McConnell v. Wright , 280 Ga. App. 546 ( 2006 )

Bernes, Judge.

James and Martha McConnell appeal the trial court’s order granting appellees’ motion for the sanction of dismissal as a result of the McConnells’ failure to attend their scheduled depositions. We find no error and affirm.

On April 1, 2004, the McConnells filed the instant lawsuit against appellees seeking damages allegedly arising from a motor vehicle accident. Thereafter, on August 30,2004, the McConnells sent a letter terminating their former counsel, and on October 14, 2004, the trial court granted counsel’s motion to formally withdraw from representation in the case.

Pursuant to the agreement of the parties, the McConnells’ depositions were scheduled and noticed for November 23,2004. On the day before the scheduled depositions, Mrs. McConnell contacted State Farm’s counsel, advising that the McConnells would not be appearing for the depositions and requesting that they be rescheduled. By the parties’ agreement, the McConnells’ depositions were rescheduled and noticed for December 6, 2004. Again, on the day before the rescheduled depositions, Mrs. McConnell contacted State Farm’s counsel to advise her that they would not be appearing and needed to reschedule. For the third time, the McConnells’ depositions were scheduled and noticed for January 19, 2005 by the parties’ agreement. It is undisputed that the McConnells did not request that the January 19, 2005 depositions be rescheduled. Although appellees’ counsel and a court reporter were present for the January 19, 2005 depositions, the McConnells failed to appear.¹

On January 20, 2005, “a prospective new attorney for [the McConnells] contacted [appellees’ counsel] and indicated he had been informed by [the McConnells] of the January 19 depositions, but he gave no explanation for [their] failure to attend or provide notice of cancellation.”²

On January 25, 2005, appellees filed a motion seeking the sanction of dismissal, asserting that the McConnells’ repeated rescheduling and failure to appear for the depositions established their intentional and wilful noncompliance with discovery. At that time, no entry of appearance of substitute counsel had been filed,³ and, thus, the McConnells were served directly as pro se parties at the same address and in the same manner as previous pleadings and correspondence.

The McConnells failed to respond to the motion. Four months later, the trial court entered its order granting appellees’ motion, dismissing the lawsuit.

Approximately four weeks after entry of the dismissal order, the McConnells filed a motion to set it aside. The following day, however, the McConnells filed a notice of appeal to this court, which divested the trial court of jurisdiction to consider the McConnells’ motion pending the appeal. Threatt v. Forsyth County, 250 Ga. App. 838, 844 (2) (552 SE2d 123) (2001).

1. The McConnells claim that the trial court abused its discretion in imposing the sanction of dismissal and in failing to provide a hearing on the motion. We disagree.

OCGA§ 9-11-37 (d) authorizes immediate sanctions for a party’s failure to attend his or her own deposition, without necessity of an order compelling discovery. Greenbriar Homes v. Builders Ins., 273 Ga. App. 344, 346 (4) (615 SE2d 191) (2005). “Trial courts have broad discretion to control discovery, including the imposition of sanctions. Absent the showing of a clear abuse of discretion, a court’s exercise of that broad discretion will not be reversed.” (Punctuation and footnote omitted.) ASAP Healthcare Network v. Southwest Hosp. & Med. Center, 270 Ga. App. 76, 77 (1) (606 SE2d 98) (2004).

The general rule is that before the discovery sanction of dismissal can be imposed, the trial court must conduct a hearing and find that the recalcitrant party acted wilfully. Loftin v. Gulf Contracting Co., 224 Ga. App. 210, 215 (3) (480 SE2d 604) (1997). However, “the trial court need not conduct a hearing on the issue of wilfulness in every case. Such a requirement serves no purpose where the trial court can otherwise determine wilfulness on the part of the party against whom the sanctions are sought.” (Footnote omitted.) Schrembs v. Atlanta Classic Cars, 261 Ga. 182, 182-183 (402 SE2d 723) (1991). See also Daniel v. Corporate Property Investors, 234 Ga. App. 148, 149-150 (3) (505 SE2d 576) (1998). “A hearing has not been required where the wilfulness of the recalcitrant party is obvious and undeniable from the record.” (Footnote omitted.) Largo Villas Homeowners’ Assn. v. Bunce, 279 Ga. App. 524 (631 SE2d 731) (2006).⁴

Thus, we held in Oliff v. Smith, 214 Ga. App. 358, 359 (447 SE2d 707) (1994) that no hearing was necessary before imposing sanctions, where the record showed that the plaintiff had repeatedly delayed serving discovery responses and had only offered that she was “out of pocket” as an explanation for her failure to timely respond. Moreover, we have ruled that “[w]illfulness is implied by the total failure to respond to discovery when no reason or excuse is offered in response to a motion to compel.” (Citations and punctuation omitted.) Daniel, 234 Ga. App. at 149 (2). Accordingly, in Daniel, we held that no hearing on the motion for sanctions was necessary, where the plaintiff failed to respond to discovery requests, failed to appear for his properly noticed deposition, and failed to respond to the motion to compel and for sanctions during the four months the motion remained pending. Id. at 149-150 (3). Likewise, in Woods v. Gatch, 272 Ga. App. 642, 644 (613 SE2d 187) (2005), we affirmed the trial court’s order of dismissal entered without a hearing since a finding of wilfulness was authorized by the plaintiffs failure to attend a court-ordered deposition, failure to respond to the motion for sanctions, and failure to inform the court of any justification until three weeks after the trial court entered its order dismissing the case.

