SECOND DIVISION
DOYLE, P. J.,
DAVIS, J., and SENIOR JUDGE FULLER
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.
https://www.gaappeals.gov/rules
July 1, 2026
In the Court of Appeals of Georgia
A26A0753. WUNDERBAR INNOVATIONS NETWORK, INC. et
al. v. KINNEY et al.
DOYLE, Presiding Judge.
After James Kinney, Paul Kinney, and Perry John (collectively, the
“Appellees” or “Judgment Creditors”) successfully obtained a judgment against
Defense Products and Services Group, Inc., and Defense Products and Services
Group Holding Company, Inc. (collectively, the “DPSG Companies” or “Judgment
Debtors”),1 two Georgia companies whose CEO is Charles Fincher, the Appellees
began the post-judgment discovery process. What should have been simple postjudgment discovery on the DPSG Companies and other non-parties has turned into
1
See Def. Prods. and Servs. Group, Inc. v. Kinney, 368 Ga. App. 617 (889 SE2d 381) (2023).
a quagmire as a result of the Appellees’ unilateral change of the DPSG Companies’
names in the style of the case to include two Virginia companies2 formed by Fincher
in his failed “attempt to [move] the GA companies[‘] home” to Virginia. . The same
day the judgment was affirmed on appeal, Fincher’s accountant incorporated two
companies in Virginia with names identical to the DPSG Companies, but Fincher later
renamed them the Wunderbar Innovations Network, Inc., and Wunderbar
Innovations Network Holding Company, Inc. (collectively, the “Appellants” or the
“Wunderbar Companies”). The Appellees discovered these newly incorporated
Virginia entities and assumed that “Fincher had apparently moved the DPSG entities
back to Virginia and renamed them[.] ... Hence, [they included in] the caption for the
new case number3 ... the new names of the entities.” This unauthorized change in the
name of the Judgment Debtors in the case style has resulted in unnecessary confusion
for all parties, the trial court, and this Court. For the reasons that follow, we reverse
the trial court’s final order with respect to the Wunderbar Companies, and we affirm
2
This Court has found no trial court order allowing a change in the style of the case or the addition or substitution of the Virginia companies as parties in any of the post-judgment cases.
3
Pursuant to OCGA § 15-6-77(e)(1), any post-judgment proceeding filed more than 30 days after judgment is considered a new case and is given a new case number by the superior court clerk. This has resulted in multiple post-judgment case numbers and new civil actions, which has impeded our review of the case on appeal.
2
the final order with respect to the DPSG Companies and Fincher in his capacity as
DPSG Companies corporate representative.4
“In matters involving discovery disputes, trial judges have broad discretion in
controlling discovery, including the imposition of sanctions, and this Court will not
reverse a trial court’s decision on such matters unless there has been a clear abuse of
discretion.” Mincey v. Ga. Dep’t of Cmty. Affairs, 308 Ga. App. 740, 747(2) (708 SE2d
644) (2011) (punctuation and quotation marks omitted). A de novo standard of review
applies to a trial court’s ruling on a motion to dismiss, see Walker County v. Tri-State
Crematory, 292 Ga. App. 411, 411 (664 SE2d 788) (2008), and to the extent that this
appeal presents legal issues, see Vaughn v. Vaughn, 365 Ga. App. 195, 198(1) (877
SE2d 860) (2022).
So viewed, the record reflects that the Appellees prevailed in arbitration against
the DPSG Companies. The arbitrator found that the Appellees collectively owned a
20 percent stake in the DPSG Companies and awarded them $371,186.84 in attorney
fees and expenses. The trial court confirmed the award and entered a judgment
4
The Appellees properly served discovery on, and noticed the deposition of a corporate representative of, the DPSG Companies. The trial court’s final order applies to the DPSG Companies and Fincher in his capacity as their corporate representative. Because the DPSG Companies have not appealed this portion of the trial court’s final order, it is affirmed as to the DPSG Companies and Fincher as the representative thereof.
3
thereon. The DPSG Companies appealed the order confirming the award, which this
Court affirmed on June 15, 2023. See Kinney, 368 Ga. App. at 617.
Also on June 15, 2023, Fincher incorporated the two Virginia companies, which
he later renamed the Wunderbar Companies. The Virginia Secretary of State records
list Fincher as the president of the Wunderbar Companies, both before and after their
names changed.
