WRIGHT-HERMAN et al v. FRESH START CONSTRUCTION & MANAGEMENT, INC. et al.
A24A1307
In the Court of Appeals of Georgia
January 31, 2025
WATKINS, Judge.
THIRD DIVISION, DOYLE, P. J., HODGES and WATKINS, JJ.
THIRD DIVISION
DOYLE, P. J.,
HODGES and WATKINS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk‘s office within ten days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
Robyn Wright-Herman and Sheilah1 Wright2 (collectively “Appellants“) sued Fresh Start Construction & Management, Inc., and its owner Rayburn Womack (collectively “Fresh Start“) concerning work performed by Fresh Start on a house jointly owned by Appellants.3 Fresh Start asserted counterclaims against Appellants.
Appellants failed to timely respond to discovery, even after the trial court granted a motion to compel ordering them to respond.
As a result, the trial court sanctioned Appellants by dismissing their complaint and finding them in default as to liability on the counterclaims. Following an evidentiary hearing, the trial court entered a final judgment for damages against Appellants. Appellants timely appealed. We hold that the trial
“Trial judges have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court‘s decision on such matters unless there has been a clear abuse of discretion.”4
The record shows that Appellants filed suit against Fresh Start, which Robyn hired to repair Appellants’ home after a house fire. Appellants claimed that Fresh Start misrepresented Womack‘s license status, allowed subcontractors to remove Appellants’ undamaged property, and performed substandard work. Appellants brought claims for breach of contract, negligence, damage to real property, slander of title, and intentional or negligent misrepresentation. Fresh Start responded with an answer and asserted the following counterclaims: breach of contract, “deceit,”5 and defamation against Robyn, and “quantum meruit/unjust enrichment” against both Appellants. Fresh Start also sought to recover punitive damages and attorney fees against both Appellants.
On May 5, 2022, Fresh Start served interrogatories and requests for production of documents on Appellants. No response was timely received,6 and Fresh Start‘s
counsel followed up with Appellants’ counsel by letter and e-mail on June 17, 2022, informing Appellants that Fresh Start would file a motion to compel if responses were not received within five days. When no responses were received, Fresh Start filed a motion to compel on June 24, 2022. Appellants did not respond to the motion. On August 8, 2022, the trial court granted Fresh Start‘s motion and ordered Appellants to fully respond to the discovery within 20 days.
Appellants did not comply with the trial court‘s order, and on August 30, 2022, Fresh Start moved for contempt and sanctions pursuant to
Fresh Start supplemented its motion for contempt and sanctions, acknowledging that the Appellants had responded, but stating that the responses were incomplete and did not excuse the violation of the trial court‘s order. Appellants
acknowledged that an award of attorney fees may be appropriate, but objected to the imposition of harsher sanctions, stating without evidentiary support that Robyn‘s health had declined. The trial court held a hearing on the motion for contempt and sanctions for which Appellants’ counsel appeared, but for which neither Appellant appeared to explain the delayed responses. The trial court granted the motion, finding that Appellants had willfully failed to comply with the trial court‘s order compelling discovery. The trial court dismissed Appellants’ complaint in its entirety with prejudice, found Appellants in default as to liability on the counterclaims, and ordered Appellants to pay nearly $11,000 in attorney fees within 30 days.
1. Appellants contend the trial court erred in entering harsher sanctions than required, especially because they had responded to discovery prior to entry of the order. We find no clear abuse of discretion.
