Cochran v. Cochran

• Decision Date: 17 November 2010
• Docket Number: A10A1861.,Nos. A10A1588,s. A10A1588
• Citation: Cochran v. Cochran, 306 Ga.App. 838, 703 S.E.2d 411 (Ga. App. 2010)
• Parties: COCHRAN et al.v.KENNELLY.Kennellyv.Cochran et al.
• Court: Georgia Court of Appeals

306 Ga.App. 838

703 S.E.2d 411

10 FCDR 3704

COCHRAN et al.

v.KENNELLY.Kennelly

v.Cochran et al.

Nos. A10A1588

A10A1861.

Court of Appeals of Georgia.

Nov. 17, 2010.

Martenson, Hasbrouck & Simon, Robert D. Feagin, Atlanta, for appellants (case no. A10A1588).Perry A. Phillips, Marietta, for appellee (case No. A10A1588).Perry A. Phillips, Marietta, for appellant (case no. A10A1861).Marcus G. Howell, Sr., for appellees (case no. A10A1861).SMITH, Presiding Judge.

This dispute arose out of a listing agreement between the seller of real property and a broker. In Case No. A10A1588, the seller William Cochran and Cochran's Service Center and Sales, Inc. (collectively “the Cochran defendants”) appeal from the trial court's final judgment in favor of Kathryn P. Kennelly d/b/a KPK Commercial (“Kennelly”) on her claim for a commission following the sale of the property. In Case No. A10A1861, Kennelly appeals from the trial court's denial of her motions to dismiss the Cochran defendants' appeal and for supersedeas bond. We affirm in Case No. A10A1588, but hold that the court erred in denying Kennelly's motion for supersedeas bond and therefore affirm in part and reverse in part in Case No. A10A1861.

The record reveals that in December 1999, William Cochran entered into a listing agreement with Kennelly for the sale of certain real property. ¹ Under the agreement, Kennelly was to receive a commission of 10 percent of the “gross sales price” of the property. The agreement provided that even if the property was not sold “by or through the efforts” of Kennelly, she would still receive the commission.

Kennelly marketed the property for a year. But in October 2000, unbeknownst to Kennelly, the Cochran defendants entered into an agreement to sell the property to a church for $1,150,000. The sale to the church closed in May 2001, and the Cochran defendants do not dispute that the property was sold for $1,150,000. In May 2002, Kennelly filed a complaint against the Cochran defendants and the closing attorney to recover her expected 10 percent commission of $115,000, and she later amended her complaint to seek 18 percent interest from the date of the closing.

Kennelly served the Cochran defendants with interrogatories and a request for the production of documents on December 11, 2002. When they failed to respond to the discovery requests after more than four months, Kennelly filed a motion for sanctions. The trial court granted the motion and required the Cochran defendants to respond to the discovery requests by December 1, 2003.

The Cochran defendants filed a response to Kennelly's requests for discovery on December 1, but the response was incomplete and several attachments were omitted. After Kennelly informed them of the deficiencies and they still failed to supplement the responses, Kennelly moved to strike their answers. The trial court granted Kennelly's motion to strike and entered a default judgment against the Cochran defendants. The court subsequently entered a final judgment against the Cochran defendants in the “liquidated principal sum” of $115,000, and ordered Kennelly's counsel to submit an affidavit setting forth the amount of attorney fees sought.

Case No. A10A1588

1. In three enumerations, the Cochran defendants assert that the trial court erred in entering a default judgment against them without a hearing. “Where a party fails to comply with a discovery order, the trial court has available to it several sanctions under OCGA § 9–11–37(b)(2) of which the harshest is that imposed here, dismissal and default. OCGA § 9–11–37(b)(2)(C).” Schrembs v. Atlanta Classic Cars, 261 Ga. 182, 402 S.E.2d 723 (1991).

Before imposing the ultimate sanction of dismissal or default judgment for failure to comply with discovery, the trial court must first determine, following notice and an opportunity to be heard, that the party's failure to comply with the order granting the motion to compel was wilful.... However, the trial court need not conduct an evidentiary hearing on the issue of wilfulness in those cases where the trial court can otherwise determine wilfulness on the part of the party against whom the sanctions are sought.

