Erika Birg v. Emory University

FOURTH DIVISION
MCFADDEN, P. J.,
WATKINS and PADGETT, JJ.

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.us/rules

June 15, 2026

In the Court of Appeals of Georgia
A26A0162. BIRG v. EMORY UNIVERSITY.

MCFADDEN, Presiding Judge.

This appeal challenges an award under OCGA § 9-11-37 (a) (4) (A) for attorney

fees allegedly incurred in relation to the filing of a motion for a protective order that

had been withdrawn.1 Because attorney fees may be awarded under that code section

only after such a motion has been granted, the trial court erred in awarding fees based

on the withdrawn motion. So we reverse.

1. Facts and procedural posture

1
Oral argument was held in this case on December 16, 2025, and is archived on
the court’s website. See Court of Appeals of Georgia, Oral Argument, Case No.
A26A0162 (Dec. 16, 2025), available at https://vimeo.com/1148067623.
Erika Birg filed a complaint against Barbara Sanders-Norwood, in her official

capacity as Clerk of the DeKalb County Board of Commissioners, alleging a violation

of the Georgia Open Records Act concerning a request for documents related to bond

funding for the “Emory Trail Plan with PATH Trail Master Plan Agreement.” Birg

served a request for production of documents on non-party Emory University. Emory

filed a motion for a protective order under OCGA § 9-11-26 (c), seeking an order

“precluding further response” to Birg’s request for production of documents. In the

motion, Emory also requested an award of attorney fees under OCGA § 9-11-37. The

trial court held a hearing on the motion for a protective order, but never entered an

order on it.

Birg and Sanders-Norwood eventually settled the open records lawsuit and filed

a joint stipulation of dismissal with prejudice. The trial court then requested that

Emory withdraw its pending motion for a protective order as moot. Emory

subsequently filed a motion to withdraw its motion for a protective order, stating in

the motion to withdraw that “given the dismissal of the underlying lawsuit with

prejudice, there is no need for [a] protective order vis-a-vis the discovery sought from

Non-Party Emory. To that end, Emory withdraws its request for a protective order.”

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(punctuation omitted). But Emory maintained in the motion to withdraw that it was

still entitled to pursue attorney fees under OCGA § 9-11-37. The trial court entered

an order granting Emory’s motion to withdraw its motion for a protective order as

moot.

Thereafter, the trial court held a hearing on Emory’s request for attorney fees

under OCGA § 9-11-37 (a) (4) (A). At that hearing, counsel for Emory admitted that

the court never entered an order on Emory’s motion for a protective order and that

Emory had withdrawn that motion. Counsel for Birg argued, among other things, that

OCGA § 9-11-37 (a) (4) (A) authorized attorney fees only if the motion for protective

order had been granted, but that Emory’s motion was not granted and instead had

been withdrawn.

After the hearing, the trial court entered an order granting Emory’s request for

attorney fees. In that order, the trial court stated that it had orally granted the motion

for a protective order at the hearing on that motion, but that it “did not enter an Order

granting Emory’s Motion for Protective Order before the closure of the [underlying]

case despite every intention to do so.” The court went on to conclude that because

Emory “was meritorious” on the motion for a protective order and Birg was not

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substantially justified in opposing it, Emory was entitled to an award of attorney fees

under OCGA § 9-11-37 (a) (4) (A) in the amount of $20,417. Birg appeals from that

order.

2. OCGA § 9-11-37 (a) (4) (A)

Birg asserts that the trial court erred in awarding attorney fees under OCGA §

9-11-37 (a) (4) (A) based on Emory’s motion for a protective order because that

motion was never granted and instead was withdrawn. We agree.

In a civil lawsuit in Georgia, the discovery process allows litigants
to gather information about a case from other litigants and third parties
in an orderly and defined manner. Georgia, like most states, also provides
various mechanisms for litigants and third parties to seek relief from the
demands of discovery. One such method is by moving for a protective
order under OCGA § 9-11-26 (c), which provides that upon a showing
of “good cause,” a trial court “may make any order which justice
requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense,” including limiting or
otherwise prohibiting the requested discovery.

General Motors v. Buchanan, 313 Ga. 811 (874 SE2d 52) (2022).

