FIFTH DIVISION MERCIER, C. J., MCFADDEN, P. J., and RICKMAN, 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
July 31, 2024
In the Court of Appeals of Georgia A24A0854, A24A0855. KSENIYA PARFENOVA v. HEDINGTON SQUARE HOMEOWNERS’ ASSOCIATION, INC.
RICKMAN, Judge.
Kseniya Parfenova appeals from the trial court’s grant of Hedington Square
Homeowners’ Association, Inc.’s motion for sanctions and its striking of her
pleadings, i.e. answer and counterclaim. For the following reasons, we reverse the trial
court’s order striking Parfenova’s pleadings and entering a default judgment in favor
of the HOA.
In May 2020, the HOA filed a complaint in Cobb County alleging that
Parfenova owned a home subject to the restrictive covenants of the HOA and was in
violation of certain covenants. Specifically, the complaint alleged that Parfenova was
in violation of the covenant restricting the leasing of her home without the HOA’s prior approval. After Parfenova asserted that she resided in Fulton County, the case
was transferred to Fulton County.
Following service by publication, Parfenova filed an answer and counterclaim.
The HOA served Parfenova with a notice Of deposition, scheduling her deposition for
August 23, 2022. Parfenova failed to appear for her scheduled deposition.
After Parfenova failed to appear at her first deposition, the HOA filed a motion
for sanctions, or in the alternative, motion to compel Parfenova’s deposition. The trial
court granted the HOA’s motion and ordered Parfenova to “submit herself to a
deposition upon scheduling by the [HOA]. Failure to appear for the next scheduled
deposition without notice or sufficient cause will result in [Parfenova’s] pleadings
being struck and a default judgment being entered in favor of the [HOA].”
On October 17, 2022, the HOA sent Parfenova another notice of deposition,
setting her deposition for November 16, 2022. On November 12, 2022, Parfenova sent
the HOA an email stating, “[t]his is to notify you in accordance with the order
requirement, that I will not appear for [the] deposition on November 16th, 2022 for
the following reason. The lawyer I asked to represent me at the deposition has [a]
conflict in schedule (“I have a jury trial that day.”) and is still expected to get back to
2 me with a proposed date.” The HOA replied that the deposition was moving forward
as scheduled.
On the morning of the scheduled deposition, Parenvoa sent another email to the
HOA stating that she had still been unable to reach her counsel and she was unaware
whether her counsel had submitted his entry of appearance or notified the court of his
conflict. The email further stated that if the HOA was still unwilling to postpone the
deposition, to please “set up remote means for me to attend it over the phone
pursuant to OCGA § 9-11-30 and in observation of COVID-19 precautions.” The
HOA replied that it was not postponing the deposition and that it did not consent to
conducting the deposition remotely. Parnenova ultimately failed to appear at the
deposition.
The HOA filed a second motion for sanctions asking the trial court to strike
Parfenova’s pleadings, find Parfenova in default, and allow the HOA to present
evidence as to damages and attorney fees. Without conducting a hearing, the trial
court granted the HOA’s second motion for sanctions. The trial court stated,
“[Parfenova’s] willful failure to appear for deposition is a total failure to respond to
discovery and comply with [] Georgia Civil Procedure. [Parfenova] did not give [the
3 HOA] notice or sufficient cause for her non-appearance [at] her second deposition.”
The trial court struck Parfenova’s pleadings, entered an order of default in favor of the
HOA, and required Parfenova to pay the attorney fees and costs incurred.
Subsequently, a hearing was held on damages and Parfenova was ordered to pay
certain damages, costs, and attorney fees to the HOA.
In two consolidated cases, Parfenova appeals contending, inter alia, that the trial
court erred by granting the second motion for sanctions without holding a hearing. We
agree.
“The law authorizing the imposition of sanctions for discovery-related abuses
is not ambiguous, uncertain, or arcane.” (Citation and punctuation omitted.) Taylor
v. Marshall, 321 Ga. App. 752, 753 (743 SE2d 444) (2013). See OCGA § 9-11-37 (d)
(1). “Provided proper discovery procedures are followed, when a party fails to appear
for a properly noticed deposition, or fails to answer or object to interrogatories
properly submitted under OCGA § 9–11–33, or after appropriate service fails to
respond to document requests, a trial court may take any action delineated under
OCGA § 9–11–37 (b) (2) (A)–(C).” (Citation and punctuation omitted.) Taylor, 321
Ga. App. at 753-754. “Among several other options, subsection (b) (2) (C) authorizes
4 a court to enter an order dismissing the action or proceeding or any part thereof.”
(Citation and punctuation omitted.) Id. at 754; see OCGA § 9-11-37 (b) (2) (C).
“Moreover, an order compelling discovery is not a condition precedent for the
imposition of sanctions under subsection (d). All that is required is a motion, notice,
and a hearing.” (Citation and punctuation omitted.) Taylor, 321 Ga. App. at 754.
