Oliff v. Smith
| Decision Date | 02 August 1994 |
| Docket Number | No. A94A1212,A94A1212 |
| Citation | 214 Ga.App. 358,447 S.E.2d 707 |
| Parties | OLIFF v. SMITH et al. |
| Court | Georgia Court of Appeals |
Joseph M. Todd, Jonesboro, for appellant.
Lokey & Bowden, K. Scott Graham, Peter K. Kintz, Jon W. Burton, Atlanta, for appellees.
Debra Oliff, plaintiff in the underlying action, appeals the trial court's order granting the defendants' motion to dismiss for failure to respond to discovery requests. On appeal, Oliff asserts several enumerations of error; however, as each enumeration pertains to the trial court's dismissal of Oliff's complaint, they will be addressed together.
Defendants served plaintiff with interrogatories and requests for production of documents on February 27, 1992. Defendants' counsel corresponded with plaintiff's counsel, on May 6, 1992, in an effort to resolve the discovery dispute. Plaintiff's counsel asserted that he had not received the discovery requests, therefore, defendants served them again on June 10, 1992. By letter dated June 15, 1992, plaintiff's counsel acknowledged receipt of the discovery requests and indicated that the responses should be served within the next ten days. Discovery was later extended, by agreement of counsel, to November 1, 1992.
On November 20, 1992, defendants filed a motion to dismiss plaintiff's complaint, based on plaintiff's failure to respond to discovery. Plaintiff served the discovery responses and filed her response to defendants' motion to dismiss on December 21, 1992, two days before a scheduled pre-trial conference. Of the three sets of responses filed by plaintiff, only one set was verified. The trial court determined that plaintiff's explanation that she was "out-of-pocket" did not justify her failure to timely respond to the discovery requests.
Plaintiff's assertion that the trial court erred in failing to hold a hearing is without merit. Our Supreme Court has determined that a hearing is not necessary in every case. Schrembs v. Atlanta Classic Cars, 261 Ga. 182, 402 S.E.2d 723 (1991). Specifically, the Supreme Court found that "[s]uch a requirement serves no purpose where the trial court can otherwise determine wilfulness on the part of the party against whom the sanctions are sought." Id. at 183, 402 S.E.2d 723.
Plaintiff's reliance on her ultimate service of the discovery responses is also without merit. The ultimate service of responses, after the defendants filed their motion to dismiss, does not save plaintiff from the sanction of dismissal. See Barron v. Spanier, 198 Ga.App. 801, 802, 403 S.E.2d 88 (1991).
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...requirement will be fulfilled when a prior opportunity to explain noncompliance had been afforded the nonmovant. In Oliff v. Smith, 214 Ga.App. 358, 447 S.E.2d 707 (1994), the dismissed plaintiff argued before this Court that a hearing was required. Although this Court noted one is not alwa......
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