TF FILED 3/12/2017 6:10:34 PM CLERK OF SUPERIOR COURT DEKALB COUNTY GEORGIA

IN THE SUPERIOR COURT OF DEKALB COUNTY

STATE OF GEORGIA

ROSWELL HOLDINGS, LLC §

§
Petitioner, §
§ CIVIL ACTION
v. §
§ FILE NO. 16 CV 1720-6
IRVIN J. JOHNSON in His Capacity §
as TAX COMMISSIONER and EX- §
OFFICIO SHERIFF OF DEKALB §
COUNTY, GEORGIA §
§
Respondent. §
_____________________________________

PETITIONER’S MOTION TO COMPEL

COMES NOW Roswell Holdings, LLC, Petitioner herein, and files this, its Motion to

Compel against Respondent Irvin J. Johnson in His Capacity as Tax Commissioner and Ex-

Officio Sheriff of DeKalb County, Georgia, respectfully showing as follows:

(a) Petitioner served its First Interrogatories to Respondent and First Request for

Production of Documents to Respondent on July 7, 2017;

(b) Respondent served responses to Petitioner’s said discovery on September 1, 2016;

(c) Respondent has failed to comply with the Georgia Civil Practice Act by answering

each Interrogatory, “[p]lease see the documents to be produced in response to

Plaintiff's Request for Production of Documents for the information requested by

this Interrogatory” but failing to produce any documents containing the requested

information;

(d) Respondent’s failure and refusal to provide proper responses to Petitioner’s discovery
 is without substantial justification.

(e) Petitioner has made a good faith effort to resolve these issues with Respondent’s

counsel, and such efforts have been unsuccessful.

MEMORANDUM OF LAW

I. FACTS

A. Background

Petitioner filed its Petition for Money Rule pursuant to OCGA § 15-13-2 et seq. to

recover surplus funds in the amount of $141,803.66 collected by Respondent’s predecessor,

Claudia Lawson, from the tax sales of two parcels of real property owned by Petitioner. Both

Respondent and his predecessor Lawson have refused to pay over the funds to Petitioner.

In his Answers and Defenses to Petitioner’s Petition, Respondent admitted that he has

refused to pay over the funds and requested an order allowing him to interplead the funds. ¶ 3;

Ad Damnum, No.3.

Respondent also filed a Counterclaim for Interpleader, alleging that he “…is entitled to

the excess funds currently held by the Respondent” on the basis that Petitioner owes “unpaid ad

valorem taxes covering multiple years on thirty-two additional properties located in DeKalb

County, Georgia” ¶¶ 6, 11. Respondent further alleges that the unpaid taxes on these other

property totaled $430, 834.74 as of the date of the filing. ¶ 6. The Court granted Respondent’s

request for interpleader on August 9, 2016.

The amount claimed by Respondent includes various costs and expenses arising out of

purported “unsuccessful” attempts to sell the properties. See Counterclaim for Interpleader, ¶ 7.

These items are shown in the column captioned “Pen/Fees” in each of the “Delinquent

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Collections” documents attached collectively as Exhibit “A” to the Counterclaim, which show

the taxes, fees and interest purportedly due on each property for the years 2010-2015.

B. Petitioner’s Discovery

Petitioner’s Interrogatories Nos. 6-9, 11-12 and Document Requests Nos. 1-8, 18

requested an itemization of each category of cost, a statement as to how the figures were

calculated, and the statutory basis for Respondent’s assessment of the costs, broken down by

year. Petitioner’s Document Requests Nos. 1-8, 18 requested supporting documents.

C. Respondent’s Responses

Respondent’s answer to each of Petitioner’s Interrogatories was: “Please see the

documents to be produced in response to Plaintiffs (sic) Request for Production of Documents

for the information requested by this Interrogatory.”

Respondent’s answer to each of Petitioner’s Document Requests was: “All documents

responsive to Petitioner’s request that are in Respondent’s possession are enclosed herewith.”

D. Respondent’s Complete Failure to Provide the Requested

Information

After carefully reviewing the documents that Respondent produced, Petitioner’s counsel

concluded that none of them contains the information requested as to the amounts shown in the

“Pen/Fees” columns of the “Delinquent Collections”—i.e., none of them identified the costs or

showed how they were calculated.

