DENTISTRY FOR CHILDREN OF GEORGIA, LLC v. WHITNEY FOSTER

FOURTH DIVISION
DILLARD, P. J.,
MCFADDEN, P. J., and MERCIER, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
January 4, 2022
In the Court of Appeals of Georgia
A21A1746. DENTISTRY FOR CHILDREN OF GEORGIA et al. v.
FOSTER et al.
MCFADDEN, Presiding Judge.
Defendants Dentistry for Children of Georgia, LLC and D4C Dental Brands,
Inc. (collectively, the “corporate defendants”) appeal an order precluding them from
presenting a defense at trial as a sanction for discovery violations. We hold that the
corporate defendants have not shown that the trial court clearly abused her discretion
in imposing the sanction. So we affirm.
1. Factual and procedural background.
This case began when 11 children and their guardians sued the corporate
defendants and several individual dentists alleging that the children sustained injuries
when water contaminated with bacteria was used in unnecessary dental procedures
performed on the children at a pediatric dental clinic.
The case proceeded and, eventually, the plaintiffs filed a motion for sanctions
for the corporate defendants’ failure to respond to four discovery requests. Following
a hearing, the trial court granted the plaintiffs’ motion. The court found that the
corporate defendants wilfully failed to respond to the discovery and barred them from
defending the claims asserted against them in the plaintiffs’ first and second amended
complaints, should the plaintiffs present evidence on the claims. We granted the
corporate defendants’ application for interlocutory appeal, and this appeal followed.
2. Standard of review.
“A trial court has broad discretion to control discovery, including the
imposition of sanctions, and this [c]ourt will not reverse a trial court’s decision on
discovery matters absent a clear abuse of discretion.” Resurgens, P.C. v. Elliott, 301
Ga. 589, 597-598 (2) (b) (800 SE2d 580) (2017) (citations and punctuation omitted).
This is because trial judges, through their direct involvement with the
case, the parties, and the attorneys, and their familiarity with the actions
of the parties in the conduct of discovery in similar cases that are
properly brought to their attention, are in the best position to evaluate
the parties’ conduct and to determine the appropriate level of sanctions.
2
Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 734 (4) (698 SE2d 19) (2010)
(citation and punctuation omitted). So, “[h]istorically it has been the policy of the
Georgia appellate courts to refuse to interfere with a trial court’s exercise of its
discretion in absence of abuse[, including] a trial judge’s exercise of the broad
discretionary powers authorized under the discovery provisions of the Civil Practice
Act.” Kemira, Inc. v. Amory, 210 Ga. App. 48, 51-52 (1) (435 SE2d 236) (1993)
(citation and punctuation omitted).
3. Applicable law.
Under OCGA § 9-11-37 (d) (1) of the Civil Practice Act, “[i]f, after proper
service, a party or his agent fails to serve answers or objections to interrogatories or
requests to produce, the presiding judge may take any action authorized under OCGA
§ 9-11-37 (b) (2) (A) through (b) (2) (C).” Cannon Air Transp. Svcs. v. Stevens
Aviation, 249 Ga. App. 514, 517-518 (4) (548 SE2d 485) (2001) (citation and
punctuation omitted). Those subsections authorize the trial court to enter:
(A) [a]n order that the matters regarding which the order was made or
any other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party
obtaining the order; (B) [a]n order refusing to allow the disobedient
party to support or oppose designated claims or defenses, or prohibiting
him from introducing designated matters in evidence; [or] (C) [a]n order
3
striking out pleadings or parts thereof, or staying further proceedings
until the order is obeyed, or dismissing the action or proceeding or any
part thereof, or rendering a judgment by default against the disobedient
party. . . .
OCGA § 9-11-37 (b) (2) (A) through (b) (2) (C).
Generally dismissal, default, and striking a party’s pleadings are considered to
be the harshest sanctions. See In re Farnham, 312 Ga. 65, 68 (860 SE2d 547) (2021);
Schrembs v. Atlanta Classic Cars, 261 Ga. 182 (402 SE2d 723) (1991); Portman v.
Zipperer, 350 Ga. App. 180, 182-183 (1) (827 SE2d 76) (2019). “[T]he trial court
must find wilfulness as a predicate to imposing those sanctions.” Portman, 350 Ga.
App. at 182-183 (1). The sanctions before us are similar. So we will assume for
purposes of this appeal that the sanction imposed by the trial court — preventing the
corporate defendants from defending the claims in the plaintiffs’ first and seconded
amended complaints, should the plaintiffs present evidence on those claims — also
required the trial court to find wilfulness as a predicate.
