Fidelity Enterprises, Inc. v. Heyman & Sizemore

• Decision Date: 05 November 1992
• Docket Number: No. A92A1213,A92A1213
• Citation: 426 S.E.2d 177,206 Ga.App. 602
• Parties: FIDELITY ENTERPRISES, INC. et al. v. HEYMAN & SIZEMORE et al.
• Court: Georgia Court of Appeals

Page 177

426 S.E.2d 177

206 Ga.App. 602

FIDELITY ENTERPRISES, INC. et al. v. HEYMAN & SIZEMORE et al.

No. A92A1213.

Court of Appeals of Georgia.

Nov. 5, 1992.

Reconsideration Denied Dec. 4, 1992.

Daisy F. Peppers, pro se.

Long, Weinberg, Ansley & Wheeler, Ben L. Weinberg, Jr., Dan B. Wingate, Sullivan, Hall, Booth & Smith, Henry D. Green, Jr., David V. Johnson, Atlanta, for appellees.

BIRDSONG, Presiding Judge.

Fidelity Enterprises, Inc. and Daisy F. Peppers ("Fidelity") appeal the order of the superior court dismissing their complaint against Ben Weinberg, Jr., Dan B. Wingate, Robin Peek, and Long, Weinberg, Ansley & Wheeler because Fidelity did not respond to appellees' interrogatories. Fidelity contends the trial court abused its discretion in dismissing the complaint against appellees because the dismissal was not supported by the evidence or the laws of this state. Held:

1. The record shows that the litigation giving rise to this appeal began over 20 years ago. In this instance, appellees are attorneys who defended Fidelity's former attorneys when Fidelity sued those attorneys. Thereafter, Fidelity brought this action against appellees, the former attorneys, and the official court reporter in which the earlier case was tried contending, inter alia, the defendants had conspired to alter the official transcript of the trial in their earlier action.

Appellees responded to the complaint and on March 15, 1991, served Fidelity with interrogatories. On March 19, 1991, Fidelity sought and obtained an extension of 30 days in which to respond to the interrogatories, but no further extensions were sought or obtained. Fidelity, however, did not respond to these interrogatories until December 3, 1991.

On October 30, 1991, appellees moved to dismiss the complaint as a sanction for Fidelity's refusal to answer the interrogatories. By order filed December 10, 1991, the trial court dismissed Fidelity's complaint against appellees. The trial court's order found that the record showed Fidelity's failure to respond to the interrogatories was a conscious and intentional failure to act within the meaning of OCGA § 9-11-37(d) warranting dismissal. Bells Ferry Landing v. Wirtz, 188 Ga.App. 344, 373 S.E.2d 50. Additionally, the order recited that Fidelity's failure to respond timely to the motion for sanctions was another factor showing the ultimate sanction was warranted.

Fidelity's briefs in this court are replete with references to conversations between Mrs. Peppers and others and other matters that are not contained in the record on appeal, and thus cannot be considered. Factual assertions in appellate briefs which are not supported by evidence in the record cannot be considered in the appellate process. Behar v. Aero Med Intl., 185 Ga.App. 845, 366 S.E.2d 223; Hudson v. State, 185 Ga.App. 508, 364 S.E.2d 635. Further, briefs cannot be used in lieu of the record or transcript to add evidence to the record. See Williams v. State, 193 Ga.App. 677, 678, 388 S.E.2d 893.

Trial judges have broad discretion in controlling discovery, including imposition of sanctions (Joel v. Duet Holdings, 181 Ga.App. 705, 353 S.E.2d 548), and appellate courts will not reverse a trial court's decision on such matters unless there has been a clear abuse of discretion. Nixon v. Sandy Springs Fitness Center, 167 Ga.App. 272, 306 S.E.2d 362. In this...