“It is true that, in some exceptional cases, a hearing is not absolutely
necessary.” Taylor, 321 Ga. App. at 754. See McConnell v. Wright, 281 Ga. 868, 869-
870 (644 SE2d 111) (2007). “The trial court need not conduct a hearing on the issue
of willfulness in every case. 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.” (Citation and punctuation omitted.) McConnell, 281 Ga. at 870.
In McConnell, the Supreme Court of Georgia held that the case at issue was not the
type of exceptional case where a hearing on willfulness was unnecessary because no
hearing of any type was held, and the record did not demand a finding of willfulness.
Id.
Here, there was no hearing on either of the HOA’s motions for sanctions and
there is nothing in the record before us that demands a finding that Parfenova’s failure
5 to appear at her second deposition was willful. Additionally, the trial court’s order
stated that Parfenova did not give the HOA notice of her non-appearance, but
Parfenova did email the HOA before her non-appearance, and a hearing is necessary
to determine, among other things, if that notice was sufficient.
“Because the record does not establish without dispute that [Parfenova’s]
failure to comply with the court order was wilful, we reverse the order of the trial
court [striking Parfenova’s complaint and granting a default judgment to the HOA]
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FIFTH DIVISION MERCIER, C. J., MCFADDEN, P. J., and RICKMAN, 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
July 31, 2024
In the Court of Appeals of Georgia A24A0854, A24A0855. KSENIYA PARFENOVA v. HEDINGTON SQUARE HOMEOWNERS’ ASSOCIATION, INC.
RICKMAN, Judge.
Kseniya Parfenova appeals from the trial court’s grant of Hedington Square
Homeowners’ Association, Inc.’s motion for sanctions and its striking of her
pleadings, i.e. answer and counterclaim. For the following reasons, we reverse the trial
court’s order striking Parfenova’s pleadings and entering a default judgment in favor
of the HOA.
In May 2020, the HOA filed a complaint in Cobb County alleging that
Parfenova owned a home subject to the restrictive covenants of the HOA and was in
violation of certain covenants. Specifically, the complaint alleged that Parfenova was
in violation of the covenant restricting the leasing of her home without the HOA’s prior approval. After Parfenova asserted that she resided in Fulton County, the case
was transferred to Fulton County.
Following service by publication, Parfenova filed an answer and counterclaim.
The HOA served Parfenova with a notice Of deposition, scheduling her deposition for
August 23, 2022. Parfenova failed to appear for her scheduled deposition.
After Parfenova failed to appear at her first deposition, the HOA filed a motion
for sanctions, or in the alternative, motion to compel Parfenova’s deposition. The trial
court granted the HOA’s motion and ordered Parfenova to “submit herself to a
deposition upon scheduling by the [HOA]. Failure to appear for the next scheduled
deposition without notice or sufficient cause will result in [Parfenova’s] pleadings
being struck and a default judgment being entered in favor of the [HOA].”
On October 17, 2022, the HOA sent Parfenova another notice of deposition,
setting her deposition for November 16, 2022. On November 12, 2022, Parfenova sent
the HOA an email stating, “[t]his is to notify you in accordance with the order
requirement, that I will not appear for [the] deposition on November 16th, 2022 for
the following reason. The lawyer I asked to represent me at the deposition has [a]
conflict in schedule (“I have a jury trial that day.”) and is still expected to get back to
2 me with a proposed date.” The HOA replied that the deposition was moving forward
as scheduled.
On the morning of the scheduled deposition, Parenvoa sent another email to the
HOA stating that she had still been unable to reach her counsel and she was unaware
whether her counsel had submitted his entry of appearance or notified the court of his
conflict. The email further stated that if the HOA was still unwilling to postpone the
deposition, to please “set up remote means for me to attend it over the phone
pursuant to OCGA § 9-11-30 and in observation of COVID-19 precautions.” The
HOA replied that it was not postponing the deposition and that it did not consent to
conducting the deposition remotely. Parnenova ultimately failed to appear at the
deposition.
The HOA filed a second motion for sanctions asking the trial court to strike
Parfenova’s pleadings, find Parfenova in default, and allow the HOA to present
evidence as to damages and attorney fees. Without conducting a hearing, the trial
court granted the HOA’s second motion for sanctions. The trial court stated,
“[Parfenova’s] willful failure to appear for deposition is a total failure to respond to
discovery and comply with [] Georgia Civil Procedure. [Parfenova] did not give [the
3 HOA] notice or sufficient cause for her non-appearance [at] her second deposition.”
The trial court struck Parfenova’s pleadings, entered an order of default in favor of the
HOA, and required Parfenova to pay the attorney fees and costs incurred.
Subsequently, a hearing was held on damages and Parfenova was ordered to pay
certain damages, costs, and attorney fees to the HOA.
In two consolidated cases, Parfenova appeals contending, inter alia, that the trial
court erred by granting the second motion for sanctions without holding a hearing. We
agree.
