Harwood v. Great American Management & Investment, Inc.

298 S.E.2d 263, 164 Ga. App. 703, 1982 Ga. App. LEXIS 2917

• Court: Court of Appeals of Georgia
• Decided: November 17, 1982
• Docket: 64618
• Status: Published

Opinion

Shulman, Presiding Judge.

This appeal is from an order dismissing appellants’ complaint as a sanction for failing to answer interrogatories. The dismissal was entered pursuant to Code Ann. § 81A-137 (b) (2) (C) (OCGA § 9-11-37 (b)(2) (C)). The trial court had already issued an order compelling appellants to supplement previous answers to interrogatories. When no supplementation was filed, the trial court granted appellees’ motion to dismiss.

Appellants’ first enumeration of error is that the trial court erred in imposing the harsh sanction of dismissal without first conducting a hearing. We agree.

In Swindell v. Swindell, 233 Ga. 854 (2) (213 SE2d 697), the Supreme Court iterated its holding that such a harsh sanction required a showing of willfulness in the failure to permit discovery. Although the record is clear that appellants did not file any supplement to their answers to appellees’ interrogatories, the record is not so clear as to the willfulness of that failure. We hold, therefore, that the trial court erred in dismissing appellants’ complaint under CPA § 37 (b) (2) (C) without first holding an evidentiary hearing on the issue of willfulness. Our holding on this issue obviates the necessity of discussing appellants’ other grounds for reversal.

Judgment reversed.

Quillian, C. J., and Carley, J., concur.