West v. Equifax Credit Information Services, Inc., A97A1279

• Decision Date: 02 December 1997
• Docket Number: No. A97A1279,A97A1279
• Citation: 230 Ga.App. 41,495 S.E.2d 300
• Parties: , 97 FCDR 4473, 98 FCDR 75 WEST v. EQUIFAX CREDIT INFORMATION SERVICES, INC.
• Court: Georgia Court of Appeals

Page 300

495 S.E.2d 300

230 Ga.App. 41, 97 FCDR 4473, 98 FCDR 75

WEST v. EQUIFAX CREDIT INFORMATION SERVICES, INC.

No. A97A1279.

Court of Appeals of Georgia.

Dec. 2, 1997.

Reconsideration Denied Dec. 19, 1997.

Certiorari Denied May 1, 1998.

George Melville Johnson & Associates, George M. Johnson, Atlanta, for appellant.

Powell, Goldstein, Frazer & Murphy, James W. Hawkins, Atlanta, for appellee.

BEASLEY, Judge.

George West appeals the order of the state court which dismissed his complaint against Equifax Credit Information Services, Inc. because West did not respond to Equifax's interrogatories and request for production of documents and failed to attend his own deposition. West contends the court abused its discretion in dismissing the complaint when an order compelling discovery or a less severe sanction would have been appropriate and in dismissing the complaint despite Equifax's own discovery abuse.

First, we note the trial court did not mention Monster Motors, Inc., Equifax's co-defendant, in its order dismissing West's claims against Equifax, although the order directs that West's complaint be dismissed. Because "there is no authority for a co-defendant to become the beneficiary of a dismissal under [OCGA § 9-11-37(d) ] merely because of a failure of the plaintiff to comply with the other co-defendant's discovery actions," Johnson v. Martin, 137 Ga.App. 312, 314, 223 S.E.2d 465 (1976), the case against Monster Motors, Inc. is still pending. See also Washington v. South Ga. Med. Center, 226 Ga.App. 554, 555-556, 487 S.E.2d 125 (1997) (rule applies to deposition discovery as well as written discovery); Singleton v. Eastern Carriers, 192 Ga.App. 227, 384 S.E.2d 202 (1989).

Now as to Equifax. On July 12, 1994, West filed a complaint seeking damages resulting from a credit report Equifax published. Equifax answered and moved to remove the case to federal court. West thereafter achieved remand to state court, and formal discovery began on the date of the remand, either March 16 or 17, 1995. On August 4, Equifax served West with interrogatories and a request for production of documents. According to the trial court, the responses were due on September 5. West failed to respond. In the meantime, on August 15, Equifax noticed West's deposition for September 12. Without filing a motion for a protective order, West refused to appear on the scheduled date.

On October 18, Equifax moved pursuant to OCGA § 9-11-37(d) to dismiss the complaint as a sanction for West's refusal to respond to written discovery or appear at his deposition, or in the alternative to compel discovery. The court held a hearing on December 19 and, by order filed January 29, 1996, dismissed West's complaint. The court found that the record showed West's failure to respond to the discovery was intentional and conscious and noted that at the oral hearing, West's counsel "admitted that he wrongfully refused to provide [West] for his deposition and that he intentionally withheld discovery responses from Defendant Equifax." West moved to set aside the judgment under the inherent power of the court to modify or set aside a judgment, but the motion was denied and the clerk was directed to enter judgment in favor of Equifax and against West.

1. "Trial judges have broad discretion in controlling discovery, including imposition of sanctions [cit.], and appellate courts will not reverse a trial court's decision on such matters unless there has been a clear abuse of discretion. [Cit.]" Fidelity Enterprises v. Heyman & Sizemore, 206 Ga.App. 602, 603, 426 S.E.2d 177 (1992); Addington v. Anneewakee, Inc., 204 Ga.App. 521, 522, 420 S.E.2d 60 (1992). Provided that proper discovery procedure is followed, the Civil Practice Act authorizes a trial court to dismiss a plaintiff's action as a sanction for a complete failure to attend his own deposition, to respond to interrogatories, or to respond to requests for production. OCGA § 9-11-37(d)(1); Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 438(2), 254 S.E.2d 825 (1979); Barron v. Spanier, 198 Ga.App. 801, 802, 403 S.E.2d 88 (1991).

"The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance. A conscious or intentional failure to act is in fact wilful." (Citations and punctuation omitted.) Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga.App. 344, 345, 373 S.E.2d 50 (1988). "The trial judge is the trier of fact and [the] finding of wilfulness from the evidence presented will not be reversed where there is any evidence to support it." Wetherington v. Koepenick & Horne, Inc., 153 Ga.App. 302, 304(2), 265 S.E.2d 107 (1980).

The record fully supports the finding that West's failure to attend his deposition and answer the discovery was the result of a conscious or intentional failure to act, as distinguished from accidental or involuntary non-compliance. West's counsel admitted intentionally refusing to respond to discovery in an attempt to force Equifax to provide other discovery, and he continued to refuse discovery after Equifax complied with all pending discovery requests. At the hearing, counsel for West stated "[t]hen my client is noticed to a deposition, and I probably wrongfully said, I'm not going forward with the deposition of my client until you actually put the people who we really want to depose up for a deposition. It was a tit for tat thing, but I didn't know what else to do and I probably made a mistake." With regard to the written discovery, counsel stated, "they said, 'Are you going to do discovery?' I said, well, you got to come up with your discovery before I agree to do mine." This provided a sufficient basis for the findings.

West answered the discovery only after Equifax moved for sanctions. Late responses do not nullify the motion. Rucker v. Blakey, 157 Ga.App. 615, 616, 278 S.E.2d 158 (1981); Addington v. Anneewakee, Inc., supra, 204 Ga.App. at 522, 420 S.E.2d 60. See also Bells Ferry Landing, Ltd., supra, 188 Ga.App. at 345, 373 S.E.2d 50.

2. West next argues that the sanction of dismissal should not be allowed where the opposing party has also failed to respond to discovery. The Civil Practice Act provides abuse remedies to every party to an action, OCGA § 9-11-37; West should have pursued them rather than seek self-help. Although the Civil Practice Act requires each party to respond to discovery, it does not authorize the type of self-help West attempted. Counsel for West may have felt provoked, but this reaction does not excuse a failure to comply with the rules of discovery.

He argues that by seeking a dismissal for failure to comply with discovery Equifax sought equity, and that Equifax's motion should have been denied because it had "unclean hands." OCGA § 23-1-10. True, neither West nor Equifax was diligent, but that is not grounds to reverse the court's order. There was ample evidence to support the court's order, and it was not legally erroneous.

Further, "[t]he rule that he who would have equity must do equity refers to equitable rights respecting the subject-matter of the action. [Cit.] It does not embrace outside matters." Atlanta Assn. of Fire Ins. Agents v. McDonald, 181 Ga. 105, hn. 2, 181 S.E. 822 (1935). Cf. Morton v. Gardner, 242 Ga. 852, 854, 252 S.E.2d 413 (1979); Adams v. Crowell, 157 Ga.App. 576, 278 S.E.2d 151 (1981). The unclean hands doctrine does not authorize reversal of the trial court's grant of a motion for sanctions arising out of a discovery dispute. 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...