4. The trial court did not abuse her discretion in finding the failure to respond
was wilful.
4
The corporate defendants argue that there was no basis for finding their failure
to respond to the four items of discovery was wilful, and so that the trial court abused
her discretion in imposing such a harsh sanction. We hold that the record supports the
trial court’s finding of wilfulness.
“[W]ilfulness in this context requires only a conscious or intentional failure to
act, as distinguished from an accidental or involuntary non-compliance.” Portman,
350 Ga. App. at 183 (1) (citation and punctuation omitted). “There is no requirement
that the [party] display and the trial court find actual wilfulness.” Resource Network
Intl. v. Ritz-Carlton Hotel Co., 232 Ga. App. 242 (1) (501 SE2d 573) (1998) (citation
and punctuation omitted).
The record supports a finding that the corporate defendants consciously failed
to respond to the plaintiffs’ discovery requests amounting to wilfulness. As noted, the
sanctions were based on the corporate defendants’ failure to respond to four discovery
requests: (1) April 17, 2019 interrogatories and a request for production of documents
served on Dentistry for Children of Georgia by some of the plaintiffs; (2) August 16,
2019 second continuing interrogatories and requests for production of documents
served on the corporate defendants by all plaintiffs; (3) August 19, 2019 third
continuing requests for production of documents served on the corporate defendants
5
by all plaintiffs; and (4) September 30, 2019 fourth continuing requests for
production of documents served on the corporate defendants by all plaintiffs.
Regarding the April 2019 discovery requests directed to Dentistry for Children
of Georgia, plaintiffs’ counsel re-sent the discovery requests on July 8, 2019. On July
17, 2019, he emailed the attorney who was representing the corporate defendants at
the time,1 asking when he could expect responses. Defense counsel responded on July
18, 2019, that he would serve responses to as many as he could by July 26, and to the
rest by August 2. Plaintiffs’ counsel emailed defense counsel on July 31, 2019, that
he had received no responses. Counsel had not received a response by the time he
filed the motion for sanctions in February 2020.
As for the August and September 2019 discovery, the plaintiffs mailed and
emailed copies of these discovery requests to defense counsel and filed and served
certificates of service. On January 7, 2020, plaintiffs’ counsel sent defense counsel
an email notifying him that responses to the three items were outstanding and
requesting that he provide responses by January 21, 2020. According to plaintiffs’
counsel, defense counsel did not respond to the email.
1
The corporate defendants obtained new counsel after the trial court granted the
plaintiffs’ motion for sanctions.
6
As of February 28, 2020, the date the plaintiffs filed their motion for sanctions,
defense counsel had not served plaintiffs’ counsel with any responses to the four
discovery requests. The corporate defendants finally answered all outstanding written
discovery the week of June 19, 2020.
In the meantime, while their answers to discovery were outstanding, the
corporate defendants served close to 100 requests for production of documents to
non-parties and noticed the depositions of 18 of the guardian plaintiffs.
The corporate defendants “do[] not assert that [they were] unaware of [the]
discovery requests or that [their] failure to respond was accidental or involuntary.”
Stolle v. State Farm Mut. Automobile Ins. Co., 206 Ga. App. 235, 237 (3) (424 SE2d
807) (1992). Indeed, the record demonstrates that the corporate defendants knew that
discovery had been served and knew that their responses were overdue, but failed to
respond, while conducting their own discovery. This shows “a conscious or
intentional failure to act[.]” Portman, 350 Ga. App. at 183 (1) (citation and
punctuation omitted). See also Smith v. Byess, 127 Ga. App. 39, 41 (1) (192 SE2d
552) (1972) (defendant’s conduct in not answering plaintiff’s discovery while
requiring plaintiff to answer his discovery “showed a blatant disregard for the rights
of others,” authorizing striking of defendant’s pleadings).
7
The trial court did not abuse her discretion in finding that the failure to respond
was wilful, authorizing the harsh sanction that she imposed.
5. The corporate defendants have not shown that the sanction imposed was too
harsh.
The corporate defendants assert a variety of arguments in support of their
assertion that the sanction imposed was too harsh. They argue that they did not
completely fail to participate in discovery; that the court did not consider the context
of the case, including that the plaintiffs were not prejudiced; that counsel presented
evidence of mitigating circumstances; and that the sanction was manifestly unjust.
(a) Failure to respond to discovery.
The corporate defendants argue that they did not completely fail to participate
in discovery but had responded to more than 300 interrogatories, more than 200
requests for documents, and more than 500 requests for admission. But it is the failure
to respond to an item of discovery, not the failure to respond to any discovery, that
is relevant; and that failure is relevant in the context of reviewing the trial court’s
exercise of discretion in imposing a sanction in the absence of a party’s violation of
a court order compelling discovery. See Greenbriar Homes v. Builders Ins., 273 Ga.
