North Druid Development, LLC and North Druid Development II, LLC collectively “NDD” filed suit in Cobb County Superior Court against the surveying firm of Post, Buckley, Schuh, Jernigan, Inc. “Post, Buckley”, asserting a claim for professional negligence. When NDD failed to respond to Post, Buckley’s initial discovery requests, the surveying firm moved for the sanction of dismissal with prejudice or, in the alternative, an order compelling discovery. NDD did not file a response to the motion and the trial court thereafter granted Post, Buckley’s motion and dismissed the complaint with prejudice. NDD now appeals from the order of dismissal, arguing that the trial court erred when it struck the affidavit of NDD’s former counsel, which was submitted in support of NDD’s motion to vacate or set aside the order of dismissal and which was filed on the day the court heard that motion. NDD also asserts that, given the circumstances of this case, the trial court abused its discretion by entering the ultimate sanction of dismissal with prejudice. For reasons explained below, we find that the trial court erred in striking the affidavit of NDD’s counsel, thereby refusing to afford NDD an opportunity to be heard on the merits of the sanctions motion before deciding that motion. Accordingly, we vacate the order of dismissal and remand the case for proceedings consistent with this opinion.
The relevant facts are largely undisputed. The record shows that NDD filed its complaint on March 3, 2010, and Post, Buckley filed an answer and counterclaims on April 7. One week later, on April 15, 2010, Post, Buckley served NDD with its first interrogatories and first request for production of documents. Although responses to these discovery requests were due on May 18, the parties agreed to a two-week extension, making NDD’s responses due on June 1, 2010. When NDD failed to meet this deadline, counsel for Post, Buckley wrote NDD’s attorney asking NDD to comply with the discovery requests and noting that Post, Buckley “would prefer to resolve this situation without resorting to court involvement.” Approximately one month later, on July 16, 2010, Post, Buckley’s lawyer sent a second letter to NDD outlining NDD’s failure to respond to discovery requests and demanding that such responses be provided no later than July 21. When NDD did not respond to this letter, Post, Buckley filed a motion under OCGA § 9-11-37 d asking that NDD’s complaint be dismissed with prejudice or, in the alternative, that the court enter an order compelling NDD’s discovery responses. After this motion was filed, NDD did respond to Post, Buckley’s requests to produce by providing it with a number of documents. NDD, did not, however, file a response to Post, Buckley’s motion or request a hearing thereon; provide Post, Buckley with written responses to its discovery requests; or seek an additional extension of time in which to provide those responses.
