South Georgia Medical Center v. Washington

• Decision Date: 13 April 1998
• Docket Number: No. S97G1551,S97G1551
• Parties: , 98 FCDR 1266 SOUTH GEORGIA MEDICAL CENTER v. WASHINGTON et al.
• Court: Georgia Supreme Court

Page 793

497 S.E.2d 793

269 Ga. 366, 98 FCDR 1266

SOUTH GEORGIA MEDICAL CENTER v. WASHINGTON et al.

No. S97G1551.

Supreme Court of Georgia.

April 13, 1998.

F. Thomas Young, Elizabeth C. Cleveland, Young, Thagard, Hoffman, Scott & Smith, Valdosta, for South Georgia Medical Center, d/b/a South Georgia Medical Foundation, Inc.

Elizabeth Pelypenko, The Pelypenko Law Firm, P.C., Atlanta, for Cynthia Washington et al.

THOMPSON, Justice.

Plaintiffs Kenneth Washington, Sr., and Cynthia Washington, filed suit against South Georgia Medical Center ("SGMC"), and Dr. Roy Swindle, seeking damages for medical malpractice. Swindle served plaintiffs with a notice to take their depositions. When plaintiffs failed to appear at the scheduled time and place, Swindle filed a motion for sanctions. So did SGMC. The trial court granted the motions and dismissed plaintiffs' claims as to both defendants. The Court of Appeals affirmed the dismissal of plaintiffs' claims against Swindle; but it remanded for reconsideration of SGMC's motion for sanctions. Washington v. South Georgia Medical Center, 221 Ga.App. 640, 472 S.E.2d 328 (1996) ("SGMC I "). In so doing, two judges opined that a non-noticing party who attends a noticed deposition can seek sanctions, including dismissal, when the deponent fails to appear. Id. at 642, 472 S.E.2d 328. A third judge specially concurred, taking the position that, because SGMC did not send a notice of deposition, it could not seek the dismissal of plaintiffs' claims on the ground that plaintiffs failed to attend their depositions.

Following remand, the trial court again granted SGMC's motion for sanctions and dismissed plaintiffs' claims against SGMC. On appeal, plaintiffs asserted that the trial court erred in dismissing their claims against SGMC because, inasmuch as SGMC did not serve them with a notice to take their depositions, it could not seek sanctions against them. They also asserted that, in any event, the trial court abused its discretion in imposing the ultimate sanction of dismissal. Citing Singleton v. Eastern Carriers, 192 Ga.App. 227, 228, 384 S.E.2d 202 (1989), a majority of the Court of Appeals held that a non-noticing party could not seek sanctions against a deponent who fails to appear. In so holding, the majority concluded that language to the contrary in SGMC I--i.e., that a non-noticing party can seek sanctions--was mere dicta, not the law of the case. Washington v. South Georgia Medical Center, 226 Ga.App. 554, 487 S.E.2d 125 (1997) ("SGMC II "). We granted certiorari and posed these questions: Whether the Court of Appeals misconstrued the holding in SGMC I as "dicta" and erroneously failed to apply that holding as the "law of the case" in SGMC II. Whether the failure of SGMC to give its own notice precludes it from seeking sanctions based upon plaintiffs' failure to appear at the deposition noticed by Swindle.

1. Although the law of the case rule has been abolished, OCGA § 9-11-60(h), any ruling in a case by this Court or the Court of Appeals is binding in all subsequent proceedings in that case. Id.; Fulton-DeKalb Hospital Authority v. Walker, 216 Ga.App. 786, 787(1), 456 S.E.2d 97 (1995). Thus, if the reversal and remand in SGMC I, authorizing the trial court to exercise its discretion with regard to SGMC's motion for sanctions, established the law of the case, as opposed to mere dicta, that ruling would have been binding on the parties in SGMC II. An adjudication on any point within the issues presented by the case cannot be considered a dictum, and this rule applies as to all pertinent questions, although only incidentally involved, which are presented and decided in the regular course of the consideration of the case, and lead up to the final conclusion, and to any statement in the opinion as to a matter on which the decision is predicated.

Rivers v. Brown, 200 Ga. 49, 52, 36 S.E.2d 429 (1945) (quoting 21 CJS § 190-b, p. 314).

The issue of SGMC's entitlement to sanctions was at least "incidentally involved" in SGMC I and served as the basis for ordering a remand, rather than an outright reversal. It follows that the statements in SGMC I were not dicta, but the law of the case. Id. See also Little v. Fleet Finance, 224 Ga.App. 498, 501(1), 481 S.E.2d 552 (1997). Thus, insofar as it pertained to SGMC's motion for sanctions, SGMC I was binding on all subsequent proceedings. OCGA § 9-11-60(h); Rivers v. Brown, supra. The Court of Appeals erred in ruling otherwise.

2. In Singleton v. Eastern Carriers, supra, the plaintiff brought suit against Cantrell, Eastern Carriers, and United States Fire Insurance Company. Eastern Carriers served the plaintiff with written discovery requests and, when the plaintiff failed to respond, filed a motion to...