McConnell v. Wright, A06A0511.

• Decision Date: 14 July 2006
• Docket Number: No. A06A0511.,A06A0511.
• Parties: McCONNELL et al. v. WRIGHT et al.
• Court: Georgia Court of Appeals

634 S.E.2d 495

McCONNELL et al. v. WRIGHT et al.

No. A06A0511.

Court of Appeals of Georgia.

July 14, 2006.

Conscienti & Kendall, Joseph A. Conoscienti, Decatur, Michael C. Kendall, Maureen E. Murphy, for appellants.

Harper, Waldon & Craig, Russell D. Waldon, Kimberly A. McNamara, Atlanta, Kilpatrick Stockton, Jason Wenker, Wayne C. Wilson, Winston-Salem, NC, for appellees.

BERNES, Judge.

James and Martha McConnell appeal the trial court's order granting appellees' motion for the sanction of dismissal as a result of the McConnells' failure to attend their scheduled depositions. We find no error and affirm.

On April 1, 2004, the McConnells filed the instant lawsuit against appellees seeking damages allegedly arising from a motor vehicle accident. Thereafter, on August 30, 2004, the McConnells sent a letter terminating their former counsel, and on October 14, 2004, the trial court granted counsel's motion to formally withdraw from representation in the case.

Pursuant to the agreement of the parties, the McConnells' depositions were scheduled and noticed for November 23, 2004. On the day before the scheduled depositions, Mrs. McConnell contacted State Farm's counsel, advising that the McConnells would not be appearing for the depositions and requesting that they be rescheduled. By the parties' agreement, the McConnells' depositions were rescheduled and noticed for December 6, 2004. Again, on the day before the rescheduled depositions, Mrs. McConnell contacted State Farm's counsel to advise her that they would not be appearing and needed to reschedule. For the third time, the McConnells' depositions were scheduled and noticed for January 19, 2005 by the parties' agreement. It is undisputed that the McConnells did not request that the January 19, 2005 depositions be rescheduled. Although appellees' counsel and a court reporter were present for the January 19, 2005 depositions, the McConnells failed to appear.¹

On January, 20, 2005, "a prospective new attorney for [the McConnells] contacted [appellees' counsel] and indicated he had been informed by [the McConnells] of the January 19 depositions, but he gave no explanation for [their] failure to attend or provide notice of cancellation."²

On January 25, 2005, appellees filed a motion seeking the sanction of dismissal, asserting that the McConnells' repeated rescheduling and failure to appear for the depositions established their intentional and wilful noncompliance with discovery. At that time, no entry of appearance of substitute counsel had been filed,³ and, thus, the McConnells were served directly as pro se parties at the same address and in the same manner as previous pleadings and correspondence.

The McConnells failed to respond to the motion. Four months later, the trial court entered its order granting appellees' motion, dismissing the lawsuit.

Approximately four weeks after entry of the dismissal order, the McConnells filed a motion to set it aside. The following day, however, the McConnells filed a notice of appeal to this court, which divested the trial court of jurisdiction to consider the McConnells' motion pending the appeal. Threatt v. Forsyth County, 250 Ga.App. 838, 844(2), 552 S.E.2d 123 (2001).

1. The McConnells claim that the trial court abused its discretion in imposing the sanction of dismissal and in failing to provide a hearing on the motion. We disagree.

OCGA § 9-11-37(d) authorizes immediate sanctions for a party's failure to attend his or her own deposition, without necessity of an order compelling discovery. Greenbriar Homes v. Builders Ins., 273 Ga. App. 344, 346(4), 615 S.E.2d 191 (2005). "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." (Punctuation and footnote omitted.) ASAP Healthcare Network v. Southwest Hosp. & Med. Center, 270 Ga.App. 76, 77(1), 606 S.E.2d 98 (2004).

The general rule is that before the discovery sanction of dismissal can be imposed the trial court must conduct a hearing and find that the recalcitrant party acted wilfully. Loftin v. Gulf Contracting Co., 224 Ga.App. 210, 215(3), 480 S.E.2d 604 (1997). However, "the trial court need not conduct a hearing on the issue of wilfulness in every case. Such a requirement serves no purpose where the trial court can otherwise determine wilfulness on the part of the party against whom the sanctions are sought." (Footnote omitted.) Schrembs v. Atlanta Classic Cars, 261 Ga. 182, 182-183, 402 S.E.2d 723 (1991). See also Daniel v. Corporate Property Investors, 234 Ga.App. 148, 149-150(3), 505 S.E.2d 576 (1998). "A hearing has not been required where the wilfulness of the recalcitrant party is obvious and undeniable from the record." (Footnote omitted.) Largo Villas Homeowners' Assn. v. Bunce, 279 Ga.App. 526, 631 S.E.2d 731 (2006).⁴

