Tandy Corp. v. McCrimmon

Carley, Judge.

Appellee-plaintiff is a licensed member of the Georgia Bar. Acting pro se, he filed this action to recover actual and punitive damages for appellant-defendant’s alleged fraud in connection with the sale of certain computer equipment and software. Along with the complaint, appellant was also served with 15 interrogatories and 5 requests for production of documents. Appellant objected to all of the requested discovery, but nevertheless provided unsworn responses to five of the interrogatories. Appellee filed a motion to compel, and on April 1, 1985, the trial court entered an order requiring appellant to respond fully within 30 days to all but one of the five requests for production and to all of the interrogatories “to which [appellant had] previously objected.”

On May 1, 1985, appellee was mailed what was styled as appellant’s supplemental responses to the interrogatories and requests for production. However, no documents nor copies of documents were actually produced. Instead, appellant’s response was that the documents sought by appellee in two of the requests for production either had been destroyed in the normal course of business or would be impossible to locate and that the documents sought by appellee in the other two requests would be produced only upon his payment of copying expenses and the entry of a proposed protective order. The protective order proposed by appellant specified, in essence, that only one copy of each of the documents would be made, that such copy would be retained at all times by appellee in a secure location in his office, and that appellee could not make any of the material available to anyone except his employees or expert witnesses involved in the preparation of the case.

On May 16, 1985, appellee moved for the imposition of sanctions based upon appellant’s failure to comply with the discovery order of April 1, 1985. Appellant responded by submitting the affidavit of its *745counsel who stated, in essence, that sufficient answers had been provided to all the interrogatories and that, appellee had not availed himself of appellant’s conditional offer to allow him to inspect at least some of the requested documents. With regard to the conditional aspect of that offer, counsel averred as follows: “To allow [appellee] to do whatever he wishes with documents that contain confidential and sensitive information on [appellant’s] business could expose [appellant] to competitive disadvantage in the marketplace. The protective order suggested by me is a reasonable restraint upon [appellee] to limit his use of the documents to the case at bar.”

Although appellee’s motion for sanctions was initially heard on June 6, 1985, it was not ruled upon until well over a year later. However, at the hearing, the trial court orally indicated to appellee’s counsel that it believed the discovery order had been violated. Several days after the hearing on the motion for sanctions, appellant finally moved for a protective order along the lines of the proposed order it had previously submitted to appellee. The following month, a judge who had not previously been involved in the case granted appellant’s motion and entered such protective order. Appellee thereafter renewed his motion for sanctions and, on October 7, 1986, the trial court finally entered its order granting that motion. Contained in that order were specific findings that appellant’s failure to comply with the discovery order of April 1, 1985, was “wilful, intentional, and was done in such a manner as to interfere with the [appellee’s] right to prosecute his case and to obtain lawful discovery.” The trial court additionally concluded that there was “nothing in the disputed documents of a sensitive nature which would have justified [appellant’s] withholding of the documents from [appellee],” and that, even if there had been, appellant had waived its right to object to their disclosure on this basis by failing to raise such an objection prior to the expiration of the 30-day period allowed in the discovery order for their production. The trial court once again ordered appellant to produce the documents and further ordered appellant to pay appellee “the sum of $4,000.00 for attorney’s fees for bringing of all motions, pleadings, appearances, court costs, depositions, transcript take-downs, and any other expenses incurred from the date . . . [appel-lee’s] initial motion to compel discovery was filed.” The trial court certified its order for immediate review and this appeal results from this court’s grant of appellant’s subsequent application for an interlocutory appeal.

1. “The trial court’s discretion in dealing with discovery matters is very broad, and this court has stated on numerous occasions that it will not interfere with the exercise of that discretion absent a clear abuse. [Cits.]” Harwood v. Great American Mgt. &c., 171 Ga. App. 488, 491 (320 SE2d 269) (1984). Moreover, the trial court’s discretion *746in discovery matters is particularly broad when it is dealing with a party’s failure to obey a discovery order that it has previously entered in the case. Pursuant to OCGA § 9-11-37 (b) (2), a wide range of options is available to the trial court in such a situation and, in addition, that code section specifies that “the court shall require the party failing to obey the order or the attorney advising him, or both, to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” (Emphasis supplied.)

In the present case, there can be no doubt that appellant was, at the very least, in violation of that portion of the trial court’s discovery order of April 1, 1985, which compelled responses to appellee’s requests for production. The protective order that was later obtained by appellant obviously did not serve to cure this violation, the time for seeking such protection having long since expired. See Williamson v. Lunsford, 119 Ga. App. 240, 241 (5) (166 SE2d 622) (1969). The record also provides ample support for the trial court’s determination that appellant’s conduct was characterized by its deliberate intent to evade its discovery obligations and thereby to frustrate appellee’s right to prosecute his case. The trial court did not err in finding appellant’s conduct to evince a wilful failure to obey the discovery order.

2. In a separate enumeration of error, appellant challenges the sufficiency of the evidence to support the award of $4,000 as attorney’s fees. Our review of the record reveals that there is no evidence upon which the trial court could base its determination as to the reasonable expenses actually caused by the failure of appellant to comply with the discovery order. In fact, during the sanctions hearing, appellant’s attorney pointed out to the trial court that appellant had not had an opportunity to be heard with respect to the award of attorney’s fees. In response, the trial court stated “the Code recognizes the Court as an expert without taking testimony as capable of making a determination as to what amount of attorney’s fees are justified without hearing evidence from either party and that is what the Court finds is reasonable under the circumstances.” We cannot agree with the trial court’s description of its authority to award expenses under OCGA § 9-11-37 (b) without some evidence upon which to base a determination that such expenses were “caused by the failure” of the party to comply with the discovery order. Accordingly, the award of attorney’s fees by the trial court is vacated and the case is remanded for a hearing as to the amount of expenses of litigation to be awarded in accordance with OCGA § 9-11-37 (b) (2).

3. The partial dissents fail to comprehend or acknowledge that, in this case, we have absolutely no authority to address the issue of *747whether an attorney who is representing himself is authorized to collect attorney’s fees pursuant to OCGA § 9-11-37 (b) (2). The award of attorney’s fees to appellee was not enumerated as error on this basis and, accordingly, “this court is without jurisdiction to consider it.” Riggins v. State, 128 Ga. App. 478 (197 SE2d 154) (1973). “The duty of the appellate court is to correct errors alleged to have been made in the trial court and not to manufacture them.” Hess Oil &c. Corp. v. Nash, 226 Ga. 706, 709 (177 SE2d 70) (1970). See also Slaughter v. Linder, 122 Ga. App. 144, 148 (2) (176 SE2d 450) (1970); Sunn v. Trophy Marine, 176 Ga. App. 68 (334 SE2d 884) (1985).

Judgment affirmed in part and vacated in part and case remanded with direction.

Birdsong, C. J., McMurray, P. J., Sognier, Pope and Benham, JJ., concur. Been, P. J., Banke, P. J., and Beasley, J., concur in part and dissent in part.