Orkin Exterminating Co., Inc. v. McIntosh
| Decision Date | 30 November 1994 |
| Docket Number | No. A94A1209,A94A1209 |
| Citation | 215 Ga.App. 587,452 S.E.2d 159 |
| Parties | ORKIN EXTERMINATING COMPANY, INC. v. McINTOSH et al. |
| Court | Georgia Court of Appeals |
Decker & Hallman, Richard P. Decker, W. Winston Briggs, Atlanta, for appellant.
Eugene C. Brooks, IV, Adam P. Cerbone, Weiner, Shearouse, Weitz, Greenberg & Shawe, N. Harvey Weitz, Savannah, for appellees.
Suzanne McIntosh and Jeanette Mobley brought suit against Orkin Exterminating Company, alleging Orkin misapplied pesticides to a home owned by Mobley and lived in by McIntosh. The trial court denied Orkin's motion for summary judgment, and the case proceeded to trial. A pretrial motion in limine was granted by the trial court prohibiting the introduction of certain evidence by Orkin. At the close of plaintiffs' evidence, Orkin's motion for a directed verdict was denied. On the fourth day of trial, defendant's second witness, a former employee, began to testify from documents which had not been produced by Orkin during discovery. These documents recorded Orkin's inspections of the home after the application of the pesticides and its attempts at remedial action. Orkin previously had denied, both in discovery and at the pretrial conference, that any inspection reports existed. Upon voir dire, however, the witness testified he had simply walked into Orkin's local office that morning and removed the documents from the case file. Orkin's counsel could not explain why these documents were not produced, characterizing it as "an unsolved mystery."
The trial court declared a recess and conducted an inquiry into the circumstances of the documents' whereabouts and reappearance. The trial court declared a mistrial and ordered a hearing on the issue of fees and expenses necessitated by Orkin's conduct. Plaintiffs' counsel subsequently filed a formal motion for fees, expenses and costs. After a hearing, the trial court found the documents were highly relevant to the issues being tried and determined plaintiffs had been irretrievably prejudiced by the failure to produce the documents, regardless of whether that failure was intentional or negligent. The court ordered Orkin to pay plaintiffs' attorney fees necessitated by Orkin's conduct in failing to comply with discovery and causing the mistrial. Thereafter, Orkin declined to obey the order on the basis that it was not a "final judgment." The trial court found Orkin in wilful contempt of its earlier order and imposed a fine. Orkin appeals the order finding it in contempt. Orkin also appeals all previous rulings of the trial court pursuant to OCGA § 5-6-34(d). See Costanzo v. Jones, 200 Ga.App. 806, 811(3), 409 S.E.2d 686 (1991).
1. Orkin's contention that it may wait until final judgment in this action to pay attorney fees ordered by the trial court is unsupported by the Code, the case law and, indeed, by common sense. As the trial court observed, obedience to interlocutory orders, especially those governing discovery and trial management, is essential to the functioning of the judicial system. OCGA § 9-11-37(b)(2)(D) specifically authorizes the trial court to treat as a contempt of court the failure to obey an order under that Code section.
Although an interlocutory order is not a judgment and therefore cannot be enforced by execution, the administration of justice requires that courts have the power to enforce their interlocutory orders and decrees by contempt proceedings. Warehouse Carpet Sales & Svc. v. S.C.J. Assoc., 170 Ga.App. 352, 353(1), 317 S.E.2d 328 (1984). Orkin's reliance on MARTA v. Federick, 187 Ga.App. 696, 371 S.E.2d 204 (1988), is misplaced because that case involves not the enforceability of an interlocutory order, but an attempt to make a bad faith claim under OCGA § 33-34-6(b)(c) based upon a judgment entered as to fewer than all the parties and claims under OCGA § 9-11-54(b).
Orkin's argument that it might be unable to recover the money upon possible later reversal is disingenuous, given Orkin's failure to use any of the procedural avenues open to it for protection of its interests, such as seeking a certificate of immediate review of the trial court's order or paying the money into the registry of the court. Orkin was bound to obey the order, even if erroneous, and thus was properly held in contempt. Mathews v. City of Atlanta, 167 Ga.App. 168, 169, 306 S.E.2d 3 (1983).
