Dentistry for Children of Ga. v. Foster

• Court: Georgia Court of Appeals
• Writing for the Court: McFadden, Presiding Judge.
• Citation: Dentistry for Children of Ga. v. Foster, 362 Ga.App. 217, 867 S.E.2d 617 (Ga. App. 2022)
• Decision Date: 04 January 2022
• Docket Number: A21A1746
• Parties: DENTISTRY FOR CHILDREN OF GEORGIA et al. v. FOSTER et al.

362 Ga.App. 217

867 S.E.2d 617

DENTISTRY FOR CHILDREN OF GEORGIA et al.

v.FOSTER et al.

A21A1746

Court of Appeals of Georgia.

January 4, 2022

Michael Scott Bailey, Michael Geoffrey Frankson, Atlanta, Randolph Page Powell Jr., Paige Elizabeth Mckinney, Michael K. Wright, Sybil Vogtle Newton, for Appellant.

Lee Atkinson, Athens, Dustin Eugene Davies, Savannah, Andrew J. Hill III, Athens, Davis Kingsley Loftin, John Guthrie Mabrey, Atlanta, James B. Matthews III, Athens, Jeffrey N. Mykkeltvedt, Atlanta, Jonathan Andrew Pope, Canton, William J. Armstrong, Alexandra Kenton Hughes, Kathryn Ferris Burmeister, Atlanta, Bryan Alexander Sutlive, Atlanta, for Appellee.

McFadden, Presiding Judge.

Defendants Dentistry for Children of Georgia, LLC and D4C Dental Brands, Inc. (collectively, the "corporate defendants") appeal an order precluding them from presenting a defense at trial as a sanction for discovery violations. We hold that the corporate defendants have not shown that the trial court clearly abused her discretion in imposing the sanction. So we affirm.

1. Factual and procedural background.

This case began when 11 children and their guardians sued the corporate defendants and several individual dentists alleging that the children sustained injuries when water contaminated with bacteria was used in unnecessary dental procedures performed on the children at a pediatric dental clinic.

The case proceeded and, eventually, the plaintiffs filed a motion for sanctions for the corporate defendants’ failure to respond to four discovery requests. Following a hearing, the trial court granted the plaintiffs’ motion. The court found that the corporate defendants wilfully failed to respond to the discovery and barred them from defending the claims asserted against them in the plaintiffs’ first and second amended complaints, should the plaintiffs present evidence on the claims. We granted the corporate defendants’ application for interlocutory appeal, and this appeal followed.

2. Standard of review.

"A trial court has broad discretion to control discovery, including the imposition of sanctions, and this [c]ourt will not reverse a trial court's decision on discovery matters absent a clear abuse of discretion." Resurgens, P.C. v. Elliott , 301 Ga. 589, 597-598 (2) (b), 800 S.E.2d 580 (2017) (citations and punctuation omitted).

This is because trial judges, through their direct involvement with the case, the parties, and the attorneys, and their familiarity with the actions of the parties in the conduct of discovery in similar cases that are properly brought to their attention, are in the best position to evaluate the parties’ conduct and to determine the appropriate level of sanctions.

Resource Life Ins. Co. v. Buckner , 304 Ga. App. 719, 734 (4), 698 S.E.2d 19 (2010) (citation and punctuation omitted). So, "[h]istorically it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court's exercise of its discretion in absence of abuse[, including] a trial judge's exercise of the broad discretionary powers authorized under the discovery provisions of the Civil Practice Act." Kemira, Inc. v. Amory , 210 Ga. App. 48, 51-52 (1), 435 S.E.2d 236 (1993) (citation and punctuation omitted).

3. Applicable law.

Under OCGA § 9-11-37 (d) (1) of the Civil Practice Act, "[i]f, after proper service, a party or his agent fails to serve answers or objections to interrogatories or requests to produce, the presiding judge may take any action authorized under OCGA § 9-11-37 (b) (2) (A) through (b) (2) (C)." Cannon Air Transp. Svcs. v. Stevens Aviation , 249 Ga. App. 514, 517-518 (4), 548 S.E.2d 485 (2001) (citation and punctuation omitted). Those subsections authorize the trial court to enter:

(A) [a]n order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) [a]n order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence; [or] (C) [a]n order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party....

OCGA § 9-11-37 (b) (2) (A) through (b) (2) (C).

