Order On Various Motions Ocr¶

FILED 5/22/2024 7:09 PM CLERK OF SUPERIOR COURT DEKALB COUNTY GEORGIA

IN THE SUPERIOR COURT OF DEKALB COUNTY

STATE OF GEORGIA

JONATHAN SWEATMAN, Plaintiff/Counterclaim Defendant, y

CIVIL ACTION NO. 21CV9795-7

SARAH ZEEMAN, Defendant / Counterclaim Plaintiff.

ORDER ON VARIOUS MOTIONS As a brief procedural background, Jonathan Sweatman filed a Petition for Equitable

Relief on November 12, 2021. Sarah Zeeman filed an Answer and Counterclaim on January 13, 2022.

The Consolidated Pre-Trial Order (“CPTO”) entered on December 21, 2023

supersedes the pleadings. Discovery was scheduled to end on July 13, 2022 but the parties submitted a Consent Motion to Stay and Extend Discovery seeking a stay of discovery pending mediation and, should mediation fail, an additional 90 days of discovery.

The Court granted the stay and

extension of discovery, and set a soft deadline of September 11, 2022 for mediation, meaning

that the second discovery deadline expired around December 10, 2022. The case was called for a Status Conference on March 21, 2023, and shortly thereafter the Court signed a

Scheduling Order setting a third discovery deadline of July 14, 2023.

On June 15, 2023, a

Joint Consent Motion to Amend the Scheduling Order and Extend Discovery was filed and granted, resulting in the fourth and final discovery deadline of September 12, 2023.

SWEATMAN’S MOTION TO COMPEL AGAINST ZEEMAN On June 14, 2023, Sweatman filed a Motion to Compel Discovery seeking certain

documents from Zeeman.

The Court was under the impression that the fourth extension of

discovery resolved Sweatman’s Motion to Compel.

According to the CPTO, the fourth

extension apparently did not resolve the discovery issue, though Zeeman subsequently produced the requested documents. In the CPTO, Sweatman represented that he intended to Consolidated Pre-Trial Order Page | of 4

withdraw the Motion to Compel against Zeeman. Sweatman’s Motion to Compel Discovery against Zeeman is considered withdrawn. SWEATMAN’S MOTION TO COMPEL EXPERT DEPOSITION

On September 12, 2023, the last day of the fourth discovery deadline, Sweatman filed

a Motion to Compel Zeeman’s Expert Lee Webb’s Deposition and for Attorney’s Fees. With the Court’s assistance, counsel scheduled Webb’s deposition for a date in early October 2023, a short yet acceptable time beyond the discovery deadline. In the CPTO, Sweatman states that his “second motion to compel as to Zeeman’s expert witness Mr. Webb seeks the opportunity to re-depose Mr. Webb regarding his requested documents not produced at the time of his original deposition.” The only Motion to Compel regarding Mr. Webb was the one filed on

September 12, 2023, and it concerned scheduling the original deposition, not a follow-up deposition.

There being no motion regarding re-deposing Mr. Webb, there is no need for a

ruling. SWEATMAN’S MOTION TO QUASH

On November 29, 2023, Sweatman filed a Motion to Quash and for Protective Order, objecting to Zeeman’s Notice to Produce requesting both Sweatman’s personal and business tax returns for the years of 2021, 2022, and 2023. According to Sweatman, there is no nexus between the tax documents and Zeeman’s claims against Sweatman. According to Zeeman, the tax documents are relevant for the claim for punitive damages.

In Floyd v. First Union

Nat. Bank of Georgia, 203 Ga. App. 788, 791 (1992), the Court of Appeals held that the trial court erred in quashing a subpoena that sought documents showing the defendant’s net worth for use in assessing punitive damages. The Court in Floyd explained that “[u]nder OCGA § 51-12-5.1 evidence of the financial circumstances of the defendant may be admissible” and found that the subpoena “was not unduly intrusive or burdensome.” Here, the Court finds that evidence of Sweatman’s

net worth is relevant Zeeman’s punitive damages claim and the Notice

to Produce personal and business tax returns for 2021, 2022, and 2023 is not intrusive or unduly burdensome.

The Court denies Sweatman’s Motion to Quash.

See also Oglethorpe Power

Corp. v. Estate of Forrister, 332 Ga. App. 693, 702-03 (2015) (holding that punitive damages may be awarded in a case of nuisance, citing Tyler v. Lincoln, 272 Ga. 118, 120(1) (2000)).

Consolidated Pre-Trial Order Page 2 of 4

ZEEMAN’S OBJECTIONS RAISED IN CPTO In the CPTO, Paragraph 22, Zeeman lists a number of objections to Sweatman’s portion of the Pre-Trial Order, including an objection to a “jury rendering judgments in equity.” The

Court assumes Zeeman is referring to Sweatman’s jury issue of “[w]hether Sweatman is entitled to a permanent injunction precluding Ms. Zeeman’s improvements from encroaching and extending on to Mr. Sweatman’s real property.”

99

The first three issues on Sweatman’s

proposed verdict form pertain to injunctive relief. The grant or denial of an injunction against Zeeman will be decided by the Court based on the jury’s verdict of whether Ms. Zeeman’s improvements encroach on Mr. Sweatman’s property and constitute a trespass.

The Court

exercises its discretion to require a special verdict form as to parties’ clams. OCGA§ 9-1149. The Court and counsel will amend and refine the verdict form as trial progresses. Zeeman also maintains that if Sweatman’s equity claim is the “only claim left standing at trial, then the jury would not be authorized to consider an award of attorney’s fees.”

At

present, this concern is a non-issue. Zeeman complains that Sweatman listed negligence as an issue but did not list any specifications of negligence in Section 9 of the CPTO. Sweatman’s entry for Section 8 states that an issue for the jury is “[w]hether Ms. Zeeman was negligent in the placement and installation of certain improvements thereby resulting in a trespass on Mr. Sweatman’s

property,” and Section 9 reads, “Mr. Sweatman will provide applicable codes [sic] sections in his jury charges.”

Sweatman’s proposed jury verdict form, however, does not include

negligence. Further, a trespass must be “an intended act as opposed to a negligent act.” Rouse v. City of Atlanta, 353 Ga. App. 542, 546(2)(a) (2020) (citation omitted). Negligence does not appear to be a standalone claim for Sweatman, and the Court will address the applicability of any negligence law(s) if and/or when the issue develops during trial. Zeeman objects to her attorneys being qualified for the jury because they are not on contingency. The Court will apply OCGA § 15-12-135 to appropriately qualify the jurors. Zeeman’s final objection pertains to any witness (other than for rebuttal) whose

“identity .... [and] the subject matter concerning which they have knowledge has not been disclosed.” Again, at present, this is a non-issue.

Consolidated Pre-Trial Order Page 3 of 4

SWEATMAN’S MOTION IN LIMINE On January 1, 2024, Sweatman filed a First Motion In Limine.

Much of the Motion

covers basic legal premises such as do not mention dismissed claims or insurance coverage or settlement discussions. The Court will address any substantive in limine matters at the call of the calendar.

SO ORDERED, this 22" day of May 2024.

Lisa K. Rose, Esq. — counsel for Jonathan Sweatman as Plaintiff Timothy L. Mitchell, Esq. and Chelsea T. Cooke, Esq. — counsel for Jonathan Sweatman as

Counterclaim Defendant Jeff Banks, Esq. and Brett Michael-Schiff Ledermeier, Esq. — counsel for Sarah Zeeman

Consolidated Pre-Trial Order Page 4 of 4