Vining v

Kimoto USA, Inc., 209 Ga. App. 296, 433 S.E.2d 342 (1993). Plaintiff ’s intentional failure to attend the plaintiff ’s deposition and answer discovery requests warranted dismissal of the complaint, and the fact that the defendant also failed to respond to discovery did not excuse the plaintiff ’s failure to comply with the rules. West v. Equifax Credit Info. Servs., Inc., 230 Ga. App. 41, 495 S.E.2d 300 (1998). Trial court could determine that the plaintiff ’s noncompliance was intentional based on evidence that the plaintiff failed to respond to requested discovery or to appear at the deposition without excuse or justification for the plaintiff ’s nonappearance. Rivers v. Almand, 241 Ga. App. 565, 527 S.E.2d 572 (1999). Trial court’s striking of the home owners’ complaint in their civil action, arising from allegedly defective construction issues, was not an abuse of discretion pursuant to O.C.G.A. § 9-11-37(b)(2)(C) be- 9-11-37 cause the owners wilfully failed to comply with discovery requests, despite repeated warnings and orders over an ongoing period of time; there was a motion for sanctions, which allowed the owners an opportunity to be heard on the matter, and the parties had made more than one attempt to resolve the discovery disputes, pursuant to Ga. Unif. Super. Ct. R. 6.4. Gropper v. STO Corp., 276 Ga. App. 272, 623 S.E.2d 175 (2005). Finding of willful failure is necessary before trial judge is authorized to enter default judgment against a disobedient defendant. Frady v. Irvin, 245 Ga. 307, 264 S.E.2d 866 (1980). Failure to make findings of willfulness not always reversible error. — Although it is the better practice to make a specific finding of willfulness, it is not reversible error for the trial court to fail to do so, particularly if the motion for sanctions alleges willful conduct. Phillips v. Peachtree Hous., 138 Ga. App. 596, 226 S.E.2d 616 (1976). Specific finding of willfulness in judgment not necessary. — Law authorizes the imposition of sanctions striking the defendant’s pleadings when the failure to answer interrogatories is willful, but there is no requirement that the court make a specific finding in the court’s judgment that such failure to answer was willful. Smith v. Byess, 127 Ga. App. 39, 192 S.E.2d 552 (1972). Trial court’s finding that the litigant’s failure to answer was willful need not be explicitly stated in the court’s order because it is implicit in the judgment itself that the court made such finding of willfulness. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Echols, 138 Ga. App. 593, 226 S.E.2d 742 (1976). Finding that the plaintiff not only failed to respond to the defendants’ interrogatories in a timely fashion, but failed to seek an extension of time and failed even to contact the defendants concerning the problem, or even to respond to the defendants’ motion to dismiss, was sufficient to authorize the trial court to dismiss the complaint. There is no requirement that the plaintiff display and the trial court find actual ‘‘wilfulness,’’ only a ‘‘conscious or intentional failure to act,’’ as distin- 533 Failure to Respond to Discovery Requests (Cont’d) guished from an accidental or involuntary noncompliance. Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga. App. 344, 373 S.E.2d 50 (1988); Roberts v. Maren Eng’g Corp., 225 Ga. App. 110, 483 S.E.2d 141 (1997). There is no requirement that the plaintiff display and the trial court find actual willfulness. The sanction of dismissal for failure to comply with discovery provisions requires only a conscious or intentional failure to act as distinguished from an accidental or involuntary non-compliance. A conscious or intentional failure to act is in fact willful. Dyer v. Spectrum Eng’g, Inc., 245 Ga. App. 30, 537 S.E.2d 175 (2000). Sanctions not authorized despite false swearing. — When the defendant answered the interrogatories and appeared for the defendant’s deposition, thereby making the initial response required by subsection (d) of O.C.G.A. § 9-11-37, the sanctions imposed, striking the defendant’s answer and enteringa default judgment finding the defendant liable, were not authorized, although the defendant’s false swearing was found to have been deliberate, without an excuse, in an attempt to secrete facts from the court. Wills v. McAuley, 166 Ga. App. 4, 303 S.E.2d 26, cert. denied, 251 Ga. 41, 305 S.E.2d 120 (1983). Willful attempt to conceal document. — In an action for breach of an employment contract, the trial court did not err by imposing the sanction of dismissal after