Generally dismissal, default, and striking a party's pleadings are considered to be the harshest sanctions. See In re Farnham , 312 Ga. 65, 68, 860 S.E.2d 547 (2021) ; Schrembs v. Atlanta Classic Cars , 261 Ga. 182, 402 S.E.2d 723 (1991) ; Portman v. Zipperer , 350 Ga. App. 180, 182-183 (1), 827 S.E.2d 76 (2019). "[T]he trial court must find wilfulness as a predicate to imposing those sanctions." Portman , 350 Ga. App. at 182-183 (1), 827 S.E.2d 76. The sanctions before us are similar. So we will assume for purposes of this appeal that the sanction imposed by the trial court — preventing the corporate defendants from defending the claims in the plaintiffs’ first and seconded amended complaints, should the plaintiffs present evidence on those claims — also required the trial court to find wilfulness as a predicate.

4. The trial court did not abuse her discretion in finding the failure to respond was wilful.

The corporate defendants argue that there was no basis for finding their failure to respond to the four items of discovery was wilful, and so that the trial court abused her discretion in imposing such a harsh sanction. We hold that the record supports the trial court's finding of wilfulness.

"[W]ilfulness in this context requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance." Portman , 350 Ga. App. at 183 (1), 827 S.E.2d 76 (citation and punctuation omitted). "There is no requirement that the [party] display and the trial court find actual wilfulness."

Resource Network Intl. v. Ritz-Carlton Hotel Co. , 232 Ga. App. 242 (1), 501 S.E.2d 573 (1998) (citation and punctuation omitted).

The record supports a finding that the corporate defendants consciously failed to respond to the plaintiffs’ discovery requests amounting to wilfulness. As noted, the sanctions were based on the corporate defendants’ failure to respond to four discovery requests: (1) April 17, 2019 interrogatories and a request for production of documents served on Dentistry for Children of Georgia by some of the plaintiffs; (2) August 16, 2019 second continuing interrogatories and requests for production of documents served on the corporate defendants by all plaintiffs; (3) August 19, 2019 third continuing requests for production of documents served on the corporate defendants by all plaintiffs; and (4) September 30, 2019 fourth continuing requests for production of documents served on the corporate defendants by all plaintiffs.

Regarding the April 2019 discovery requests directed to Dentistry for Children of Georgia, plaintiffs’ counsel re-sent the discovery requests on July 8, 2019. On July 17, 2019, he emailed the attorney who was representing the corporate defendants at the time,¹ asking when he could expect responses. Defense counsel responded on July 18, 2019, that he would serve responses to as many as he could by July 26, and to the rest by August 2. Plaintiffs’ counsel emailed defense counsel on July 31, 2019, that he had received no responses. Counsel had not received a response by the time he filed the motion for sanctions in February 2020.

As for the August and September 2019 discovery, the plaintiffs mailed and emailed copies of these discovery requests to defense counsel and filed and served certificates of service. On January 7, 2020, plaintiffs’ counsel sent defense counsel an email notifying him that responses to the three items were outstanding and requesting that he provide responses by January 21, 2020. According to plaintiffs’ counsel, defense counsel did not respond to the email.

As of February 28, 2020, the date the plaintiffs filed their motion for sanctions, defense counsel had not served plaintiffs’ counsel with any responses to the four discovery requests. The corporate defendants finally answered all outstanding written discovery the week of June 19, 2020.

In the meantime, while their answers to discovery were outstanding, the corporate defendants served close to 100 requests for production of documents to non-parties and noticed the depositions of 18 of the guardian plaintiffs.

The corporate defendants "do[ ] not assert that [they were] unaware of [the] discovery requests or that [their] failure to respond was accidental or involuntary." Stolle v. State Farm Mut. Automobile Ins. Co. , 206 Ga. App. 235, 237 (3), 424 S.E.2d 807 (1992). Indeed, the record demonstrates that the corporate defendants knew that discovery had been served and knew that their responses were overdue, but failed to respond, while conducting their own discovery. This shows "a conscious or intentional failure to act[.]" Portman , 350 Ga. App. at 183 (1), 827 S.E.2d 76 (citation and punctuation omitted). See also Smith v. Byess , 127 Ga. App. 39, 41 (1), 192 S.E.2d 552 (1972) (defendant's conduct in not answering plaintiff's discovery while requiring plaintiff to answer his discovery "showed a blatant disregard for the rights of others," authorizing striking of defendant's pleadings).

The trial court did not abuse her discretion in finding that the failure to respond was wilful, authorizing the harsh sanction that she imposed.

5. The corporate defendants have not shown that the sanction imposed was too harsh.

The corporate defendants assert a variety of arguments in support of their assertion that the sanction imposed was too harsh. They argue that they did not completely fail to participate in discovery; that the court did not consider the context of the case, including that the plaintiffs were not prejudiced; that counsel presented...