Bells Ferry Landing, Ltd. v. Wirtz
| Decision Date | 09 September 1988 |
| Docket Number | No. 76575,76575 |
| Citation | 188 Ga.App. 344,373 S.E.2d 50 |
| Parties | BELLS FERRY LANDING, LTD. v. WIRTZ et al. |
| Court | Georgia Court of Appeals |
Martin L. Fierman, Eatonton, for appellant.
Richard L. Powell, Marietta, for appellees.
The plaintiff appeals from the trial court's grant of defendants' motion to dismiss the complaint.
Plaintiff filed suit on December 20, 1986, for breach of lease and rent arrearage. Following their answer, defendants filed interrogatories on April 24, 1987. The plaintiff did not answer the interrogatories within the time required by law. On June 22, defendants filed a motion to dismiss pursuant to authority of OCGA § 9-11-37(d). Still, the plaintiff did not answer. Finally, on August 1, plaintiff filed answers to interrogatories and a reply to defendant's motion to dismiss. The trial court granted defendants' motion to dismiss, and the plaintiff complains the court abused its discretion in so doing, because there was no showing or finding of wilfulness of the plaintiff. Held:
The trial court did not abuse its discretion in this case. The judge, "[a]fter considering arguments of counsel, citations of authority and the entire record," specifically found the plaintiff not only failed to respond to interrogatories in a timely fashion, but failed to seek an extension of time and failed even to contact defendants concerning the problem, or even to respond to the motion to dismiss. The trial court found "[t]here is no apparent justification for Plaintiff's complete failure to respond to Defendants' discovery request."
This finding is sufficient to authorize the trial court to dismiss the complaint. There is no requirement that the plaintiff display and the trial court find actual "wilfulness." See Sta-Power Indus. v. Avant, 134 Ga.App. 952(2), 216 S.E.2d 897. The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only " ' "a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance." ' " Merrill Lynch, etc., v. Echols, 138 Ga.App. 593, 594, 226 S.E.2d 742. "A conscious or intentional failure to act" is in fact "wilful." Sta-Power Indus., supra. The trial court found the plaintiffs had no justification for failing to comply with the statutory provisions of the CPA; this means the court found the plaintiff's failure was not accidental. We must presume the facts in the case support this finding (Merrill...
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Howard v. City of Columbus
...501 S.E.2d 573 (1998); Potter v. American Medcare Corp., 225 Ga.App. 343, 346, 484 S.E.2d 43 (1997); Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga.App. 344, 345, 373 S.E.2d 50 (1988); Sta-Power Indus. v. Avant, 134 Ga.App. 952, 956-957(2), 216 S.E.2d 897 However, "[t]rial judges have broad dis......
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...A conscious or intentional failure to act is in fact wilful." (Citations and punctuation omitted.) Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga.App. 344, 345, 373 S.E.2d 50 (1988). See also Vining v. Kimoto USA, 209 Ga.App. 296, 297-298(2), 433 S.E.2d 342 (1993): "[W]ilfulness, bad faith, or ......
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...A conscious or intentional failure to act is in fact wilful." (Citations and punctuation omitted.) Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga.App. 344, 345, 373 S.E.2d 50 (1988). "The trial judge is the trier of fact and [the] finding of wilfulness from the evidence presented will not be re......
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Kemira, Inc. v. Amory
...or involuntary non-compliance.' " Smith v. Mullinax, 122 Ga.App. 833, 834-835, 178 S.E.2d 909 (1970); Bells Ferry Landing v. Wirtz, 188 Ga.App. 344, 345, 373 S.E.2d 50 (1988). Sanctions may be imposed only after a motion, notice, and a hearing provided to the party against whom sanctions ar......