Maxey v. Covington

• Decision Date: 12 April 1972
• Docket Number: 3,No. 46797,2,Nos. 1,46797,s. 1
• Parties: Elnora W. MAXEY v. John COVINGTON
• Court: Georgia Court of Appeals

Page 448

190 S.E.2d 448

126 Ga.App. 197

Elnora W. MAXEY v. John COVINGTON.

No. 46797.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

April 12, 1972.

Rehearing Denied May 4, 1972.

Syllabus by the Court

A dismissal for failure to make discovery under Code Ann. § 81A-137 will not operate as an adjudication on the merits unless the court has found that the failure was wilful. This requires an express motion and notice to the affected party which will afford an opportunity to explain the circumstances.

This is the second action between these parties growing out of the same collision. In the former action, defendant had served interrogatories on the plaintiff which were not answered. Two months later, defendant made a motion to compel answers and to direct dismissal upon failure to answer within the time allowed. Following a hearing, the trial court ordered the plaintiff to respond to the interrogatories by a certain date and further ordered that if they were not answered by that time, the complaint would stand dismissed. The plaintiff never filed answers to these interrogatories in the former case and other than an extension of time by consent of both parties there were no further motions or orders. Nearly a year later, plaintiff brought this second action.

Greer & Murray, Frank J. Klosik, Jr., Atlanta, for appellant.

Phillip Slotin, Atlanta, for appellee.

HALL, Presiding Judge.

The issue on this appeal is whether the dismissal of the first action was an adjudication on the merits which would bar a subsequent action. Plaintiff relies upon Code § 110-503 which states that 'a former recovery on grounds purely technical' shall not be a bar. Prior to the adoption of the CPA, a dismissal for failure of a plaintiff to comply with an order requiring answers to interrogatories was within the 'purely technical' rule. Floyd & Beasley Transfer Co. v. Copeland, 107 Ga.App. 304, 130 S.E.2d 143. The defendant contends that the rule is changed under the CPA because Code Ann. § 81A-141(b) expressly provides that this type of dismissal operates as an adjudication on the merits unless the trial court specifies to the contrary. See this court's holding in Old South Investment Co. v. Aetna Ins. Co., 124 Ga.App. 697, 185 S.E.2d 584. See also the dicta in Morton v. Retail Credit Co., 124 Ga.App. 728, 185 S.E.2d 777 referring to the effect of § 41(b) on § 37(d) and Cranford v. Carver, 124 Ga.App. 767, 186 S.E.2d 150.

Code Ann. § 81A-141(b) provides generally that 'for failure of the plaintiff . . . to comply with . . . any order of court, a defendant may move for dismissal of an action . . .' The language is identical to Federal Rule 41(b). Under the federal authorities, including the Supreme Court of the United States, the consequences of failure to comply with a request for interrogatories or any other discovery rules and orders made thereunder are governed by Rule 37 (Code Ann. § 81A-137). Societe Internationale &c v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255; 5 Moore's Federal Practice 1170, 1137-1140, § 41.14(1), § 41.12. 'Neither Rule 41, nor inherent power, can be relied on as authority for dismissal of an action for noncompliance with a discovery order. Rule 37 is the exclusive source of authority for such a dismissal.' 2B Barron & Holtzoff, Federal Practice and Procedure 135, § 916.

Code Ann. § 81A-137(b) provides a range of sanctions which the court may impose for a party's failure to comply with an order to make discovery under subsection (a). Section 81A-137(d) authorizes a dismissal or default judgment for wilful failure to be deposed or to answer interrogatories.

Here the plaintiff had failed to answer within the proper time and had filed no ovjections to the interrogatories. The court had before it a motion cast in such terms that it could have either ordered the answers to be made or, proceeding under subsection (d), held a hearing on the question of wilfulness and dismissed the action if it were found. The court chose the former course but also added a self-executing order of dismissal in the event the answers were not filed within the time provided. Federal case law and the well-known commentators on federal procedure clearly state that the drastic sanctions of dismissal and default cannot be invoked under Rule 37 except in the most flagrant cases-where the failure is wilful, in bad faith or in conscious disregard of an order. See the commentary and cited cases in 8 Wright & Miller, Federal Practice and Procedure: Civil § 2284 and 4A Moore's Federal Practice §§ 37.02(2) and 37.05. This Court, construing subsection (d), has held the same way. Smith v. Mullinax, 122 Ga.App. 833, 178 S.E.2d 909. The Supreme Court has cautioned against the harsh application of this rule. Millholland v. Oglesby, 223 Ga. 230, 154 S.E.2d 194.