the court found that the plaintiff willfully attempted to conceal a document which could have had a major impact on the litigation. Santora v. American Combustion, Inc., 225 Ga. App. 771, 485 S.E.2d 34 (1997). Willful failure to appear at deposition. — Trial court is authorized to impose sanctions under subsection (d) of O.C.G.A. § 9-11-37 when a party has willfully failed to appear at a deposition. Cook v. Lassiter, 159 Ga. App. 24, 282 S.E.2d 680 (1981); Washington v. South Ga. Medical Ctr., 221 Ga. App. 640, 472 S.E.2d 328 (1996); James v. Gray, 229 Ga. App. 39, 494 S.E.2d 198 (1997); King v. Board of 9-11-37 Regentes of Univ. Sys. of Ga., 238 Ga. App. 4, 516 S.E.2d 581 (1999). There is no requirement that a trial court expressly find willful noncompliance in order to impose sanctions under O.C.G.A. § 9-11-37(d). Furthermore, it is unnecessary to issue an order compelling discovery under O.C.G.A. § 9-11-37(b) as a condition to imposing sanctions. Washington v. Harris, 259 Ga. App. 705, 578 S.E.2d 286 (2003). Late filing of answers. — Since the record showed that answers were not filed until 65 days after the interrogatories were filed and served by mail, long after the time for timely responses, the trial court did not abuse the court’s discretion in striking the company’s defenses in an action brought for toxic gas leaks. Kemira, Inc. v. Amory, 210 Ga. App. 48, 435 S.E.2d 236 (1993). Late answers to interrogatories which are filed after propounder has filed motion seeking sanction of dismissal do not nullify the motion. To hold otherwise would completely nullify the effect of subsection (d) of O.C.G.A. § 9-11-37, for routine acceptance of late filing would have the effect of casting the procedure for sanctions for late filing under subsections (a), (b), and (c) of that section, requiring an order and that order’s violation before sanctions could be imposed, and thereby precluding the sanctions of subsection (d) of that section and vitiating the discretion of the trial court. Rucker v. Blakey, 157 Ga. App. 615, 278 S.E.2d 158 (1981). Dismissal under subsection (d) of this section is discretionary. Old S. Inv. Co. v. Aetna Ins. Co., 124 Ga. App. 697, 185 S.E.2d 584 (1971). Dismissal and default proper only in flagrant cases. — Drastic sanctions of dismissal and default cannot be invoked under subsection (d) of this section except in the most flagrant cases, when the failure is willful, in bad faith, or in conscious disregard of an order. Delta Equities, Inc. v. Berry, 127 Ga. App. 590, 194 S.E.2d 284 (1972). Defendant’s statement that the defendant would never obey an order of court requiring that the defendant divulge news sources, the defendant’s consistent resort 534 to evasive and incomplete responses throughout the defendant’s deposition, and the defendant’s failure to offer a legal basis for the defendant’s refusal to testify when invited to do so during the deposition, supported the trial court’s conclusion that the defendant was not acting in good faith, and the court’s dismissal of the defendant’s defensive pleadings to the defamation action was proper. Georgia Communications Corp. v. Horne, 164 Ga. App. 227, 294 S.E.2d 725 (1982). Pursuant to paragraph (d)(1) of O.C.G.A. § 9-11-37, the trial court may impose the immediate sanction of dismissal for the plaintiff ’s failure to respond to the defendant’s discovery requests. Evans v. East Coast Intermodal Sys., 191 Ga. App. 749, 382 S.E.2d 743 (1989). Trial court did not abuse the court’s discretion in striking the respondent’s defensive pleadings and entering a default judgment in favor of her former husband in a paternity proceeding, after she willfully and without any legal justification refused to obey the court’s order that she submit to a blood test. Roderiquez v. Saylor, 190 Ga. App. 742, 380 S.E.2d 339 (1989). Trial court properly issued an order finding the plaintiff had willfully failed to comply with the court’s earlier order and dismissing the plaintiff ’s complaint with prejudice, since the plaintiff failed to comply with the trial court’s order by failing to serve complete responses to interrogatories, to pay attorney fees and costs as ordered by the court, and to appear for deposition. Huff v. E.L. Davis Contracting Co., 195 Ga. App. 691, 394 S.E.2d 615 (1990). Dismissal for conscious or intentional failure. — Harsh sanctions of dismissal or default provided in subsection (d) of this section against a party for willfully failing to appear before an officer for the taking of a deposition apply only when there is a conscious or intentional failure to appear as distinguished from an accidental or involuntary noncompliance. Smith v. Mullinax, 122 Ga. App. 833, 178 S.E.2d 909 (1970). Accidental or involuntary noncompliance. — Sanction of dismissal for failure to comply with discovery provisions 9-11-37 requires a conscious or intentional failure to act as distinguished from an accidental or involuntary noncompliance. