ADRIANA CORTES v. GEORGIA POWER COMPANY

• Court: Court of Appeals of Georgia
• Decided: September 8, 2021
• Docket: A21A0706
• Status: Published

Opinion

FIRST DIVISION BARNES, P. J., GOBEIL and MARKLE, JJ.

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.

September 8, 2021

In the Court of Appeals of Georgia A21A0706. CORTES et al. v. GEORGIA POWER COMPANY.

GOBEIL, Judge.

The plaintiffs, Adriana Cortes and Ricardo Cortes, on behalf of themselves and

their minor children, Valeria Cortes and Diana Cortes, filed an action against Georgia

Power Company following a collision with one of Georgia Power’s vehicles. The trial

court ultimately dismissed their action for want of prosecution after the parties failed

to comply with a court order to meet a deadline for filing a proposed scheduling

order. The plaintiffs appeal, contending that the trial court abused its discretion in

dismissing their action. For the reasons stated below, we vacate and remand to the

trial court for reconsideration.

This action arose from a vehicle collision on March 10, 2017, when the

plaintiffs’ vehicle was rear-ended by a vehicle driven by a Georgia Power employee. On March 23, 2018, the plaintiffs sued Georgia Power for personal injuries. The

plaintiffs voluntarily dismissed their complaint without prejudice. Thereafter, the

plaintiffs filed the instant renewal action. Georgia Power answered and denied

causation and damages. On March 11, 2020, the trial court issued a preliminary case

management order, in which it directed the parties to file a joint proposed scheduling

order within 45 days of Georgia Power’s answer.

On March 14, 2020, the Supreme Court of Georgia entered an “Order

Declaring Statewide Judicial Emergency,” in which the Supreme Court temporarily

suspended all filing deadlines in pending cases in courts statewide.1 The Emergency

Order was extended on multiple occasions (April 6, 2020, May 11, 2020 (“Second

Extension”), June 12, 2020 (“Third Extension”), July 10, 2020). In the Second and

Third Extensions, the Supreme Court provided that trial courts were granted authority

to reimpose deadlines and establish new deadlines and schedules after considering

the particular circumstances of the case. Second Extension, p. 5,2 Third Extension, p.

1 https://www.gasupreme.us/wp-content/uploads/2020/03/CJ-Melton- amended-Statewide-Jud-Emergency-order.pdf (March 14, 2020). 2 https://www.gasupreme.us/wp-content/uploads/2020/05/Second-Order- Extending-Declaration-of-Statewide-Judicial-Emergency-as-issued.pdf (May 11, 2020).

2 5.3 In the Third Extension, the Supreme Court also laid out a plan to reinstate all

deadlines and other time schedules and filing requirements as of July 14, 2020.

On July 10, 2020, the trial court entered a case management order in this case

directing the parties to submit a proposed scheduling order within 20 days. The order

also provided that if the parties failed to comply, the case would be dismissed for

want of prosecution. After the parties failed to submit a proposed scheduling order

by the deadline, the trial court entered a separate order in this case dismissing the

plaintiffs’ action without prejudice pursuant to OCGA § 9-11-41. This appeal

followed.

The plaintiffs argue that the trial court abused its discretion in dismissing their

action. Given this factual situation, we agree.

In civil cases, a trial court has broad discretion to establish pretrial procedure.

See OCGA § 9-11-16 (a) (5). “This broad discretion extends to the setting of pretrial

scheduling deadlines and other matters of case management.” Lee v. Smith, 307 Ga.

815, 821 (2) (838 SE2d 870) (2020). See also Martin v. Fulton County Bd. of

Registration & Elections, 307 Ga. 193, 211 (2) (835 SE2d 245) (2019) (“[T]rial

3 https://www.gasupreme.us/wp-content/uploads/2020/06/THIRD_ORDER_ EXTENDING_DECLARATION_OF_STATEWIDE_JUDICIAL_EMERGENCY _AS_ISSUED.pdf (June 12, 2020).

3 courts have broad discretion over . . . scheduling and discovery-related issues.”).

“However, a trial court’s discretion in fashioning an appropriate sanction for a party’s

failure to comply with a proper scheduling, discovery, or case management order is

not unlimited.” Lee, 307 Ga. at 821 (2). As the Supreme Court of Georgia has

previously explained, “no harsher sanctions should be imposed than are necessary to

vindicate the court’s authority.” Ambler v. Archer, 230 Ga. 281, 289 (1) (196 SE2d

858) (1973).

Indeed, a trial court can abuse its discretion by imposing a sanction that is too harsh under the given circumstances of a case. This is so because a trial court must exercise some discretion by evaluating the specific circumstances surrounding a party’s noncompliance with an order to properly determine what, if any, sanction is necessary to provide fairness to the parties and to vindicate the court’s authority.

Lee, 307 Ga. at 821 (2). “[I]n instances where the trial court defaults to the most

extreme sanction available based solely upon a party’s failure to meet a deadline . .

. without considering any other factors, that court will have abused its discretion.” Id.

at 821-822 (2).

Here, without apparent consideration of the any other circumstances,4 the trial

court applied the harshest sanction of dismissal just four days after the plaintiffs

4 Such circumstances could include the unusual situation of the global pandemic and the impact of the resulting emergency orders.

4 missed the 20-day deadline set forth in the case management order. We therefore

conclude that the trial court erred in dismissing the plaintiffs’ complaint based solely

on their failure to meet the deadline. See Lee, 307 Ga. at 822 (2) (trial court abused

its discretion by excluding of a witness based solely on a late identification). See also

The Kroger Co. v. Walters, 319 Ga. App. 52, 60 (2) (b) (735 SE2d 99) (2012) (“In a

civil suit it is an abuse of discretion to exclude a relevant witness solely on the ground

that the witness was not identified during discovery or in a timely manner.”). For

these reasons, we find the trial court abused its discretion in not considering the

circumstances of why the plaintiffs failed to comply with the trial court’s scheduling

order before dismissing the action.

Accordingly, we vacate the dismissal order and remand the case with the

direction that the court re-evaluate its ruling after considering the specific

circumstances surrounding the parties’ noncompliance with the case management

order, including the plaintiffs’ explanation for the failure to submit a scheduling

order. See Lee, 307 Ga. at 821 (2), 824 (3). The trial court must also “determine what,

if any, sanction is necessary to provide fairness to the parties and to vindicate the

court’s authority.” See Id. at 821 (2). See also Wilson v. McNeely, 302 Ga. App. 213,

214 (1) (690 SE2d 512) (2010) (vacating the trial court’s dismissal of a complaint and

5 remanding for the trial court to reconsider what would constitute an appropriate

sanction, where plaintiff failed to prepare his portion of the pretrial order). If, after

considering the circumstances, the trial court concludes again that dismissal was the

appropriate sanction, the decision would still be subject to review on appeal. See Lee,

307 Ga. at 825 (4).

Judgment vacated and the case remanded with direction. Barnes, P. J., and

Markle, J., concur.