Avery v. Schneider

Decision Date13 March 2020
Docket NumberA19A2099
Parties AVERY v. D. Stephan SCHNEIDER, AS Parent and NEXT FRIEND OF Ashton L. SCHNEIDER et al.
CourtGeorgia Court of Appeals

Kirk W. Watkins, for Appellant.

David N. Baker, Alex Benjamin Kaufman, Atlanta, Jordan Bradley Forman, Atlanta, Robert Melvin Hammers Jr., Atlanta, Robert J. Kaufman, Atlanta, Ashley Gowder Mitchell, for Appellee.

Hodges, Judge.

This case arises out of a June 29, 2007 near-drowning incident involving Ashton L. Schneider. The plaintiffs, D. Stephan and Donna L. Schneider, are the parents and next friends of Ashton, who was a minor at the time of the incident. Troy Avery f/k/a Troy Legg1 ("Troy") appeals the trial court's final judgment against him after the court struck his answer due to discovery violations. For the reasons that follow, we affirm in part, reverse in part, and remand the case with direction.

At the outset, we note that Troy argues in his appellate brief that he was never served with the Schneiders’ amended complaint, filed on December 13, 2012, until he was "sitting in the courtroom before the bench trial was to begin" on August 21, 2018. The Schneiders counter that "[t]here is not a single cite to the Amended Complaint in the Findings of Fact and Conclusions of Law upon which the Final Judgment was based" and that Troy "did not, and could not, allege that he was not served with the original Complaint." Although the trial court's Findings of Fact and Conclusions of Law, in fact, do contain references to the Schneiders’ amended complaint paragraphs, we have limited our review in this appeal to the allegations contained in the Schneiders’ original complaint because the additional facts contained in the amended complaint are unnecessary for disposition of this appeal.

So viewed, the complaint in this case alleged that in 2007, 7-year-old Ashton suffered a near-fatal drowning while swimming at the Rosemont swimming pool in the Chapel Hills Community subdivision where she lived. The incident caused her "permanent neuropsychological impairments, cognitive deficits

and neurological injury." On November 14, 2011, the Schneiders sued a number of defendants, including Chapel Hills Community Association, Inc. ("Chapel Hills"), who was responsible for the supervision of Chapel Hills Community Homeowners Association; Premier Association Management ("Premier"), the property management arm of Chapel Hills; USA Pools and a number of related entities (collectively "USA Pools"),2 hired by Chapel Hills and Premier "to oversee the safety, maintenance and supervision of the pools located in the Chapel Hills Community Subdivision[;]" Stephani Clark, the lifeguard hired by USA Pools and on duty at the time of the incident; and individual defendants Troy and Robert Legg, "the officers, directors and the members of the board of Defendant USA Pools." Because Troy's appeal is the only one before us, this opinion has limited its recitation of the facts to those pertinent to the claims against Troy.

Following the filing of the complaint, Troy, Robert Legg, and USA Pools answered and engaged in discovery until the action was stayed pending the resolution of issues raised in a separately filed declaratory judgment action. In that action, summary judgment was granted to the insurer of USA Pools and all obligations under the insurance contract were obviated. The stay was lifted on May 11, 2016, the Schneiders moved to re-open discovery, and their request was granted.3

Troy, Robert Legg, and USA Pools, however, "willfully and intentionally refused to participate in discovery during the reopened discovery period[,]" even after the trial court ordered them to respond and participate in discovery. As a result, on May 8, 2018, the trial court struck the answers of, and entered default judgment against, Troy, Robert Legg,4 and USA Pools due to their refusal to participate in the litigation and their willful failure to comply with the court's order.

On August 21, 2018, the trial court held an evidentiary hearing, during which the Schneiders introduced 7 deposition transcripts, the testimony of 4 witnesses, and 30 exhibits without objection.5 Despite being present prior to the evidentiary hearing, Troy left the courtroom before the evidentiary hearing commenced. Troy's attorney, however, attended the hearing and cross-examined a few of the witnesses. After considering "all of the evidence and testimony," reviewing the entire record, and hearing the arguments of counsel, the trial court issued its 36-page "Findings of Fact and Conclusions of Law" and "Final Judgment" against Troy. Specifically, the court found the corporate veil of USA Pools had been pierced and Troy was personally liable to the Schneiders for negligence, intentional fraud, and punitive damages. The court awarded the Schneiders $500,000 in past pain and suffering, $500,000 in future pain and suffering, $1,000,000 on the fraud claim, and $3,000,000 in punitive damages.

