                           FIFTH DIVISION
                          MCFADDEN, C. J.,
      MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

                   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


                                                                   January 23, 2020




In the Court of Appeals of Georgia
 A19A2153. HUNT et al. v. CALLAHAN.

      MCFADDEN, Chief Judge.

      Chan Hunt, Kim Hale, and Amie Heisick Burrill (“the heirs”) appeal a

discovery sanction that dismissed their declaratory judgment action and awarded

defendant Dorothy Hunt Callahan $3,000 in attorney fees. The heirs have not

demonstrated that the trial court abused his discretion. So we affirm.

      1. Background.

      Hunt, Hale, and Burrill are heirs of Carolyn Clements. They filed this

complaint in the Superior Court of Newton County against Callahan, the decedent’s

sister, asserting that the money in certain bank accounts in the joint names of

Clements and Callahan belongs to the estate, not Callahan. Callahan answered the

complaint and eventually filed a motion to compel discovery and for sanctions under
OCGA § 9-11-37. The trial court granted the motion, dismissing the heirs’ complaint

and reserving the issue of attorney fees.

      The heirs appealed the trial court’s order, but we dismissed their appeal

because they had failed to pursue their appeal through the interlocutory appeal

procedures.

      After the remittitur was filed in the trial court, the court conducted a hearing

on the issue of attorney fees and entered an order awarding Callahan $3,000. The

heirs filed a notice of appeal from the order, resulting in the instant appeal.

      2. Jurisdiction.

      “Although not raised by either party, it is our duty to inquire into our

jurisdiction in any case in which there may be a doubt about the existence of such

jurisdiction. We conclude that we have jurisdiction.” Brock v. Hardman, 303 Ga. 729,

729 (1) (814 SE2d 736) (2018) (citation and punctuation omitted).

      As a general rule, a right of direct appeal lies from a final judgment; that is,

where the case is no longer pending below. See OCGA § 5-6-34 (a) (1). However,

appeals in “actions for damages in which the judgment is $10,000 or less” must be

initiated by filing an application for discretionary review. OCGA § 5-6-35 (a) (6), (b);

Jennings v. Moss, 235 Ga. App. 357 (509 SE2d 655) (1998). We have “previously

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concluded that an award of OCGA § 9-11-37 attorney fees as a discovery sanction is

a ‘judgment’ for purposes of OCGA § 5-6-35 (a) (6).” Pathfinder Payment Solutions

v. Global Payments Direct, 344 Ga. App. 490, 491 (810 SE2d 653) (2018). And the

amount of the judgment entered in this case is $3,000, below the threshold for a direct

appeal established by OCGA § 5-6-35 (a) (6).

      But the heirs appeal not only the order awarding OCGA § 9-11-37 attorney fees

but also the order dismissing their action. Although that order was interlocutory at the

time it was entered, it became a final order upon the subsequent entry of the order

granting attorney fees “because as of that point nothing remained pending in the court

below[, and] the time for filing [a] notice of appeal [from that order] began to run on

that date.” Caswell v. Caswell, 157 Ga. App. 710 (278 SE2d 452) (1981) (punctuation

omitted).

      “[W]here an order would require a discretionary application to be appealed,

such an application is unnecessary when the order is appealed with another order that

may be appealed by a notice of appeal.” Grogan v. City of Dawsonville, 305 Ga. 79,

84 (823 SE2d 763) (2019). Accordingly, the heirs were not required to apply for a

discretionary appeal and we have jurisdiction over the direct appeal.

      3. Trial court’s factual findings.

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      Where, as here, the trial judge hears evidence and sits as the trier of facts,

      his findings based upon conflicting evidence are analogous to the
      verdict of a jury and should not be disturbed by a reviewing court if
      there is any evidence to support them. . . . [T]he trial court’s decision
      with regard to questions of fact and credibility must be accepted unless
      clearly erroneous [and] the reviewing court must construe the evidence
      most favorably to the upholding of the trial court’s findings and
      judgment. . . . . [T]his standard of review requires us to focus on the
      findings of fact made by the trial court in its order and the evidence
      supporting those findings, rather than other evidence gleaned from the
      record, construing it in favor of upholding the trial court’s order.


State v. Rosenbaum, 305 Ga. 442, 449 (2) (826 SE2d 18) (2019) (citation and

punctuation omitted).

      In his order, the trial court found the following:

      • The trial court scheduled a hearing on Callahan’s motion to compel

      discovery and for sanctions for October 29, 2018. More than a week

      before the scheduled hearing, counsel for the heirs served a conflict

      letter stating that he had to appear for trial in the superior court of

      another circuit, so the hearing was reset to Monday, November 19, 2018.

      • On November 16, 2018, the Friday before the rescheduled hearing,

      counsel for the heirs served another conflict letter, stating that he would

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      report for a superior court case in Forsyth County. The trial court

      contacted Chief Judge Jeffrey S. Bagley in Forsyth County by email and

      requested that Judge Bagley instruct counsel for the heirs that once

      Judge Bagley had released him, counsel should report to Newton County

      Superior Court for the hearing on the motion to compel and for

      sanctions.

      • At 9:30 a.m. on November 19, 2018, the trial court called the hearing

      on Callahan’s motion to compel and for sanctions. The trial court waited

      to proceed until counsel for the heirs had time to appear. The trial court

      contacted Judge Bagley some time later that day and learned that Judge

      Bagley had released counsel for the heirs by 11:00 a.m.

