Brief In Support Of Pltfs Counterclaim Ocr¶

FILED 9/12/2023 2:53 PM CLERK OF SUPERIOR COURT DEKALB COUNTY GEORGIA

IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA

JONATHAN SWEATMAN, Petitioner, v.

SARAH ZEEMAN,

Respondent / Counterclaim Petitioner. v.

JONATHAN SWEATMAN, Counterclaim Respondent.

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CIVIL ACTION

FILE NO. 21CV9795

BRIEF IN SUPPORT OF PLAINTIFF/COUNTERCLAIM DEFENDANT JONATHAN

SWEATMAN’S MOTION TO COMPEL ZEEMAN’S EXPERT LEE WEBB’S DEPOSITION AND FOR ATTORNEY FEES

COMES NOW, NOW JONATHAN SWEATMAN, Plaintiff/Counterclaim Defendant in the above-styled action, and files this Brief in Support of his Motion to Compel pursuant to O.C.G.A. § 9-11-37(a) and O.C.G.A. § 9-11-37(b). STATEMENT OF FACTS

On June 22, 2023, a site inspection was performed by Zeeman’s expert Lee Webb at both

Sarah Zeeman and Jonathan Sweatman’s properties in connection to the issues previously mentioned in this case. (Cooke Aff., ¥ 2). On July 10, 2023, this Court handed down an Order which extended discovery in this case through September 12, 2023, noting that this was a final discovery deadline extension. (Cooke Aff., § 3).

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On July 20, 2023, Sweatman’s counsel’s office requested Zeeman’s counsel provide dates that their expert was available for a deposition. Zeeman’s counsel did not provide a date. (Cooke Aff., § 4). On July 24, 2022, Sweatman’s counsel’s office followed up with Zeeman’s counsel on our previous request for deposition dates. No response was provided. (Cooke Aff., § 5). On July 25, 2023, Sweatman’s counsel’s office again followed up with Zeeman’s counsel for deposition dates. Zeeman’s counsel advised that Webb would be available on August 31, 2023 for his deposition to be taken. (Cooke Aff., § 6). As such, Sweatman’s counsel noticed Webb’s deposition for August 31, 2023. (Cooke Aff., § 7). On August 30, 2023, the day before Webb deposition was to take place, Zeeman’s counsel informed Sweatman’s counsel that Webb would be unable to attend his deposition. (Cooke Aff., § 8). Webb did not appear for this deposition. (Cooke Aff., § 9).

On that same date, Sweatman’s counsel’s office orally reached out to Zeeman’s counsel to inquire as to when Webb’s deposition could be rescheduled. Zeeman’s counsel only provided dates outside of the discovery deadline, despite being on notice of this Court’s July 10, 2023 Order. (Cooke Aff., § 10). In efforts to fully comply with this Court’s mandated discovery deadline, Sweatman’s counsel’s office unilaterally noticed Webb’s deposition for September 11, 2023. (Cooke Aff., § 11). After Webb again failed to appear for this deposition, Zeeman’s counsel sent new dates to depose Webb which were again outside this Court’s mandated discovery deadline. (Cooke Aff., 7 13).

Sweatman now files this Motion to Compel in connection with Webb’s duplicative failures to appear for his court-ordered deposition, the costs associated with the notice of Webb’s depositions, and the costs associated with the filing of this Motion to Compel.

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ARGUMENT AND CITATION OF AUTHORITY

I.

Motion to Compel Lee Webb’s Deposition under O.C.G.A. § 9-11-37(a)(1)

Pursuant to O.C.G.A. § 9-11-37(a)(1), parties may move the Court for an “order to a deponent who is not a party” in the county where the deposition is being taken. In the present case, despite multiple requests as early as July 20, 2023, Zeeman’s counsel has still yet to provide a date in which Lee Webb is available to be deposed that is within the discovery deadline allotted by this Court. Webb has failed to appear for two noticed depositons. As a result of Webb’s failure to appear for his noticed depositions, Sweatman is now in the position of attempting to defend Zeeman’s claims without having basic information to which he is entitled. Counsel for Sweatman has attempted in good faith to resolve this deposition dispute in accordance with Uniform State Court Rule 6.4(b) to no avail. The continuous failure of Plaintiff to provide the deposition of Webb, despite Sweatman’s counsel’s good faith efforts, mandates this Court compelling him to appear for his deposition under O.C.G.A. § 9-11-37(a)(1). II.