Thus, we held in Oliff v. Smith, 214 Ga. App. 358, 359, 447 S.E.2d 707 (1994) that no hearing was necessary before imposing sanctions, where the record showed that the plaintiff had repeatedly delayed serving discovery responses and had only offered that she was "out of pocket" as an explanation for her failure to timely respond. Moreover, we have ruled that "[w]illfulness is implied by the total failure to respond to discovery when no reason or excuse is offered in response to a motion to compel." (Citations and punctuation omitted.) Daniel, 234 Ga.App. at 149(2), 505 S.E.2d 576. Accordingly, in Daniel, we held that no hearing on the motion for sanctions was necessary, where the plaintiff failed to respond to discovery requests, failed to appear for his properly noticed deposition, and failed to respond to the motion to compel and for sanctions during the four months the motion remained pending. Id. at 149-150(3), 505 S.E.2d 576. Likewise, in Woods v. Gatch, 272 Ga.App. 642, 644, 613 S.E.2d 187 (2005), we affirmed the trial court's order of dismissal entered without a hearing since a finding of wilfulness was authorized by the plaintiff's failure to attend a court-ordered deposition, failure to respond to the motion for sanctions, and failure to inform the court of any justification until three weeks after the trial court entered its order dismissing the case.

In the instant case, the facts and circumstances presented to the trial court prior to its entry of the dismissal order established that after the McConnells had delayed and rescheduled their depositions three times, they totally failed to appear for the January 19, 2005 scheduled depositions.⁵ In addition, the McConnells failed to respond to the motion for sanctions filed by the appellees during the four months that it remained pending prior to the trial court's order. The McConnells made no effort to inform the trial court of any reason for their failure to appear and to respond to the motion until four weeks after the entry of the dismissal order, at which time they filed a motion to set aside the order.

We conclude that the circumstances presented in the present case closely resemble those in Woods and Daniel. Because the McConnells failed to appear for their noticed January 19 depositions, and failed to respond in opposition to the motion for sanctions, the trial court was authorized to infer wilfulness from their complete unresponsiveness and its imposition of the sanction of dismissal, without the conduct of a hearing, was authorized.

In their motion to set aside the dismissal order and in their appellate briefs, the McConnells claimed that they requested rescheduling so that they could obtain substitute counsel, not in efforts to avoid the depositions. The McConnells and their new counsel also claimed that they failed to respond to the motion for sanctions because they did not receive notice of it. The dissent considers and accepts these claims as true in its conclusion that the trial court abused its discretion in granting the motion for sanctions. However, it is undisputed that the McConnells failed to respond to the motion for sanctions, and thus, their belated claims were not presented prior to the trial court's ruling on the dispositive motion. "Appellate courts will review only evidence presented to the trial court before its ruling on the motion. Additional evidence will not be [considered] on appeal." RC Cola Bottling Co. v. Vann, 220 Ga.App. 479, 480(1), 469 S.E.2d 523 (1996). See also Turner v. Mize, 280 Ga.App. ___, 633 S.E.2d 641 (2006); Norman v. Jones Lang LaSalle Americas, 277 Ga.App. 621, 630(3)(a), n. 8, 627 S.E.2d 382 (2006); Piedmont Hosp., Inc. v. Reddick, 267 Ga.App. 68, 72(3), 599 S.E.2d 20 (2004). Likewise, we cannot consider these claims presented for the first time in the motion to set aside since they have not been ruled upon by the trial court. "Without a ruling by the trial court, there is nothing for us to review." McCannon v. Wilson, 267 Ga.App. 815, 817(1), 600 S.E.2d 796 (2004). The McConnells' remedy for their alleged lack of notice is to pursue a motion to set aside pursuant to OCGA § 9-11-60(d)(2). Cf. Schrembs, 261 Ga. at 183, n. 5, 402 S.E.2d 723.

2. The McConnells also contend that the trial court erred by dismissing the entire lawsuit in favor of all the defendants when the deposition notices were served only by counsel for State Farm. Again, we disagree.

The Supreme Court of Georgia has held that a nonnoticing defendant, who attended a noticed deposition, is authorized to seek sanctions against a plaintiff who fails to attend his or her own deposition. South Ga. Med. Center v. Washington, 269 Ga. 366, 367-368(2), 497 S.E.2d 793 (1998). The record reflects that counsel for each of the appellees was present at the January 19, 2005 depositions, and each of the appellees joined in the motion for sanctions.

The McConnells nonetheless argue that it was improper for the dismissal to apply to defendant Antoinette Wright, who they contend did not join in the motion...