Cook v. Lassiter, 61658

CourtUnited States Court of Appeals (Georgia)
Citation282 S.E.2d 680,159 Ga.App. 24
Docket NumberNo. 61658,61658
Decision Date19 June 1981

Frank G. Smith, Smyrna, for appellant.

William A. Moncrief, Marilyn G. Alexander, Atlanta, for appellee.


Appellant Cook, acting pro se, answered a suit on account filed against him by Lassiter. Cook was served with notice to take his deposition and a request to produce certain documents. Six days prior to the scheduled taking of his deposition and the date for production of documents, appellant filed copies of two letters with the clerk of the court addressed to, and apparently mailed to, appellee's attorney. The letters sought to change the place and time for the deposition, and agreed to the production of the documents at the changed time. The record shows no further contact between appellee's counsel and appellant. On the date of the deposition appellee's counsel appeared with a court reporter and documented appellant's absence. There was no motion to compel discovery; however, appellee moved for sanctions and after a hearing on the matter, the trial court entered an order finding that appellant wilfully failed to attend the properly noticed deposition. The trial court ordered appellant's answer stricken and granted default judgment against him.

Code Ann. § 81A-137(d) provides that failure of a party to appear for the taking of his deposition is grounds for the imposition of sanctions, including striking a defendant's answer and entering default judgment. There need be no order to compel discovery as provided for in Code Ann. § 81A-137(b) as a basis to impose the sanctions provided for in Code Ann. § 81A-137(d). All that is required is a motion, notice and a hearing. Kruger v. Kruger, 146 Ga.App. 461, 246 S.E.2d 469 (1978); Carter v. Merrill Lynch, etc., Inc., 130 Ga.App. 522, 523, 203 S.E.2d 766 (1974). Appellee correctly moved the court to strike appellant's answer and enter default judgment. Interstate Fire Ins. Co. v. Mayer, 147 Ga.App. 751, 752, 250 S.E.2d 158 (1978).

The trial court is authorized to impose sanctions under Code Ann. § 81A-137(d) when a party has wilfully failed to appear at the deposition. Merrill Lynch, etc., Inc. v. Echols, 138 Ga.App. 593, 594, 226 S.E.2d 742 (1976); Smith v. Mullinax, 122 Ga.App. 833, 178 S.E.2d 909 (1970). Although the trial court in the instant case entered an order finding wilfulness on the part of appellant, our review of the record discloses no evidence that the...

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19 cases
  • McConnell v. Wright, A06A0511.
    • United States
    • United States Court of Appeals (Georgia)
    • July 14, 2006 often changed on request, and we find no reason for the application of a different practice in a pro se matter." Cook v. Lassiter, 159 Ga.App. 24, 25, 282 S.E.2d 680 (1981) (reversing trial court's sanction of dismissing complaint after pro se plaintiff sought change of deposition time a......
  • In re Whelan, Bankruptcy No. 98-73772
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Georgia
    • June 30, 1999
    ...notice and hearing," citing Stolle v. State Farm Mut. Auto. Ins. Co., 206 Ga.App. 235, 424 S.E.2d 807 (1992) and Cook v. Lassiter, 159 Ga. App. 24, 282 S.E.2d 680 (1981). In the next paragraph, Sterling Factors states "Plaintiff requests this Court to provide the Defendants opportunity for ......
    • United States
    • United States Court of Appeals (Georgia)
    • July 11, 2000
    ...court and thus cannot be considered on appeal. See Peavy v. Goodroe, 237 Ga.App. 36, 37(1), 514 S.E.2d 699 (1999). 4. Cook v. Lassiter, 159 Ga.App. 24, 25, 282 S.E.2d 680 (1981); see James v. Gray, 229 Ga. App. 39, 40-41, 494 S.E.2d 198 (1997); cf. OCGA § 5. Stolle v. State Farm &c. Ins. Co......
  • Pascal v. Prescod, A08A2184.
    • United States
    • United States Court of Appeals (Georgia)
    • March 2, 2009
    ...the county seat of the county wherein the witness resides, is employed, or transacts his business in person. 4. Compare Cook v. Lassiter, 159 Ga.App. 24, 25, 282 S.E.2d 680 (1981) (concluding that there was no evidence that defendant had wilfully failed to appear at his scheduled deposition......
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