According to a letter in the record,5 on March 13, 2024, the Appellees served
the DPSG Companies with post-judgment written discovery, to which they failed to
respond. Having learned of the existence of the Wunderbar Companies, and
apparently assuming that these companies had subsumed the DPSG Companies, on
May 28, 2024, the Appellees filed a motion to compel the March 13, 2024 discovery
with the style now referring to the Judgment Debtors as the Wunderbar Companies
f/k/a the DPSG Companies.6 Counsel for the Appellees — and, by “special
5
The record in this case consists of at least two lower court case numbers. The first, Fulton County Superior Court Civil Action Case Number 24CV014071, begins on November 5, 2024, and ends on June 30, 2025. The second, 24CV005409, begins on April 22, 2025, and ends on October 30, 2025. While some filings from before November 5, 2024, are contained in the record as attachments to other pleadings, others are not but are presumed to have occurred as represented by the attorneys in their various correspondence summarizing the post-judgment proceedings.
6
This was the first instance in which the Appellees used the “f/k/a” nomenclature in the case caption, which was adopted in subsequent filings and
4
appearance,” Counsel for the “Respondents/Judgment Debtors” — appeared at a
September 5, 2024 hearing on the motion to compel the written discovery served on
the DPSG Companies.7 The “Respondents/Judgment Debtors”objected to personal
jurisdiction and venue, which objections the trial court overruled in an order dated
September 10, 2024; the trial court also granted the Appellees’ motion to compel the
“Respondents/Judgment Debtors” to provide fulsome discovery responses and pay
sanctions. In the style of the order, the “Respondents/Judgment Debtors” were
identified as the Wunderbar Companies f/k/a the DPSG Companies, which entities
the Appellees represented were the Georgia companies against whom they had
obtained a judgment.8 . The order makes no mention of the Wunderbar Companies
individually or whether the trial court had personal jurisdiction over them. No appeal
was taken from that order.
proceedings. At times, the style referred to the Wunderbar Companies as “Defendants” and in some instances identified only to the Wunderbar Companies as “Respondents” without reference to the DPSG Companies.
7
There is no transcript of the September 5, 2024 hearing in the record, so this information is taken from the trial court’s subsequent order. The order does not indicate who appeared at this hearing as counsel for the “Respondents/Judgment Debtors.”
8
At this point, the only post-judgment discovery served was the written discovery requests to the DPSG Companies.
5
On October 14, 2024, the Appellees, “via statutory electronic service” to
counsel,9 served notices of depositions under OCGA § 9-11-30(b)(6) (“Rule
30(b)(6)”) on the Wunderbar Companies (not the DPSG Companies), identifying
topics and requesting document production related to Fincher’s formation and
financing of companies since 2010. The Wunderbar Companies objected to every
identified topic and document request and refused to designate a corporate
representative to be deposed. On October 29, 2024, the Appellees sent counsel for the
Wunderbar Companies correspondence pursuant to Uniform Superior Court Rule
6.4(B) (“USCR 6.4(B)”) outlining the deficiencies in their responses; the Wunderbar
Companies did not respond. On November 5, 2024,10 the Appellees moved to compel
the Rule 30(b)(6) depositions of a corporate representative for the Wunderbar
Companies, which motion the Appellees claim was served on counsel for the
Wunderbar Companies via statutory electronic service.
Apparently because the clerk had initiated a new case pursuant to OCGA § 15-6-77(e)(1) and because the trial court was concerned about potential service issues, on
9
Multiple attorneys and law firms have represented the DPSG Companies and the Wunderbar Companies. At the time the deposition notices were sent, Caplan Cobb, LLC appear to be the attorneys of record.
10
This is the point at which the appellate record officially begins.
6
November 12, 2024, the trial court ordered the Appellees to serve the motion to
compel Rule 30(b)(6) depositions on the “opposing parties” under OCGA § 9-11-4,
and it directed the Appellees to file proof of such service pursuant to OCGA § 9-11-4(h).11 The Appellees requested that counsel for the Wunderbar Companies accept
service but were informed that counsel (Caplan Cobb) no longer represented the
Wunderbar Companies as of November 19, 2024. On November 22, 2024, the
Appellees personally served the DPSG Companies through a private process server
with the motion.12
In its proof of service filing, the Appellees noted that “[t]o evade the judgment,
create confusion, and cause Petitioners additional expense, Ken Fincher, majority
stockholder in the Respondent companies, has created a number of similarly-owned
companies in Virginia. The judgment is against the two named entities in the caption,
which are Georgia entities. The Motion to Compel was served on the same entities.”