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Echols, 138 Ga. App. 593, 226 S.E.2d 742 (1976). When the only reason set forth by the party who failed to respond to discovery does not show the failure was accidental or involuntary, dismissal is appropriate. Barron v. Spanier, 198 Ga. App. 801, 403 S.E.2d 88 (1991). Dismissal permitted for willful failure to answer. — Subsection (d) of this section allows the court to dismiss a complaint without first issuing an order to comply when a party has willfully failed to answer propounded interrogatories. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Echols, 138 Ga. App. 593, 226 S.E.2d 742 (1976). Mistrial declared. — When the defendant proffered evidence at trial that should have been disclosed during discovery, the trial court’s declaration of a mistrial was proper. Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 452 S.E.2d 159 (1994). Failure to cooperate with counsel as willful misconduct. — Failure to maintain contact and cooperate with counsel about pending litigation so that discovery can be made is willful misconduct for purposes of sanctions under subsection (d) of this section. Phillips v. Peachtree Hous., 138 Ga. App. 596, 226 S.E.2d 616 (1976). Willful failure to answer by attorney in fact. — When a nonresident defendant authorized the defendant’s attorney to act as the defendant’s attorney in fact to do all things necessary in defense of the law suit, the trial judge did not abuse the judge’s discretion in finding willful failure to answer interrogatories and in imposing the harsh sanction of striking the defendant’s answer and entering a default judgment. Gregory v. King Plumbing, Inc., 127 Ga. App. 512, 194 S.E.2d 271 (1972). An evasive answer does not authorize entry of penalties under subsection (d) of this section. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979). 535 Failure to Respond to Discovery Requests (Cont’d) Dismissal of a complaint as a sanction for giving partial and evasive answers to certain interrogatories was an abuse of discretion when no order was ever entered requiring that the party provide more complete responses to the interrogatories. Strejc v. Metropolitan Atlanta Rapid Transit Auth., 197 Ga. App. 88, 397 S.E.2d 501 (1990). Imposition of penalties under subsection (d) of O.C.G.A. § 9-11-37 is limited to an absolute failure to respond. When an evasive or incomplete response is given, the proper remedy is a motion to compel resulting in a court order under subsection (a). Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 452 S.E.2d 159 (1994). Inadequate response not equivalent to total failure. — Response to the order to compel, although inadequate, should not have been treated as a total failure to respond under subsection (d) of this section so as to authorize imposition of the ultimate sanction; the court, in ordering further discovery after finding answers insufficient, could have set forth with specificity the details the answering party was to furnish, and if, after being compelled to supply enumerated deficiencies, the answering party failed to respond either in a timely fashion or in exact accordance with the order, a subsequent order granting judgment by default would be justified. Thornton v. Burson, 151 Ga. App. 456, 260 S.E.2d 388 (1979). Trial court abused the court’s discretion in dismissing the plaintiff ’s complaint with prejudice after the defendant did not contend that the plaintiff had failed to respond to interrogatories but only that the answers given were insufficient. Holt v. Brown, 177 Ga. App. 823, 341 S.E.2d 486 (1986). Entry of default for answer by one not qualified to act as agent error. — Since a party answering interrogatories for a corporation was not qualified to speak as the party’s agent, the court could have issued an order under subsection (a) of this section, and it was error to strike the defendant’s response and enter a de- 9-11-37 fault judgment, treating the defendant’s inadequate answer as a total failure to make an initial response under subsection (d) of this section. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979). Since subsection (d) of this section is intended to enforce the duty to respond to interrogatories, imposition of sanctions thereunder was error when the defendant corporation attempted to respond to interrogatories, through an individual who was adjudged not qualified to speak as an agent of the corporation. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 254 S.E.2d 825 (1979). Default not proper in face of pending motion for protective order. — When a motion for a protective order concerning interrogatories has not been ruled upon, entry of a default judgment for failure to answer under subsection (d) of this section is error. Corey v. Renard, 151 Ga. App. 584, 260 S.E.2d 538 (1979); Dismuke v. Dismuke, 195 Ga. App. 613, 394 S.E.2d 371 (1990), cert. denied, 1995 Ga. LEXIS 1050 (1995), cert. denied, 1999 Ga. LEXIS 39 (1999). Nonspecific request for sanctions permissible. — Nonspecific request for sanctions to punish a failure to respond to interrogatories is permissible under subsection (d) of this section. Mayer v. Interstate Fire Ins. Co., 243 Ga. 435, 254 S.E.2d 825 (1979). No authority to impose subsection (d) sanctions if response filed. — Authority to apply sanctions under subsection (d) of this section for complete failure to respond to notice to produce and for failure to answer interrogatories is lost once response has been filed and interrogatories have been answered. Rollins Communications, Inc. v. Henderson, Few & Co., 140 Ga. App. 504, 231 S.E.2d 412 (1976). Right to seek sanctions is waived when answer filed. — Once answers to interrogatories are filed, even though filed late, the propounder waives the right to ask the court to apply sanctions under subsection (d) of this section. Bratten Apparel, Inc. v. Lyons Textile Mill, Inc., 129 Ga. App. 384, 199 S.E.2d 632 (1973). Absent timely motion, authority to ap- 536 ply sanctions enumerated in subsection (d) of this section is lost once answers to interrogatories are filed, even though the answers are filed late, because once such answers are filed the propounder waives the right to ask the court to apply sanctions under subsection (d). Record Shack of Atlanta, Inc. v. Daugherty, 147 Ga. App. 753, 250 S.E.2d 154 (1978). Sanctions not precluded by late response after motion. — Once a motion for sanctions under subsection (d) of this section has been filed, the opposite party may not preclude their imposition by making a belated response at the hearing. Houston Gen. Ins. Co. v. Stein Steel & Supply Co., 134 Ga. App. 624, 215 S.E.2d 511 (1975); Wetherington v. Koepenick & Horne, Inc., 153 Ga. App. 302, 265 S.E.2d 107 (1980). Once motion for sanctions has been filed, the opposite party may not preclude their imposition by making a belated response in the interim before the hearing or at the hearing itself. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Echols, 138 Ga. App. 593, 226 S.E.2d 742 (1976). Trial court did not lose the court’s authority to impose sanctions due to the defendant’s failure to respond to interrogatories simply because answers to the interrogatories were eventually filed following the motion for sanctions and prior to the hearing. Danger v. Strother, 171 Ga. App. 607, 320 S.E.2d 613 (1984). Once a motion for sanctions is filed for failure to respond to interrogatories, sanctions may be entered under paragraph (d)(1) of O.C.G.A. § 9-11-37, even if responses are subsequently filed. Gazelah v. Rome Gen. Practice, Inc., 232 Ga. App. 343, 502 S.E.2d 251 (1998). Sanctions not avoided by attack on request. — Party who fails to respond to a set of interrogatories cannot avoid sanctions by contending that the request for interrogatories was improper or objectionable. Sneider v. English, 129 Ga. App. 638, 200 S.E.2d 469 (1973). Failure to act in good faith supported award. — In a suit for breach of contract, trade secret misappropriations, and other business tort claims, the trial court did not abuse the court’s discretion by ordering sanctions for discovery viola- 9-11-37 tions upon the defendants, including attorney fees, because the trial court concluded that the defendants did not act in good faith compliance with the protective order when the defendants marked more than 129,000 discovery documents confidential. Hull v. WTI, Inc., 322 Ga. App. 304, 744 S.E.2d 825 (2013). Refusal of sanctions as abuse of discretion. — Although the terms of subsection (d) of this section are discretionary, there may be circumstances when refusal of a party to appear for taking of depositions after proper notice is so flagrantly willful and productive of injury