Opinion
A03A0524.
DECIDED: FEBRUARY 14, 2003
Promissory note. Bibb State Court. Before Judge Adams.
Lane Jarriel, Thomas F. Jarriel, for appellant.
Sell Melton, Neil A. Halvorson, for appellee.
Gary Harris ("Harris") sued Mary Etta Washington ("Washington") for failure to pay alleged debts evidenced by a promissory note. On appeal, Washington contends that the trial court erred in ordering her answer stricken and entering judgment against her in the amount of $50,000 for failure to appear at her deposition under OCGA § 9-11-37(d) without conducting a hearing and not expressly finding wilfulness. Washington further contends that the trial court erred at the non-jury trial of the case by considering her liability on the note in addition to the issue of damages — this, for want of notice as to the issue of liability. We disagree and affirm.
The record shows that Washington answered a suit on a promissory note for debts totaling $50,000 filed by Harris, her former boyfriend. Washington was thereafter served with notice to take her deposition and a request to produce certain documents. By consent of the parties, the taking of the deposition and the request for production were rescheduled. Washington thereafter failed to appear. There was no motion to compel discovery; however, Harris moved for sanctions, and, without conducting a hearing because no response was filed, the trial court ordered Washington's answer stricken and granted default judgment against her. Following a hearing on a motion to reconsider or set aside judgment, the trial court later modified its order, among other things expressly finding that Washington wilfully refused to attend the deposition and vacating the judgment against Washington as to damages only. Notwithstanding default judgment against Washington remaining on the issue of liability, at the non-jury trial of the case, Washington appearing pro se, the trial court considered the issue of her liability on the note as well as the question of the damages due Harris. After doing so, the trial court entered judgment against Washington in the amount of $50,000.00 and, further finding her defense substantially frivolous, groundless and vexatious, awarded Harris $12,443.31 as attorney fees and expenses of litigation under OCGA § 9-15-14. Held:
1. Washington does not take issue with the sufficiency of the evidence in support of the trial court's order striking her answer and entering default judgment against her, but instead argues that such order was improper without a hearing and in the absence of an express finding of wilfulness. The imposition of sanctions under OCGA § 9-11-37(d) without a motion, notice, and a hearing is reversible error. Barrego v. OHM Remediation Svcs. Corp., 245 Ga. App. 389, 390(2) ( 537 S.E.2d 774) (2000). However, the record unequivocally shows that the trial court modified the ex parte order complained of after its hearing on motion for reconsideration and to set aside judgment. There also is no issue that such hearing was duly noticed and that Washington was then represented by counsel. In addition, while there is no requirement that a trial court expressly find wilful noncompliance to impose sanctions under OCGA § 9-11-37(d), see Rivers v. Almand, supra at 567, citing Schrembs v. Atlanta Classic Cars, 261 Ga. 182, 183 ( 402 S.E.2d 723) (1991) (word "wilful" unnecessary in order to impose sanctions for discovery violations where wilfulness implicit in the evidence supporting sanctions), the trial court did so by its order on the motion to reconsider and set aside judgment. As the record unequivocally reflects the imposition of sanctions under OCGA § 9-11-37(d) upon a proper hearing and due finding of wilful discovery violation, the instant claim of error must be deemed without merit.
It is unnecessary to issue an order compelling discovery as provided by OCGA § 9-11-37(b) as a condition precedent to imposing sanctions under OCGA § 9-11-37(d). All that is necessary is a motion, notice, and a hearing. Rivers v. Almand, 241 Ga. App. 565, 566(1) ( 527 S.E.2d 572) (1999), citing Cook v. Lassiter, 159 Ga. App. 24, 25 ( 282 S.E.2d 680) (1981).
2. Washington's claim that, at the bench trial of the case, the trial court erred in hearing the issue of her liability on the note in addition to the issue of damages due Harris for want of notice thereof is likewise devoid of merit. Because the trial court properly left to be resolved only the question of the damages due Harris by its order upon Washington's motion to reconsider and set aside judgment, there was neither a right to notice nor a duty to give notice that the trial court would further consider the liability issue at trial. See Daniel v. Corporate Property Investors, 234 Ga. App. 148 ( 505 S.E.2d 576) (1998) (Trial courts enjoy broad discretionary authority to control discovery, including the imposition of sanctions.) However, even assuming that the trial court abused its discretion (and we find that it did not), there was no prejudice. Washington does not contend that she lacked notice of the trial court's hearing on damages, a defect which would have required that the judgment be set aside under OCGA § 9-11-60(d)(3) in that Washington was there pro se. Housing Auth. of Atlanta v. Parks, 189 Ga. App. 97, 98 ( 374 S.E.2d 842) (1988). Further, in hearing the evidence on the issue of liability, the trial court did no more than allow Washington a second bite of the apple — this out of an apparent deference to her status as then pro se and an abundance of caution. Washington's liability otherwise stood as admitted by operation of law incident to the imposition of the sanction of default judgment on the issue. See Stroud v. Elias, 247 Ga. 191, 193(1) ( 275 S.E.2d 46) (1981) ("A judgment by default properly entered against parties sui juris operates as an admission by the defendant of the truth of the definite and certain allegations and the fair inferences and conclusions of fact to be drawn from the allegations of the declaration. Conclusions of law, and facts not well pleaded and forced inferences are not admitted by a default judgment.) (citations and punctuation omitted). And, finally, Washington points to nothing she would have done differently at trial had she been given the notice which she complains was denied. "Harm as well as error must be affirmatively shown by the record to obtain reversal." (Citation omitted.) Evans v. State, 233 Ga. App. 879, 880(2) ( 506 S.E.2d 169) (1998). This claim of error as, in effect, "staring a gift horse in the mouth," must likewise fail as without merit.
Judgment affirmed. Johnson, P.J., and Mikell, J., concur.
DECIDED FEBRUARY 14, 2003 — CERT. APPLIED FOR.