Georgia law provides that
[i]f a party ... fails to obey an order to provide or permit discovery, ... the court in which the action is pending may make such orders in regard to the failure as are just and, among others, the following: ... An order striking out pleadings or parts thereof, ... or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]9
Given that Appellants totally failed to respond to discovery in a timely manner, the trial court did not need to enter an order compelling responses before sanctioning Appellants,10 though it did so anyway. Appellants ignored the trial court‘s order and did not respond to discovery until Fresh Start moved for harsh sanctions; however, “once a motion for sanctions for failure to make discovery has been filed, the opposing party may not preclude their imposition by making a belated response.”11
“[B]efore a trial court may enter the sanction of dismissal it must find that the offending party has acted wilfully, and it therefore must afford the party against whom sanctions are sought an opportunity to explain the circumstances of the failure to timely respond.”12 Here, the trial court held a hearing which provided Appellants with such an opportunity, but neither Appellant attended the hearing or proffered any evidence explaining their misconduct.13
While the sanction[s of dismissal and default] should only be applied where there is a showing that the disobedient party willfully violated the trial court‘s order, this finding of willfulness does not require bad faith or malice on the non-compliant party‘s part, instead it requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance.14
Faced with a total lack of evidence explaining Appellants’ conduct, the trial court did not abuse its broad discretion in finding Appellants’ conduct to be willful, and in imposing the sanctions of dismissal and default.15
The only counterclaims pled against Sheilah were “quantum meruit/unjust enrichment[,]” punitive damages, and attorney fees pursuant to
Under
complaint or other original pleading were supported by proper evidence. We have interpreted this provision to mean that the default operates to admit only the well-pled factual allegations of the [counterclaim] and the fair inferences and conclusions of fact to be drawn from those allegations. It is axiomatic that a default does not result in the admission of allegations that are not well-pled or that are the result of forced inferences. [The effect of a default judgment is] an admission of the facts alleged in the [counterclaim], but not of the conclusions of law contained therein. . . . A default simply does not require blind acceptance of a plaintiff[ in counterclaim‘s] erroneous conclusions of law. Nor does a default preclude a defendant [in counterclaim] from showing that under the facts as deemed admitted, no claim existed which would allow the plaintiff [in counterclaim] to recover.16
“We construe the language of the pleading according to its literal meaning and giving its words their usual and ordinary significance. Liberal construction of a pleading does not encompass the imputation or engrafting to a claim of a meaning not reasonably deductible or inferable from the explicit language of the pleading.”17
Here, the answer and counterclaim clearly asserted only three counterclaims against Sheilah. At the damages hearing, Fresh Start explicitly waived its “quantum
meruit/unjust enrichment” claim. Although Fresh Start argues that its election of remedy should be interpreted to apply solely to its claims against Robyn, Fresh Start made no such distinction at the hearing. Further, in the final judgment — which was drafted by Fresh Start‘s counsel — the trial court awarded no damages for the “quantum meruit/unjust enrichment” claim. As to the breach of contract claim, Fresh Start concedes in its brief that no such claim was brought against Sheilah and that she should not be liable on that basis.
Fresh Start invites this Court to hold that additional tort causes of action were asserted against Sheilah through the testimony provided at the damages hearing, arguing that the counterclaim was amended to conform to the evidence presented so as to assert claims for defamation and “deceit.”18 This argument misunderstands the procedural posture of the case at the time of the damages hearing. The purpose of the damages hearing was not to establish liability, as that had already been done by way of the default judgment. Indeed, the only remaining question for resolution following entry of the default judgment was the amount of damages to be awarded on the
counterclaims properly established by way of the default.19 Sheilah was not in default as to claims that were not asserted against her in the counterclaim.
Given that Fresh Start abandoned the “quantum meruit/unjust enrichment” claim, the trial court erred in awarding damages
3. Lastly, Appellants contend that the evidence of damages presented by Fresh Start was too speculative to support the award. In light of our holding in Division 2, the damages award against Robyn must be vacated and reconsidered.
As mentioned previously, the trial court found Robyn and Sheilah jointly and severally liable for all claims. We cannot determine what role the improper consideration of Sheilah‘s conduct may have played in quantifying the damages awarded. Accordingly, we vacate the damages awarded against Robyn with instruction that the trial court reconsider the award without considering the conduct of Sheilah.21
Judgment vacated and case remanded with instruction. Doyle, P. J., and Hodges, J., concur.