*1 confronting presented implicate him, but the facts here do not exclusionary concerns embodied within the rule so as to warrant the suppression of in this obtained case.

Motion reconsideration denied. July Decided July

Reconsideration denied Chestney, appellant.

Robert W. Douglas Vassy, Stephen Tuggle, Solicitor-General, C. J. Assistant appellee. Solicitor-General, for

A09A0206. PORTER et al. v. HEALTH SYSTEM, WELLSTAR et al.

INC. Doyle, Judge. Gary individually Mary Porter, S. for System, Porter, as executor E- brought against deceased, Inc., suit WellStar Health d/b/a Paulding Nursing O’Connell, Center and Carol Administra- “WellStar”) (collectively tor, mother, connection with death of his

Mary appeals F.Porter. Porter after trial court dismissed prejudice prosecute his action with for failure to reverse, and for violating We court orders. for reasons that follow. originally filed 24, 2005, this action on November and on

April scheduling 27, 2006, the trial court entered a order with the parties. requirement consent of the order included that Porter provide regarding experts information he intended to at use July experts by no later than did 2006. Porter deadline, 4, 2006, and on WellStar filed a motion to dismiss on his failure to order. Porter then August 29, 2006, dismissed the action without before the trial court could rule on WellStar’s motion. February 26, 2007,

Porter filed a renewal action on in accordance (a), assigned with OCGA and the case was to the same judge as action. WellStar answered the discovery requests,

served Porter with additional ally which were virtu- requests identical to filed in the interrogatories requested expert

One of the that Porter responded yet witnesses, to which Porter that he had not determined witnesses for trial. On motion pleadings, discovery, WellStar, the trial court ordered that all *2 placed in included the in the 2004 action be record documents “any The the discovery” order also directed that unanswered current days 60 of the from the action be answered within “[t]he 1, 2007. The stated that 1 or October order period files, be to locate old Court that time should sufficient believes discovery, compliance such if such review for with and answer same previously has been answered.” February 25, to dismiss Porter’s 2008,

On WellStar moved complaint for violation of the trial court’s comply to the noted therein that Porter failed with WellStar also identify him that to order the action expert experts by an witness on a date certain.1 Porter identified May 15, 2008, On March to WellStar’s motion. hearing, following the entered an order trial court noting specifically complaint prejudice, with that Porter Porter’s willfully [his] prosecute orders “failed violated of the to (without specifying court” orders with which Porter had failed those appeal comply). to This followed.

First, trial Porter’s with court’s dismissal prejudice prosecute improper. “A on his failure to his case was based solely prosecution is based on want of ... dismissal (b) (c) § improper,” provide as OCGA 9-11-41 such operate adjudication upon the “does not as an merits.”2 Moreover, its the trial court abused comply complaint Clearly, with court orders. Porter’s failure authority court to dismiss Porter’s the trial was without April complaint for 2006 order renewal failure “[a] because renewed lawsuit under entered action (a) Additionally, August is an de novo.”3 OCGA 9-2-61 2007 “any simply required parties respond unan- discovery.”4 impose specific obligation swered order did not witnesses he intended use at discovery supplement trial, did it set a deadline for Porter nor impose responses. such If fact trial court intended to dead- lines, is intention not clear order.5 alleged in failed to the motion to dismiss Porter had make himself WellStar deposition. points properly available But to no evidence that it ever noticed thus, allegation provides deposition, no for dismissal. See this basis (d) (1) (authorizing sanctions, including complaint, for wilful dismissed of a failure to notice”). deposed being proper “after served with a 2 (Footnote omitted.) Wolfpack Arrington, Enterprises v. Chace, Magsalin supplied.) (Emphasis course, explicit experts Of if the order had that Porter contained mandate recognize enjoys We that a court broad

controlling discovery “[hjistorically, policy and that it has been the Georgia appellate courts to refuse to interfere with a trial court’s exercise of its discretion in absence of abuse.”6 But this discretion is not unlimited. [OCGA 9-11-37] The dismissal a lawsuit under with a order is an extreme *3 may only employed sanction which for a in wilful failure disregard

bad faith or in total of the court’s order. a Such generally only sanction is warranted where a clear record delay by plaintiff or contumacious conduct exists and lesser sanction would not better serve the interest justice.7 general attempt compel rule,

“As a the trial court should com- pliance through imposition with its orders of lesser sanctions than dismissal. The drastic sanctions of dismissal and default cannot except flagrant be invoked under OCGA 9-11-37 in the most ,”8 cases. .. explicit

Here, in the absence an order in the renewal action requiring by Porter to certain, witnesses a date we conclude that his so failure do does not warrant the extreme sanction dismissal of his case. the trial court abused dismissing complaint. its discretion in

Judgment Phipps Smith, J., Bernes, JJ., reversed. P. and concur.

Andrews, J., Blackburn, J., Adams, J., P. P. dissent. Judge, dissenting.

