                               FIRST DIVISION
                                BARNES, P. J.,
                           MCMILLIAN and REESE, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                      June 21, 2018




In the Court of Appeals of Georgia
 A18A0186. HEARD v. RUEF.

      MCMILLIAN, Judge.

      William T. Heard, III, appeals the trial court’s order holding him in contempt

for failing to appear at a postjudgment deposition, ordering him to pay attorney fees

and costs as sanctions, and ordering him to appear for a deposition in Georgia. This

case raises an issue of first impression as to whether the geographical limits for

depositions under OCGA § 9-11-45 (b) (3) apply to nonresident judgment debtors

during postjudgment discovery. We find that because the trial court retained

jurisdiction over Heard in connection with the judgment and OCGA § 9-11-45 (b) (3)

does not apply to parties to a litigation such as Heard, the trial court was authorized

to compel Heard to appear for a deposition in Georgia. However, we find that the trial

court lacked jurisdiction to grant the motion for contempt because Heard was not
personally served with that motion. We therefore reverse the portion of the trial

court’s order imposing contempt sanctions.

      In September 2008, Andrea Ruef brought suit against Heard asserting claims

for fraud, unjust enrichment, and breach of contract in connection with real estate

held by the parties through their jointly owned limited liability company. Heard filed

a timely answer to the complaint, denying liability. The parties ultimately reached a

settlement of the claims and on April 5, 2010, entered into a consent judgment

awarding Ruef damages against Heard in the principal amount of $1,270,570.77, plus

$272,705.71 in accrued interest. After Heard failed to satisfy this judgment, Ruef

obtained a writ of fieri facias, which was filed as of record on October 18, 2012.

      Over four years later, on December 29, 2016, Ruef caused Heard to be

personally served with a subpoena and notice of a deposition at a business address in

Alabama through a private investigator licensed to serve process there. The notice set

the deposition for January 25, 2017, in Atlanta, Georgia. After Heard failed to appear

at the appointed place and time, Ruef filed a “Motion to Hold Defendant Heard in

Contempt or in the Alternative to Compel,” asking for an evidentiary hearing on the

motion for contempt, an order compelling Heard to provide discovery, and an award

of attorney fees and costs for the bringing of the motion. Ruef served the motion on

                                          2
Heard by mail at the same Alabama business address, and Heard responded by

entering a special appearance to contest the trial court’s jurisdiction over him and to

argue, alternatively, that the subpoena was unenforceable under state and federal law.

In support of this argument, Heard submitted an affidavit stating that he moved to

Florida in 2008 and established legal residency there in 2009 and that Ruef had

served him with the subpoena and notice of deposition at his work address in

Alabama. Following a hearing, the trial court granted Ruef’s motion, finding that

Heard was subject to the court’s jurisdiction and directing him to appear at any

properly noticed deposition within the State of Georgia within 30 days. The trial court

further ordered that Heard “be held in contempt and subject to pay [Ruef’s] attorney

fees and costs in an amount of $18,460.78 as sanctions.”

      On appeal, Heard argues that the trial court erred in finding him in contempt,

fining him in an amount exceeding the statutory limit for criminal contempt under

OCGA § 15-6-8 (5), and determining that it continued to have personal jurisdiction




                                          3
over him more than seven years after entry of the consent judgment1 such that he

could be compelled to attend a postjudgment deposition in Georgia.

      1. We turn first to Heard’s argument that he cannot be compelled to come to

Georgia for a deposition and begin our analysis with a review of Georgia’s

postjudgment discovery procedures. OCGA § 9-11-69 provides:

      Process to enforce a judgment for the payment of money shall be a writ
      of execution unless the court directs otherwise. In aid of the judgment
      or execution, the judgment creditor, or his successor in interest when
      that interest appears of record, may do any or all of the following:


      (1) Examine any person, including the judgment debtor by taking
      depositions or propounding interrogatories;


      (2) Compel the production of documents or things; and




      1
        Although Heard points to the fact that seven years have passed since the
judgment was entered by the trial court, he raises no contention that the judgment is
dormant or otherwise invalid. As noted above, the record shows that the judgment
remains enforceable because the deposition was noticed less than ten years after
rendition of the judgment. See OCGA §§ 9-12-60 (a) (1), (b); 9-12-61; Automotive
Credit Corp. v. White, 344 Ga. App. 321, 323 (810 SE2d 166) (2018) (OCGA §§ 9-
12-60 and 9-12-61, when read together, create a ten-year statute of limitation for
Georgia judgments); Corzo Trucking Corp. v. West, 281 Ga. App. 361, 362-63 (636
SE2d 39) (2006) (same).

