Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Capital Floors, LLC v. Furman

Court of Appeals of Georgia, First Division

July 31, 2019

CAPITAL FLOORS, LLC et al.
v.
FURMAN et al.

          BARNES, P. J., MERCIER and BROWN, JJ.

          Barnes, Presiding Judge.

         The defendants, Naftali Yair and Capital Floors, LLC, (collectively, "Capital Floors") appeal from the trial court's judgment awarding damages, attorney fees, and costs to the plaintiffs, Jeremy and Arielle Furman (collectively, the "Furmans"), in this suit alleging breach of contract, fraud, and other claims. The trial court entered the final judgment after the entry of a default judgment in favor of the Furmans as a discovery sanction under OCGA § 9-11-37 (d) and after a hearing on the issue of damages. On appeal, Capital Floors argues that the trial court erred in entering a default judgment without first allowing Capital Floors 30 days to respond to the Furmans' motion for default judgment in accordance with Uniform Superior Court Rule ("USCR") 6.2. Capital Floors further argues that the trial court erred in entering a default judgment because the Furmans failed to file a certification with their motion in compliance with USCR 15. Additionally, Capital Floors argues that the trial court erred in denying its motion for a continuance of the damages hearing, in failing to conduct a jury trial on the issue of damages, and in awarding attorney fees to the Furmans in the amount set forth in the judgment. For the reasons discussed more fully below, we vacate the portion of the judgment awarding attorney fees to the Furmans and remand the case with direction. We affirm in all other respects.

         The record reflects that on October 2, 2017, the Furmans filed their verified complaint against Capital Floors, alleging breach of contract, fraud, and other claims arising from the allegedly faulty installation of a wooden floor in their home. The Furmans sought damages and attorney fees. Capital Floors filed its answer on December 4, 2017, denying liability.

         The trial court issued a notice informing the parties that a status/scheduling conference would be conducted on April 24, 2018. Because Capital Floors and its counsel failed to appear at the conference, the trial court entered an order striking the answer of Capital Floors and granting default judgment to the Furmans. The trial court issued a notice that a hearing on damages would be conducted on May 22, 2018.

         Capital Floors filed a motion for reconsideration and/or to set aside the default judgment; a request for a jury trial on the issue of damages; and a request to postpone a trial on damages until after the trial court ruled on whether it would reconsider and/or set aside the judgment. In support thereof, counsel for Capital Floors submitted an affidavit stating, among other things, that because of overseas travel and illness, he failed to review emails from the trial court and opposing counsel notifying him of the status/scheduling conference. Counsel acknowledged that he did not file a leave of absence with the trial court before traveling overseas and that he checked his email upon returning to this country "but inadvertently failed to see" an email notifying him about the conference. Yair, the primary shareholder and manager of Capital Floors, also submitted an affidavit stating that he had not been notified about the conference by his counsel or anyone else.

         Following a hearing, the trial court granted Capital Floors' motion to reconsider and set aside the default judgment. The trial court concluded that while the "situation could have been avoided" if Capital Floors' counsel had "simply complied with [his] duties, . . . it would not be in the interest of justice to enter default judgment" and deprive Capital Floors of the opportunity to defend itself against the allegations made by the Furmans in the lawsuit.

         Having set aside the default judgment, the trial court twice extended the discovery period and placed the case on the October/November 2018 jury trial calendar. On July 30, 2018, the Furmans served Capital Floors with their first requests for production of documents and first continuing interrogatories. Capital Floors requested an extension to September 14, 2018 to respond to the discovery requests, and the Furmans agreed to the request. When Capital Floors later requested a second extension to respond, the Furmans denied the request because of the length of time the case had been pending and the approaching trial calendar. Counsel for Capital Floors then asked for a hearing before the trial court to address discovery, and the trial court scheduled a hearing by telephone for September 21, 2018. However, Capital Floors and its counsel failed to appear.

         After the failure of Capital Floors and its counsel to appear at the telephonic hearing, the Furmans filed a motion to compel in which they sought an order compelling Capital Floors to respond to the discovery requests and awarding the Furmans reasonable attorney fees incurred as a result of the telephonic hearing and the motion to compel. Capital Floors failed to respond to the motion to compel and never responded to the discovery requests.

         Nonetheless, Capital Floors served its own discovery requests on the Furmans on the last day of the discovery period, October 22, 2018. The Furmans then filed a combined motion for default judgment as a discovery sanction pursuant to OCGA § 9-11-37 (d)[1] and a motion for a protective order to relieve them from having to respond to Capital Floors' discovery requests. Capital Floors did not respond to the motion to compel or the combined motion for default judgment and a protective order.

