Thе appellants in the instant companion cases were all named as defendants in an original multi-count complaint filed by appellees on December 29, 1982. A set of interrogatories was served on appellants in conjunction with appellees’ complaint. On January 31, 1983, appellees served an additional set of interrogatories on appellant Kaper-Jac, Inc. Appellants filed timely answers to the complaint. By April 5, 1983, however, appellees had not yet been served with any response to their interrogatories, and they filed a motion seeking tо compel that response or, in the alternative, to strike appellants’ answers. On April 6,1983, appellant Kaper-Jac, Inc. served its response to the interrogatories of January 31. Also on April 6, 1983, responses were served on behalf of all appellants as to the original set оf interrogatories which had accompanied the complaint.
A hearing was then held on appellees’ motion to compel or to strike. This hearing was apparently not reported but, on May 5, 1983, the trial court entered an order stating that appellants had “until May 16th, 1983, to answer said interrogatories fully and completely in the spirit of discovery contemplated by the [C]ivil [P]ractice [A]ct of the State of Georgia. . . .” On May 16, 1983, a document denominated as appellants’ “amended response” to appellees’ interrogatories was timely served by mailing a copy to appellees’ counsel. See OCGA § 9-11-5 (b). As to numerous interrogatories, appellant’s “amended response” did contain additional factual information. In several instances, however, appellants’ “amended response” not only did not contain additional information but consisted оf merely the assertion of an objection to the underlying interrogatory. The record shows that the majority of such objections in the “amended response” were asserted as to interrogatories for which factual answers had already been supplied in appellants’ original response of April 6. Shortly after service of appellants’ “amended response,” appellees filed a renewed motion to strike appellants’ answers.
On June 29, 1983, appellants filed a motion for partial summary judgment. Appellants’ motion sought summary judgment as to all issues, with the exception of contractual liability and compensatory contractual damages. Over a year later, on July 29, 1984, the trial court conducted a hearing on the various motions pending in the case, including appellants’ motion for partial summary judgment and ap *839 pellees’ motion to strike appellants’ answеrs. After the hearing, the trial court ruled that, of the numerous counts alleged in the complaint, appellees’ only viable claim was in contract. Appellees were ordered “to recast the complaint sounding said complaint as a breach of contract and deleting all [other] allegations. . . .” However, the trial court also granted appellees’ motion to strike appellants’ answers. Appellees thus having been limited to only the assertion of a contract claim, and appellants’ liability having been established by the striking of their answers, the trial court’s final оrder was that the case would be submitted to the jury only as to the issue of damages. As ordered, appellees filed a recast complaint sounding solely in contract, and after a jury trial was held as to damages, a verdict was returned awarding appellees compensatory damаges, attorney fees, and costs. Judgment was entered on the verdict, and appellants’ post-judgment motions were denied. The two instant appeals, Case Numbers 70606 and 70607, were separately filed on the part of appellants and those two appeals are consolidated for disposition in this single opinion.
1. Appellants enumerate as error the trial court’s striking of their answers, the effect of which was to render them in default as to appellees’ contract claim.
When appellees filed their original motion in April of 1983, appellants had served no respоnse whatsoever to the interrogatories. Under such circumstances, the trial court, in the exercise of its discretion, would have been authorized to grant appellees’ motion to strike, even though appellants did serve responses after the motion for sanctions had been filed. Sеe OCGA § 9-11-37 (d);
Danger v. Strother,
Having already served an initial response and having timely served an “amended response,” appellants had, by the May 16, 1983 deadline, served some form of response to appellees’ interrogatories.
*840
Compare
Swindell v. Swindell,
In Thornton v. Burson, supra at 461, we held that if, after being ordered to make further discovery, one fails “to respond either in timely fashion or in exact accordance with the order, a subsequent order granting judgment by default would be justified.” (Emphasis in original.) However, it is also clear that a mere hindsight determination of the inadequacy of an otherwise timely response to an order compelling discovery will not necessarily demonstrate the wilfulness necessary to authorize the imposition of the harsher sanctions of OCGA § 9-11-37 (b) (2). Our holding in Thornton v. Burson, supra, as to the requirement of “exact” compliance was itself predicated upon the existence of an order setting “forth with specificity the details [of the further discovery compelled] tо [be] furnish[ed].” (Emphasis supplied.) Thornton v. Burson, supra at 461.