                                         4
      (3) Upon a showing of reasonable necessity, obtain permission from a
      court of competent jurisdiction to enter upon that part of real property
      belonging to or lawfully occupied by the debtor which is not used as a
      residence and which property is not bona fide in the lawful possession
      of another;


      in the manner provided in this chapter for such discovery measures prior
      to judgment.


“The purpose of OCGA § 9-11-69 is to allow post judgment discovery to aid a litigant

to recover on a liability which has been established by a judgment, in the manner

provided for such discovery measures prior to judgment.” (Citation and punctuation

omitted.) Ostroff v. Coyner, 187 Ga. App. 109, 117 (6) (369 SE2d 298) (1988). See

also Hickey v. RREF BB SBL Acquisitions, LLC, 336 Ga. App. 411, 414 (2) (a) (785

SE2d 72) (2016) (purpose of postjudgment discovery is to aid a litigant in obtaining

satisfaction of a judgment). This Court has found that in addition to incorporating

prejudgment discovery tools, OCGA § 9-11-69 actually expands the scope of

discovery beyond that available during the pendency of an action by providing for the

service of postjudgment interrogatories on “‘any person,’ regardless of whether that

person was a party to the underlying action.” Esasky v. Forrest, 231 Ga. App. 488,

489 (1) (a) (499 SE2d 413) (1998) (also holding that creditor was entitled to serve

                                         5
postjudgment requests for production of documents against a party’s spouse).

Compare OCGA § 9-11-33 (a) (allowing the service of interrogatories only upon “any

other party”) (emphasis supplied). To aid in this postjudgment discovery process,

“the trial court has the power to control the details of time, place and scope of

[postjudgment] discovery. The court also is authorized to impose sanctions for failure

to comply with its [postjudgment] discovery orders[.]” (Citation and punctuation

omitted.) Ostroff, 187 Ga. App. at 117 (6).

      After Heard failed to comply with Ruef’s deposition notice and subpoena, Ruef

filed her motion, and Heard argued in response that the trial court lacked the

jurisdiction to compel him to appear at a deposition in Georgia because he is not a

Georgia resident and because the location of the deposition violated the geographical

limitations set forth under OCGA § 9-11-45 (b) (3). Under that provision, “[a] person

who is to give a deposition may be required to attend an examination . . . [a]t any

place which is not more than 30 miles from the county seat of the county wherein the

witness resides, is employed, or transacts his business in person.” OCGA § 9-11-45

(b). Heard argues that the Atlanta deposition noticed by Ruef fails to comply with the

30-mile requirement because he lives in Florida and works in Alabama.



                                          6
      Our Supreme Court has previously addressed the issue of whether a Georgia

court has jurisdiction to compel a nonresident party to appear for a deposition in

Georgia. In Warehouse Home Furnishings Distributors v. Davenport, 261 Ga. 853,

853 (1) (413 SE2d 195) (1992), the Supreme Court held that a nonresident plaintiff

could be compelled to come to Georgia for a deposition. The Supreme Court noted

that “[o]rdinarily one who chooses a forum should be required to make himself

available for examination in that forum.” Id. at 853 (1). Although Heard was not the

plaintiff in the 2008 lawsuit, he was a party to the lawsuit and, in fact, consented to

the entry of the judgment against him. We find under these circumstances that the

trial court had jurisdiction to compel Heard to attend a postjudgment deposition

noticed by Rueff in connection with enforcement of that judgment.

      Heard cites to an earlier decision by our Supreme Court in Blanton v. Blanton,

259 Ga. 622 (385 SE2d 672) (1989), to support his argument that he should not be

compelled to return to Georgia to be deposed. In that case, the plaintiff filed a divorce

action in Georgia against a Texas resident, whom he alleged was his common-law

wife and sought an order compelling her to come to Georgia for a deposition. The

Supreme Court held that an out-of-state resident could not be compelled to come to

Georgia for a deposition. 259 Ga. at 623 (1). However, that case was decided, not on

                                           7
jurisdictional grounds, but rather under the geographical limitations set forth in

OCGA § 9-11-45 (b), and in Davenport, the Supreme Court expressly limited its

holding in Blanton by distinguishing depositions of a party obtainable via notice

pursuant to OCGA § 9-11-30 from depositions that require a subpoena. The Court

held that “the geographic limitation[] of OCGA § 9-11-45 (b) is not applicable where

a notice of deposition has issued under OCGA § 9-11-30 to a party in the lawsuit.”

