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RLBB Acquisition, LLC v. Baer

Court of Appeals of Georgia

November 5, 2014

RLBB ACQUISITION, LLC
v.
BAER

Discovery. Cobb Superior Court. Before Judge Kell.

Jones Walker, April R. Freeman, M. Anthony Shaw, for appellant.

Chaiken Klorfein, Fredric Chaiken, for appellee.

BRANCH, Judge. Barnes, P. J., and Boggs, J., concur.

OPINION

Branch, Judge.

After a trial court granted defendant William Baer's motion to compel plaintiff RLBB Acquisition, LLC (" RLBB" ) to comply with Baer's discovery requests, Baer moved for sanctions for RLBB's failure to comply with the trial court's order, including the dismissal of RLBB's complaint. The trial court granted Baer's motion for sanctions and dismissed RLBB's complaint with prejudice. On appeal, RLBB argues that the trial court abused its discretion when it imposed the extreme sanction of dismissal because the evidence did not show that RLBB blatantly

Page 663

or willfully failed to comply with the court's orders. We find no error and affirm.

" Trial courts have broad discretion to control discovery, including the imposition of sanctions. Absent the showing of a clear abuse of discretion, a court's exercise of that broad discretion will not be reversed." Freeman v. Foss, 298 Ga.App. 498, 499 (2) (680 S.E.2d 557) (2009) (citation omitted).

Construed in favor of the trial court's judgment, the record shows that as successor-in-interest to the original promisee of Baer's promissory note, RLBB filed an action against him to recover the balance due under the note. In his answer, Baer admitted that he had executed the note, but asserted a number of affirmative defenses, [329 Ga.App. 484] including estoppel, fraud, and breach of contract. After an attempt at mediation failed in November 2012, the trial court ordered that discovery, including the filing of any motions, be concluded by February 20, 2013, and that any " dispositive motions" be filed by March 21, 2013.

On November 26, 2012, Baer served requests for admissions and for production of documents on RLBB. On November 29, 2012, Baer filed a notice of RLBB's OCGA § 9-11-30 (b) (6) deposition, to be held on January 16, 2013. On December 26, new counsel appeared on RLBB's behalf. On December 28, RLBB served its objections and responses to Baer's request for admissions. On December 31, RLBB served its objections and responses to Baer's request for documents, and produced some documents on January 7, 2013. On January 14, new counsel for RLBB advised Baer that RLBB would produce information and witnesses only as to the loan and promissory note at issue, but not as to the remaining loans in the same portfolio, which RLBB contended were irrelevant and contained confidential information and trade secrets. The OCGA § 9-11-30 (b) (6) deposition was taken as scheduled on January 16. Baer filed motions to compel further discovery on February 20 and 28, 2013. RLBB filed no response to either of these motions, and did not file any other motion before March 21, 2013, the latest of the deadlines set by the trial court.

On April 29, 2013, RLBB moved for leave to file a summary judgment motion. The trial court set a hearing on RLBB's motion for July 10, 2013. At the July 10 hearing, which was not transcribed, the trial court (1) denied RLBB's motion for leave to file a summary judgment motion; (2) noted that RLBB had not responded to either of Baer's motions to compel and that the court was empowered to rule on unopposed discovery motions without hearing oral argument; (3) heard oral argument from both sides nonetheless; (4) granted Baer's motions to compel; and (5) instructed RLBB that it was bound to produce the documents requested within 14 days of the entry of its order. The trial court then instructed Baer to provide a draft order, including the 14-day deadline, to RLBB for agreement as to form, and to submit the order for entry into the record. On July 22, 2013, after RLBB had approved the draft order as to form, the trial court entered the order denying RLBB leave to move for summary judgment and granting Baer's motions to compel. The order specified that RLBB was bound to produce the documents " not later than fourteen (14) days from entry" of the same order.

Through Monday, August 5, 2013, 14 days after the entry of the trial court's order granting the motion to compel, RLBB had not produced any additional documents, explained its failure to do so, or [329 Ga.App. 485] asked for an extension of time. On Wednesday, August 7, Baer filed the instant motion for contempt and/or sanctions. Four minutes after receiving Baer's motion via e-mail, counsel for RLBB called counsel for Baer and told him that RLBB " would" gather the documents in dispute and deliver them by the following Monday. On Thursday, August 8, the day after this exchange, RLBB e-mailed copies of some of the documents, including the purchase and sale agreement at issue, and filed a motion for an extension of time to produce the remaining ones. RLBB did not file any response to Baer's motion for contempt and/or sanctions, however. On September 20, RLBB sent a box of documents to Baer ...


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