Metropolitan Atlanta Rapid Transit v. Doe

• Decision Date: 08 July 2008
• Docket Number: Nos. A08A1075, A08A1228.,s. A08A1075, A08A1228.
• Citation: 292 Ga. App. 532,664 S.E.2d 893
• Parties: METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. DOE. Doe v. Metropolitan Atlanta Rapid Transit Authority.
• Court: Georgia Court of Appeals

664 S.E.2d 893

292 Ga. App. 532

METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. DOE.

Doe v. Metropolitan Atlanta Rapid Transit Authority.

Nos. A08A1075, A08A1228.

Court of Appeals of Georgia.

July 8, 2008.

[664 S.E.2d 895

Thomas, Kennedy, Sampson & Patterson, Thomas G. Sampson, Jeffrey E. Tompkins, Atlanta, for appellant.

Taylor, Busch, Slipakoff & Duma, Michele L. Stumpe, Louis Levenson, Atlanta, for appellee.

BLACKBURN, Presiding Judge.

In this civil action to recover for injuries suffered when a transit patron was attacked in a transit authority parking deck, defendant Metropolitan Atlanta Rapid Transit Authority (MARTA) appeals a jury verdict of $1.7 million awarded to plaintiff Jane Doe,¹ arguing that the trial court erred in striking MARTA's answer as a sanction for its intentional false response to a critical discovery request. We hold that for purposes of OCGA § 9-11-37(d) sanctions, a defendant's intentional false response to a discovery request equates to a total failure to respond and therefore authorizes a trial court in its discretion to strike the defendant's answer. However, the trial court lacked jurisdiction to amend its judgment (to include pre-judgment interest) after the notice of appeal was filed. Doe's cross-appeal of the trial court's order denying her attorney fees fails, as the trial court did not abuse its discretion under OCGA § 9-15-14(b). Accordingly, in MARTA's appeal (Case No. A08A1075), we affirm the $1.7 million judgment but vacate the later amendment of that judgment which added pre-judgment interest. In Doe's cross-appeal (Case No. A08A1228), we affirm the denial of her motion for attorney fees.

The undisputed facts show that around 12:35 a.m. on the morning of June 25, 2002, a man assaulted and abducted Doe in a MARTA parking deck as she was approaching her car after having ridden a MARTA train. Despite her struggles, including her honking the car horn and screaming, he was able to force her into the trunk of her car and to take her car keys; he then drove the car down the deck and through the parking deck exit, while Doe continued to scream and kick in the trunk. No one stopped the car or alerted police. Driving her to a remote area, he raped her. He forced her back into the trunk and terrorized her over the next several hours (coercing her to reveal PIN information so he could obtain cash from her accounts using her bank and credit cards), until he removed her from the trunk and, after duct taping her, locked her in an abandoned house. After he left, she managed to escape and contacted police from a nearby convenience store. Police soon found the man in her car with her bank and credit cards, which led to his arrest and subsequent conviction for rape and other charges.

In March 2003, Doe sued MARTA for premises liability arising from negligent security at the parking deck. In her complaint, she alleged that because MARTA negligently provided no security personnel at the deck at the relevant times nor reasonable security measures (such as security cameras, fencing, call boxes, mirrors, and more lighting), the abduction and rape were not deterred nor stopped. At the jury trial in January 2007, MARTA moved for a directed verdict following the close of Doe's evidence, which motion the court denied.

During the presentation of MARTA's evidence, the court and Doe came to suspect that MARTA may not have been forthcoming in some of its discovery responses. The court conducted a hearing outside the presence of the jury and determined that MARTA had intentionally made a false response as well as other misleading responses to discovery requests regarding the key issue as to documents (which MARTA, as it turns out, had destroyed) showing the whereabouts of the security officers who were supposed to be patrolling or monitoring the parking deck at the relevant times. The court struck MARTA's answer, directed the jury that liability was established, and proceeded with the trial as to damages only. The jury awarded Doe $1.7 million and judgment was entered accordingly, which MARTA timely appealed.

Doe then moved the trial court under OCGA § 51-12-14 to amend the judgment to include pre-judgment interest. Doe also moved the court to award her attorney fees under OCGA § 9-15-14(b), claiming that MARTA's wrongful behavior unnecessarily expanded the proceedings. Because the Court of Appeals' clerk's office refused to docket the case until these motions were decided, the trial court conducted a hearing thereon and granted the motion to add pre-judgment interest but denied the awarding of any attorney fees. MARTA amended its notice of appeal to include this order also, and Doe cross-appealed the denial of attorney fees.

