DEEP SOUTH CONST., INC. v. Slack

• Citation: 248 Ga. App. 183,546 S.E.2d 302
• Decision Date: 21 February 2001
• Docket Number: No. A01A0372.,A01A0372.
• Parties: DEEP SOUTH CONSTRUCTION, INC. v. SLACK.
• Court: Georgia Court of Appeals

546 S.E.2d 302

248 Ga. App. 183

DEEP SOUTH CONSTRUCTION, INC. v. SLACK.

No. A01A0372.

Court of Appeals of Georgia.

February 21, 2001.

Thompson & Sweeney, Virgil L. Thomnpson, Jr., Lawrenceville, for appellant.

McLarty, Robinson & Van Voorhies, John E. Robinson, Decatur, for appellee.

MIKELL, Judge.

Deep South Construction, Inc. ("Deep South") appeals the trial court's dismissal of its complaint, pursuant to OCGA § 9-11-37(d), as a sanction for wilful failure to respond to discovery in a timely manner. For reasons explained below, we affirm.

The record shows that Deep South filed suit against Robert C. Slack on April 8, 1999, alleging breach of contract. According to the complaint, Deep South contracted with Slack to perform earthmoving and construction services on Slack's property. Deep South alleges that it performed the services in accordance with the contract, but Slack failed to pay. By agreement of counsel, Slack's attorney acknowledged service of the complaint on August 16, 1999. On that day, Slack also filed his answer and counterclaim and served his first request for production of documents on Deep South. Specifically, Slack requested that Deep South produce "[a]ny and all documents which support the Plaintiff's claim that it performed work on the Defendant's property in accordance with the contract between the Plaintiff and Defendant." He requested documentation including letters, bills, invoices, and correspondence involving the parties.

Counsel for Deep South requested an extension of time to respond to the request for production on September 13, 1999, and counsel for Slack agreed. On September 23, 1999, counsel for Deep South sent a letter which stated:

I realize that I also have a response to a request for production of documents due to you today[;] however, I have been unable to obtain the necessary documents from my client as of this date. As soon as my client delivers the documents to me, I will file a response and provide you with copies of the documents or schedule a time for you to review the documents.

Having received no further response, counsel for Slack sent letters on October 25, November 17, and December 17, 1999, asking that Deep South produce the requested documents. Slack's counsel ultimately threatened to file a motion to compel discovery if the requested documents were not received by January 7, 2000. Deep South responded to Slack's discovery request on January 7, approximately five months after the response was due. However, despite alleging nonpayment for work performed as the basis of its complaint, Deep South failed to provide any invoices or documentation to support the allegation, as requested in paragraphs three and four of Slack's request for production. Deep South provided copies of other lawsuits involving the subcontractors who worked on the same construction project and the following response:

Other documents including invoices, checks and payroll records exist regarding the work on this project. The clerical person who handled bookkeeping for the corporation left the corporation unexpectedly and as of this date, these documents have not been located. Plaintiff believes that Defendant received invoices or pay requests setting forth the charges on this project. Therefore Defendant should have copies of a portion of these documents. Plaintiff will continue to search for these documents and will supplement these answers as necessary if other documents are located.

In a letter accompanying the response, counsel for Deep South stated that additional documentation had been requested from his client, but that it had not been located at that time.

After Deep South had failed to provide the requested documentation over one month later, Slack filed a motion to dismiss on February 29, 2000. Deep South responded to the motion and filed a supplemental response to the request for production;¹ however, it did not provide the requested invoices and documentation establishing that the work had, in fact, been performed. Approximately one month later, Slack filed a Uniform Superior Court Rule 6.4(B) certificate stating that counsel had made a good faith effort to resolve the pending discovery dispute. The trial court granted Slack's motion to dismiss, concluding that the documents submitted by Deep South were not responsive and that Deep South's failure to respond to the discovery requests in a timely manner was wilful. OCGA § 9-11-37(d).

1. Deep South contends that the court erred in granting the motion to dismiss because Slack failed to comply with the requirements of USCR 6.4(B). This argument has no merit.

"Trial courts have broad discretion to control discovery, including the imposition of sanctions. Absent the showing of a clear abuse of discretion, a court's exercise of that broad discretion will not be reversed." (Citations omitted.) Rivers v. Almand, 241 Ga. App. 565, 566(1), 527 S.E.2d 572 (1999).

USCR 6.4(B) provides:

Prior to filing any motion seeking resolution of a discovery dispute, counsel for the moving party shall confer with counsel for the opposing party in a good faith effort to resolve the matters involved. At the time of filing the motion, counsel shall also file a statement certifying that such conference has occurred and that the effort to resolve by agreement the issues raised failed....

Deep South argues that Slack did not make a good faith effort to resolve the discovery dispute prior to filing the motion to dismiss. Contrary to Deep South's argument, however, we conclude that Slack complied with USCR 6.4(B) by agreeing to extend the deadline for Deep South's response and by writing three letters reiterating the request for production of documents. We have held that "[t]here is no requirement in this rule that counsel for the movant make more than one attempt to resolve the discovery matter." Mansell 400 Assoc. v. Entex Information Svcs., 239 Ga.App. 477, 481(5), 519 S.E.2d 46 (1999). Thus, Slack's numerous attempts satisfy the requirements of the rule.

Accordingly, we conclude that the court did not abuse its discretion when it found that Slack satisfied USCR 6.4(B) and, therefore, granted the motion to dismiss as a sanction for Deep South's failure to produce the requested documents.

2. Next, Deep South argues that the dismissal was entered in error because Slack should have obtained an order compelling discovery before filing the motion to dismiss. Again, we disagree.

OCGA § 9-11-37(...