Rice v. Cannon, A06A2449.

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtAndrews
Citation641 S.E.2d 562,283 Ga. App. 438
PartiesRICE et al. v. CANNON.
Docket NumberNo. A06A2449.,A06A2449.
Decision Date17 January 2007

J. Andrew Rice, pro se.

Kathryn W. Rice, for Appellant.

Hammond, Carter & DeNapoli, Anthony E. DeNapoli, Lewis S. Fine, Brock Clay, Richard W. Calhoun, Marietta, for appellee.

ANDREWS, Presiding Judge.

J. Andrew Rice and Kathryn W. Rice appeal pro se from the order of the trial court dismissing their pro se complaint against Ronald L. Cannon pursuant to OCGA § 9-11-37(d) on the basis that they both wilfully failed to appear on more than one occasion at their depositions. For the following reasons, we affirm.

1. In enumeration of errors two and three, the Rices contend that the trial court erred for various reasons in granting Cannon's motion to dismiss their complaint as a sanction for failure to appear at their depositions. Under OCGA § 9-11-37(d), the trial court was authorized to immediately dismiss the Rices' complaint, without the necessity of an order compelling discovery, as a sanction for their failure to attend their duly-noticed depositions. McConnell v. Wright, 280 Ga.App. 546, 547, 634 S.E.2d 495 (2006); Dyer v. Spectrum Engineering, 245 Ga.App. 30, 31, 537 S.E.2d 175 (2000). Before imposing the sanction of dismissal, the trial court was first required to determine that the Rices acted wilfully. McConnell, 280 Ga. App. at 548, 634 S.E.2d 495.1 The record shows that, after notifying the parties and conducting a hearing on Cannon's motion, the trial court imposed the sanction of dismissal after finding that both of the Rices wilfully failed to attend their duly-noticed depositions on at least two occasions. Trial courts have broad discretion in controlling discovery, including the imposition of sanctions, and this Court will not reverse the trial court's decision in such cases absent a clear abuse of discretion. Id. at 547, 634 S.E.2d 495. Although the Rices argue that the record shows the trial court abused its discretion, the court made its findings and dismissed the complaint based on a hearing, and no transcript of that hearing has been included in the appellate record. In the absence of a transcript of the hearing, this Court must assume that the trial court properly exercised its discretion in granting the motion to impose the sanction of dismissal. Young v. Jones, 149 Ga.App. 819, 824-825, 256 S.E.2d 58 (1979).

The Rices contend the trial court erred by granting Cannon's motion to dismiss the complaint for failure to attend their depositions because the court had not ruled on their pending motions seeking to compel Cannon to expand on answers he provided to their interrogatories, and seeking to compel three nonparties to provide documents sought in their nonparty requests for production of documents. We find no error. Even assuming the Rices were entitled to more complete responses to their discovery efforts, this did not excuse their repeated wilful refusal to attend their depositions. "Although a trial court may take into account both parties' actions during discovery when determining what sanctions are appropriate, the nature of the moving party's actions in responding to discovery requests does not preclude sanctions in its favor." West v. Equifax Credit Information Svcs., 230 Ga.App. 41, 44, 495 S.E.2d 300 (1997) (physical precedent only). We find no basis to conclude that the trial court abused its discretion by imposing the sanction of dismissal on these facts.

After the Rices received their second set of deposition notices, they filed a motion and an amendment to the motion seeking a protective order relieving them from attending the depositions. As grounds for a protective order, the Rices contended in the motion and amended motion that Cannon should be barred from taking their depositions until he gave more complete answers to their interrogatories and other nonparties produced documents they sought in nonparty requests for production of documents, and that the pending motion for the protective order itself stayed their depositions. The record shows that the trial court notified the parties of the hearing on Cannon's motion to dismiss the complaint as a sanction for the Rices' failure to attend their depositions, but no notice was given to the parties that the trial court would, at the same time, conduct a hearing on the Rices' motions for a protective order. The order entered by the trial court on Cannon's dismissal motion shows that, at the time noticed for the hearing on the dismissal motion, the court also held a hearing on the Rices' motions for a protective order and concluded in the same order that those motions were denied because they "lacked any credible legal or factual basis."2