Case No. A08A1075

1. In its appeal, MARTA first contends that the trial court erred in striking MARTA's answer for discovery abuse.² Citing OCGA § 9-11-37 and Mayer v. Interstate Fire Ins. Co.,³ MARTA maintains that the court was not authorized to enter the ultimate sanction of striking MARTA's answer where MARTA had indeed answered the relevant discovery, albeit misleadingly and evasively.

MARTA misstates the extent of its offense. MARTA did not simply give evasive and misleading answers; MARTA intentionally gave a completely false response on the key issue of the creation and maintenance of documents that would have shown the whereabouts of the security personnel who Doe testified were not in place and who MARTA's witnesses testified were. The case for the most part rose and fell on whether the security officers were in fact patrolling the parking deck and monitoring the parking deck's exit at the relevant times.

Because of the importance of any documents which could help establish the key officers' whereabouts and activities at the time the assault and abduction were occurring, Doe requested that MARTA produce all documents showing who was on duty at the parking deck at the time of the incident; MARTA responded that the only relevant documents were certain "assignment records," which it produced. It did not reference any ongoing logs or daily security reports. Doe nevertheless then requested "all security patrol reports or other documents indicating the date, time, nature and findings of the patrols conducted at the subject parking facility during the three months prior to the subject incident through July 15th, 2002." MARTA responded that it did "not create or maintain security patrol reports." When asked for "Daily Activity Reports" of its officers relating to the parking deck in 2002, MARTA responded that such documents were "not currently available." Based on these discovery responses, MARTA was representing to Doe that no security patrol reports or the like had ever been created or maintained and thus were not available.

However, the evidence at trial told a much different story. Specifically, the evidence showed that MARTA security officers were required to complete contemporaneous security patrol logs or reports, sometimes known as "Daily Activity Reports," to document for their supervisors the officers' whereabouts and activities during their respective shifts. The officer who MARTA claimed was at the parking deck entrance when Doe's car exited testified that he would "put down exactly what [I] did during [my] shift" on these reports. The officer who MARTA claimed was patrolling the deck during the relevant time emphasized that he completed these reports throughout the course of his shift ("You complete them as you go") and would then turn them in at the end of his shift to his MARTA supervisor, who placed them in MARTA files. Without this report, this officer was unable to confirm that he was even on duty on the day when the assault took place. The shift supervisor for the relevant shift on June 25 confirmed that these reports were a daily log of his subordinates' activities that had to be turned into him at the end of each shift from each officer and that were then placed in MARTA's files. However, the evidence further showed that within months of the incident, MARTA consciously destroyed all such reports for 2002 when it moved its precinct offices for that area. The creation and subsequent destruction of these key documents were not disclosed to Doe until the court conducted its special hearing on the matter in the middle of trial.

Because it found that MARTA had unmistakably and intentionally misrepresented to Doe that such documents had never been created nor maintained (and thus had kept secret that it had consciously destroyed the documents), the trial court held that MARTA had flagrantly abused the discovery process and that therefore the court was striking MARTA's answer. The question before us is whether this discovery abuse authorized the trial court to do so.

OCGA § 9-11-37(d) authorizes a trial court to "take any action authorized under subparagraphs (b)(2)(A) through (b)(2)(C) of this Code section" where a party has failed to respond to a document production request or an interrogatory. OCGA § 9-11-37(b)(2)(C) authorizes a trial court to strike pleadings as a sanction for discovery abuse. Interpreting this statute, Mayer v. Interstate Fire Ins. Co., supra, held that only "a total failure to serve answers or objections would constitute a failure to respond under 37(d) and would subject a party to immediate sanctions" without the necessity of the court's first issuing an order to respond. (Emphasis in original.) 243 Ga. at 439(2), 254 S.E.2d 825. See Strejc v. MARTA⁴ (only a total failure to respond to a discovery request authorizes the immediate sanction of striking a pleading). The question, therefore, is whether a party's intentionally false response to a discovery request (particularly one concerning the pivotal issue in the litigation) constitutes a total failure to respond that would justify the immediate sanction of striking a pleading.

As recognized in Orkin Exterminating Co. v. McIntosh,⁵ "[s]ome courts have...