It is obvious that such a determination cannot be made in a prospective, self-executing order. A court cannot assume that a future failure will be unjustifiable. It must examine the circumstances retrospectively. This means affording an opportunity to explain the circumstances following the failure; which means, in turn, an express motion and notice to the party concerned.

An order of dismissal based on a finding of wilful failure can rightly have the effect of an adjudication on the merits, although Rule 137 does not expressly provide this. As a matter of policy, a deliberately obstructive or dilatory party should not be given another chance. However, a dismissal which does not involve any finding of wilfulness but which is merely an automatic action following a certain lapse of time falls within the 'purely technical' rule of Code § 110-503 and cannot be considered an adjudication which would bar a subsequent action. The order here is analagous to the automatic dismissal for a five-year want of prosecution under Code Ann. § 81A-141(e). We have held that such a dismissal is not an adjudication on the merits. Kalin v. Pfarner, 124 Ga.App. 816, 186 S.E.2d 365.

Defendant contends that the propriety of the order in the previous case cannot be considered since it was neither attacked nor appealed. This overlooks the necessity, when res judicata is pleaded, to look back to that which is claimed to be dispositive. If appellate courts merely presumed that former orders or judgments were made on the merits, the results would be unvarying. There would also be no body of case law construing § 110-503.

Although not legally conclusive, it is worth noting that the same judge who entered the order in the first case also denied the order to dismiss this case. We may infer that he did not consider the prior dismissal to be based on the kind of circumstances which should preclude another action.

The court did not err in denying the motion to dismiss.

Judgment affirmed.

BELL, C.J., EBERHARDT, P.J., and QUILLIAN and CLARK, JJ., concur.

EVANS, J., concurs specially.

PANNELL and DEEN, JJ., dissent.

STOLZ, J., not participating.

EBERHARDT, Presiding Judge (concurring).

In joining the majority opinion I wish to add that in my judgment the facts relative to the failure of the plaintiff to answer the interrogatories whould have authorized a interrogatories would have authorized a there was no such finding or determination made.

EVANS, Judge, concurring specially.

In O'Kelley v. Alexander, 225 Ga. 32, 165 S.E.2d 648 the Supreme Court of Georgia had for consideration a situation wherein the plaintiff had dismissed his suit; had re-filed without paying costs of court; and the second action was dismissed for failure to pay the costs; and then plaintiffs refiled the same action between same parties a third time, and on motion of defendant the third action was dismissed, apparently under the provisions of Sec. 41(b) of the Civil Practice Act (Code Ann. § 81A-141(b); Ga.L.1966, pp. 609, 653). The Supreme Court holds such dismissal was not a dismissal 'on the merits,' despite the language of Code Ann. § 81A-141(b), to wit: 'Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this section, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication upon the merits.' (Emphasis supplied.) It was pointed out that Code § 110-503 was not repealed by the Civil Practice Act and that it must be given effect, its language being as follows: 'A former recovery on grounds purely technical, and where the merits were not and could not have been in question, shall not be a bar to a subsequent action brought so as to avoid the objection fatal to the first. For the former judgment to be a bar, the merits of the case shall have been adjudicated.' (Emphasis supplied.) Stated another way, The Supreme Court here says that even though the Civil Practice Act tried to include a great number of adjudications as 'adjudications on the merits,' unless the merits were actually adjudicated, the Civil Practice Act was simply 'spinning its wheels.'

As an additional reason for specially concurring with the majority opinion, Code § 38-1204 (Ga.L.1889, p. 87) has not been repealed by the Civil Practice Act, and failure to properly respond to discovery may be penalized thereunder by dismissal of plaintiff's case; and I am unable to find any authority which holds that dismissal under that statute is an 'adjudication on the merits.' To the contrary, see Floyd & Beasley Transfer Co. v. Copeland, 107 Ga.App. 304, 130 S.E.2d 143. There is nothing in the judge's order which shows whether he was proceeding under Code § 38-1204 or under Code Ann. § 81A-141.

PANNELL, Judge, (dissenting).

This is an appeal from the ruling of the trial judge finding against a plea of res judicata filed in the second bringing of the identical action between the parties, the plea being based upon a judgment rendered in the first case dismissing the first action because of failure of the...