         On November 8, 2018, the trial court granted the Furmans' motion for a protective order, and by separate order, granted their motion for default judgment as a discovery sanction under OCGA § 9-11-37 (d). The trial court found that because Capital Floors failed to respond to the Furmans' discovery requests, failed to appear at the telephonic hearing that Capital Floors itself had requested to address discovery, and failed to respond to the motion to compel, this was an "exceptional" case of discovery abuse that warranted the immediate sanction of striking the answer and entering default judgment in favor of the Furmans. That same day, the trial court issued a notice of evidentiary hearing to determine the amount of damages that would be awarded to the Furmans. The hearing was scheduled for December 6, 2018.

         The night before the damages hearing, Capital Floors' counsel for the first time informed opposing counsel that he would be seeking a continuance. Then, on the morning of the scheduled damages hearing, counsel for Capital Floors filed an emergency motion for a continuance, asserting that recent health issues prevented him from participating in the hearing and that a "primary witness" for the defense would be absent from the hearing due to illness. When the hearing commenced a few hours later, no representatives of Capital Floors or any other defense witnesses were present. Capital Floors' counsel, who participated in the hearing by telephone, moved to continue the hearing to a later date and informed the trial court that he had filed a "late" motion for continuance that morning "[o]ut of formality." Counsel for the Furmans objected to the motion for continuance, noted Capital Floors' pattern of not participating in the case, and stated to the trial court:

[G]oing through this case and the procedural posture of this case, Your Honor, I'm concerned that if this were continued, there's no stopping it essentially is my concern, Your Honor. This has been the MO for this entire case, is to delay and see how long we can drag this out, and it needs to come to its head, and that's why I object.

         The trial court denied the motion for continuance. The Furmans then presented testimony and documentary evidence pertaining to their damages suffered and the attorney fees they had incurred.

         Following the damages hearing, the trial court entered judgment in favor of the Furmans and against Capital Floors in the principal amount of $24, 589.50, attorney fees in the amount of $8, 983.81, and costs in the amount of $245.74. This appeal followed.

         1. Capital Floors contends that the trial court erred in entering a default judgment against it as a discovery sanction under OCGA § 9-11-37 (d) because the court did not allow Capital Floors a full 30 days to respond to the Furmans' motion for default judgment in accordance with USCR 6.2.[2] But, Capital Floors makes no claim on appeal that affording it additional time to respond to the motion would have led it to present evidence on the discovery issue that would have affected the substantive result; indeed, Capital Floors does not challenge the trial court's findings that resulted in the court imposing the sanction of entry of a default judgment against it. Consequently, Capital Floors has failed to show that additional time to respond "would have changed the state of the record in any way" and thus has failed to show that it was harmed by the allegedly premature entry of the default judgment. (Citation and punctuation omitted.) Garnett v. Murray, 281 Ga. 506, 507 (1) (639 S.E.2d 475) (2007). Accordingly, Capital Floors has failed to show that any alleged noncompliance with USCR 6.2 would justify reversal in this case. See Garnett, 281 Ga. at 507 (1); Evans v. East Coast Intermodal Systems, 191 Ga.App. 749, 749-750 (382 S.E.2d 743) (1989) (concluding, in case where trial court dismissed complaint as a discovery sanction under OCGA § 9-11-37 (d), that any alleged error from noncompliance with USCR 6.2 was harmless, where appellant failed to show that granting further time to respond to the motion to dismiss would have affected the trial court's decision to sanction the appellant with dismissal). See generally Waters v. Chase Manhattan Bank, 308 Ga.App. 885, 886 (1) (709 S.E.2d 37) (2011) ("It is well settled that the burden is on the appellant to establish both error and harm. Error which is harmless will not be cause for reversal.") (footnotes omitted).

         2. Capital Floors argues that the trial court erred in entering default judgment against it because the Furmans failed to comply with the certification requirements imposed by USCR 15 when they filed their motion for default judgment.[3] "The plain terms of [USCR 15] show that the certificate is intended to assure the judge who has received a proposed default judgment that the defendant was in fact served [with the complaint] and in fact failed to [file an] answer." Williams v. Contemporary Svcs. Corp., 325 Ga.App. 299, 301 (750 S.E.2d 460) (2013). The Furmans, however, sought a default judgment as a discovery sanction for Capital Floors' total failure to respond to discovery requests pursuant to OCGA § 9-11-37 (d), not for any alleged failure by Capital Floors to file an answer or other "defensive pleading."[4] Compare OCGA § 9-11-55 (entry of default where an answer has not been timely filed). USCR 15 thus is inapplicable under the circumstances here.

         3. Capital Floors contends that the trial court erred in denying its motion for a continuance before conducting the damages hearing because its trial counsel and its main witness were ill.[5]

A motion for continuance of a trial is properly addressed to the sound legal discretion of a trial judge, who is in control of the management of the case in court. The exercise of that discretion will not be disturbed by the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.