Freeman v. Foss, A09A0620.
| Decision Date | 23 June 2009 |
| Docket Number | No. A09A0620.,A09A0620. |
| Citation | 680 S.E.2d 557,298 Ga. App. 498 |
| Parties | FREEMAN et al. v. Jerry FOSS et al. |
| Court | Georgia Court of Appeals |
Jeffrey L. Sakas, Atlanta, for appellants.
Jenkins, Olson & Bowen, Peter R. Olson, Erik J. Pirozzi, Cartersville, Freeman, Mathis & Gary, Dana K. Maine, Atlanta, for appellees.
Donnie and Marilyn Freeman appeal from the trial court's order dismissing their complaint with prejudice as a sanction for failing to comply with an order compelling discovery. The Freemans contend the trial court erred by: (1) holding a hearing on the motion for sanctions less than 30 days after the motion for sanctions was filed; (2) dismissing the complaint based upon their failure to respond to interrogatories; and (3) failing to impose a less drastic sanction. We find no merit in these contentions and affirm.
1. In their first enumeration of error, the Freemans contend the trial court erred by failing to give them 30 days to respond to the motion for sanctions filed by the defendants on July 22, 2008. The trial court scheduled a hearing on the motion for August 6, 2008. After conducting a hearing "where both sides were represented by counsel, and both sides were given an opportunity to be heard," the trial court granted the defendants' motion for sanctions. The record before us does not include a transcript of the motion hearing. As a result, we cannot determine whether the Freemans objected to the trial court's failure to provide them with the written notice of a shorter time to respond required by Uniform Superior Court Rule 6.2. Because the Freemans cannot demonstrate that they objected to the procedure employed by the trial court below, this enumeration of error is waived. Bloodsoe v. Simmons, 287 Ga.App. 423, 424(1), 651 S.E.2d 534 (2007).
2. The Freemans contend the trial court abused its discretion by dismissing their complaint for what they claim was a "failure to respond to interrogatories concerning an expert that the Freemans never employed or from whom they never received any opinion."1 We disagree.
(Citations omitted.) Rivers v. Almand, 241 Ga. App. 565, 566(1), 527 S.E.2d 572 (1999).
The record shows that the Freemans filed their complaint seeking abatement of a nuisance and money damages in March 2005. Almost a year after the expiration of the time period in which to conduct discovery, the Freemans' attorney disclosed in a settlement demand letter dated December 3, 2007, that they had
obtained the services of David Reed who is prepared to discuss the diminished value of the Freemans' house. I believe that Mr. Reed will be of the opinion that the house had been diminished in value by approximately 50%. Because the house had an appraised value of $180,000 five years ago it is entirely likely that the amount of the diminished value is currently $100,000. Mr. Reed basis [sic] his opinion on the fact that it is unlikely that an individual will purchase this house and that it is more likely that the property will be purchased by an investor who will seek to rent the property. Based on his analysis we would ask the jury to award a diminished value of $100,000.
When it became clear that the parties would not be able to settle the case, defense counsel sent a letter to the Freemans' attorney on December 28, 2007, requesting that the Freemans immediately supplement their discovery responses with information about their expert witness so that a date for his deposition could be scheduled. When the defendants received no response, they asked the court to remove the case from a March 10, 2008, trial calendar and reopen discovery. On February 5, 2008, the trial court granted this motion.
In a phone call on February 8, 2008, the Freemans' counsel promised to provide information about their expert, but failed to do so even after receiving follow-up letters from defense counsel dated February 12, 2008, and April 1, 2008. On April 30, 2008, defense counsel moved to compel the Freemans to respond to discovery requests about their expert and for another continuance of a trial scheduled for June 2008. The trial court granted the defendants' request to continue the case again and also ordered the Freemans to provide information about their witness within 10 days so that the defendants could then depose the Freemans' expert.
On June 16, 2008, the trial court ordered the parties to prepare a consolidated pretrial order by July 11, 2008. In its order, the trial court warned, "Failure to timely file the Pre-Trial Order will result in the invocation of the Court's contempt powers or possible dismissal of the pleadings of the party who fails to participate." The defendants submitted their portion of the pre-trial order on the date due, but the Freemans did not.
On July 22,...
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N. Druid Dev., LLC v. Post, Buckley, Schuh & Jernigan, Inc., A14A1101.
...and this Court will not reverse a trial court's ruling on such matters absent an abuse of that discretion.3 Freeman v. Foss, 298 Ga.App. 498, 499(2), 680 S.E.2d 557 (2009). But a trial court's discretion as to sanctions is not unlimited, especially when the trial court is asked to impose th......
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Curry v. Conopco, Inc.
...at least prosecute their actions efficiently and diligently[.]") (citation and punctuation omitted).8 See Freeman v. Foss , 298 Ga. App. 498, 501 (2), 680 S.E.2d 557 (2009) ; see also Ford Motor Co. v. Gibson , 283 Ga. 398, 402 (2), 659 S.E.2d 346 (2008) (trial court did not abuse its discr......
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North Druid Dev. Llc v. Post, A14A1101
...and this Court will not reverse a trial court's ruling on such matters absent an abuse of that discretion.3Freeman v. Foss, 298 Ga. App. 498, 499 (2) (680 SE2d 557) (2009). But a trial court's discretion as to sanctions is not unlimited, especially when the trial court is asked to impose th......
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Curry v. Conopco, Inc.
...should at least prosecute their actions efficiently and diligently[.]") (citation and punctuation omitted).8 See Freeman v. Foss , 298 Ga. App. 498, 501 (2), 680 S.E.2d 557 (2009) ; see also Ford Motor Co. v. Gibson , 283 Ga. 398, 402 (2), 659 S.E.2d 346 (2008) (trial court did not abuse it......
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Enforcement
...5 Cunningham v. Hamilton County , 527 U.S. 198, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999). 6 See infra , §12.44. 7 See Freeman v. Foss , 298 Ga. App. 498, 680 S.E.2d 557 (2009). Dismissal of a nuisance action was warranted as a sanction for the plaintiffs’ discovery violations, in failing to p......
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Enforcement
...discovery request must first be made before a violation of a discovery request can occur. 9 See infra , §12.44. 10 See Freeman v. Foss , 298 Ga. App. 498, 680 S.E.2d 557 (2009). Dismissal of a nuisance action was warranted as a sanction for the plaintiffs’ discovery violations, in failing t......
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Enforcement
...5 Cunningham v. Hamilton County , 527 U.S. 198, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999). 6 See infra , §12.44. 7 See Freeman v. Foss , 298 Ga. App. 498, 680 S.E.2d 557 (2009). Dismissal of a nuisance action was warranted as a sanction for the plaintiffs’ discovery violations, in failing to p......
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Enforcement
...Seeking to impose personal liability upon a “brother” practitioner was one such line, the crossing of which has 7 See Freeman v. Foss , 298 Ga. App. 498, 680 S.E.2d 557 (2009). Dismissal of a nuisance action was warranted as a sanction for the plaintiffs’ discovery violations, in failing to......