Is an Auto Accident Victim Entitled to a Hearing on Willfulness for Failing to Respond to Discovery Requests?
In a recent action arising from an automobile accident, a motorist appealed from the trial court’s grant of the defendant’s motion to dismiss for failure to respond to discovery requests, pursuant to O.C.G.A. § 9-11-37(d). On appeal, the plaintiff argued that the trial court erred by imposing too harsh a sanction, and by failing to provide him with an opportunity to be heard.
Background
The parties were involved in an automobile collision in March 2022. The plaintiff filed the negligence personal injury lawsuit five months later. The defendant failed to promptly notify his insurer that he’d been served, and, consequently, was in default. Thereafter, the parties filed a joint motion to set aside default, which the trial court granted.
In April 2023, the defendant served interrogatories and requests for production on the plaintiff. In November 2023, the defendant filed his motion to dismiss or, in the alternative, motion to compel, asserting that the plaintiff failed to provide any discovery responses. Attached to the motion was an e-mail from the defendant’s counsel to the plaintiff’s attorney requesting the discovery responses, and a subsequent letter demanding the responses in compliance with Uniform Superior Court Rule 6.4 (B).
The plaintiff didn’t respond to the motion, and the trial court granted the motion and dismissed the case, pursuant to O.C.G.A. § 9-11-37(d), without a hearing. The plaintiff appealed, contending that the trial court abused its discretion by imposing too harsh a sanction, and by failing to hold a hearing prior to dismissing his complaint.
The Court of Appeals Reverses
Judge Todd Markle wrote that rulings on motions to strike and for entry of default judgment are reviewed by the Court of Appeals using an abuse of discretion standard. A trial judge has broad discretion in the enforcement of the discovery provisions of the Civil Practice Act, and Markle said that the Court won’t interfere with the exercise of that discretion absent clear abuse.
O.C.G.A. § 9-11-37(d)(1) provides, in pertinent part:
If a party … fails to serve answers or objections to [properly-served] interrogatories … , the court in which the action is pending on motion may make such orders in regard to the failure as are just; and, among others, it may take any action authorized under subparagraphs (b)(2)(A) through (b)(2)(C) of this Code section.
O.C.G.A. § 9-11-37(b)(2)(C) authorizes a trial court to dismiss an action as a sanction for a party’s discovery violations.
As the judge explained, an order compelling discovery is not a condition precedent for the imposition of sanctions under O.C.G.A. § 9-11-37(d). “All that is required is a motion, notice, and a hearing.” Moreover, the judge noted that the Georgia Supreme Court has “cautioned against the use of these harsher sanctions except in extreme cases, and [has] held that the trial court must find willfulness as a predicate to imposing the sanctions.” And the Court of Appeals wrote in 2014 that “because dismissal of a party’s pleadings for failure to respond to discovery requests is an extreme sanction, it is warranted only where there exists a clear record of delay or contumacious conduct, and a lesser sanction would not better serve the interests of justice.”
Here, the plaintiff was entitled to a hearing on the issue of willfulness. The Court did recognize that there are extraordinary cases where a trial court would not be required to conduct a hearing on the issue of willfulness. But in a recent case, the Court of Appeals stated, “Such a requirement serves no purpose where the trial court can otherwise determine willfulness on the part of the party against whom the sanctions are sought.”
Notably, the plaintiff contended that he was not served with the discovery requests. And there was nothing in the record to show that his failure to respond to the discovery requests was willful.
Accordingly, because the trial court did not afford the plaintiff an opportunity to be heard, the Court of Appeals reversed the dismissal of his complaint, and remand for a hearing on the issue of willfulness. Benton v. Tillery, 2025 Ga. App. LEXIS 34 (Ga. App. February 3, 2025).
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