The Rices, who did not appear at the joint hearing despite receiving notice of the hearing on the dismissal motion, argue that the trial court erred by conducting a hearing on their motions for a protective order and denying the motions without giving them proper notice. We find that the grounds asserted by the Rices for a protective order provided no basis for the trial court to order that they were not obligated to attend their depositions. OCGA § 9-11-26(c), which provides for protective orders related to depositions, states that "for good cause shown" the court "may make any order which justice requires to protect a party or person...." This language is based on identical language contained in Rule 26(c) of the Federal Rules of Civil Procedure. Bicknell v. CBT Factors Corp., 171 Ga.App. 897, 898-899, 321 S.E.2d 383 (1984); Millholland v. Oglesby, 115 Ga. App. 715, 717, 155 S.E.2d 672 (1967) (Georgia protective order provisions based on federal provisions formerly contained in Fed. R.Civ.P. 30(b)). As the Fifth Circuit has noted with respect to the Federal Rule, the protective order language

places the burden on the proposed deponent to get an order, not just to make a motion. And if there is not time to have his motion heard, the least that he can be expected to do is to get an order postponing the time of the deposition until his motion can be heard. He might also appear and seek to adjourn the deposition until an order can be obtained. But unless he has obtained a court order that postpones or dispenses with his duty to appear, that duty remains.

Hepperle v. Johnston, 590 F.2d 609, 613 (5th Cir.1979). Merely filing motions for a protective order did not relieve the Rices from the duty to appear at their depositions. Moreover, as stated above, even if the Rices could have prevailed on motions to compel more complete responses to their discovery efforts, this did not excuse them from the duty to attend their depositions. It follows that the trial court correctly concluded that nothing the Rices asserted in their motions for a protective order provided a legal basis for the court to exercise its discretion to relieve them from the duty to appear at their depositions. Pilcher v. Stribling, 278 Ga. App. 889, 890-891, 630 S.E.2d 94 (2006). It also follows that, even though the failure to notify the Rices of the hearing on their motions was error, the lack of any legal basis for the motions shows the error was harmless. Ford v. Prudential Investment Co., 174 Ga. 163, 164-165, 162 S.E. 382 (1932); Walton v. Datry, 185 Ga.App. 88, 90-91, 363 S.E.2d 295 (1987).

There is no merit to the Rices' contention that they asserted a valid appearance conflict pursuant to Uniform Superior Court Rule (USCR) 17, and that the trial court erroneously failed to recognize the conflict and reschedule the hearing on Cannon's dismissal motion. After receiving thirty days notice of the August 3, 2005 hearing date, the Rices filed a pleading six days prior to the hearing date in which they notified the trial court that, "[p]ursuant to a matter involving national security," Mr. Rice was required by the United States Government to be at a certain undisclosed location on the date of the hearing, which prevented him attending the hearing. The pleading informed the trial court that only those with a "need to know" under federal law could be told the details regarding Mr. Rice's conflict, and that the trial court had no need to know. The pleading further stated that the trial court "be hereby advised the Rices will not be able to attend the August 3, 2005 hearing scheduled by Judge Grubbs." This notice did not inform the trial court of a scheduling conflict pursuant to USCR 17, which applies to attorneys with appearance conflicts in other courts. The trial court did not err by conducting the hearing on Cannon's dismissal motion on August 3, 2005, despite the above notice from the Rices and their failure to appear at the hearing.

Contrary to the Rices' contentions, we find no error in the order by Cobb County Superior Court Judge Bodiford, to whom the present case was originally assigned, granting Cannon's motion to transfer the case pursuant to USCR 3.2 to Cobb County Superior Court Judge Grubbs. USCR 3.2 provides in relevant part: "When practical, all actions involving substantially the same parties, or substantially the same subject matter, or substantially the same factual issues, whether pending simultaneously or not, shall be assigned to the same judge." After holding a hearing on the motion, Judge Bodiford found that the present action by the Rices against Cannon arose from a previous action presided over by Judge Grubbs, which was brought against the Rices by the Lost Mountain Homeowners Association, Inc. and the Architectural Control Committee of the Lost Mountain Township Homeowners Association (the Lost Mountain Associations). In the prior action, the Lost Mountain Associations obtained final injunctive relief from Judge Grubbs (affirmed on appeal in Rice v. Lost Mountain Homeowners Assn., 269 Ga. App. 351, 604 S.E.2d 215 (2004)), which prohibited the Rices from maintaining a fence on their property in violation of restrictive covenants...

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