Fisher v. Board of Com'rs of Douglas County
| Decision Date | 12 June 1991 |
| Docket Number | No. A91A0322,A91A0322 |
| Citation | 408 S.E.2d 120,200 Ga.App. 353 |
| Parties | FISHER v. BOARD OF COMMISSIONERS OF DOUGLAS COUNTY et al. |
| Court | Georgia Court of Appeals |
Rubin Law Offices, Robert P. Hoyt, Stone Mountain, for appellant.
Drew, Eckl & Farnham, James F. Cook, Jr., Theodore Freeman, Atlanta, Lane & Price, Barry R. Price, Douglasville, for appellees.
Plaintiff Michelle Fisher filed a complaint for personal injuries against defendant Board of Commissioners of Douglas County on October 25, 1988. Defendant filed a timely answer and on November 29, 1988, served plaintiff with interrogatories and a request for production of documents. On February 1, 1990, after plaintiff's responses to discovery were more than one year overdue, defendant filed a motion to dismiss plaintiff's complaint, or alternatively, to compel responses to discovery. Plaintiff filed no response to defendant's motion but did serve responses to defendant's discovery requests on March 27, 1990. The trial court subsequently granted defendant's motion and dismissed plaintiff's complaint against defendant. Plaintiff appeals.
1. "In order for a party to utilize the court's compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay and within 6 months after the filing of the answer." Rule 5 of the Uniform Superior Court Rules. Plaintiff argues this rule requires a motion to compel or for sanctions to be brought within the six-month discovery period. We reject this notion. The rule makes the commencement and pursuit of discovery within the six-month discovery period a condition of using the trial court's compulsory process. It does not require the compulsory process itself to be requested within the discovery period. The record in this case shows defendant's discovery was promptly commenced and diligently pursued within the discovery period by the writing of a letter to plaintiff's attorney just over one month after plaintiff's responses were due, asking plaintiff to respond in order to avoid the necessity of a motion for sanctions. So long as discovery is promptly and diligently pursued by the moving party within the discovery period, as was done in this case, a motion to compel or for sanctions may be brought after the expiration of the discovery period.
2. (a) The argument that the trial court lost the authority to impose sanctions once responses to discovery, though late, were filed prior to the hearing on the motion for sanctions has already been addressed by this court: it "has no merit." Danger v. Strother, 171 Ga.App. 607, 609(2), 320 S.E.2d 613 (1984).
(b) Plaintiff also argues the trial court erred in finding her failure to respond to defendant's discovery requests was willful. Plaintiff filed no response to defendant's motion for sanctions and the record is devoid of any explanation or excuse for plaintiff's failure to make a timely response. Willfulness is implied by the total failure to respond to discovery when no reason or excuse is offered in response to a motion to compel. Schrembs v. Atlanta Classic Cars, 197 Ga.App. 450, 398 S.E.2d 712 (1990); see also Bells Ferry Landing v. Wirtz, 188 Ga.App. 344, 373 S.E.2d 50 (1988).
(c) Rule 6.4 of the Uniform Superior Court Rules requires counsel for the party moving to compel discovery to confer with the opposing counsel prior to filing a motion in an effort to resolve the matter in conflict. Additionally, "[a]t the time of filing the motion, counsel shall also file a statement certifying that such conference has occurred and that the effort to resolve by agreement the issues raised failed." Plaintiff contends defendant did not comply with the requirements of Rule 6.4 because the affidavit filed by defendant's counsel in support of the motion did not certify that counsel for the parties had conferred.
Rule 6.4 refers to a motion to compel discovery; the requirement for a conference to attempt to resolve the issues raised applies more directly to the situation in which the parties disagree over what is required by...
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