76011 | Ga. Ct. App. | Apr 11, 1988
LEWIS
v.
FOSTER et al.
Court of Appeals of Georgia.
Chevene B. King, Jr., for appellant.
C. Ashley Royal, Leigh G. Brogdon, for appellees.
McMURRAY, Presiding Judge.
In this personal injury action, defendants served interrogatories upon plaintiff on or about December 9, 1986. Answers to the interrogatories were not forthcoming. Accordingly, on July 29, 1987, defendants moved for an order compelling plaintiff to answer the interrogatories. Such an order was issued on August 6, 1987. Therein, plaintiff was ordered to `answer defendants' interrogatories within 15 days. Plaintiff did not answer the interrogatories within the time allotted and, on September 8, 1987, defendants moved for sanctions. Two days later, without affording plaintiff a hearing, the trial court granted defendants' motion for sanctions and dismissed plaintiff's complaint. This appeal followed. Held:
The trial court erred in imposing the sanction of dismissal without affording plaintiff an opportunity to explain the circumstances surrounding noncompliance with the August 6, 1987 order. Harwood v. Great American Mgt. & Investment, 164 Ga. App. 703" date_filed="1982-11-17" court="Ga. Ct. App." case_name="Harwood v. Great American Management & Investment, Inc.">164 Ga. App. 703 (298 SE2d 263); Delta Equities v. Berry, 127 Ga. App. 590" date_filed="1972-11-20" court="Ga. Ct. App." case_name="Delta Equities, Inc. v. Berry">127 Ga. App. 590 (194 SE2d 284). See also Swindell v. Swindell, 233 Ga. 854" date_filed="1975-02-25" court="Ga." case_name="Swindell v. Swindell">233 Ga. 854 (213 SE2d 697); Maxey v. Covington, 126 Ga. App. 197" date_filed="1972-04-12" court="Ga. Ct. App." case_name="Maxey v. Covington">126 Ga. App. 197 (190 SE2d 448). After all, the sanction of dismissal cannot be imposed without a showing of willfulness. Swindell v. Swindell, 233 Ga. 854, supra.
Judgment reversed. Pope and Benham, JJ., concur.