ASAP Healthcare Network, Inc. v. Southwest Hosp. & Medical Center
Decision Date | 14 October 2004 |
Docket Number | No. A04A1506.,A04A1506. |
Citation | 606 S.E.2d 98,270 Ga. App. 76 |
Court | Georgia Court of Appeals |
Parties | ASAP HEALTHCARE NETWORK, INC. v. SOUTHWEST HOSPITAL & MEDICAL CENTER, INC. |
OPINION TEXT STARTS HERE
Melanie A. Brubaker, Marietta, for appellant.
Smith Gambrell & Russell, Samira Jones, Matthew S. Coles, Atlanta, for appellee.
In this breach of contract and fraud action, ASAP Healthcare Network, Inc. ("ASAP") appeals the trial court's grant of Southwest Hospital & Medical Center, Inc.'s (the "Hospital") motion to dismiss for failure to respond to discovery. For reasons explained below, we reverse and remand this case to the trial court.
The record shows that ASAP filed its action against the Hospital on March 19, 2001, alleging that the Hospital owed it $113,926.66, plus interest and costs. The Hospital answered timely on April 23, 2001, admitting that it owed ASAP $93,030.50. On October 12, 2001, the Hospital filed Uniform Superior Court Rule 5.2 certificates of service of discovery, indicating that it served interrogatories and a request for production of documents to ASAP on that day. ASAP's responses were due on November 13, 2001. ASAP did not reply to the discovery.
Almost 18 months later on May 8, 2003, the Hospital faxed a letter to ASAP's counsel requesting responses to the discovery after a telephone call with counsel's paralegal, Frank Marx. According to Marx's affidavit, he discussed the amount that the Hospital owed to ASAP and asked for a consent order extending discovery, which the Hospital's counsel rejected because of ASAP's failure to respond to the discovery of October, 2001. Upon receipt of the Hospital's letter, ASAP faxed a letter requesting a copy of the discovery requests. Marx averred, however, that the outstanding discovery requests were in ASAP's file.
On May 15, 2003, ASAP mailed the discovery responses to the Hospital's counsel and a certificate of service of the discovery to the clerk of court.1 Also on May 15, 2003, the Hospital filed its motion to dismiss, for attorney fees, and alternatively to compel plaintiff to respond to the discovery, to which ASAP timely responded. The trial court did not conduct a hearing on the Hospital's motion. On August 12, 2003, the trial court entered an order granting the Hospital's motion to dismiss, from which ASAP appeals.
1. 2 ASAP argues that the trial court abused its discretion when it dismissed ASAP's action without holding a hearing on the Hospital's motion to dismiss. We agree.
No such opportunity was given here. 7
The general rule may be that, although a trial court may impose sanctions, including dismissal, against a plaintiff without a hearing when the plaintiff has completely ignored discovery, has not responded to a properly served motion for sanctions, and has failed to request a hearing on the motion, it may not impose the sanction of dismissal without a hearing where as here, the plaintiff has responded to discovery, albeit in a most tardy manner. In Barrego,8 we reversed the dismissal of the plaintiff's claims because the trial court failed to conduct a hearing on the defendant's motion for sanctions.9 In that case, the plaintiff failed to respond to discovery or to opposing counsel's letter regarding same, then filed a one-sentence response to the defendant's motion for sanctions and requested oral argument.10 In this case, ASAP did not request oral argument, but it opposed the motion to dismiss, responded to the discovery, and moved to reopen discovery. Nonetheless, the trial court dismissed ASAP's action without conducting a hearing. In light thereof, we must reverse the dismissal of ASAP's claims and remand the case to allow the trial court to conduct a hearing on the Hospital's motion. We also note that the sanction of dismissal may be impermissibly harsh when the defendant acknowledged in its answer that it owed the substantial sum of $93,030.50. It goes without saying that the filing of responses does not save the plaintiff from sanctions when the responses were more than 18 months late.
2. In light of our decision in Division 1, we need not address...
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