Troy appeals, alleging the trial court erred in (1) finding him liable for negligence because there were no factual bases to find a duty, proximate cause, or damages, (2) finding him liable, after piercing the corporate veil, for any alleged duty of USA Pools to Ashton because there were no factual bases to find that USA Pools’ employee Clark was inadequately trained or that this was a proximate cause of Ashton's injuries, (3) finding him individually liable for any negligence of Clark because there were no factual bases to find Clark was inadequately trained or that this was a proximate cause of Ashton's injuries, (4) finding him liable for fraud because the evidence did not include all the elements of fraud or proximate cause, (5) finding USA Pools’ corporate veil had been pierced because the companies violated no duty to Ashton and were not the proximate cause of Ashton's injuries, and (6) awarding punitive damages against him because he had no underlying liability for which punitive damages could be appropriately applied.

1. In three related enumerations of error, Troy contends the trial court erred in finding that he and USA Pools were liable for negligently causing Ashton's injury and damage. Specifically, Troy asserts there were no factual bases to find (1) that he or USA Pools owed Ashton or her parents a duty, (2) that any negligence in inadequately training the lifeguard constituted a breach of duty, and (3) that even if Troy or USA Pools breached a duty owed to Ashton and her parents, such a breach proximately caused Ashton's injuries. We disagree with Troy's assertion that the factual allegations with which he takes issue were not well-pled in the Schneiders’ complaint. Moreover, additional evidence included in the record and introduced at the evidentiary hearing supports the trial court's conclusions.

OCGA § 9-11-55 (a) provides that when a case is in default, the plaintiff is entitled to judgment "as if every item and paragraph of the complaint or other original pleading were supported by proper evidence[.]" Georgia courts have consistently interpreted this statutory provision, holding that

a defendant in default is in the position of having admitted each and every material allegation of the plaintiff's petition except as to the amount of damages alleged. The default concludes the defendant's liability, and estops him from offering any defenses which would defeat the right of recovery.

(Citation and punctuation omitted.) Willis v. Allstate Ins. Co. , 321 Ga. App. 496, 498, 740 S.E.2d 413 (2013) ; Blue View Corp. v. Bell , 298 Ga. App. 277, 278 (1), 679 S.E.2d 739 (2009). That being said, although a judgment by default operates

as an admission by the defendant of the truth of the definite and certain allegations and the fair inferences and conclusions of fact to be drawn from the allegations of the declaration[,] [c]onclusions of law and facts not well pleaded and forced inferences are not admitted by a default judgment.

(Citation and punctuation omitted.) Willis , 321 Ga. App. at 497, 740 S.E.2d 413.

A default "does not require blind acceptance of a plaintiff's erroneous conclusions of law. Nor does a default preclude a defendant from showing that under the facts as deemed admitted, no claim existed which would allow the plaintiff to recover." Id. at 498, 740 S.E.2d 413 ; see also Blue View Corp. , 298 Ga. App. at 278-279 (1), 679 S.E.2d 739.

With these principles in mind, we turn to the complaint filed by the Schneiders and the facts deemed admitted by USA Pools and Troy by virtue of their default. The allegations conclusively establish that USA Pools was hired "to oversee the safety, maintenance and supervision of the pools located in the Chapel Hills Community Subdivision." Troy and USA Pools held USA Pools out as "a qualified pool management company" with "properly trained and qualified lifeguards to protect the members of the Chapel Hills Community Homeowners Association."

At the time of the incident, Clark was working as the lifeguard on duty at the subdivision pool. The allegations deemed admitted demonstrate that Clark "was not in a position to observe Ashton ... in the pool or to see the bottom of the pool because [she] was monitoring the door for persons entering and leaving the pool and otherwise not paying attention to the children and other persons swimming in the pool." Clark did not witness Ashton's submersion or participate in lifesaving efforts, in part, because "she was not paying attention" and "Defendant USA Pools failed to properly train and supervise ... Clark in proper lifeguarding protocols and lifesaving techniques." The allegations conclusively establish that "Clark also failed to employ proper post-drowning lifesaving techniques after she became aware of the incident because she was improperly trained and supervised by Defendant USA Pools." As a result, the complaint alleged that "Defendant USA Pools and its employee, Defendant Stephani R. Clark, negligently caused and contributed to the drowning of ...

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