Motion for Attorney’s Fees under O.C.G.A. § 9-15-14

Due to Zeeman’s noncompliance and blatant failure to participate in discovery, under O.C.G.A. § 9-15-14, Sweatman also is entitled to recover attorney's fees from Zeeman for fees incurred through attempts to schedule Webb’s deposition and drafting and filing this Motion in connection with Webb’s continued absence. “Awarding attorney’s fees under “OCGA § 9—15-—14(b) is discretionary, and the standard of review is abuse of discretion.” Jones v. Unified Gov't of Athens-Clarke Cty., 312 Ga. App. 214, 218, 718 S.E.2d 74, 78 (2011). “Pursuant to OCGA § 9-15-14 (a), the trial court shall award attorney fees when a party asserted a claim, defense or other position with such a complete absence of any justiciable issue of law or fact that the party could not reasonably have

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believed that the court would accept it. Pursuant to OCGA § 9-15-14 (b), the court may award attorney fees if a party brought or defended an action that “lacked substantial justification” or

“was interposed for delay or harassment, or if the court finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct.” Shoenthal v. Dekalb Cty. Employees Ret. Sys. Pension Bd., 343 Ga. App. 27, 30, 805 S.E.2d 650, 653 (2017). “In order to

recover attorney fees, a prevailing party must prove both their actual cost and their reasonableness. It is well-settled that a party's attorney himself is competent to testify as to his opinion on reasonable fees.” Jones v. Unified Gov't of Athens-Clarke Cty.,

312 Ga. App. 214,

221, 718 S.E.2d 74, 80 (2011). The fact that a plaintiff voluntarily dismisses his or her claim

does not prevent an award under OCGA§ 9-15-14.” Durrance v. Schad, 345 Ga. App. 826, 830, 815 S.E.2d 164, 168 (2018).

As discussed above, Webb and Zeeman’s counsel have unnecessarily expanded and delayed the proceeding by failing to provide dates for Lee Webb’s deposition to be taken and then by Webb failing to appear for his noticed depositions. This delay and failure to participate

merits an award of attorney’s fees under O.C.G.A. § 9-15-14 as Zeeman brought an action that has been “interposed for delay or harassment” and has “unnecessarily expanded the proceeding

by other improper conduct. Sweatman now seeks a sum of no less than $2,439.00, which is the costs associated with filing this motion and noticing Webb’s deposition twice. CONCLUSION

For the foregoing reasons, Sweatman respectfully requests this Court to grant this Motion

to Compel Discovery and award attorney’s fees for the costs of noticing Lee Webb’s deposition twice, the costs of filing this Motion, and all other costs incurred in connection with any subsequent work performed in connection with this Motion.

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This 12th day of September, 2023 CRUSER, MITCHELL, NOVITZ, SANCHEZ, GASTON & ZIMET, LLP

TIMOTHY L. MITCHELL Georgia Bar No. 460744

CHELSEA T. COOKE Georgia Bar No. 209502 Meridian IT, Suite 2000

Attorneys for Counterclaim Defendant

275 Scientific Drive

Jonathan Sweatman

Peachtree Corners, GA 30092

(404) 881-2622 tmitchell@cmlawfirm.com

ccooke@cmlawfirm.com

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IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA

JONATHAN SWEATMAN,

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Petitioner,

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V.

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SARAH ZEEMAN,

§ §

CIVIL ACTION

Respondent / Counterclaim

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FILE NO. 21CV9795

Petitioner.

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V.

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JONATHAN SWEATMAN,

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Counterclaim Respondent.

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§ CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have this day electronically filed the within and foregoing BRIEF IN SUPPORT OF PLAINTIFF/COUNTERCLAIM DEFENDANT JONATHAN

SWEATMAN’S MOTION TO COMPEL ZEEMAN’S EXPERT LEE WEBB’S DEPOSITION AND FOR ATTORNEY FEES with the Clerk of Court using the e-filing

system which will automatically send e-mail notification of such filing to the following attorneys of record:

Lisa K. Rose, Esq,

Jeff Banks, Esq.

Rose Litigation, LLC 4880 Lower Roswell Road, Suite

Banks & Riedel, PC 165-522

970 Walnut Street

Marietta, GA 30068

Macon, GA 31201

Lisa@roselitigation.lawyer

jeffsbanks@hotmail.com banksnriedel@hotmail.com

Brett Ledermeier, Esq.

Noah Cadwell, Esq.

11625 Rainwater Drive, Suite 125

David M. Atkinson, Esq.

Alpharetta, GA 30009

Swift, Currie, McGhee & Hiers, LLP

bledermeier@mmatllaw.com

1355 Peachtree Street, NE, Suite 300 Atlanta, GA 30309 noah.caldwell@swiftcurrie.com david.atkinson@swiftcurrie.com

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This 12th day of September, 2023. CRUSER, MITCHELL, NOVITZ, SANCHEZ, GASTON & ZIMET, LLP

TIMOTHY L. MITCHELL

Georgia Bar No. 460744 CHELSEA T. COOKE Georgia Bar No. 209502 Meridian IT, Suite 2000

Attorneys for Counterclaim Defendant

275 Scientific Drive

Jonathan Sweatman

Peachtree Corners, GA 30092

(404) 881-2622 tmitchell@cmlawfirm.com

ccooke@cmlawfirm.com

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