FISHER v. BD. OF COMMISSIONERS

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Docket Number

A91A0322.

Attorney(S)

Rubin Law Offices, Robert P. Hoyt, for appellant. Drew, Eckl Farnham, James F. Cook, Jr., Theodore Freeman, Lane Price, Barry R. Price, for appellees.

Judges

POPE, Judge.

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Smart Summary

Factual and Procedural Background

Plaintiff Michelle Fisher filed a personal injury complaint against the Board of Commissioners of Douglas County on October 25, 1988. The defendant timely answered and served discovery requests on November 29, 1988. Plaintiff's responses to discovery were over one year late. On February 1, 1990, the defendant filed a motion to dismiss the complaint or alternatively to compel discovery responses. Plaintiff did not respond to the motion but served discovery responses on March 27, 1990. The trial court granted the defendant's motion and dismissed the complaint. Plaintiff appealed.

Legal Issues Presented

Whether a motion to compel or for sanctions must be filed within the six-month discovery period under Rule 5 of the Uniform Superior Court Rules.
Whether the trial court lost authority to impose sanctions after late discovery responses were filed prior to the sanctions hearing.
Whether the plaintiff's failure to respond to discovery was willful.
Whether the defendant complied with the conference requirements under Rule 6.4 of the Uniform Superior Court Rules before filing the motion.
Whether the dismissal applied to other defendants added after the initial complaint.
Whether the plaintiff’s appeal was frivolous, justifying a penalty.

Arguments of the Parties

Appellant's Arguments

Rule 5 requires that a motion to compel or for sanctions be filed within the six-month discovery period.
The trial court lost authority to impose sanctions after the plaintiff filed discovery responses prior to the hearing.
The failure to respond to discovery was not willful.
The defendant failed to comply with Rule 6.4's requirement to confer with opposing counsel and certify such conference before filing the motion.
The trial court wrongly dismissed claims against other defendants added after the original complaint.

Appellee's Arguments

The defendant commenced and diligently pursued discovery within the six-month period, satisfying Rule 5's requirements, so the motion to compel or for sanctions could be filed after that period.
The trial court retains authority to impose sanctions even if late discovery responses are filed before the sanctions hearing.
The plaintiff's failure to respond was willful, as no explanation or excuse was provided.
The motion was not defective despite the lack of a sworn affidavit certifying the required conference, as total failure to respond was evident and supported by correspondence identified by counsel.
The dismissal applied only to the Board of Commissioners of Douglas County, not to other defendants.
The plaintiff’s appeal was not frivolous despite lack of merit in the enumerations of error.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Danger v. Strother, 171 Ga. App. 607, 609 (320 S.E.2d 613) (1984)	Trial court retains authority to impose sanctions even after late discovery responses are filed before the hearing.	The court rejected plaintiff’s argument that authority was lost once responses were filed, citing Danger to affirm the trial court’s sanction authority.
Schrembs v. Atlanta Classic Cars, 197 Ga. App. 450 (398 S.E.2d 712) (1990)	Willfulness is implied by total failure to respond to discovery when no excuse is offered.	The court found willfulness by implication due to plaintiff’s failure to respond or offer any excuse, citing Schrembs.
Bells Ferry Landing v. Wirtz, 188 Ga. App. 344 (373 S.E.2d 50) (1988)	Supports the principle that willfulness may be inferred from failure to respond to discovery.	Used to reinforce the conclusion of willfulness in plaintiff’s failure to respond.
Bryant v. Nationwide Ins. Co., 183 Ga. App. 577 (359 S.E.2d 441) (1987)	Standard of review for dismissal due to failure to respond to discovery is abuse of discretion.	The court applied this standard and found no abuse of discretion in dismissing the complaint.

Court's Reasoning and Analysis

The court analyzed the timing and procedural requirements of discovery under the Uniform Superior Court Rules. It clarified that Rule 5 requires that discovery be commenced and pursued diligently within six months after the answer, but does not mandate that motions to compel or for sanctions be filed within that period. The defendant’s early efforts to secure discovery responses satisfied the diligence requirement, allowing a later motion.

The court rejected the plaintiff’s argument that the trial court lost authority to impose sanctions after late discovery responses were served before the sanctions hearing, relying on precedent from Danger v. Strother.

Regarding willfulness, the court found it implied by plaintiff’s total failure to respond and failure to provide any explanation, consistent with established case law.

On the Rule 6.4 conference requirement, the court distinguished motions to compel discovery from motions to impose sanctions for total failure to respond. It held that while better practice would include a sworn affidavit certifying the conference, the absence of such did not render the motion defective given the clear record of nonresponse and correspondence identified by counsel.

The court found no abuse of discretion in dismissing the complaint against the Board of Commissioners of Douglas County and clarified that the dismissal did not apply to other defendants added later.

Finally, the court denied the defendant’s motion for a penalty, concluding that although the plaintiff’s appeal lacked merit, her arguments regarding the interpretation of the Uniform Superior Court Rules were not frivolous.

Holding and Implications

Judgment affirmed. The trial court's dismissal of plaintiff’s complaint against the Board of Commissioners of Douglas County is upheld, and the defendant’s motion for a penalty based on frivolous appeal is denied.

