Washington v. South Georgia Medical Center

• Decision Date: 04 June 1996
• Docket Number: No. A96A0636,A96A0636
• Citation: 221 Ga.App. 640,472 S.E.2d 328
• Parties: WASHINGTON et al. v. SOUTH GEORGIA MEDICAL CENTER et al.
• Court: Georgia Court of Appeals

Page 328

472 S.E.2d 328

221 Ga.App. 640

WASHINGTON et al. v. SOUTH GEORGIA MEDICAL CENTER et al.

No. A96A0636.

Court of Appeals of Georgia.

June 4, 1996.

Ruby L. Knight, Elizabeth Pelypenko, Atlanta, for appellants.

Tillman, McTier, Coleman, Talley, Newbern & Kurrie, Wade H. Coleman, Edward F. Preston, Valdosta, Young, Thagard, Hoffman, Scott & Smith, F. Thomas Young, Valdosta, for appellees.

BLACKBURN, Judge.

Kenneth Washington, Sr., individually, and his wife Cynthia Washington, individually and as next friend of her son Kenneth Washington, Jr., appeal the trial court's dismissal of their action for failure to comply with discovery.

The Washingtons brought this medical malpractice action against Dr. Roy Swindle and South Georgia Medical Center d/b/a South Georgia Medical Center Foundation, Inc. (hospital) asserting that, as a result of the defendants' negligence, Mrs. Washington and her son were injured during the child's delivery.

Swindle and the hospital separately moved to sanction the plaintiffs when Mr. and Mrs. Washington failed to appear for their depositions which had been noticed by Swindle. Swindle's motion was filed on September 1, 1995, and the hospital's motion was filed on September 5, 1995. A hearing on these two motions was scheduled and noticed. When the hearing took place on September 20, 1995, the Washingtons were not in attendance. On October 5, 1995, 34 days after Swindle's motion was filed and 30 days after the hospital's motion was filed, the trial court took the matter under advisement, signing an order dismissing the Washingtons' action based upon their wilful failure to attend their depositions. The day of the order's entry, the Washingtons filed a written response to the motions wherein the Washingtons' attorney asserted that their failure to appear at their depositions was not wilful but was the result of a calendaring mistake that occurred in her office. This written response was not timely as to Swindle's motion. The response was timely, however, as to the hospital's motion, coming on the last possible day for a response to be filed. The Washingtons appeal the dismissal of their claims against both Swindle and the hospital.

1. In their first and second enumerations of error, the Washingtons assert that the trial court abused its discretion in dismissing their complaint and in determining that they wilfully failed to appear at their depositions.

" '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.' " Stolle v. State Farm, etc., Ins. Co., 206 Ga.App. 235, 236, 424 S.E.2d 807 (1992). With regard to Swindle's motion, at the time the trial court entered its order, the only evidence in the record reflected: that the Washingtons failed to respond to numerous letters from Swindle concerning when their depositions should be scheduled; that they failed to appear at the deposition despite receiving notice from Swindle; that they failed to file a timely response to Swindle's motion for sanctions; and they failed to attend the trial court's hearing on Swindle's motion. From this evidence, the trial court could determine that the Washingtons' failure to comply with their discovery obligation to Swindle was intentional. Stolle, supra; see also Oliff v. Smith, 214 Ga.App. 358, 359, 447 S.E.2d 707 (1994) (A trial court's finding that a party has wilfully failed to comply with its discovery obligations will not be reversed if there is any evidence to support it).

Having determined that the Washingtons' failure to appear at the depositions was wilful, the trial court was authorized to dismiss the Washingtons' claims against Swindle pursuant to OCGA § 9-11-37(d). Cook v. Lassiter, 159 Ga.App. 24, 25, 282 S.E.2d 680 (1981). It has repeatedly been held that the appellate courts will not reverse a trial court's decision on discovery matters absent a clear abuse of discretion. Knox Enterprises v. Timbermen, Inc., 215 Ga.App. 390, 394, 450 S.E.2d 834 (1994). As the record reveals no abuse of discretion on the part of the trial court, we affirm its order dismissing the Washingtons' claims against Swindle.

Moreover, we note that the trial court was under no obligation to consider the Washingtons' untimely response to Swindle's motion. See Wimberly v. Karp, 185 Ga.App. 571, 572, 365 S.E.2d 131 (1988) (" 'Since appellant failed to comply in any way with the Rules under which he was supposed to operate, he cannot be heard to complain that the wheels of justice have rolled over him' ").

2. The Washingtons contend that the trial court erred in taking the defendants' motions for sanctions under advisement prior to the expiration of the response period. As outlined above, with regard to Swindle's motion, this enumeration is without merit as the trial court took the matter under advisement after the response period ended. With regard to the hospital's motion, however, the trial court did take the matter under advisement prematurely. See Fairfield Plantation Action Comm. v. Plantation Equity Group, 215 Ga.App. 746(1), 452 S.E.2d 147 (1994) (The trial court may take motions under advisement after the response period has ended). As the trial court based its decision, in large measure, on the failure of the Washingtons to offer any response to the hospital's motion, this error was harmful. Accordingly, we reverse and remand so that the trial court may consider the response proffered by the Washingtons and determine what sanctions, if any, are merited.

The special concurrence...