Schrembs v. Atlanta Classic Cars, Inc.
| Decision Date | 11 April 1991 |
| Docket Number | No. S91G0217,S91G0217 |
| Citation | 402 S.E.2d 723,261 Ga. 182 |
| Parties | SCHREMBS v. ATLANTA CLASSIC CARS, INC. |
| Court | Georgia Supreme Court |
C. Alan Mullinax, Stone Mountain, for Schrembs.
John A. Swann, Atlanta, for Atlanta Classic Cars, Inc.
We granted certiorari to the Court of appeals in Schrembs v. Atlanta Classic Cars, Inc., 197 Ga.App. 450, 398 S.E.2d 712 (1990) to examine whether the trial court was authorized to strike the defendant's answer and dismiss her counterclaim as a sanction for her failure to comply with discovery.
Atlanta Classic Cars, Inc. sued Tamara Schrembs when her check to them for a car payment was returned for insufficient funds. Atlanta Classic filed a single interrogatory, asking for Schrembs' social security number, to which Schrembs filed a response, objecting that the information sought was not relevant to the lawsuit. 1 Atlanta Classic then filed a motion to compel and, following a hearing, the trial court ordered Schrembs to answer the interrogatory within thirty days. Schrembs did not comply with the trial court's order and, on Atlanta Classic's motion for sanctions, the trial court struck Schrembs' answer, dismissed her counterclaim, and declared the case against her in default. 2 The Court of Appeals affirmed.
Schrembs argues the trial court was not authorized to impose the sanction of dismissal without first holding a hearing on whether her failure to comply with the trial court's order on Atlanta Classic's motion to compel was wilful. We disagree.
Where a party fails to comply with a discovery order, the trial court has available to it several sanctions under OCGA § 9-11-37(b)(2) of which the harshest is that imposed here, dismissal and default. OCGA § 9-11-37(b)(2)(C). We have cautioned against the use of these harsher sanctions except in extreme cases, Swindell v. Swindell, 233 Ga. 854, 856(2), 213 S.E.2d 697 (1975), and have held that the trial court must find wilfulness as a predicate to imposing the sanctions. Id. However, the trial court need not conduct a hearing on the issue of wilfulness in every case. Such 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. 3
Here, the trial court's finding of wilfulness is supported by the fact that Schrembs had almost 11 months to answer a single, straightforward interrogatory asking for a single answer and failed to do so. We find no merit to Schrembs' argument that dismissal was not authorized because at the time of the trial court's order on the motion for sanctions, she was only seven days beyond the 30-day period set by the trial court for her compliance on the motion to compel. 4
[W]here a motion for sanctions is brought under [OCGA § 9-11-37(b)(2) ] for a party's failure to comply with an order compelling answers, the existence or nonexistence of wilfulness should be considered not only in the context of the time period prescribed in the order compelling answers, but in the context of the entire period beginning with service of interrogatories and ending with service of answers. Events transpiring during this entire time period are probative of whether appellant acted with "conscious indifference to the consequences of failure to comply" with the order compelling answers.
Swindell v. Swindell, supra at 857(3), 213 S.E.2d 697. Nor do we find merit to Schrembs' argument that although she has no legal defense to her failure to respond to the interrogatory, the trial court was required to consider her personal situation, which, she claims, justified her failure to respond. Schrembs had an opportunity to present any...
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