11
In this iteration, the style of the trial court’s order reads: “James Kinney, et al., Plaintiffs, v. Wunderbar Innovations Network, Inc., et al. Defendants.” (Emphasis added.)
12
The process server averred that “[o]n November 22, 2024, ..., I served the Respondent/Judgment Debtor, Defense Products and Services Group, Inc., by serving their Registered Agent, My Company Works, Inc., located at 900 Old Roswell Lakes Parkway, Suite 310, Roswell, Georgia, 30076.” He averred the same as to Defense Products and Services Group Holding Company.
7
(Emphasis added.) There is no evidence in the record that the motion to compel was
served on the Wunderbar Companies, either via statutory electronic service or
through their registered agent in Virginia.
Nevertheless, on February 28, 2025, the trial court, in an order styled “James
Kinney, et al., Petitioners, v. Wunderbar Innovations Network, Inc., et al.,
Respondents,” granted the motion to compel, ordering the “Respondents” to
designate a corporate representative to be deposed within 15 days. On March 14, 2025,
Fincher sent the Appellees correspondence in which “as the president of the
corporations, [he designated himself] as the corporate witness.”13 Fincher did not
offer deposition dates, so on March 17, 2025, the Appellees noticed depositions
directed to the Wunderbar Companies and served them “via email and statutory
overnight delivery” on Fincher at a Virginia address; they also sent deposition notices
to the DPSG Companies. Fincher responded that he could not attend the depositions
13
The letter does not specify what corporations Fincher referred to. Fincher also sent the Appellees correspondence in which he stated that his intention in incorporating Defense Products and Services Group, Inc., and Defense Products and Services Group Holding Company, Inc., in Virginia was to “‘recover the GA entities and bring them to VA where they started.” He further stated, “We were unable to relocate or reconstitute the GA companies[,] and I thought that must be because of the names so they were renamed with the new names Wunderbar Innovations Network and WIN HC which have the Fka DPSG Inc and HC Inc. names. No new activity of any sort or bank accounts were created for these companies[;] they were simply a failed attempt to bring the GA companies home.”
8
because he had jury duty. Thereafter, the Appellees requested alternate dates, which
Fincher failed to provide.
On March 21, 2025, the Appellees filed a motion for contempt and sanctions
against the “Respondents/Judgment Debtors,” referred to in the case style as the
Wunderbar Companies f/k/a the DPSG Companies. Again, by special appearance, the
Wunderbar Companies filed a response in opposition, in which they moved for
dismissal under OCGA § 9-11-12 based on, among other things, insufficient service.
Attached to the response was an affidavit of Fincher in which he averred that the
Wunderbar Companies were unrelated to the DPSG Companies.
After a hearing, the trial court denied the motion to dismiss and granted the
Appellees’ motion for contempt and sanctions. The trial court noted that the motion
to dismiss was not filed on behalf of the DPSG Companies, and the DPSG Companies
filed no response to the motion for contempt. Rather, the motion to dismiss was filed
by the Wunderbar Companies, which contended that the DPSG Companies are
separate entities. The Court also did “not make a fact-finding as to whether these
[four] entities are separate or the same.” Nevertheless, the trial court denied the
motion to dismiss as to the Wunderbar Companies because they had previously
unsuccessfully litigated the issues of personal jurisdiction and venue and had waived
9
their service-related objections by failing to raise them at the September 5, 2024
hearing on the first motion to compel. The trial court further found that Fincher and
the Wunderbar Companies were in willful contempt of the February 28, 2025 order
granting the motion to compel based on Fincher’s designation of himself as the
corporate representative of all four companies14 and his failure to be deposed. The trial
court assessed a $500 penalty against Fincher and the Wunderbar Companies, ordered
the Wunderbar Companies to respond to outstanding discovery requests, and ordered
Fincher to provide his availability for a virtual deposition.