II. PETITIONER’S GOOD FAITH EFFORTS

On December 29, 2016, Petitioner’s counsel wrote a detailed letter to counsel for

Respondent, addressing the deficiencies in the responses and requesting that Respondent

supplement them within ten days. A true and correct copy of the letter is attached hereto as

Exhibit “A”.

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 Respondent’s counsel did not supplement the discovery responses as requested. But

neither did they express any disagreement with Petitioner’s objections. They did not respond at

all.

Counsel’s letter quotes verbatim the discovery requests and responses in issue and the

grounds for Petitioner’s objections as required by USCR 6.4(A) and is evidence of Petitioner’s

good faith effort to resolve the matters involved as required by USCR 6.4(A) prior to filing the

instant motion.

III. ARGUMENT AND CITATION OF AUTHORITY

Respondent was required to answer each interrogatory “separately and fully in writing

under oath.” OCGA § 9-11-33(a)(2). “The answers are to be signed by the person making

them…” Id. Although Petitioner’s counsel did not address the issue in his 6.4(B) letter, it must

be noted that no verification was attached to Respondent’s answers. They were not signed by the

person making them and were not under oath.

Nor did Respondent comply with his duty to answer each interrogatory “separately and

fully in writing under oath.” In fact, he did not answer them at all.

It can be sufficient for a party to answer an interrogatory by referring to business records

“[w]here the answer to an interrogatory may be derived or ascertained from the business records

of the party upon whom the interrogatory has been served… and the burden of deriving or

ascertaining the answer is substantially the same for the party serving the interrogatory as for the

party served…”—but only where the responding party can “…specify the records from which

the answer may be derived or ascertained and […] afford to the party serving the interrogatory

reasonable opportunity to examine, audit, or inspect such records and to make copies,

compilations, abstracts, or summaries.” OCGA § 9-11-33(c) (emphasis added). Those

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circumstances do not exist here, where Respondent neither specified nor produced any

documents containing the answers to Petitioner’s interrogatories.

It is actually quite extraordinary that Respondent, a public official, has not quickly and

easily demonstrated the legality of tens of thousands of dollars in fees he has assessed against

Petitioner. The actions of his counsel in failing to respond to Petitioner’s efforts to find out

basic facts about the assessments is troubling as well. Nonetheless, the conclusion is inescapable

that Respondent is seeking to evade his discovery obligations, and Petitioner must request that he

be compelled to do so. These facts also justify an award to Petitioner of its costs and expenses

incurred in obtaining the order.

WHEREFORE Petitioner respectfully moves for an Order pursuant to OCGA § 9-11-

37(a):

(a) Requiring Respondent to serve proper answers to Petitioner’s First Interrogatories

and to produce the documents requested in Petitioner’s First Request for Production

of Documents within ten (10) days of the entry of the Order;

(b) Setting a hearing and awarding Petitioner its reasonable attorney’s fees and expenses

incurred in obtaining the Order as provided in 9-11-37(4)(A), and

(c) Granting Petitioner such other and further relief as may be just and appropriate under

the circumstances.

This 12th day of March, 2017.

Respectfully submitted,

___________________________________
Michael A. Dominy

[Continued on Following Page]

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Civil Action File No. 16 CV 1720-6
(Petitioner’s Motion to Compel)

Georgia Bar No. 225335

Attorney for Petitioner

881 Ponce de Leon Avenue NE

Suite 3
Atlanta, Georgia 30306
(404) 900-9570

michael@dominylaw.net

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Exhibit "A"
 IN THE SUPERIOR COURT OF DEKALB COUNTY

STATE OF GEORGIA

ROSWELL HOLDINGS, LLC §

§
Petitioner, §
§ CIVIL ACTION
v. §
§ FILE NO. 16 CV 1720-6
IRVIN J. JOHNSON in His Capacity §
as TAX COMMISSIONER and EX- §
OFFICIO SHERIFF OF DEKALB §
COUNTY, GEORGIA §
§
Respondent. §
_____________________________________

CERTIFICATE OF SERVICE

THIS IS TO CERTIFY that I have this day served a copy of the foregoing Petitioner’s

Motion to Compel upon counsel for Respondent, Lori M. Brill, Esq. through the e-filing system

at lmbrill@dekalbcountyga.gov.

This 12th day of March, 2017.

MICHAEL A. DOMINY
State Bar No. 225335
Attorney for Petitioner
881 Ponce de Leon Avenue NE
Ste. 3
Atlanta, Georgia 30306
(404) 900-9570
michael@dominylaw.net

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