Turner v. Gray

Court of Appeals of Georgia

Turner v. Gray

258 S.E.2d 905, 150 Ga. App. 714, 1979 Ga. App. LEXIS 2351

CourtCourt of Appeals of Georgia

DecidedJuly 12, 1979

Docket57975

StatusPublished

Cited by2 cases

This text of 258 S.E.2d 905 (Turner v. Gray) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Turner v. Gray, 258 S.E.2d 905, 150 Ga. App. 714, 1979 Ga. App. LEXIS 2351 (Ga. Ct. App. 1979).

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Opinion

Banke, Judge.

This is an appeal from an order dismissing the appellants’ complaint due to their failure to comply with court ordered discovery. Held:

The appellees filed interrogatories directed to the appellants on August 3, 1978. The appellants made no response until October 26,1978, the day before a hearing on a motion by the appellees to compel answers to the interrogatories. Following that hearing, on October 27, 1978, the appellants were ordered to amend and perfect the answers which they had submitted on October 26; however, this order was not complied with until December 29, 1978, the date of a hearing on a motion by the appellees to dismiss the action for failure to comply with the October 27 order. Held:

Code Ann. § 81A-137 (b) (2) (C) provides that the trial court may in its discretion dismiss an action as sanction for a plaintiffs failure to comply with an order to provide discovery. However, it has been held that in order to impose such a sanction, the court must find a conscious or intentional failure to act, as distinguished from an accidental or involuntary noncompliance. Smith v. Mullinax, 122 Ga. App. 833 (3) (178 SE2d 909) (1970); Merrill Lynch &c., Inc. v. Echols, 138 Ga. App. 593 (2), 594 (226 SE2d 742) (1976). Under these decisions, and in the absence of any evidence justifying the appellants’ long delay in submitting an adequate response to the interrogatories, we find no abuse of discretion in the trial court’s decision to dismiss the complaint.

Judgment affirmed.

McMurray, P. J., and Underwood, J., concur.

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Banke, Judge.

This is an appeal from an order dismissing the appellants’ complaint due to their failure to comply with court ordered discovery. Held:

The appellees filed interrogatories directed to the appellants on August 3, 1978. The appellants made no response until October 26,1978, the day before a hearing on a motion by the appellees to compel answers to the interrogatories. Following that hearing, on October 27, 1978, the appellants were ordered to amend and perfect the answers which they had submitted on October 26; however, this order was not complied with until December 29, 1978, the date of a hearing on a motion by the appellees to dismiss the action for failure to comply with the October 27 order. Held:

Code Ann. § 81A-137 (b) (2) (C) provides that the trial court may in its discretion dismiss an action as sanction for a plaintiffs failure to comply with an order to provide discovery. However, it has been held that in order to impose such a sanction, the court must find a conscious or intentional failure to act, as distinguished from an accidental or involuntary noncompliance. Smith v. Mullinax, 122 Ga. App. 833 (3) (178 SE2d 909) (1970); Merrill Lynch &c., Inc. v. Echols, 138 Ga. App. 593 (2), 594 (226 SE2d 742) (1976). Under these decisions, and in the absence of any evidence justifying the appellants’ long delay in submitting an adequate response to the interrogatories, we find no abuse of discretion in the trial court’s decision to dismiss the complaint.

Judgment affirmed.

McMurray, P. J., and Underwood, J., concur.

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258 S.E.2d 905, 150 Ga. App. 714, 1979 Ga. App. LEXIS 2351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-gray-gactapp-1979.

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