OCGA § 9-11-26 (c) further provides that “[p]aragraph (4) of subsection (a) of

Code Section 9-11-37 applies to the award of expenses incurred in relation to the

motion [for a protective order].” Under OCGA § 9-11-37 (a) (4) (A):

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If the motion is granted, the court shall . . . require the party . . . whose
conduct necessitated the motion . . . to pay to the moving party the
reasonable expenses incurred in obtaining the order, including attorney’s
fees, unless the court finds that the opposition to the motion was
substantially justified or that other circumstances make an award of
expenses unjust.

(Emphasis supplied). OCGA § 9-11-37 (a) (4) (A) thus provides for the “granting of

expenses in the event the protective order is granted. Under that provision, granting a

protective motion is a condition precedent to granting expenses[.]” Workman v. RL BB

ACQ I-GA CVL, LLC, 303 Ga. 693, 699 (2) (814 SE2d 696) (2018) (footnote omitted;

emphasis supplied).

In the instant case, it is undisputed that the trial court never entered an order

granting Emory’s motion for a protective order. Rather, the only order entered by the

trial court pertaining to that motion was the order granting Emory’s motion to

withdraw it as moot. The withdrawn motion for a protective order was thus

extinguished before the entry of any order by the court on it. See Clemons v. State, 371

Ga. App. 638, 639 (900 SE2d 315) (2024) (characterizing a withdrawn motion as an

“extinguished motion”); Garcia v. Shaw Indus., 321 Ga. App. 48, 55 (2) (741 SE2d

285) (2013) (finding that party who withdrew a motion abandoned any argument

regarding the motion); 56 Am. Jur. 2d Motions, Rules and Orders § 31 (2009) (“The

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effect of withdrawal of a motion is to leave the record as it stood prior to the filing . .

. as though the motion had never been made.”).

It is true that in the order awarding attorney fees the trial judge indicated that

she had orally pronounced her intent to grant the motion for a protective order at the

hearing on that motion.2 “But an oral pronouncement by a trial court during a hearing

is not a judgment until it is reduced to writing and entered as a judgment.” Davis v.

Taylor, 370 Ga. App. 837, 848 (7) (a) (898 SE2d 574) (2024) (citation and punctuation

omitted). Accord Williams v. Williams, 295 Ga. 113, 114 (1) (757 SE2d 859) (2014) (an

oral pronouncement of a trial court is not binding until reduced to writing and entered

as a judgment). Indeed, “until an oral pronouncement is memorialized, the trial judge

has broad discretion to amend, alter, or completely change his [or her] decision[.]”

Mondy v. Magnolia Advanced Materials, 303 Ga. 764, 772 (4) (b) (815 SE2d 70) (2018).

So “[a]lthough the trial court [may have] orally indicated that she was [granting] the

[motion] for a [discovery] protective order . . . , there is no written order doing so.”

Babinsack v. Alfonso-Garcia, 337 Ga. App. 113, 114 (2) (786 SE2d 501) (2016). And

since “whatever transpired at that hearing was never reduced to any form of written

2
There is no transcript of the hearing on the motion for a protective order.
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judgment[, it] thus had no binding effect.” Jones v. Jones, 298 Ga. 762, 766 (1) (787

SE2d 682) (2016).

Consequently, the condition precedent for an award of attorney fees under

OCGA § 9-11-37 (a) (4) (A) — the grant of Emory’s motion for a protective order —

was not satisfied. Instead, the trial court granted Emory’s motion to withdraw that

motion as moot before the court ever entered an order on it. The trial court therefore

erred in awarding attorney fees under OCGA § 9-11-37 (a) (4) (A) based on a

withdrawn motion.3 Because Emory “was not entitled to an award of attorney fees

under OCGA § 9-11-37 (a) (4) (A) . . . , we reverse the trial court’s . . . order.” Allison

v. Wilson, 320 Ga. App. 629, 638 (5) (740 SE2d 355) (2013).

3. Other enumerations of error

Given our holding above, we “find it unnecessary to consider [Birg’s] other

challenges to the attorney fee award.” Allison, supra at 638 (5), n. 15.

Judgment reversed. Watkins and Padgett, JJ., concur.

3
We note that Emory claims that the court’s order granting Emory’s motion
to withdraw the motion for a protective order was an interlocutory order that the trial
court modified in the order on attorney fees. But the court did no such thing in the
attorney fees order. In that order, the trial court never mentioned its prior order
granting Emory’s motion to withdraw the motion for a protective order and it did not
otherwise modify or change that prior order.
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