“The law authorizing the imposition of sanctions for discovery-related abuses
is not ambiguous, uncertain, or arcane.” (Citation and punctuation omitted.) Taylor
v. Marshall, 321 Ga. App. 752, 753 (743 SE2d 444) (2013). See OCGA § 9-11-37 (d)
(1). “Provided proper discovery procedures are followed, when a party fails to appear
for a properly noticed deposition, or fails to answer or object to interrogatories
properly submitted under OCGA § 9–11–33, or after appropriate service fails to
respond to document requests, a trial court may take any action delineated under
OCGA § 9–11–37 (b) (2) (A)–(C).” (Citation and punctuation omitted.) Taylor, 321
Ga. App. at 753-754. “Among several other options, subsection (b) (2) (C) authorizes
4 a court to enter an order dismissing the action or proceeding or any part thereof.”
(Citation and punctuation omitted.) Id. at 754; see OCGA § 9-11-37 (b) (2) (C).
“Moreover, an order compelling discovery is not a condition precedent for the
imposition of sanctions under subsection (d). All that is required is a motion, notice,
and a hearing.” (Citation and punctuation omitted.) Taylor, 321 Ga. App. at 754.
“It is true that, in some exceptional cases, a hearing is not absolutely
necessary.” Taylor, 321 Ga. App. at 754. See McConnell v. Wright, 281 Ga. 868, 869-
870 (644 SE2d 111) (2007). “The trial court need not conduct a hearing on the issue
of willfulness in every case. 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.” (Citation and punctuation omitted.) McConnell, 281 Ga. at 870.
In McConnell, the Supreme Court of Georgia held that the case at issue was not the
type of exceptional case where a hearing on willfulness was unnecessary because no
hearing of any type was held, and the record did not demand a finding of willfulness.
Id.
Here, there was no hearing on either of the HOA’s motions for sanctions and
there is nothing in the record before us that demands a finding that Parfenova’s failure
5 to appear at her second deposition was willful. Additionally, the trial court’s order
stated that Parfenova did not give the HOA notice of her non-appearance, but
Parfenova did email the HOA before her non-appearance, and a hearing is necessary
to determine, among other things, if that notice was sufficient.
“Because the record does not establish without dispute that [Parfenova’s]
failure to comply with the court order was wilful, we reverse the order of the trial
court [striking Parfenova’s complaint and granting a default judgment to the HOA]
and remand for a hearing on the issue of wilfulness.” (Citation and punctuation
omitted.) Rouse v. Arrington, 283 Ga. App. 204, 207 (2) (641 SE2d 214) (2007). See
Taylor, 321 Ga. App. at 754. As a result, it is unnecessary for us to consider
Parfenova’s other arguments on appeal.
Judgment reversed and case remanded. Mercier, C. J., concurs and McFadden, P.
J., concurs fully and specially.
6 In the Court of Appeals of Georgia
A24A0854, A24A0855. PARFENOVA v. HEDINGTON SQUARE
HOMEOWNERS’ ASSOCIATION, INC.
MCFADDEN, Presiding Judge, concurring fully and specially.
I concur fully in the majority opinion. The majority properly holds that the trial
court must conduct a hearing and reconsider in light of that hearing.
Normally no more would need to be said. But I am moved by the bulk of this
six-volume record and the relative simplicity of the dispositive issues to say a little
7 more. The association is entitled to prevail regardless of the merits only if Parfenova
willfully refused to comply with discovery. I am more than skeptical of that
proposition. See Cook v. Lassiter, 159 Ga. App. 24, 24 (282 SE2d 680) (1981).
The association is entitled to prevail on the merits if and only if it can make one
of two showings. One or the other of those showings is required because the
association seeks to enforce restrictive covenants adopted after Parfenova purchased
the home at issue. The association can prevail by showing that Parfenova consented
in writing to those covenants. See OCGA § 44-5-60 (d) (4) (“no change in the
covenants which imposes a greater restriction on the use or development of the land
will be enforced unless agreed to in writing by the owner of the affected property at the
time such change is made”) (emphasis added).
Alternately it can prevail under the Georgia Property Owners’ Association Act
by producing a recorded declaration stating an affirmative election to be governed
under that Act. See OCGA § 44-3-234 (“The limitations provided in subsection (b)
and paragraphs (1), (2), and (4) of subsection (d) of Code Section 44-5-60 shall not
apply to any covenants contained in any instrument created pursuant to or submitted
to this article.”); OCGA § 44-3-222 (“A property owners’ development shall come
8 into existence upon either the recordation of the declaration pursuant to this article or
the amendment of a recorded declaration in accordance with Code Section 44-3-235.
Any declaration or amendment intending to bring or avail a development of the
benefits and provisions of this article shall state an affirmative election to be so governed.
Any original declaration shall be duly executed by or on behalf of all of the owners of
the submitted property. Any such amendment to an existing declaration shall be
executed in accordance with the terms of the recorded declaration being amended
thereby.”) (emphasis added).
Parfenova has averred in writing that she did not consent. If a recorded
declaration opting into the Act exists, it is a matter of public record, and a copy ought
to be in the association’s files. But the association, as far as I can tell, has not produced
any such document.
Nevertheless the association is entitled to conduct discovery.