From the perspective of hindsight, insofar as the instant “amended response” did contain untimely objections, it cannot be said to evince “exact” compliance with the technical rules of discovery. However, when wilful non-compliance is considered from the perspective of foresight, nothing in the May 5, 1983 order itself specified that objections were not even to be considered as potential responses to the interrogatories. What does appear from the transcript of the July 29, 1984 hearing is that the trial court apparently did nоt take into account the fact that an original response had already been served to the interrogatories prior to appellants’ “amended response.” The latter response should be considered as a supplement to rather than a total replacement of the fоrmer. If the original response to any interrogatory could already be deemed by appellants to be a “full and *841 complete” response thereto, the spirit of the May 5 order would not necessarily be violated by their filing of an amended response which only raised an untimely objection to that interrogatory. The act of raising such an objection after a factual response had already been given could be ignored as merely superfluous. However, the trial court made no effort to determine whether, considering both the original and amended responses, appellants werе in wilful and conscious disregard of its order and not merely ignorant of the fact that their objections could no longer be considered.
Moreover, it appears that the issue of whether appellants had already technically waived the right to raise objections was never specifically addressed at any time prior to May 5,1983. At the hearing on July 29, 1984, the attorney representing appellants expressed what had been his understanding as to the mandate of the order compelling discovery. According to counsel’s recollection of what had transpired at the unreported hearing which resulted in that order, the trial court had made certain statements in the course of that hearing which had been construed to mean that appellants were also being authorized to include for purposes of their “amended response” any such objections to the interrogatories as had not previously been raised in their original response. Such a good faith, but technically erroneous, interpretation of the legal effect of the May 5, 1983 order would certainly be consistent with the subsequent serving of an “amended response” which included both supplementary factuаl responses in some instances and also objections even to interrogatories which had already been factually answered in the original response of April 6, 1983. Pursuant to such an “understanding,” objections in the “amended response” would constitute both a tacit reaffirmance of the original rеsponse, as well as a good faith but ultimately belated attempt to preserve the right to urge to the court that the interrogatory did not seek discoverable material. In response to this “understanding” expressed by appellants’ counsel, the trial court did not specifically dispute the possibility that it may have inadvertently fostered such an erroneous construction of its May 5, 1983 order. The trial court merely stated that it did not remember what it may have said during the earlier hearing.
Absent any showing that the trial court did previously specify, either in its May 5, 1983 order or at the hearing which resulted in that order, that the raising of objections would not be acceptable response to its order, we are constrained to hold that the record before us indicates only that the timely “amended response” was served pursuant to appellants’ ignorance of the technical inadequacy evidenced by their inclusion of the several untimely objections. OCGA § 9-11-37 (b) (2) is not designed to punish parties when their otherwise timely but partially inadequate response to discovery orders is the result of *842 their counsel’s erroneous misunderstanding of the full mandate thereof. Thornton v. Burson, supra. It is designed to punish a wilful failure or conscious disregard of an order. Swindell v. Swindell, supra. “[W]e believe . . . that appellants’] response to the [May 5, 1983] order to compel — inadequate though it may be — should not have been treated as a total failure to respond under [OCGA § 9-11-37] so as to authorize the imposition of the ultimate sanction. The court, in ordering further discovery after finding insufficient the [April 6, 1983] answers, could have set forth with specificity the details appellant [s] [were] to furnish. . . . We further observe that in ruling on аppellee [s’] motion for sanctions, the trial court would have been justified in imposing one or more of the other sanctions available under [OCGA § 9-11-37]. It is only the striking of the defensive pleadings and the granting of default judgment that we find to be overly harsh” under the circumstances. Thornton v. Burson, supra at 461.
Appellees assert that thеre are various other reasons why the trial court could have ordered appellants’ answers stricken. However, the record clearly reveals that the
only
basis for striking the answers urged by appellees and considered by the trial court was the fact that untimely objections were cоntained in appellants’ “amended response” of May 16, 1983. A review of the transcript of the July 29, 1983 hearing indicates that the trial court was acting
solely
pursuant
to
its understanding that, under the law, it had no discretion to accept the untimely objections as a proper response to interrogatories. See
Drew v. Hagy,
supra. However, the true issue was not whether the trial court had discretion to accept appellants’ “amended response” but whether, considering that response as well as the original one, appellants had demonstrated a wilful failure to comply with the order of May 5, 1983. Pleadings mаy not be stricken “without first holding an evidentiary hearing on the issue of wilfulness.”
Harwood v. Great American Mgt. &c.,
Accordingly, pretermitting whether there were other reasons upon which the trial court
could
have determined to strike appellants’ answers, the one upon which it
did
was erroneous. Compare
Swindell v. Swindell,
supra. “[Wjhere it is apparent that the court rests its judgment on reasons which were erroneous or upon an erroneous legal theory, it commits reversible error. [Cits.]”
Smith v. Helms,
2. Remaining enumerations of error have been considered. They appear to fall into one of two categories. Many have been rendered entirely moot by virtue of Division 1 of this opinion, which necessitates that a trial be conducted as to liability, as well as to damages. Others appear to concern matters which are unlikely to recur when such a trial is held. Accordingly, no remaining enumerations need be addressed.
Judgments reversed.