      • So the trial court proceeded without them. He recalled the case for the

      hearing at 3:55 p.m. that day. Counsel for Callahan was present. Counsel

      for the heirs was not.

      The trial court conducted the hearing and, based on the unrefuted allegations

of Callahan’s motion, the attachments to the motion, and the argument of counsel,

made the following findings regarding discovery:



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• On April 27, 2018, Callahan propounded requests for production of

documents and interrogatories upon all three heirs. None responded to

the requests for production of documents. Two responded to the

interrogatories, and the transmittal memo accompanying the

interrogatory responses, dated May 31, 2018, stated that “response to

request for production to follow.”

• Callahan’s counsel wrote the heirs’ counsel on June 5, 2018, stating

that the heirs’ counsel had not responded to the document requests and

had not provided any responsive documents. The heirs’ counsel did not

respond to the letter, so Callahan’s counsel telephoned the heirs’

counsel. Ultimately, the attorneys spoke on July 3rd. Counsel for the

heirs stated that after July 16th, he would be able to respond to the

discovery requests.

• On August 2, 2018, having failed to receive any additional discovery

responses, Callahan’s counsel again wrote the heirs’ counsel requesting

responses. Again, the heirs’ counsel did not respond.

• Callahan’s counsel filed the motion to compel discovery and for

sanctions on August 21, 2018. The heirs’ counsel did not file a timely

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      response. Even after the motion was set for the first hearing on October

      29, 2018, the heirs’ counsel did not communicate with Callahan’s

      counsel other than providing a conflict letter.

      • On November 16, 2018, the Friday before the hearing, counsel for the

      heirs served a document styled as a response to Callahan’s document

      request on behalf of two of the heirs. The response recited that the heirs

      had no documents except banking documents, which Callahan had

      provided, and a copy of a will of the decedent, which had been attached

      to the complaint. The heirs’ counsel identified no other documents in the

      response.

      In sum, the heirs’ counsel failed to provide written responses to the request for

production of documents within 33 days of the date of service; failed to respond to

either good-faith discovery letter; and failed to comply with his May 31, 2018 oral

assurance that he would respond to the discovery requests after July 16, 2018.

Callahan waited until November 16, 2018, almost seven months after service of the

discovery requests, to learn that the heirs possessed no documents relevant to the

case, other than documents that Callahan herself had produced and documents that

had been attached to the complaint.

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      3. Dismissal of complaint.

      The heirs argue that the trial court could dismiss the complaint as a discovery

sanction only if they had disobeyed a court order to compel their compliance with

discovery requests. We disagree.

      OCGA § 9-11-37 (d) (1) provides in part:

      If a party . . . fails to serve a written response to a request for inspection
      submitted under Code Section 9-11-34 [concerning requests for
      production of documents], after proper service of the request, the court
      in which the action is pending on motion may make such orders in
      regard to the failure as are just; and, among others, it may take any
      action authorized under subparagraphs (b) (2) (A) through (b) (2) (C) of
      this Code section. In lieu of any order, or in addition thereto, the court
      shall require the party failing to act or the attorney advising him, or both,
      to pay the reasonable expenses, including attorney’s fees, caused by the
      failure, unless the court finds that the failure was substantially justified
      or that other circumstances make an award of expenses unjust.


As long as the proper discovery procedures have been followed,

      when a party . . . after appropriate service fails to respond to document
      requests, a trial court may take any action delineated under OCGA §
      9-11-37 (b) (2) (A)-(C). Among several other options, subsection (b) (2)
      (C) authorizes a court to enter an order dismissing the action or
      proceeding or any part thereof. Moreover, an order compelling
      discovery is not a condition precedent for the imposition of sanctions

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      under subsection (d). All that is required is a motion, notice, and a
      hearing.


Smith v. Glass, 273 Ga. App. 327, 328 (615 SE2d 172) (2005) (citation omitted). The

trial court found that the heirs’ counsel had ample notice of Callahan’s motion and

the hearing on the motion, and the heirs do not dispute this finding. Given that the

heirs failed to appear at the hearing on the motion to compel discovery and for

sanctions, “we cannot say that the trial court abused [his] discretion when it dismissed

[the] complaint . . . on the ground that [they] had failed to respond to [Callahan’s]

discovery requests.” Id.

      4. Attorney fees award.

      The heirs argue that the evidence does not support the amount of the attorney

fees award. They have not shown trial court error.

      The trial court conducted a hearing on attorney fees, reviewed the affidavit of

Callahan’s counsel, and heard argument from counsel for the heirs and Callahan. In

the order awarding fees, the court found that counsel’s hourly rate was reasonable and

that spending ten hours of time to procure the discovery order was reasonable.

      The heirs have not included in the appellate record a transcript of the hearing,

so our review is limited:

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      In accordance with the presumption in favor of the regularity of court
      proceedings, we must assume that, in the absence of a transcript, the trial
      court’s findings are supported by sufficient competent evidence. Where
      no transcript is included in the record on appeal we must assume that the
      evidence was sufficient to support the judgment. This is a court for the
      correction of errors and its decision must be made on the record and not
      upon the briefs of counsel. [The heirs have] failed to meet [their] burden
      of showing error by the record; therefore, we will not disturb the order
      of the trial court.


Sprewell v. Thomas & Hutson, South Carolina, LLC, 260 Ga. App. 312, 315 (3) (581

SE2d 322) (2003).

      Judgment affirmed. McMillian, P. J., and Senior Appellate Judge Herbert E.

Phipps concur.




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