(Citations, punctuation and footnote omitted.) Tenet Healthcare Corp. v. Louisiana Forum Corp., 273 Ga. 206, 211(3), 538 S.E.2d 441 (2000). And

[w]here a motion for sanctions is brought under OCGA § 9–11–37(b)(2) for a party's failure to comply with an order compelling answers, the existence or non-existence of wilfulness should be considered not only in the context of the time period prescribed in the order compelling answers, but in the context of the entire period beginning with service of interrogatories and ending with service of answers. Events transpiring during this entire time period are probative of whether appellant acted with conscious indifference to the consequences of failure to comply with the order compelling answers.

(Citation and punctuation omitted.) Schrembs, supra, 261 Ga. at 183, 402 S.E.2d 723. “Trial judges have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court's decision on such matters unless there has been a clear abuse of discretion.” (Citations and footnote omitted.) Amaechi v. Somsino, 259 Ga.App. 346, 347, 577 S.E.2d 48 (2003).

Here, the record reveals that Kennelly served the Cochran defendants with interrogatories and a request for the production of documents on December 11, 2002. Kennelly's counsel averred that on January 16, 2003, during Kennelly's deposition, he gave counsel for the Cochran defendants another copy of the December 11, 2002 discovery request. Kennelly sent counsel three letters between January 31 and March 27, 2003 requesting that they respond. The Cochran defendants did not move for a protective order or for an extension of time to respond. In April 2003, Kennelly moved for sanctions or, alternatively, to compel discovery responses. The Cochran defendants claim that they first filed a response on June 9, 2003,² but that Kennelly's counsel informed them the responses were inadequate.³ The trial court granted Kennelly's motion to compel in November 2003.

In granting Kennelly's motion to compel, the trial court ordered the Cochran defendants to “respond to [Kennelly]'s discovery requests, served on or about December 11, 2002, and, more specifically, Defendant William Jackson Cochran is hereby ordered to provide his signature in order for [Kennelly] to obtain copies of tax returns ... no later than December 1, 2003.” The court warned that it would strike William Cochran's answer if he failed to comply. The record reflects that William Cochran submitted the requested tax returns, but his counsel did not sign the discovery responses, William Cochran's driver's license number was not provided as requested, and Exhibits “E” and “K” referred to in the Cochran defendants' response to the request for the production of documents were omitted. Although the response contained an Exhibit “B,” it was unclear as to whether the responses should have also contained Exhibits “A,” “C,” or “D.” In some responses, the Cochran defendants indicated that the requested documents were public records and suggested they could be obtained by Kennelly herself.

Kennelly sent counsel for the Cochran defendants a letter informing him of the deficiencies in his response to the discovery request. When the Cochran defendants failed to respond or supplement the discovery responses, Kennelly moved to strike their answers to the complaint. The Cochran defendants responded to the motion to strike arguing that they “fully complied with said order,” that they made a good faith effort to respond to discovery, and that there was no ruling by the trial court that the responses were legally insufficient. The trial court granted the motion to strike finding that the Cochran defendants “failed to comply with the Court's ... Order inasmuch as they have failed to comply with the spirit of said Order desiring that said discovery responses be sufficient in light of Plaintiff's Motion for Sanctions.”

The record here supports the trial court's finding of wilfulness. The Cochran defendants did not file responses to Kennelly's request for interrogatories and production of documents within the time period prescribed by OCGA §§ 9–11–33(a)(2) and 9–11–34(b)(2), and they only filed a response to the request after the trial court's grant of Kennelly's initial motion to compel and for sanctions. Even when the Cochran defendants received notice that the responses were inadequate or incomplete, they did not file a response to the notice, did not supplement the responses, and only after Kennelly moved to strike their answers did they file a response claiming that they substantially complied with the discovery request. Under these circumstances, we cannot say that the trial court erred in failing to conduct a hearing on wilfulness. See Schrembs, supra, 261 Ga. at 183–184, 402 S.E.2d 723; Johnson v. Lomas Mtg. USA, 201 Ga.App. 562, 564–565(3), 411 S.E.2d 731 (1991) (finding of wilfulness could be made from the record without conducting a separate hearing).

2. In three enumerations, the Cochran defendants assert that the trial court erred in entering judgment against them because Kennelly's damages were...