In the instant case, the facts and circumstances presented to the trial court prior to its entry of the dismissal order established that after the McConnells had delayed and rescheduled their depositions three times, they totally failed to appear for the January 19, 2005 scheduled depositions.⁵ In addition, the McConnells failed to respond to the motion for sanctions filed by the appellees during the four months that it remained pending prior to the trial court’s order. The McConnells made no effort to inform the trial court of any reason for their failure to appear and to respond to the motion until four weeks after the entry of the dismissal order, at which time they filed a motion to set aside the order.

We conclude that the circumstances presented in the present case closely resemble those in Woods and Daniel. Because the McConnells failed to appear for their noticed January 19 depositions, and failed to respond in opposition to the motion for sanctions, the trial court was authorized to infer wilfulness from their complete unresponsiveness, and its imposition of the sanction of dismissal, without the conduct of a hearing, was authorized.

In their motion to set aside the dismissal order and in their appellate briefs, the McConnells claimed that they requested rescheduling so that they could obtain substitute counsel, not in efforts to avoid the depositions. The McConnells and their new counsel also claimed that they failed to respond to the motion for sanctions because they did not receive notice of it. The dissent considers and accepts these claims as true in its conclusion that the trial court abused its discretion in granting the motion for sanctions. However, it is undisputed that the McConnells failed to respond to the motion for sanctions, and thus, their belated claims were not presented prior to the trial court’s ruling on the dispositive motion. “Appellate courts will review only evidence presented to the trial court before its ruling on the motion. Additional evidence will not be [considered] on appeal.” (Citations and punctuation omitted.) RC Cola Bottling Co. v. Vann, 220 Ga. App. 479, 480 (1) (469 SE2d 523) (1996). See also Turner v. Mize, 280 Ga. App. 256 (633 SE2d 641) (2006); Norman v. Jones Lang LaSalle Americas, 277 Ga. App. 621, 630 (3) (a), n. 8 (627 SE2d 382) (2006); Piedmont Hosp. v. Reddick, 267 Ga. App. 68, 72 (3) (599 SE2d 20) (2004). Likewise, we cannot consider these claims presented for the first time in the motion to set aside since they have not been ruled upon by the trial court. “Without a ruling by the trial court, there is nothing for us to review.” McCannon v. Wilson, 267 Ga.

App. 815, 817 (1) (600 SE2d 796) (2004). The McConnells’ remedy for their alleged lack of notice in the trial court is to pursue a motion to set aside pursuant to OCGA § 9-11-60 (d) (2). Cf. Schrembs, 261 Ga. at 183, n. 5.

2. The McConnells also contend that the trial court erred by dismissing the entire lawsuit in favor of all the defendants when the deposition notices were served only by counsel for State Farm. Again, we disagree.

The Supreme Court of Georgia has held that a nonnoticing defendant, who attended a noticed deposition, is authorized to seek sanctions against a plaintiff who fails to attend his or her own deposition. South Ga. Med. Center v. Washington, 269 Ga. 366, 367-368 (2) (497 SE2d 793) (1998). The record reflects that counselfor each of the appellees was present at the January 19, 2005 depositions, and each of the appellees joined in the motion for sanctions.

The McConnells nonetheless argue that it was improper for the dismissal to apply to defendant Antoinette Wright, who they contend did not join in the motion for sanctions or establish that she attended the scheduled January 19, 2005 deposition. But, State Farm’s involvement in this case was as an uninsured motorist carrier, and its representation, including the filing of pleadings, service of notices, and attendance at the deposition, was conducted in the name of Wright. See OCGA § 33-7-11 (d);⁶ Home Indem. Co. v. Thomas, 122 Ga. App. 641 (178 SE2d 297) (1970). The trial court thus was authorized to dismiss all appellees from the lawsuit. OCGA § 9-11-37 (b) (2) (C), (d) (1).

Judgment affirmed.

Andrews, P. J., Johnson, P. J., Blackburn, P. J., and Miller, J., concur. Barnes and Ellington, JJ., dissent.

1 The occurrences of scheduling, rescheduling, and the McConnells’ ultimate failure to appear for the January 19, 2005 depositions were set forth in the appellees’ motion for sanctions, brief in support, the affidavit of Kimberly A. McNamara (appellees’ counsel), and the amended notices of deposition submitted to the trial court in support of the motion. Thus, we do not believe that the trial court was misinformed concerning the circumstances surrounding the first two attempts to depose the McConnells.

2 The dissent asserts that appellees’ counsel “apparently did not reveal that a motion for sanctions would be filed” during the discussion with the McConnells’ prospective new counsel. The record is simply silent on this issue.

3 The McConnells’ new counsel did not file a notice of appearance until January 28, 2005, after the motion for sanctions was filed.

4 There is no requirement that the plaintiff display and the trial court find actual wilfulness. 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.

(Citation and punctuation omitted.) Stolle v. State Farm &c. Ins. Co., 206 Ga. App. 235, 236 (3) (424 SE2d 807) (1992) (whole court).

5 The depositions were repeatedly scheduled and rescheduled, yet the McConnells failed to retain new counsel in the interim. Appellees were not required to postpone the litigation until the McConnells eventually hired new counsel.

6 Pursuant to OCGA § 33-7-11 (d), in an action where a known owner or operator alleged to be uninsured is named as a defendant, the uninsured motorist insurer “shall have the right to file pleadings and take other action allowable by law in the name of either the known owner or operator or both or itself.” This statutory right allows the uninsured motorist insurer to make an election to participate indirectly in the proceedings, without becoming a named party, by filing pleadings in the name of the alleged uninsured defendant. See Home Indem. Co. v. Thomas, 122 Ga. App. 641 (178 SE2d 297) (1970).