NORTH DRUID DEVELOPMENT, LLC et al.
POST, BUCKLEY, SCHUH & JERNIGAN, INC
Reconsideration denied December 16, 2014 -- Cert. applied for.
Discovery. Cobb Superior Court. Before Judge Grubbs.
Robert C. Newcomer, for appellants.
Holland & Knight, John M. Hamrick, Leland H. Kynes, Keith M. Wiener, for appellee.
BRANCH, Judge. Barnes, P. J., and Boggs, J., concur.
North Druid Development, LLC and North Druid Development II, LLC (collectively " NDD" ) filed suit in Cobb County Superior Court against the surveying firm of Post, Buckley, Schuh & Jernigan, Inc. (" Post, Buckley" ), asserting a claim for professional negligence. When NDD failed to respond to Post, Buckley's initial discovery requests, the surveying firm moved for the sanction of dismissal with prejudice or, in the alternative, an order compelling discovery. NDD did not file a response to the motion, and the trial court thereafter granted Post, Buckley's motion and dismissed the complaint with prejudice. NDD now appeals from the order of dismissal, arguing that the trial court [330 Ga.App. 433] erred when it struck the affidavit of NDD's former counsel, which was submitted in support of NDD's motion to vacate or set aside the order of dismissal and which was filed on the day the court heard that motion. NDD also asserts that, given the circumstances of this case, the trial court abused its discretion by entering the ultimate sanction of dismissal with prejudice. For reasons explained below, we find that the trial court erred in striking the affidavit of NDD's counsel, thereby refusing to afford NDD an opportunity to be heard on the merits of the sanctions motion before deciding that motion. Accordingly, we vacate the order of dismissal and remand the case for proceedings consistent with this opinion.
The relevant facts are largely undisputed. The record shows that NDD filed its complaint on March 3, 2010, and Post, Buckley filed an answer and counterclaims on April 7. One week later, on April 15, 2010, Post, Buckley served NDD with its first interrogatories and first request for production of documents. Although responses to these discovery requests were due on May 18, the parties agreed to a two-week extension, making NDD's responses due on June 1, 2010. When NDD failed to meet this deadline, counsel for Post, Buckley wrote NDD's attorney asking NDD to comply with the discovery requests and noting that Post, Buckley " would prefer to resolve this situation without resorting to court involvement." Approximately one month later, on July 16, 2010, Post, Buckley's lawyer sent a second letter to NDD outlining NDD's failure to respond to discovery requests and demanding that such responses be provided no later than July 21. When NDD did not respond to this letter, Post, Buckley filed a motion under OCGA § 9-11-37 (d) asking that NDD's complaint be dismissed with prejudice or, in the alternative, that the court enter an order compelling NDD's discovery responses. After this motion was filed, NDD did respond to Post, Buckley's requests to produce by providing it with a number of documents. NDD did not, however, file a response to Post, Buckley's motion or request a hearing thereon; provide Post, Buckley with written responses to its discovery requests; or seek an additional extension of time in which to provide those responses.
On September 8, 2010, Post, Buckley's lawyer wrote a letter to the trial court in which it set forth the foregoing facts and characterized NDD's production of documents as " limited" and " grossly inadequate and largely unresponsive."  Post, Buckley therefore asked the court to grant its motion and impose the sanction of dismissal, asserting that such a sanction could be imposed without a hearing. It [330 Ga.App. 434] also provided the court with a proposed order dismissing NDD's complaint with prejudice. On September 9, 2010, without first issuing an order compelling NDD to comply with Post, Buckley's discovery requests and without scheduling a hearing on the sanctions motion, the trial court signed and filed Post, Buckley's proposed order dismissing with prejudice NDD's complaint. Post, Buckley thereafter dismissed its counterclaims without prejudice, and the trial
court entered a final order of dismissal on September 24, 2010.
On July 18, 2013, almost three years after the entry of final judgment, NDD filed a motion to vacate or, in the alternative, to set aside the dismissal order on the grounds that NDD had never been served with a copy of that order and had therefore been deprived of its right to appeal. The trial court scheduled a hearing on NDD's motion for 9:00 a.m. on October 4, 2013. On the morning of the hearing, NDD filed the affidavit of Eric Lang, the attorney who had represented NDD in filing the complaint and during discovery. Lang's affidavit set forth, among other things, the reasons for NDD's failure to comply fully with Post, Buckley's discovery requests and a general description of the documents that NDD had produced. At the hearing on NDD's motion, the trial court struck Lang's affidavit and refused to consider it, explaining that it would not consider the merits of the sanctions motion, but would instead limit the hearing to the question of whether the order of ...