to the other side that it would be an abuse of discretion on the part of the trial court to refuse punitive action. Hohlstein v. White, 117 Ga. App. 207, 160 S.E.2d 232 (1968). Trial court abused the court’s discretion in denying the plaintiff ’s motion for sanctions after the defendant delayed in responding to the plaintiff ’s interrogatories for 14 months with no apparent justification, while placing on plaintiff the expense of responding to the defendant’s own discovery and the expense and delay of moving for the court’s intervention. Vlasz v. Schweikhardt, 178 Ga. App. 512, 343 S.E.2d 749 (1986). Dismissal of earlier complaint justifies later summary judgment for same claim for relief. — Trial court did not err in granting a motion for summary judgment based upon the defense of res judicata, following dismissal of an earlier complaint, containing exactly the same material allegations and asserting the same claim for relief, for failure to answer interrogatories. Brantley v. Sparks, 167 Ga. App. 323, 306 S.E.2d 337 (1983). Denial of a motion to apply sanctions was not an abuse of discretion since the evidence showed the failure to comply with interrogatories was caused by counsel being a considerable distance from the client and the fact that the client’s occupation was a hindrance to the completion of the interrogatories before another lawyer who had similar scheduling problems. Hiney v. Bennaman, 177 Ga. App. 753, 341 S.E.2d 284 (1986). Since the discovery sanction hearing was not transcribed, the appellate court assumed the trial court’s action in 537 Failure to Respond to Discovery Requests (Cont’d) imposing sanctions was supported by the record; there was no abuse of discretion in the striking of the city’s answer and the entry of default judgment against the city as sanctions for the failure to fully comply with discovery requests. City of Atlanta v. Paulk, 274 Ga. App. 10, 616 S.E.2d 210 (2005). Failure of party either to respond to interrogatories or to seek protective order authorizes the imposition of immediate sanctions without the preliminary necessity of an order to compel. Bryant v. Nationwide Ins. Co., 183 Ga. App. 577, 359 S.E.2d 441 (1987) (dismissal of complaint not abuse of discretion). Failure to verify answers. — Plaintiff ’s failure to verify the plaintiff ’s interrogatory answers does not constitute a willful total failure to respond and, therefore, did not justify the sanction of dismissing the defendant’s complaint since the responses were submitted on behalf of two plaintiffs prior to the motion for sanctions and since the second signed and verified the answers. Rivers v. Goodson, 184 Ga. App. 70, 360 S.E.2d 740 (1987). Plaintiff ’s failure to appear at a deposition and to pay certain court-ordered attorney fees warrants the extreme sanction of dismissal of the offending party’s pleadings. Peoples v. Yu, 184 Ga. App. 252, 361 S.E.2d 244 (1987). Response after filing of motion for sanctions. — Once a motion for sanctions has been filed, imposition of sanctions cannot be precluded by a belated response 9-11-37 made by the opposite party. Rogers v. Sharpe, 206 Ga. App. 353, 425 S.E.2d 391 (1992). Assessment of reasonable expenses authorized. — Among the sanctions imposed by subsection (d) of this section is the assessment of reasonable expenses occasioned by the failure. Kruger v. Kruger, 146 Ga. App. 461, 246 S.E.2d 469 (1978). Proof of damages after imposition of default sanction. — Although subsection (d) of Ga. L. 1970, p. 157, § 1 (see now O.C.G.A. § 9-11-37) is silent on the question of necessity of proof of damages when the sanction of judgment by default has been imposed against a disobedient party, the principles of Ga. L. 1967, p. 226, § 24 (see now O.C.G.A. § 9-11-55(a)) should apply to a judgment by default imposed under subsection (d) of Ga. L. 1970, p. 157, § 1. House v. Hewett Studios, Inc., 125 Ga. App. 127, 186 S.E.2d 584 (1971); Sterling Factors v. Whelan, 245 B.R. 698 (N.D. Ga. 2000). Sanctions proper for discovery abuse. — In a negligence case, a trial court did not abuse the court’s discretion by striking the defendants’ joint answer and counterclaim as a sanction for discovery abuse because the evidence established that the defendants intentionally and in bad faith concealed damaging evidence by repairing the tractor trailer and destroying information from the computer units involved in the accident, provided false answers to interrogatories, and the plaintiff was prejudiced by the misconduct. Howard v. Alegria, 321 Ga. App. 178, 739 S.E.2d 95 (2013).