MILLER, P. J., RICKMAN and REESE, JJ.
Portman appeals the trial court's order dismissing his
complaint as a sanction for failing to attend his deposition.
He contends that the trial court was obligated to conduct a
hearing prior to imposing the ultimate sanction of dismissal.
He also contends that the trial court erred by denying his
motions for sanctions. For reasons that follow, we affirm.
March 2009, Portman filed suit against Cleveland G. Zipperer
III, seeking repayment of two promissory notes. Zipperer
later filed a Chapter 7 bankruptcy, but the bankruptcy court
held that Zipperer's debt to Portman was not
dischargeable because Zipperer had obtained the loan from
Portman by making false representations. In October 2013,
after the bankruptcy stay was lifted, Portman obtained a
consent judgment against Zipperer in the amount of $160, 000.
2016, Portman brought suit against Zipperer; Zipper Land
Management, a company operated by Zipperer; Tina Portillo
Zipperer; and Zipperer and Co. LLC, a company formed by Tina
Zipperer. Portman alleged that Tina Zipperer's formation
of and participation in the operation of Zipperer and Co.
("ZCO") was part of a conspiracy involving Zipperer
to further defraud Portman by illegally diverting,
transferring, secreting, and disposing of assets and income
belonging to Zipperer.
parties engaged in discovery shortly after the complaint was
filed. Tina Zipperer served written discovery to which
Portman responded. Portman served written discovery on Tina
Zipperer and ZCO, seeking, inter alia, tax returns, bank
statements, and financial statements. Tina Zipperer and ZCO
responded to certain of the requests and sought a protective
order to avoid producing information or documents they deemed
confidential, sensitive, and/or proprietary. In a June 22,
2017 order, the trial court ordered Tina Zipperer and ZCO to
produce the requested tax and bank records within 15 days.
Tina Zipperer and ZCO filed a motion for reconsideration,
which the trial court denied in a September 26, 2017 order.
In the interim, Portman filed a motion for sanctions based on
the failure to produce the documents as ordered by the court,
and the trial court reserved ruling "until the final
trial of this matter." The documents were ultimately
made available for Portman's review, but not copying, on
November 7, 2017. Portman filed a motion for reconsideration
on November 8, 2017, seeking sanctions for defense
counsel's failure to comply with the court's June
2017 order by not allowing the documents to be copied. The
trial court denied the motion as untimely, suggesting that
any failure to comply with the court's June 2017 order
would require a new motion for sanctions.
Zipperer and ZCO first sought to take Portman's
deposition in November 2016. The deposition was mutually
rescheduled four times, and during the scheduling process,
Portman sought a protective order asking that he be protected
from being deposed until such time as Tina Zipperer obeyed
the court's order to produce the requested documents. The
trial court denied Portman's motion in a September 2017
order. On the fifth scheduled deposition date, November 9,
2017, Portman failed to appear. His counsel was present and
announced that Portman was not present because his dog was
dying and required close monitoring. On the sixth scheduled
deposition date, neither Portman nor his attorney appeared.
Zipperer and ZCO moved to dismiss Portman's complaint for
his failure to appear at his deposition and sought the
attorney fees and costs incurred in preparing for and
appearing at the last two scheduled depositions. Portman
responded that the motion should be denied because the
defendants had engaged in abusive litigation, resulting in
substantial delay, and that they should not be rewarded for
their attempt to manipulate the discovery process by refusing
to allow Portman to copy documents that they had been ordered
to produce. Portman also filed another motion for sanctions
based on Tina Zipperer and ZCO's refusal to allow him to
copy the documents. The trial court granted the motion to
dismiss Portman's complaint, ruling that Portman's
failure to attend his deposition was wilful, and awarded Tina
Zipperer and ZCO the attorney fees and expenses incurred for
Portman's failure to attend. The trial court denied
Portman's motion for sanctions as moot, given its ruling
on the motion to dismiss.
Portman contends that the trial court erred in dismissing his
complaint. He argues that the trial court was required to
conduct a hearing before granting Tina Zipperer and ZCO's
motion to dismiss as a discovery sanction.
trial court has broad discretion to control discovery,
including the imposition of sanctions, and this Court will
not reverse a trial court's decision on discovery matters
absent a clear abuse of discretion." (Citations and
punctuation omitted.) Resurgens, P.C. v. Elliott,
301 Ga. 589, 597-598 (2) (b) (800 S.E.2d 580) (2017).
to OCGA § 9-11-37 (d) (1), "[i]f a party . . .
fails to appear before the officer who is to take his
deposition, after being served with a proper notice . . .,
the court in which the action is pending on motion may make
such orders in regard to the failure as are just; and, among
others, it may take any action authorized under subparagraphs
(b) (2) (A) through (b) (2) (C) of this Code section."
OCGA § 9-11-37 (b) (2) (C) authorizes the court in which
the action is pending to sanction a party by issuing
"[a]n order . . . dismissing the action or proceeding or
any part thereof . . . ."
Supreme Court of Georgia has cautioned against the use of the
harsher sanctions of dismissal or default except in extreme
cases, and held that the trial court must find wilfulness as
a predicate to imposing those sanctions. See Schrembs v.
Atlanta Classic Cars, 261 Ga. 182 (402 S.E.2d 723)
(1991). But "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." Id. at 182-183. And
wilfulness in this context "requires only a conscious or
intentional failure to act, as distinguished from an
accidental or involuntary non-compliance." Resource
Network Intl. v. Ritz-Carlton Hotel, 232 Ga.App. 242 (1)
(501 S.E.2d 573) (1998).
on McConnell v. Wright, 281 Ga. 868 (644 S.E.2d 111)
(2007), Portman argues that he was entitled to an opportunity
to be heard before the trial court determined whether his
behavior was wilful. In McConnell, the record
supported a finding that the McConnells' failure to
attend their depositions resulted from negligence rather than
wilfulness, and the Court specifically noted that "[h]ad
there been evidence on the face of the record showing that
the McConnells acted wilfully, the result of this case might
be different." Id. at 870. Here, however, the
record shows that the only reason Portman failed to attend
his sixth scheduled deposition was because he had not been
allowed to copy the documents the court had ordered be
produced. This failure to appear occurred after the trial
court had denied Portman's motion for protective order in
which he sought to postpone his deposition until Tina
Zipperer obeyed the court's order to produce the
requested documents. Even if Portman was entitled to copies
of the documents, that did not excuse his intentional refusal
to attend his deposition. See Rice v. Cannon, 283
Ga.App. 438, 439 (1) (641 S.E.2d 562) (2007).
situation, where the trial court had already ruled that
Portman was not entitled to postpone his deposition until
such time as his opponents complied with the court's
order to produce documents and the sole reason for
Portman's failure to appear was the fact that those
documents had not been made available for copying, the trial
court was authorized to find that Portman intentionally and
wilfully failed to attend his properly-noticed deposition.
Under the specific facts of this case, that finding could be
made from the record, without the necessity of conducting a
hearing. See Cochran v. Kennelly, 306 Ga.App. 838,
842 (1) (703 ...