*1 368 Dickerson allegations to statements were objected of other acts or been convicted
had, committed other bad
past,
hand, including
crimes,
investigation at
but dealt with
unrelated
his resi-
events observed
the officers at
participation
his
statement, before
beginning
of his
admitted at
Dickerson
dence.
issue,
marijuana
that he had
used
questions now
“5 or
that his use was as recent as
repeated later
the statement
partial
leaf identified
acknowledged
He also
ago.”
months
his but said it had been
found
his drawer was
marijuana
on
part
parcel
of the crime
drug usage
“The
some time.
for
trial,
simply
might
because it
have inciden-
not inadmissible
State,
Parks
v.
tally
on
character.
reflected
[defendant’s]
[Cits.]”
686)
403,
Thus,
intro
portions
of the statement were not
character,
instead
evidence
on Dickerson’s
but
duced
reflection
usage
to the additional
participation
drug
his
which
relevant
State,
Jones
illegal drugs.
he
allegations that
trafficked
State,
529)
Rainwater v.
(1c) (363
(1988);
Ralph Attorney, M. Assis- Van Ronald tant District for
A91A0135. HERNANDEZ v. STATE OF GEORGIA.
(408 SE2d Banke, Presiding Judge. attorney’s district office filed a “Libel in Rem Condemna- appellant, along a 1988 with
tion” Mitsubishi owned $229,373 currency inside United States which been seized from appeal generally the vehicle. OCGA 16-13-49. This is from an a de- striking order finding appel- on fault favor of the state based that the respond lant failed to 9, 1990, interroga- with
On state served the March April On request production tories and a of documents. appellant an additional entered order however, days in which to to this no such re- period, were forthcoming during and the state conse- compel. Following filed a motion to hearing directing the court entered an
requested discovery on or before June Although appel- *2 finally responses date, file eight on that she to ground they “overbroad, the were irrele- vant, reasonably to calculated lead to the of admis- evidence”; eight sible and she of requests answered the 11 for produc- requests (including for her most recent federal income tax return automobile) and the certificate of title by asserting the “[djocuments cannot be found or do not exist.” state subse- moved to strike the and for entry judgment of default in its ground favor on the these responses were unresponsive “evasive and . to no tantamount all.” In its order the trial court ob- served that right object had waived its to to the re- quested discovery by failing to do so within originally the time al- responding. However, lowed for it nevertheless examined her objections, merit, lacking determined that were and based on that determination concluded that her “wilfully were inade- quate” and “evasive.” Held: rule,
“As a general attempt trial court should compel to com pliance with its orders through imposition of lesser sanctions than ‘(T)he dismissal. drastic sanctions of dismissal and default can [Cit.] (OCGA 9-11-37) not be invoked except flagrant in the most § — wilful, cases where the faith, failure is in bad or in conscious disre ‘ gard However, “(a) of an order.’ very broad discretion is [Cit.] granted judges in applying parties disobedient or der to assure compliance (OCGA with the By orders of the courts. § (b) (2) (C)), 9-11-37 specifically the courts are granted the discretion complaints to dismiss or judgments render default against disobedi parties. ent applies This to the disobeying produce. of an order to Historically, it has policy been the of Georgia appellate courts to refuse to interfere with a trial court’s exercise of its discretion in ab sence policy applicable of abuse. This is to judge’s a trial exercise of discretionary broad powers authorized under provi (Cit.)” sions of the Civil Practice Act. Joel v. Duet [Cit.]’ [Cit.]” Holdings, (353 (1987). Ga. SE2d See also Smith v. Ga., Nat. Bank SE2d of
Where the trial court determines party wilfully that a has to to interrogatories provided by within time (d) (1) authorized to strike his or her judgment forthwith, enter a dismissal or without the ne- order, responses. Mayer v. See compelling cessity an of 825) (1979). However, Co., Fire Ins. Interstate option where, case, forego to present the court chooses order, cannot be self-execut favor that order of i.e., imposition of ulti provide the automatic ing, it cannot upon party’s fail or mate sanction Rather, first make a to the court must ure determination, hearing, following opportunity notice and an v. Gen. Serwitz comply with the order was wilful. See the failure 95) (1985). A Corp., Elec. Credit was, course, finding to that effect made case, supported by amply believe it was the record. we sought justify explain has her failure never initial as a result of that failure requested respond, right interpose objections to the she had waived her McMickle, Tompkins 797) (1984); Svcs., Graphicolor Ale-8-One America v. App. 506 The trial court nevertheless ex upon doing so that she had amined her determined interposed purpose evading them in bad faith for the her *3 discovery obligations. The did abuse court not its discretion in striking pleadings these circumstances her defensive judgment against her. Burson, App. as Thornton v. Such cases 388) (1979), Sizemore, Mfg. and Brunswick Co. 176 Ga. 288) (1985), In require contrary not result. do Thornton, some the court had based its de- indication that appellant’s “the inclusion cision to strike the defensive language previous compelling in re- self-effectuating order” [its] Id., Bruns- requested discovery. to the 460. In Mfg., appellants already interrogatory wick one set of had served responses prior compelling re- to the issuance of the order sponses, had and there was some indication that court failed Moreover, in it shown imposing take this into account sanctions. inadvertently appellants in that that may case the court have led purposes to believe that to “include of their were authorized responses’ any objections ‘amended to the response.” not Fur- previously original been raised in their Id. at 841. thermore, imposing the record disclosed that case that, “solely pursuant understanding to its had acted accept untimely objections under the it had no discretion to response to ad- proper interrogatories” wilfulness, opposed to the technical appellants’ dress “the issue of inadequacy (Emphasis original.) Id. at response.” of their amended contrast, 842. In case no doubt that the record in the leaves the trial court based its decision not on deficiency a mere technical discovery to the on a order but determina- that she was wilful violation both of that order of her discovery obligations generally. J., Birdsong, P. Pope, Andrews,
Beasley JJ., Carley Cooper, JJ., dissent. Judge, dissenting.
Cakley, I respectfully must dissent. The trial court ordered that respond to appellee’s requests by June 1990. Appel response Supreme that date. “All decisions of the Court and this approving imposition of the drastic sanction involve a total failure to to an order compelling discovery. (Emphasis . .” original.) Bur Thornton v. son, ap It is true that pellant’s response objections already contained and that the time had passed objections within which could be raised as viable However, “[ajbsent any showing that the trial court [had] specified] .. raising would not be ac [an] its [compelling discovery], ceptable con [I am] [opine] strained to the record only before us indicates timely [response of June pursuant [appel served 1990] ignorance of the inadequacy technical lant’s] evidenced in [the] clusion untimely objections. several [therein] (b) designed punish parties when their timely otherwise but partially inadequate response orders is the result their counsel’s erroneous misunderstanding of the full mandate thereof. Mfg. Sizemore, Brunswick Co. v. [Cit.]” 288) (1985). 841-842 Accordingly, my opinion, trial court did must, abuse its discretion in I the instant case and therefore, respectfully majority’s dissent affirmance of the or der striking appellant’s a default favor of
I am authorized to Sognier Judge state that Chief Judge Cooper join in this dissent.
Decided
Wright Hyman, G. Wright, Russell appellant.
John C. Pridgen,