The Wunderbar Companies now appeal, enumerating four errors: the trial court
erred by (1) permitting the Appellees to substitute non-judgment debtors into the
proceedings by adding them to the caption in direct contradiction of C-Staff, Inc. v.
Liberty Mut. Ins. Co., 275 Ga. 624 (571 SE2d 383) (2002); (2) compelling the
depositions of the Wunderbar Companies’ corporate representative (a) without
proper service and (b) as a fishing expedition into the assets of non-judgment debtors;
(3) denying the motion to dismiss in contravention of C-Staff and on the basis that
service was waived; and (4) granting the motion for contempt and sanctions because
14
As set forth earlier, Fincher’s letter does not specifically state for which companies he designated himself as the corporate representative, instead simply referring to companies in the plural.
10
the underlying discovery order was void, exceeded the scope of the underlying
discovery order, and granted relief against non-parties who had not been joined.
1. In two enumerations of error (1 and 3), the Wunderbar Companies contend
that the trial court erred by denying their motion to dismiss by (a) allowing the
Appellees to implead them into post-judgment proceedings against the DPSG
Companies in violation of C-Staff; and (b) finding they waived service. We agree.
(a) In C-Staff, the Supreme Court of Georgia addressed “whether OCGA § 9-11-69 authorizes a judgment creditor to implead and hold liable persons who were not
parties to the underlying judgment.” 275 Ga. at 624. The Court held “that it does not.
In Georgia, a judgment[ ]creditor must initiate a separate civil action against persons
it claims are liable for a judgment to which they were not parties by filing a complaint
and serving the defendants under the procedures set forth in the Civil Practice Act.”
Id. Nonetheless, OCGA § 9-11-69, which governs post-judgment discovery,
pertinently provides that “[i]n aid of the judgment or execution, the judgment creditor
... may do any or all of the following: (1) [e]xamine any person ... by taking depositions
or propounding interrogatories; [and] (2) [c]ompel the production of documents or
things[.]” (emphasis added). OCGA § 9-11-69 does not require the initiation of
separate proceedings against the third parties from which post-judgment discovery is
11
sought. See id. And, in C-Staff, the plaintiff obtained post-judgment discovery from
non-parties “[a]s part of its efforts to locate assets to satisfy the judgment” prior to
any attempt to hold such non-parties liable for the underlying judgment. 275 Ga. at
624. The Supreme Court of Georgia condemned only the plaintiff’s actions in
attempting to assert liability against these non-parties absent a separate complaint, not
the post-judgment discovery efforts themselves. See id. at 626(2).
A review of the record demonstrates that the Appellees’ goal is to depose
Fincher about all of his various companies in an effort to trace the DPSG Companies’
assets and satisfy the judgment against them. Doing so through post-judgment
discovery is proper. What the Appellees cannot do, however, is change the style of a
case to add new parties without following the proper procedure, especially when the
Wunderbar Companies appeared specially and objected to personal jurisdiction.
(b) The trial court’s final order denying the motion to dismiss on the ground
that the Wunderbar Companies waived service of an earlier filing is belied by the
record. The order upon which the trial court based the finding of waiver arose out of
the September 2024 hearing on a motion to compel discovery against the DPSG
Companies. The motion to compel was served only on those entities. A finding by the
trial court that it had personal jurisdiction over the DPSG Companies is not a finding
12
of personal jurisdiction over the Wunderbar Companies. There is no mention of
service in the September 10, 2024 order, nor any discussion of the Wunderbar
Companies. Pretermitting whether waiver of service as to one post-judgment filing can
waive service as to a second post-judgment filing, there is no finding of service as to
the motion to compel the Wunderbar Companies, nor is there evidence that would
support such a finding. Thus, to the extent that the trial court’s orders have attempted
to add the Wunderbar Companies as parties to the case, the trial court erred, and the
denial of the motion to dismiss is reversed.
2. The Wunderbar Companies’ remaining enumerations of error (2 and 4)
contend that the trial court erred by granting the Appellees’ motion to compel the
Rule 30(b)(6) depositions of the Wunderbar Companies’ corporate representative and
by granting the motion for contempt and for sanctions based on Fincher’s failure to
be deposed. Because there has been no proper service of any of the motions or
discovery on the Wunderbar Companies, we agree and reverse.
