Porter v. WELLSTAR HEALTH SYSTEM, INC.

683 S.E.2d 35, 299 Ga. App. 481, 2009 Fulton County D. Rep. 2500, 2009 Ga. App. LEXIS 833

• Court: Court of Appeals of Georgia
• Decided: July 14, 2009
• Docket: A09A0206
• Status: Published

Opinions

Doyle, Judge.

Gary S. Porter, individually and as executor for Mary E- Porter, deceased, brought suit against WellStar Health System, Inc., d/b/a WellStar Paulding Nursing Center and Carol O’Connell, Administrator, (collectively “WellStar”) in connection with the death of his mother, Mary F. Porter. Porter appeals after the trial court dismissed his action with prejudice for failure to prosecute and for wilfully violating court orders. We reverse, for reasons that follow.

Porter originally filed this action on November 24, 2005, and on April 27, 2006, the trial court entered a scheduling order with the consent of the parties. The order included a requirement that Porter provide information regarding the experts he intended to use at trial no later than July 3, 2006. Porter did not identify his experts by the deadline, and on August 4, 2006, WellStar filed a motion to dismiss based on his failure to comply with the scheduling order. Porter then dismissed the action without prejudice on August 29, 2006, before the trial court could rule on WellStar’s motion.

Porter filed a renewal action on February 26, 2007, in accordance with OCGA § 9-2-61 (a), and the case was assigned to the same judge as the original action. WellStar answered the complaint and served Porter with additional discovery requests, which were virtually identical to the discovery requests filed in the original action. One of the interrogatories requested that Porter identify his expert witnesses, to which Porter responded that he had not yet determined his expert witnesses for trial. On August 1, 2007, upon motion by WellStar, the trial court ordered that all pleadings, discovery, and documents in the 2004 action be included and placed in the record of the current action. The order also directed that “any unanswered discovery” from the prior action be answered within 60 days of the August 1 order, or by October 1, 2007. The order stated that “[t]he Court believes that time period should be sufficient to locate old files, review same for compliance with discovery, and answer such if such has not been previously answered.”

On February 25, 2008, WellStar moved to dismiss Porter’s complaint for violation of the trial court’s August 1, 2007 order. WellStar also noted therein that Porter had failed to comply with the scheduling order in the original action that required him to identify his experts by a date certain.¹ Porter identified an expert witness on March 24, 2008, in response to WellStar’s motion. On May 15, 2008, following a hearing, the trial court entered an order dismissing Porter’s complaint with prejudice, specifically noting that Porter “failed to prosecute [his] case and willfully violated orders of the court” (without specifying those orders with which Porter had failed to comply). This appeal followed.

First, the trial court’s dismissal of Porter’s complaint with prejudice based on his failure to prosecute his case was improper. “A dismissal with prejudice based solely on want of prosecution ... is improper,” as OCGA § 9-11-41 (b) and (c) provide that such a dismissal “does not operate as an adjudication upon the merits.”²

Moreover, the trial court abused its discretion in dismissing the complaint based on Porter’s failure to comply with court orders. Clearly, the trial court was without authority to dismiss Porter’s renewal complaint for failure to comply with the April 2006 order entered in the original action because “[a] renewed lawsuit under OCGA § 9-2-61 (a) is an action de novo.”³ Additionally, the August 1, 2007 order simply required the parties to respond to “any unanswered discovery.”⁴ The order did not impose a specific obligation upon Porter to identify the expert witnesses he intended to use at trial, nor did it set a deadline for Porter to supplement his discovery responses. If in fact the trial court intended to impose such deadlines, that intention is not clear from the order.⁵

We recognize that a trial court enjoys broad discretion in controlling discovery and that “[hjistorically, it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court’s exercise of its discretion in absence of abuse.”⁶ But this discretion is not unlimited.

The dismissal of a lawsuit under [OCGA § 9-11-37] for failure to comply with a discovery order is an extreme sanction which may only be employed for a wilful failure in bad faith or in total disregard of the court’s order. Such a sanction is generally warranted only where a clear record of delay or contumacious conduct by the plaintiff exists and a lesser sanction would not better serve the interest of justice.⁷

“As a general rule, the trial court should attempt to compel compliance with its orders through the imposition of lesser sanctions than dismissal. The drastic sanctions of dismissal and default cannot be invoked under OCGA § 9-11-37 except in the most flagrant cases. . . ,”⁸

Here, in the absence of an explicit order in the renewal action requiring Porter to identify his expert witnesses by a date certain, we conclude that his failure to do so does not warrant the extreme sanction of dismissal of his case. Accordingly, the trial court abused its discretion in dismissing Porter’s complaint.

Judgment reversed.

Smith, P. J., Phipps and Bernes, JJ., concur. Andrews, P. J., Blackburn, P. J., and Adams, J., dissent.

1 WellStar also alleged in the motion to dismiss that Porter had failed to make himself available for deposition. But WellStar points to no evidence that it ever properly noticed Porter’s deposition, and thus, this allegation provides no basis for dismissal. See OCGA § 9-11-37 (d) (1) (authorizing sanctions, including dismissed of a complaint, for wilful failure to be deposed “after being served with a proper notice”).

2 (Footnote omitted.) Wolfpack Enterprises v. Arrington, 272 Ga. App. 175, 176 (1) (612 SE2d 35) (2005).

3 See Magsalin v. Chace, 255 Ga. App. 146, 147 (1) (564 SE2d 554) (2002).

4 (Emphasis supplied.)

5 Of course, if the order had contained an explicit mandate that Porter identify his experts by a date certain, and the trial court determined that he wilfully failed to comply with the order, then the trial court would have acted within its discretion in dismissing the complaint. See OCGA § 9-11-37 (b) (2) (C); Smith v. Adamson, 226 Ga. App. 698, 701 (6) (487 SE2d 386) (1997); Johnson v. Lomas Mtg. USA, 201 Ga. App. 562, 564-565 (3) (411 SE2d 731) (1991).

6 (Punctuation omitted.) Hernandez v. State of Ga., 200 Ga. App. 368, 369 (408 SE2d 160) (1991).

7 (Citations and punctuation omitted; emphasis supplied.) Harwood v. Great American Mgmt. &c., 171 Ga. App. 488, 490 (320 SE2d 269) (1984).

8 (Citation and punctuation omitted.) Hernandez, 200 Ga. App. at 369.