Stolle v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 26 October 1992
• Docket Number: No. A92A1600,A92A1600
• Citation: 424 S.E.2d 807,206 Ga.App. 235
• Parties: STOLLE v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 807

424 S.E.2d 807

206 Ga.App. 235

STOLLE v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

No. A92A1600.

Court of Appeals of Georgia.

Oct. 26, 1992.

Reconsideration Denied Nov. 10, 1992.

Didio & Broome, Stefano A. Didio, Norcross, for appellant.

Harper, Waldon & Craig, Thomas D. Harper, Atlanta, for appellee.

JOHNSON, Judge.

Richard Stolle filed suit against State Farm Mutual Automobile Insurance Company seeking payment for injuries allegedly suffered in a motor vehicle collision. Along with its answer, State Farm filed interrogatories and document requests. Stolle did not respond to these discovery requests within the time required by the Civil Practice Act. As required by the Uniform Superior Court Rules, State Farm attempted to resolve the discovery dispute with Stolle informally, but was unsuccessful. State Farm then filed a motion to compel and for sanctions, asking the court to dismiss the complaint pursuant to OCGA § 9-11-37(d). Stolle sought, and was granted, an extension of time in which to respond to the motion. In his response, which was filed on the last day permitted by the extension, Stolle claimed that on the previous day he answered the discovery requests. The record, however, contains no evidence of these alleged answers. The trial court held a hearing on the motion; neither Stolle nor his attorney appeared at the hearing. Thereafter, the trial court issued an order granting State Farm's motion and dismissing the complaint for Stolle's failure to comply with discovery and failure to appear at the hearing on the motion to compel discovery and for sanctions. Stolle appeals.

Stolle's enumerated errors are wholly without merit and completely unsupported by the record. Accordingly, we affirm the trial court's order and impose a penalty for frivolous appeal.

1. Stolle first contends that the trial court erred in failing to consider his brief filed in opposition to State Farm's motion to compel and for sanctions. "The trial judge is presumed to know the law and presumed to faithfully and lawfully perform the duties devolving upon him by law. This court will not presume the trial court committed error where that fact does not affirmatively appear." (Citations and punctuation omitted.) Robenolt v. Chrysler Fin. Svcs. Corp., 201 Ga.App. 168, 169(2), 410 S.E.2d 365 (1991). The burden is on the party asserting error to show it affirmatively by the record. Mauldin v. Weinstock, 201 Ga.App. 514, 516(2), 411 S.E.2d 370 (1991). Stolle has not met this burden. His brief was filed before the trial court held the hearing and entered its ruling on the motion. There is nothing in the record to indicate that the trial judge did not consider Stolle's brief in ruling on State Farm's motion. Accordingly, we presume that the trial judge committed no error.

2. Stolle argues in his second enumeration of error that the trial court erred in ruling that his attorney failed to provide a valid excuse for the attorney's absence at the hearing on State Farm's motion. This enumeration is also completely unsupported by the record. Stolle attempts to buttress his position by attaching to his brief on appeal an affidavit from his attorney's secretary which purports to set forth an excuse for his attorney's failure to attend the hearing. Even if the affidavit set forth a valid excuse, which it does not, we could not consider it on appeal. "A brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record. We must take our evidence from the record and not from the brief of either party." (Citations and punctuation omitted.) Cotton States Mut. Ins. Co. v. Bogan, 194 Ga.App. 824, 826, 392 S.E.2d 33 (1990). As Stolle has not met his burden of proving his enumerated error by the record, we must presume that the court did not err. Mauldin v. Weinstock, supra.

3. Stolle complains in his final enumeration of error that there is no evidence to support the trial court's finding that he wilfully failed to comply with discovery. "There is no requirement that the plaintiff display and the trial court find actual wilfulness. The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance. A conscious or intentional failure to act is in fact wilful." (Citations and punctuation omitted.) Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga.App. 344, 345, 373 S.E.2d 50 (1988).

Here, the record indicates that for nearly a year Stolle failed to respond to any of State Farm's discovery requests and he and his attorney failed to appear at the hearing on State Farm's motion. Further, Stolle has provided no valid excuse for failing to respond to the discovery requests. Stolle claims that he did not comply with discovery because he fired, and later rehired, his original attorney and because he kept possession of his attorney's file on this case, even after repeated attempts by the attorney to retrieve the file. There is absolutely no evidence in the record to support these claims.

Moreover, even if there was such evidence, the excuses offered by Stolle show his wilful...