The direct effect is that the plaintiff’s complaint is dismissed for failure to comply with discovery obligations. No broader legal precedent was established beyond affirming the application of discovery rules and procedural standards in this context.

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FISHER v. BOARD OF COMMISSIONERS OF DOUGLAS COUNTY.

POPE, Judge.

Plaintiff Michelle Fisher filed a complaint for personal injuries against defendant Board of Commissioners of Douglas County on October 25, 1988. Defendant filed a timely answer and on November 29, 1988, served plaintiff with interrogatories and a request for production of documents. On February 1, 1990, after plaintiff's responses to discovery were more than one year overdue, defendant filed a motion to dismiss plaintiff's complaint, or alternatively, to compel responses to discovery. Plaintiff filed no response to defendant's motion but did serve responses to defendant's discovery requests on March 27, 1990. The trial court subsequently granted defendant's motion and dismissed plaintiff's complaint against defendant. Plaintiff appeals.

1. "In order for a party to utilize the court's compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay and within 6 months after the filing of the answer." Rule 5 of the Uniform Superior Court Rules. Plaintiff argues this rule requires a motion to compel or for sanctions to be brought within the six-month discovery period. We reject this notion. The rule makes the commencement and pursuit of discovery within the six-month discovery period a condition of using the trial court's compulsory process. It does not require the compulsory process itself to be requested within the discovery period. The record in this case shows defendant's discovery was promptly commenced and diligently pursued within the discovery period by the writing of a letter to plaintiff's attorney just over one month after plaintiff's responses were due, asking plaintiff to respond in order to avoid the necessity of a motion for sanctions. So long as discovery is promptly and diligently pursued by the moving party within the discovery period, as was done in this case, a motion to compel or for sanctions may be brought after the expiration of the discovery period.

2. (a) The argument that the trial court lost the authority to impose sanctions once responses to discovery, though late, were filed prior to the hearing on the motion for sanctions has already been addressed by this court: it "has no merit." Danger v. Strother, 171 Ga. App. 607, 609 (2) ( 320 S.E.2d 613) (1984).

(b) Plaintiff also argues the trial court erred in finding her failure to respond to defendant's discovery requests was willful. Plaintiff filed no response to defendant's motion for sanctions and the record is devoid of any explanation or excuse for plaintiff's failure to make a timely response. Willfulness is implied by the total failure to respond to discovery when no reason or excuse is offered in response to a motion to compel. Schrembs v. Atlanta Classic Cars, 197 Ga. App. 450 ( 398 S.E.2d 712) (1990); see also Bells Ferry Landing v. Wirtz, 188 Ga. App. 344 ( 373 S.E.2d 50) (1988).

(c) Rule 6.4 of the Uniform Superior Court Rules requires counsel for the party moving to compel discovery to confer with the opposing counsel prior to filing a motion in an effort to resolve the matter in conflict. Additionally, "[a]t the time of filing the motion, counsel shall also file a statement certifying that such conference has occurred and that the effort to resolve by agreement the issues raised failed." Plaintiff contends defendant did not comply with the requirements of Rule 6.4 because the affidavit filed by defendant's counsel in support of the motion did not certify that counsel for the parties had conferred.

Rule 6.4 refers to a motion to compel discovery; the requirement for a conference to attempt to resolve the issues raised applies more directly to the situation in which the parties disagree over what is required by the discovery request or, for example, whether certain matters requested by discovery are privileged than to the total failure to respond to discovery. Here, by contrast, the motion granted was defendant's motion to impose the sanction of dismissal, made alternatively to the motion to compel discovery. Plaintiff's total failure to respond is apparent from the record and was further established by the affidavit of defendant's counsel. A copy of the letter to plaintiff's counsel requesting prompt response to the overdue discovery request was filed in support of the motion and, though not identified by sworn testimony in counsel's affidavit, was identified by counsel in defendant's brief in support of the motion. This identification would be the equivalent to counsel's "stating in his place" as an officer of the court that the letter was sent. Though the better practice would be for counsel for the moving party to identify by sworn affidavit any written communications to the opposing counsel concerning the failure to respond to discovery, we cannot say that the motion in this case was defective. The standard for review of an order dismissing a complaint for plaintiff's failure to respond to discovery is abuse of discretion. See Bryant v. Nationwide Ins. Co., 183 Ga. App. 577 ( 359 S.E.2d 441) (1987). We find no abuse of discretion in this case.

3. Contrary to plaintiff's final enumeration of error, the trial court did not wrongly dismiss the action against the other defendants added after the initial complaint against the Board of Commissioners of Douglas County was filed. The trial court's order states only that the complaint against defendant (Board of Commissioners of) Douglas County is dismissed.

4. Defendant moved for a penalty of $500, arguing plaintiff's appeal is frivolous. Although we find no merit in plaintiff's enumerations of error, we cannot say plaintiff's arguments concerning the interpretation of Rules 5 and 6.4 of the Uniform Superior Court Rules were frivolous. Defendant's motion for penalty is denied.

Judgment affirmed. Motion for penalty denied. Birdsong, P. J., and Cooper, J., concur.

DECIDED JUNE 12, 1991 — RECONSIDERATION DENIED JULY 9, 1991.