Stolle v. State Farm Mut. Auto. Ins. Co., A92A1600

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: JOHNSON; SOGNIER; McMURRAY and CARLEY, P.JJ., and COOPER; CARLEY
• Citation: 424 S.E.2d 807,206 Ga.App. 235
• Parties: STOLLE v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
• Docket Number: No. A92A1600,A92A1600
• Decision Date: 26 October 1992

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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.

Page 808

[206 Ga.App. 238] Didio & Broome, Stefano A. Didio, Norcross, for appellant.

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

[206 Ga.App. 235] 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

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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[206 Ga.App. 236] 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...