App. 344, 344-345 & 346-347 (4) (615 SE2d 191) (2005) (defendant responded to
8
request for admissions but did not respond to interrogatories and request for
production of documents, which amounted to a total failure justifying the entry of a
default judgment); Bryant v. Nationwide Ins. Co., 183 Ga. App. 577, 577-578 (359
SE2d 441) (1987) (trial court did not abuse its discretion in dismissing plaintiff’s
complaint for a total failure to respond to interrogatories and second request for
production of documents, although plaintiff had answered first request for
production).
(b) Consideration of the context of the case.
Relying on Gen. Motors Corp. v. Conkle, 226 Ga. App. 34 (486 SE2d 180)
(1997) (physical precedent only), the corporate defendants argue that, when viewed
in context of the case as a whole, the sanction was too severe. They specify that the
court should have considered that the plaintiffs had served an overwhelming number
of discovery requests; that there was an apparent miscommunication resulting in the
delayed receipt of the April 2019 discovery request; and that the August and
September 2019 discovery requests were served during a time when counsel’s mother
was diagnosed with a terminal illness that quickly led to her death.
First, we note that Conkle is physical precedent only. See Ga. Ct. App. R. 33.2
(a) (2). And in Conkle, one of the reasons we reversed the sanction imposed was
9
because the trial court had not conducted a hearing on the motion for sanctions.
Conkle, 226 Ga. App. at 40-42 (1) (a). Here, on the other hand, the trial court did
conduct a hearing, and the parties argued all the circumstances the corporate
defendants assert that the trial court should have considered. Counsel for the
corporate defendants admitted that he did not timely respond to the discovery or file
any kind of motion to limit discovery; and he accepted responsibility for that failure.
Another reason we reversed the sanction in Conkle was because, unlike here,
the trial court did not make an express finding of wilfulness. Conkle, 226 Ga. App.
at 42-43 (1) (b). Conkle does not support reversing the sanction the trial court
imposed against the corporate defendants.
(c) Counsel presented evidence of mitigating circumstances.
The corporate defendants argue that a lesser sanction would have been more
appropriate, given a personal tragedy suffered by the corporate defendants’ counsel
and the lack of any discernible prejudice suffered by the plaintiffs. But counsel’s
personal tragedy does not explain the failure to respond before the tragedy or after.
The corporate defendants cite no Georgia authority, and we have found none, for the
proposition that the trial court was required to find prejudice before imposing the
sanction.
10
(d) The sanction was not manifestly unjust.
The corporate defendants argue that the sanction imposed was manifestly
unjust, especially given that the plaintiffs have not shown that they were prejudiced.
As noted, the plaintiffs were not required by Georgia law to show prejudice. And the
cases the corporate defendants cite in support of their argument that the sanction
imposed was manifestly unjust are distinguishable. Three of them do not involve
discovery sanctions. In Lee v. Smith, 307 Ga. 815, 822 (2) (838 SE2d 870) (2020), our
Supreme Court found a sanction of excluding an expert witness solely because of a
failure to identify the witness by a deadline established in a scheduling order to be an
abuse of the trial court’s discretion. In Carder v. Racine Enterprises, 261 Ga. 142,
143-144 (2) (401 SE2d 688) (1991), the Court held that a sanction of preventing the
defense from contesting liability because the defendants failed to participate in the
production of a pretrial order to be too harsh. In Cortes v. Ga. Power Co., __ Ga.
App. __, __ (863 SE2d 376) (Case No. A21A0706, decided Sept. 8, 2021), we
vacated an order dismissing a plaintiffs’ complaint entered four days after the
plaintiffs had missed a 20-day deadline to submit a proposed scheduling order.
The fourth case they cite, Foundation Contractors v. Home Depot U.S.A., 359
Ga. App. 26, 29-31 (1) (855 SE2d 434) (2021), did involve our reversing a sanction
11
of default for a discovery violation. But there we held that no evidence supported a
finding of wilful behavior. Id. at 30-31 (1). As detailed above, here the record
supports the trial court’s finding of wilfulness.
“Although the sanctions imposed were harsh given the circumstances, the
present record shows that answers were not filed until . . . long after the time for
timely responses. Since there was some evidence upon which the trial court could
base [her] ruling, we find no abuse of discretion in [the sanction the court imposed].”
Kemira, Inc., 210 Ga. App. at 52 (1).
Judgment affirmed. Dillard, P. J., and Mercier, J., concur.
12