures in this case were conducted in such a manner that the appellee moved for sanctions against appellant under the provisions of OCGA § 9-11-37(d). On November 17, 1986, the trial court entered an order finding that appellant wilfully failed to appear in the taking of his deposition, awarded attorney fees and costs to appellee in the amount of $2,092, and ordered appellant to give his deposition instanter. In December 1987, appellee moved for sanctions against appellant asserting inter alia that appellant had "wilfully fil[ed] evasive and untrue pleadings, wilfully fil[ed] evasive and false responses to interrogatories and request for production, and wilfully fail[ed] to provide discovery." By order of June 8, 1988, filed June 12, 1988, the trial court awarded appellee's attorney $600 in attorney fees for bringing the motion. On June 1, 1988, co-counsel for appellee took appellant's deposition. On June 9, 1988, appellee again moved for sanctions against appellant, under OCGA § 9-11-37, requesting inter alia that the appellant's answer be stricken, that he be declared in default, and that judgment be rendered against him where appropriate for appellant's wilful failure to obey the court's order of April 8, 1988, particularly by not making payment of attorney fees as ordered. The trial court, as admitted in judicio in the briefs of both appellant and appellee, subsequently ordered that appellant's answer be stricken and that appellant be declared in default.

The trial court, upon timely motion by appellee, entered a directed verdict against appellant for $4,295.41 principal and interest and for $8,803 attorney fees. The jury returned a verdict for $72,000 in punitive damages against appellant. Judgment was entered accordingly. Held:

1. Appellee's motion for damages for frivolous appeal is denied.

2. Appellant asserts that the trial court erred in granting appellee's motion to quash appellant's notice to produce and appellee's motion in limine.

a. The only notice to produce filed by appellant that has been adequately identified within the record of trial is a notice to produce served by mailing on October 12, 1989. This notice includes inter alia a request for "[a]ny business books and records" of appellant or his firm and all other related entities where appellant practiced law during the time when he represented appellee, "which reflect payments received for legal services rendered to [appellant] or to any corporation in which [appellant] had an ownership interest...."

Appellee asserts that this notice is so broad and harassing in nature as to require that it be quashed. In its motion to quash appellee asserted the following ground: "Defendant is in default, there is no issue as to the amount of the contractual indebtedness from the [d]efendant to the [p]laintiff, and the documents requested are irrelevant and immaterial and are not admissible."

Appellant's motion to produce is so broad in scope that if granted it would potentially necessitate the search for and the production of books and records neither relevant nor in any manner relating to the case sub judice. Moreover, "Georgia law is clear that, once liability has been established [as in this case], evidence which is proffered for the purpose of establishing the appropriate amount of damages, but which at the same time tends to suggest comparative or contributory negligence [or would otherwise tend to contest the right of recovery] on the part of the plaintiff, is inadmissible. [Cits.]" Fulton County Hosp. Auth. v. Hyman, 189 Ga.App. 613, 615(4), 376 S.E.2d 689; compare Krystal Co. v. Carter, 180 Ga.App. 667, 669, 350 S.E.2d 306. Appellant's motion to produce is so broad it includes a request for the production of documents inadmissible in evidence under the rationale of Fulton County Hosp. Auth. and Krystal Co.

As our courts have long held, "[e]ven if some of these [requested documents] may have been relevant ... no court should impose upon the opposite party the onerous task of producing great quantities of records which have no relevancy. The notice should be specific enough in its demands to relate the documents sought to the questions at issue." Horton v. Huiet, 113 Ga.App. 166, 169(1), 147 S.E.2d 669; compare Master Mtg. Corp. v. Craven, 127 Ga.App. 367(2), 193 S.E.2d 567. Appellant's notice of production is not specific within the meaning of Horton, and accordingly, the trial court did not abuse its discretion in denial of the order to produce. A correct ruling of the trial court will not be reversed regardless of the reason given therefor. National Consultants v. Burt, 186 Ga.App. 27, 33, 366 S.E.2d 344, writ vacated, 258 Ga. 645, 374 S.E.2d 532.

b. During the hearing on the motion to quash, appellee made an oral motion seeking "an order in limine against [appellant's] introduction of any documents." The record reflects that on the day of trial appellant attempted to tender four statements of account from appellee's office; upon certain of these statements, appellant West had made a handwritten notation that the obligation had been paid, stating the payment date, and a check number. The trial court ruled these documents would be excluded because of the lateness of their production and because the notations thereon were self-serving.

Appellant cites us to no express ruling by the trial court granting appellee's oral motion in limine. "It is not the function of this court to cull the record on behalf of a party in search of instances of error." Armech Svc. Co. v. Rose Elec. Co., 192 Ga.App. 829, 830, 386 S.E.2d 709. "This court can not read every line of the record and transcript to hunt for error." Benefield v. Benefield, 224 Ga. 208, 209(5), 160 S.E.2d 895.

Moreover, the trial court did not err in refusing to admit the statements in question for several reasons. Those statements bearing the notation of appellant that the bill had been paid would be inadmissible under the rule of Krystal Co., supra; and we agree with the trial court that they are self-serving. Assuming arguendo the statements were relevant for any purpose, a trial judge may exercise his discretion in excluding relevant evidence if he finds that its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice or of misleading the jury. Friedman v. Friedman, 259 Ga. 530, 532(3), 384 S.E.2d 641. Thirdly, as a general rule, admission of evidence is a matter which rests largely within the sound discretion of the trial court and an appellate court will not interfere with its rulings absent abuse of that discretion. Whisnant v. State, 178 Ga.App. 742(1), 344 S.E.2d 536. We find that, under the circumstances of this case, the trial court did not abuse its discretion in refusing to admit documents which purportedly had been discovered and made available only on the day of trial.

3. Appellant asserts in his third and fourth enumerations of error that the trial court committed reversible error in admitting certain evidence of "stubborn litigiousness" and of other transactions. We disagree.

a. Appellant refers to evidence, concerning his conduct and demeanor, introduced during the taking of his deposition. The record reflects that his objection to the admission of this particular evidence at this particular point in time was sustained. Subsequently, in an attempt to impeach appellant's testimony to the effect he was not abusive during this litigation, appellant was asked whether during the taking of his deposition he had responded to appellee's co-counsel by saying, "Jesus Christ! Bitch!" Appellant made no timely objection to this procedure. On appeal only those issues properly raised before the trial court will be considered. Department of Transp. v. Hillside Motors, 192 Ga.App. 637, 638(1), 385 S.E.2d 746.

b. Regarding the remaining incidents where evidence of "stubborn litigiousness" was admitted, appellant in essence asserts that his "liability for stubborn litigiousness was deemed admitted and was not an issue. The only evidence that would have been properly admitted on Count I was the amount of attorney's fees." Pretermitting the question of whether the evidence could properly have been admitted as being relevant to establish appellant's stubborn litigiousness for purposes of award of attorney fees is the issue of whether it was relevant to establish the amount of attorney fees to be awarded. We hold that it is. The trial court could consider the type and nature of appellant's acts of stubborn litigiousness in determining whether the amount of attorney fees claimed was excessive. Acts of stubborn litigiousness have some relevancy in supporting an attorney's claims both as to the number and type of billable hours spent upon a case. Unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, "[t]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted...

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