Addington v. Anneewakee, Inc., A92A0546
Decision Date | 09 June 1992 |
Docket Number | No. A92A0546,A92A0546 |
Citation | 204 Ga.App. 521,420 S.E.2d 60 |
Parties | ADDINGTON v. ANNEEWAKEE, INC. |
Court | Georgia Court of Appeals |
Sumner & Hewes, William E. Sumner, David A. Webster, Atlanta, for appellant.
Downey, Cleveland, Parker & Williams, Y. Kevin Williams, Marietta, Long, Aldridge & Norman, Phillip A. Bradley, Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, Atlanta, Kevin B. Buice, Carrollton, Mozley, Finlayson & Loggins, William D. Harrison, Atlanta, for appellee.
After appellant-plaintiff failed to appear at a scheduled deposition, appellee-defendant moved for sanctions. The trial court granted appellee's motion and dismissed appellant's complaint, finding that appellant had "wilfully failed to appear at depositions and to participate in the discovery process." Appellant appeals from this order.
OCGA § 9-11-37(d)(1) provides, in part, that, if a "party fails to appear before the officer who is to take his deposition, after being served with a proper notice ..., the court in which the action is pending on motion may ... take any action authorized under [OCGA § 9-11-37](b)(2)(A) through (b)(2)(C)...." OCGA § 9-11-37(d) "authorizes a dismissal or default judgment for wilful failure to be deposed or to answer interrogatories." Maxey v. Covington, 126 Ga.App. 197, 199, 190 S.E.2d 448 (1972). "Proper notice" of deposition may be made by serving a party's attorney of record, and does not require actual notice to the party himself. OCGA § 9-11-5(b); Carter v. Merrill Lynch, etc., 130 Ga.App. 522, 523(2), 203 S.E.2d 766 (1974). In the instant case, the trial court was authorized to find that "proper notice" had been served on counsel and that appellant's "[f]ailure to maintain contact and cooperate with [his] counsel about the pending litigation so that discovery can be made [was] wilful misconduct." [Cits.] Phillips v. Peachtree Housing, 138 Ga.App. 596-597(3), 226 S.E.2d 616 (1976). See also Swindell v. Swindell, 233 Ga. 854, 857(3), 213 S.E.2d 697 (1975). (Emphasis in original.) Thurman v. Unicure, Inc., 151 Ga.App. 880, 882(2), 261 S.E.2d 785 (1979).
" Nixon v. Sandy Springs Fitness Center, 167 Ga.App. 272(1), 306 S.E.2d 362 (1983). "The trial [court] is the trier of fact and [its] finding of wilfulness from the evidence presented will not be reversed where there is any evidence to support it." Wetherington v. Koepenick & Horne, 153 Ga.App. 302, 304(2), 265 S.E.2d 107 (1980). "There was ... some evidence upon which the trial court's finding [of wilfulness] was based, and it did not abuse its discretion in [appellant's wilful failure to attend a scheduled deposition]." the complaint for Swindell v. Swindell, supra at 857(3), 213 S.E.2d 697. ...
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