Davenport, 261 Ga. at 854 (2). See also Pascal v. Prescod, 296 Ga. App. 359, 361

(674 SE2d 623) (2009).

      Accordingly, under OCGA § 9-11-69, Rueff was entitled to employ the same

discovery procedures against Heard during postjudgment proceedings as she was

entitled to use before the entry of judgment. Rueff properly noticed Heard’s

postjudgment deposition in accordance with OCGA § 9-11-30, and the geographical

limitations of OCGA § 9-11-45 do not apply to such a deposition. See Davenport,

261 Ga. at 854 (2). Nevertheless, if Heard found attendance at a deposition in Georgia

“to be oppressive or unduly expensive or burdensome” to him, the proper procedure

for him to follow was “to seek relief by asking the trial court to exercise its discretion

under OCGA § 9-11-26 (c)” to issue a protective order. Id. at 853 (1). Although

Heard opposed Rueff’s motion to compel, he did not request a protective order or

                                            8
establish the statutory grounds for the issuance of such an order. Accordingly, we

affirm the portion of the trial court’s order requiring Heard to appear in Georgia for

a deposition.

      2. We turn next to the sanctions imposed on Heard by the trial court. As an

initial matter, and because it would affect our review, we must first determine

whether the trial court found Heard in contempt or whether, as Ruef contends, the

trial court awarded attorney fees as discovery sanctions under OCGA § 9-11-37 (d)

(1). The trial court’s order clearly provides that “[i]t is further ORDERED that

[Heard] be held in contempt and subject to pay [Rueff’s] attorneys fees’ and costs in

an amount of $18,460.78 as sanctions.” That determination apparently was prompted

by Ruef’s motion seeking a finding of contempt and attorney fees as sanctions.

Accordingly, we will review the sanctions order as one for contempt.

      Our Supreme Court has long held that even though a trial court retains

jurisdiction to enforce its judgments, if the party to be held in contempt has removed

his residence to another jurisdiction, the contempt motion and rule nisi must be served

personally, consistent with the provisions of Georgia’s Long Arm Statute, OCGA §

9-10-91, or the nonresident must waive personal service. Dyer v. Surratt, 266 Ga.



                                          9
220, 221 (3) (466 SE2d 584) (1996); Ashburn v. Baker, 256 Ga. 507, 509 (2) (350

SE2d 437) (1986); Downey v. Downey, 250 Ga. 497, 497 (299 SE2d 558) (1983).

      Pretermitting how Heard could have been personally served consistent with the

Long Arm Statute, it is undisputed that Ruef did not personally serve her motion on

Heard in Georgia or elsewhere. Instead, Ruef served the motion by mail to Heard’s

last known business address in Alabama. Although she personally served Heard with

the notice of deposition and subpoena at this work address, it is the service of the rule

nisi that invokes the trial court’s jurisdiction over a party to a postjudgment contempt

proceeding. See Brown v. King, 266 Ga. 890, 891 (1) (472 SE2d 65) (1996). Heard

did not waive the issue of personal jurisdiction as to Rueff’s contempt motion, as he

raised jurisdictional issues in his responsive pleading,2 and his attached affidavit

established that Ruef’s method of serving her contempt motion was insufficient to

imbue the trial court with personal jurisdiction over him for the contempt proceeding.

Accordingly, pretermitting whether the amount and form of the sanctions imposed

      2
        Although Ruef’s counsel asserted at the motion hearing that Heard waived
these arguments because his response to the motion was untimely as it was filed more
than 30 days after service, see USCR 6.2, she does not assert the issue of waiver on
appeal. In any event, a late responsive filing does not waive all arguments against a
motion. See Steinichen v. Stancil, 281 Ga. 75, 78 (2) (635 SE2d 158) (2006); Griffin
Builders v. Synovus Bank, 320 Ga. App. 307, 309 (739 SE2d 760) (2013) (summary
judgment).

                                           10
would be authorized by a finding of contempt, we reverse the portion of the trial

court’s order imposing such sanctions because the trial court lacked personal

jurisdiction over Heard with regard to Rueff’s motion for contempt.

      Judgment affirmed in part and reversed in part. Barnes, P. J., and Reese, J.,

concur.




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