2. We next address Orkin's contention that the trial court erred in declaring a mistrial. The granting of a mistrial is within the sound discretion of the trial court. McEachern v. McEachern, 260 Ga. 320, 322(2), 394 S.E.2d 92 (1990). White v. Lance H. Herndon, Inc., 203 Ga.App. 580, 581(5), 417 S.E.2d 383 (1992). The trial court determined the withheld documents were crucial to the issues and would have significantly altered plaintiffs' presentation of their case. Many of plaintiffs' witnesses testified by deposition, and it was impossible to elicit their testimony regarding this newly available information. The trial court concluded Orkin's conduct placed plaintiffs at a distinct disadvantage, no effective cure was available, and a mistrial was the only remedy. Orkin has not shown an abuse of discretion by the trial court, particularly in light of the unusual and extreme circumstances here.
3. A more complex issue is presented by the trial court's award of attorney fees against Orkin. In addressing this question, we bear in mind that the trial court has the inherent power to "control, in the furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto." OCGA § 15-1-3(4). The powers of the trial court to control the time, place, scope and financing of discovery are to be construed broadly, Bicknell v. CBT Factors Corp., 171 Ga.App. 897, 899, 321 S.E.2d 383 (1984), and are not to be interfered with absent a clear abuse of discretion. Vaughn & Co. v. Saul, 143 Ga.App. 74, 80(4), 237 S.E.2d 622 (1977).
In this action, the trial court imposed sanctions under OCGA § 9-11-37(d). That Code section provides for immediate sanctions, without necessity of an order compelling discovery, for "[f]ailure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection." The imposition of penalties under 37(d), however, is limited to an absolute failure to respond. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 439-440(2), 254 S.E.2d 825 (1979). Here, there was no absolute failure to respond to the entire discovery request; there was a false response to a portion of a single interrogatory and its corresponding request for production. When an evasive or incomplete response to discovery is given, the proper remedy is a motion to compel resulting in a court order under OCGA § 9-11-37(a). Id.
Some courts have interpreted a false response to an interrogatory as a "failure to respond" under Fed.R.Civ.P. 37(d) or analogous state provisions and have imposed sanctions, including striking a party's pleadings and imposing judgment. See, e.g., Airtex Corp. v. Shelley Radiant Ceiling Co., 536 F.2d 145, 155 (7th Cir.1976); Bell v. Automobile Club of Michigan, 80 F.R.D. 228 (E.D.Mich.1978), appeal dismissed, 601 F.2d 587 (6th Cir.), cert. denied, 442 U.S. 918, 99 S.Ct. 2839, 61 L.Ed.2d 285 (1979); Sandoval v. Martinez, 109 N.M. 5, 780 P.2d 1152, 1154-1159 (App.1989). We need not reach that issue here, because we find a remedy for Orkin's conduct within the scope of OCGA § 9-11-37(a)(4)(A).
Orkin responded in verified interrogatory answers: "No written reports were provided." This response did not appear to be evasive or incomplete; it was straightforward, complete--and, in hindsight, clearly false. 1 As the trial court noted, plaintiffs understandably did not move to compel production of these items because a verified interrogatory response denied they existed. Plaintiffs again requested copies of inspection reports in the pretrial conference, and counsel for Orkin again assured both plaintiffs' counsel and the trial court that those documents did not exist. He stated a witness had some recollection of preparing notes, but that counsel had searched for those notes, was unable to locate them, and did not intend to introduce them. The trial court gave counsel specific instructions regarding the use of such documents if they were produced by the witness. 2
The verified interrogatory answer and the assurances given by counsel to opposing counsel and to the court forestalled a motion to compel or an order compelling discovery under OCGA § 9-11-37(a) before trial. However, the request by counsel and directions by the trial court made during the pretrial conference, together with the later post-trial hearing and rulings by the trial court, were delayed efforts to fulfill the intended function of OCGA § 9-11-37(a). The delay in bringing this discovery matter on for hearing was due entirely to the conduct of Orkin, and the requests and rulings on the part of counsel and the trial court accordingly will be construed as the equivalent of a motion to compel and order compelling discovery under OCGA § 9-11-37(a).
OCGA § 9-11-37(a)(4) provides:
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