Generally, a civil action does not conclude at judgment and includes postjudgment proceedings arising from the proceedings that produced the judgment. See
Workman v. RL BB ACQ I-GA CVL, LLC, 303 Ga. 693, 696(1) (814 SE2d 696) (2018)
(“[I]t would be peculiar that an ‘action’ would include proceedings to establish a right
13
but not subsequent efforts to enforce that right[.]”) (emphasis omitted).15 Thus, postjudgment proceedings do not trigger the procedural protections of OCGA § 9-11-4
requiring the filing and service of a complaint to initiate a new civil action. See OCGA
§§ 9-11-3(a) (“A civil action is commenced by filing a complaint with the court.”), 9-11-4 (describing the process required following the filing of a complaint). Instead,
post-judgment proceedings are “pleading[s] subsequent to the original complaint[,]”
OCGA § 9-11-5(a), and are governed by the general service requirements of OCGA
§ 9-11-5(b), which authorize statutory electronic service on counsel. See OCGA §§
9-11-5(f)(4) (“When an attorney files a pleading in a case via an electronic filing
service provider, such attorney shall be deemed to have consented to be served
electronically with future pleadings for such case at the primary email address on
record with the electronic filing service provider.”), 9-11-69 (“[T]aking depositions
or propounding interrogatories ... [may be done] in the manner provided in this
chapter for such discovery measures prior to judgment.”).
This is true for parties to the underlying litigation, but “for the trial court to
15
Although OCGA § 15-6-77(e)(1) requires clerks to assign a new case number to “any postjudgment proceeding filed more than 30 days after judgment or dismissal in an action[,]” it states that such proceedings “shall be considered as a new case for the purposes of this Code section” (emphasis added), clarifying that this provision refers only to court costs and fees.
14
obtain personal jurisdiction over [a] nonparty, the nonparty must be served with some
form of summons or the equivalent of it.” Ga. Pain & Wellness Ctr., LLC, v. Hatchett,
368 Ga. App. 215, 219(1) (888 SE2d 650) (2023) (emphasis in original). See also the
Uniform Interstate Depositions and Discovery Act, OCGA § 24-13-110 et seq. (setting
forth the procedures required to subpoena and depose out-of-state witnesses).
The Wunderbar Companies were not parties to the underlying lawsuit, and as
such were entitled to proper service for obtaining discovery against a non-party.16 In
denying the Wunderbar Companies’ motion to dismiss, the trial court relied on an
earlier finding that it had personal jurisdiction. But the transcript of the September,
2024 hearing is not in the record, and the trial court’s written order, which supersedes
any oral rulings that may have occurred, states that it has personal jurisdiction over the
“Respondents/Judgment Debtors” identified in the style and confirmed by the
Appellees as the Georgia entities against whom the judgment was obtained. Those are
the DPSG Companies. The order makes no findings as to the Wunderbar Companies.
With respect to service of the motion to compel leading up to the trial court’s
16
The record reflects that the Wunderbar Companies are Virginia companies separate and distinct from the DPSG Companies. We make no finding as to whether Fincher intended to utilize the Wunderbar Companies to evade the judgment or has otherwise commingled the companies’ assets, which issues may be explored in properly effectuated post-judgment discovery.
15
final order, there is no dispute that the Appellees’ proof of service and the affidavits
of service of the private process server show that it was served on only the DPSG
Companies via their registered agent in Georgia. This is insufficient to establish
proper service on a Virginia corporation.17 As such, there was no basis for compelling
the Wunderbar Companies to appear for a deposition or otherwise respond to
discovery. Similarly, there is no basis to hold the Wunderbar Companies in contempt.
Accordingly, the trial court’s final order finding the Wunderbar Companies in
contempt and compelling them to appear for a deposition and respond to discovery
is reversed.
3. In light of our holdings, the Wunderbar Companies’ assertion that the order
granting the Appellees’ motion to compel Rule 30(b)(6) depositions exceeded the
bounds of post-judgment discovery is moot.
Judgment affirmed in part and reversed in part. Davis, J., and Senior Judge C.
Andrew Fuller concur.
17
Although the Appellees claim that the motion to compel was served on counsel for the Wunderbar Companies via statutory electronic service, there is no certificate of service for this pleading in the record.
16