Vengamas Warren v. Wal-Mart Stores East, Lp (Delaware)

• Court: Court of Appeals of Georgia
• Decided: September 30, 2024
• Docket: A24A0815
• Status: Published

Opinion

FIFTH DIVISION MERCIER, C. J., MCFADDEN, P. J., and MARKLE, 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

September 30, 2024

In the Court of Appeals of Georgia A24A0815. WARREN v. WAL-MART STORES EAST, LP (DELAWARE).

MCFADDEN, Presiding Judge.

Vengamas Warren appeals the order dismissing her premises liability complaint

as a discovery sanction. Warren has not shown that the trial court abused her

discretion, so we affirm.

Warren filed a complaint, alleging that she was injured at a store owned by Wal-

Mart Stores East, LP (Delaware) when she opened a freezer door and an item fell out,

hitting her on the head and foot. On September 15, 2021, Wal-Mart filed an answer

and served Warren with interrogatories and requests for production of documents. On

October 27, 2021, Warren had not responded to the discovery requests, so counsel for Wal-Mart emailed counsel for Warren. Warren’s counsel requested two weeks to

respond, and counsel for Wal-Mart agreed.

In January 2022, when Warren still had not responded to the discovery, counsel

for Wal-Mart wrote counsel for Warren, requesting responses. Warren’s counsel

asked for another two weeks to provide her responses, and Wal-Mart agreed. But as

of August 16, 2022, 11 months after discovery had been served, Warren still had not

responded. Wal-Mart moved to dismiss Warren’s complaint or to compel her to

respond to discovery. In an order entered September 23, 2022, the trial court denied

Wal-Mart’s motion to dismiss, but granted its motion to compel, ordering Warren to

respond to discovery and to serve Wal-Mart within 15 days of the order, or by October

8, 2022.

On October 8, 2022, Warren served responses, but, as she concedes, many of

the responses were incomplete. Warren asserted that the responses “will be

supplemented.” Warren had not supplemented her responses by December 14, 2022,

so Wal-Mart sent counsel a letter pursuant to Uniform State Court Rule 6.4, which

requires counsel to confer to attempt to resolve discovery disputes, requesting that

2 Warren supplement her responses. As of September 5, 2023, close to 11 months after

she had filed her incomplete responses, Warren still had not supplemented them.

In the meantime, Wal-Mart noticed Warren’s deposition for June 27, 2023.

Neither Warren nor her counsel appeared. Wal-Mart re-noticed the deposition to take

place remotely on July 25, 2023. Although Warren’s attorney appeared, Warren did

not.

On September 5, 2023, Wal-Mart moved to dismiss the complaint for Warren’s

failure to participate in discovery. The trial court granted the motion, finding that

Warren’s failure to participate in discovery was “within the most flagrant of cases”;

demonstrated a conscious and willful disregard of the discovery process; and

authorized dismissal of the complaint.

Warren filed a timely notice of appeal. She argues that the dismissal was

improper because Wal-Mart had not filed a motion to compel and the trial court did

not conduct a hearing. She also asserts that her failure to participate in discovery was

not wilful, that mental issues delayed her discovery responses, and that transportation

issues prevented her from appearing at the second, remote deposition. (She makes no

argument regarding her failure to appear at the first deposition.)

3 The law authorizing the imposition of sanctions for discovery-related abuses is not ambiguous, uncertain, or arcane. 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). Among several other options, subsection (b) (2) (C) authorizes a court to enter an order dismissing the action or proceeding or any part thereof.

Parfenova v. Hedington Square Homeowners’ Assn., __ Ga. App. __, __ (__ SE2d __)

(Case Nos. A24A0854, A24A0855, decided July 31, 2024) (citations and punctuation

omitted). “Trial courts have broad discretion to control discovery, including the

imposition of sanctions. . . . [W]e will not interfere with a trial judge’s exercise of the

broad discretionary powers authorized under the discovery provisions of the Civil

Practice Act in the absence of an abuse of discretion.” Miller v. Lynch, 351 Ga. App.

361, 367 (2) (830 SE2d 749) (2019) (citations and punctuation omitted).

Warren’s argument that dismissal was precluded because Wal-Mart did not file

a motion to compel is meritless. Wal-Mart did file a motion to compel, and the trial

court granted that motion. Although Warren complied with the time limit established

4 in the order compelling her to respond, her responses were incomplete, as she

concedes. And she had not supplemented her responses as of the date that Wal-Mart

filed its second motion to dismiss, almost a year later. In any event, “[a]s long as the

proper discovery procedures have been followed, . . . an order compelling discovery

is not a condition precedent for the imposition of sanctions under subsection [OCGA

§ 9-11-37] (d).” Hunt v. Callahan, 353 Ga. App. 488, 492 (4) (838 SE2d 133) (2020)

(citation and punctuation omitted).

Warren argues that the trial court erred by dismissing her complaint without

first having conducted a hearing on her discovery failures. It is true that, generally a

hearing is required. See Hunt, 353 Ga. App. at 492 (4) (“All that is required [for the

imposition of sanctions under OCGA § 9-11-37 (d)] is a motion, notice, and a

hearing.”) (citation and punctuation omitted). Nevertheless, “[i]n some exceptional

cases, . . . a hearing is not absolutely necessary. The trial court need not conduct a

hearing on the issue of wilfulness in every case. Such a requirement serves no purpose

where the trial court can otherwise determine wilfulness on the part of the party

against whom the sanctions are sought.” McConnell v. Wright, 281 Ga. 868, 869-870

(644 SE2d 111) (2007) (citation and punctuation omitted). This is such an exceptional

5 case. Wal-Mart filed its first motion to dismiss because of Warren’s failure to respond

to discovery 11 months after it had been served and after Wal-Mart had consented to

extensions. The trial court ordered Warren to respond to the discovery requests, and

although she did, her responses were incomplete, as she concedes.

Wal-Mart repeatedly asked Warren to supplement her responses. As of

September 5, 2023, almost 11 months after she had incompletely responded to

discovery, she still had not supplemented her responses. In addition, Warren twice

failed to appear at her noticed deposition. In this exceptional case, “the trial court

[could] determine wilfulness” absent a hearing. McConnell, 281 Ga. at 870.

6 As she did in the trial court, Warren argues that her mental health issues and

transportation issues excuse her failure to participate in discovery. She presented no

evidence in the trial court to support such arguments, and the trial court rejected

them. Nor has she pointed to evidence supporting such arguments in her appellate

brief. See Rivers v. Almand, 241 Ga. App. 565, 567 (1) (527 SE2d 572) (1999) (plaintiff

“offered not a scintilla of evidence to support [her] assertion” that the trial court

abused its discretion in dismissing complaint as a discovery sanction). Warren has not

shown error.

Judgment affirmed. Mercier, C. J., and Markle, J., concur.