Duеt Holdings, Incorporated, d/b/a Duet Financial, brought suit against Robert Joel, individually and d/b/a Summit Mortgage Company, seeking 50% of certain brokerage fees paid tо Joel by a third party. Joel appeals from the order of the trial court striking his defensive pleadings and entering judgment against him by default as sanction against his failurе to comply with court-ordered discovery.
Appellee filed with appellant a notice to take the deposition of appellant’s attоrney along with a notice to produce, the latter of which notified and requested appellant’s attorney to produce and permit appеllee to “inspect and copy, at the time of your deposition [set forth in the notice to take deposition] in the offices of [appellee’s attorney], all documentary evidence listed [in an attached exhibit].” These notices were dated November 6, 1985, and set forth November 14th as the scheduled dаte for discovery. In response, appellant filed a motion seeking a protective order pursuant to OCGA §§ 9-11-26 (c), -34 to quash both notices. On November 19, 1985, the triаl court denied appellant’s motion to quash on the basis that the subject matter of the deposition and the documents set forth in the notice were discоverable pursuant to OCGA § 9-11-34. The trial court then ordered appellant’s attorney to appear and to produce the documents at the taking of the deposition on November 21, 1985. Appellant’s attorney presented himself at the deposition but failed to produce most of the documents listed in apрellee’s notice to produce. Although one document was produced at the deposition and it was explained that one other requested itеm did not exist, the deposition revealed that the remaining documents were not produced, either because they were in the possession of appellant’s certified public accountant or because appellant, both individually and as an officer in Robert Joel, Inc. (a general partner in Summit Mоrtgage Co.), refused to hand over the documents.
Thereafter, appellee moved for imposition of sanctions pursuant to OCGA § 9-11-37 (b) (2) (C). After a hearing on the motion, the trial court found that “the actions of [appellant and counsel] are willful in that they show no intention to comply with my Order.” The trial court then struck appellant’s defensive pleadings and entered judgment by default in favor of appellee. The trial court stated that while this was “an extreme sanction, it is appropriate considering the continued willful and intentional conduct of [appellant].”
Initially, we note that no express determination was made by the trial court here that appellee’s notice to produce was converted into a request to produce. However, it appears that all parties in their pleadings before the trial court were operating on the basis that the
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notice to produce had been converted into a request to produce: appellant, in seeking a protective order, invoked the provisions of OCGA § 9-11-26 (c) and OCGA § 9-11-34; appellee’s motion for imposition of sanctions was based on the provisions of OCGA § 9-11-37. Further, the trial court denied appellant’s motion to quash on the basis that the documents were discoverable pursuant to OCGA § 9-11-34 and based its order imposing sanctions against appellant on OCGA § 9-11-37 (b) (2) (C). Since motions pursuant to OCGA §§ 9-11-26, -34, and -37 are not proper vehicles for the quashing or thе enforcement of an OCGA § 24-10-26 notice to produce, see
Bergen v. Cardiopul Medical,
We further note that under OCGA § 9-11-34 (b) (2), appellant, as the party upon whom the request was served, was entitled to 30 days to respond and that appellee’s notice, filed November 6, 1985, gave appellant only to November 14th to produce. Howevеr, appellant excused compliance with the same when he chose to seek a protective order pursuant to OCGA § 9-11-26 and the trial court, upon denying appellant’s motion, was authorized to set a shorter time for appellant’s response under OCGA § 9-11-34 (b) (2).
Although we agree with appellant that unless appellee’s notice to produce was somehow converted into a request to produce, the trial court’s original order requiring the productiоn of the documents and subsequent order imposing sanctions would be clearly erroneous, Bergen, supra at 701, we find the trial court properly converted the notice here. In Bergen, this court held that the “conversion” was erroneous because the notices in question there failed to “specify a time, place or mаnner for producing or making inspection of the documents” as required by OCGA § 9-11-34 (b) (1) and that these omissions were not rectified by the trial court’s order directing the apрellant there to comply with the notices. The case sub judice is thus distinguishable from Bergen in that appellee’s notice to produce did set forth the time, place and manner of making the inspection and thus fully complied with the statutory requirements of OCGA § 9-11-34 (b) (1).
Next, we find no merit in appellant’s argument that in the absence of an OCGA § 9-11-37 (а) motion to compel, the trial court’s imposition of sanctions under OCGA § 9-11-37 (b) was erroneous. “ ‘The general scheme of [OCGA § 9-11-37, Civil Practice Act Rule 37] is that ordinarily sanctions can be applied only for a failure to comply with an order of the court. Thus when the discovery procedure itself requires a court order ... or permits an order . . . failure to obey the order can be punished immediately by any of the sanctions listed in Rule 37 (b). . . .’ [Cit.]”
Serwitz v. Gen. Elec. Credit
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Corp.,
As a general rule, the trial court should attempt to compel compliance with its orders through the imposition of lesser sanctions than dismissal.
Mathews v. City of Atlanta,
Appellant’s remaining contention is rendered moot by the foregoing.
Judgment affirmed.