ADAMS, respectfully judge I dissent I because believe the trial acted complaint within his this case. “Trial judges controlling discovery, including have broad discretion in imposition appellate will courts not reverse a trial court’s decision on such matters unless there been has a clear abuse (Citation omitted.) Gropper Corp., of discretion.” v. STO Ga. (1) (623 175) (2005). App. 272, 275 Dickman, SE2d See also v. Collins certain, a date and the trial court determined that he failed complaint. then the trial court would have acted within its (b) (2) 386) (C); Adamson, App. See OCGA 9-11-37 (1997); Smith 226 Ga. SE2d (411 (3) 731) (1991). USA, Mtg. App. Johnson v. Lomas 201 Ga. 564-565 SE2d 6 (Punctuation omitted.) Ga., App. Hernandez v. Ga. State (1991). 7 (Citations punctuation omitted; emphasis supplied.) Harwood v. Great American &c., Mgmt. 8 (Citation omitted.) punctuation Hernandez, at 369. App. 601, 603 majority is correct that the trial court could

While the only finding dismiss prosecute,9 Porter had trial court also found that failed discovery wilfully disobeyed court’s (b) (2) (C), may court dismiss an Under order, but order to with a action failure offending impose find sanction, such the court “must (1).10 Corp., wilfully.” Gropper party at 275 STO acted requirement requires or intentional of wilfulness a conscious The involuntary noncompli opposed act, as accidental or uphold finding of a trial court’s factual Id. This Court must ance. support is it. Id. believe the if there evidence wilfulness supported the trial court’s of wilful the record be affirmed. disobedience, and thus it should Supreme Georgia two-step proce- has endorsed a Court of determining if of an dure for a trial court to follow *4 § remedy appropriate First, a under OCGA 9-11-37. motion is an hearing granted following compel and then a a subse- must be finding quent sanctions, must of motion for the trial court enter obey: wilful failure to § contemplates

[I]n OCGA essence, what the law under two-step proceeding sanc- is a before ultimate 9-11-37 judgment may imposed. First, or default tion compel granted; second, after motion to must be filed party seeking the court and the sanctions notifies party of failure to obstinate the latter’s compel granting moving motion to and of the order imposition party’s sanctions, for the trial court desire party may giving apply after the obstinate sanctions determining opportunity to be heard and that the obstinate obey party’s was willful. 111) (2007). Wright, 281 Ga. SE2d

McConnell v. compel Although in the the never filed a formal motion to WellStar by necessity action, for such a motion was obviated by compelled was entered consent and which which discovery requests specified compliance wit- with (1) (612 35) (2005). Arrington, Wolfpack Enterprises 272 Ga. SE2d addition, power compel provides every court has the In “OCGA 15-1-3 everyone judicial to its control the conduct of connected with a obedience orders Housing Augusta, City proceeding [Cit.]” Auth. 235 Ga. before that court. Truitt v. Accordingly, nesses must be identified a set date. Porter’s failure proper ground with that would been a have (b) (2) (C), sanctions under OCGA 9-11-37 but Porter avoided that by dismissing refiling sanction the action and it as a renewal action. pleading

And while did not WellStar .file a denominated as compel motion to Porter in in the renewal the trial court did order any outstanding discovery answer action action granting WellStar’s motion to have all documents from that prior discovery as of filed request record in the new included That case.. identify expert subsequently witnesses. moved

for sanctions based that order. that the believe requirements step required procedure of the first of the under sufficiently Barrego were met. See v. Ohm Remediation 774) (2000); Corp., App. 389, Sv cs. Douglas County, App. 353,

Fisher v. Bd. Commrs. (2) (c) properly procedures The trial court followed under the step. second After WellStar filed its motion briefing hearing

court allowed time for held the matter finding wilfully disobeying before that Porter had acted the court’s required This orders. Court is to affirm if (1). supports Gropper Corp., it. STOv. at 275 pointed motion, In to the failure to WellStar’s deposition seeking or notice Porter’s to confer with them before (B). Superior sanctions accordance Uniform Court 6.4 Rule compliance But strict Rule 6.4 was not under *5 Barrego circumstances of Corp., v. Ohm this case. Remediation Svcs. (1); App. Douglas 390 Bd. at Fisher v. Commrs. (2) (c).

County, 354 at Porter noted that no new scheduling order had been entered in renewal the but Porter explained why original d never he had faile scheduling order or with the trial court’s file responses unanswered action. attorney appeared addition,

In the who on Porter behalf represented “neophyte “very case,” that he was in the that 8, been on first involvement” had October 2007. He said now that “primary responsibility” he and his had that co-counsel taken over they “moving along in that would the case as it should attorneys’ be.” But the both of record demonstrates that these appeared original complaint 2004, filed in names well as on the November as February in filed in renewal action 2007. complaints signed by in were, fact, co-counsel, Both and Well- correspondence seeking depose exchanged Star’s Porter was attorney. attorney’s signed addition, In name was “with consent” on the order in began November record that

the trial court was entitled conclude expert until choice not to Porter made the intentional years four 2008,11 in March which was more than over three later imposed by past Therefore, months the deadline the trial court conclude that at evidence authorized least some ignored order, which Porter and his counsel including outstanding discovery requests, request witnesses. While the trial court including excluding imposed certainly could have lesser testimony presenting expert trial, at the court’s from support the ultimate sanction disobedience was sufficient to wilful of dismissal. against

Acknowledging Supreme Court has “cautioned that our except cases,”12 extreme the use of these harsher sanctions say, its case, that the trial court abused cannot under the facts of this Adamson, action. Cf. Smith discretion (no 386) (1997) abuse defendant twice failed to the case with when deposition, at least one of which was court- her scheduled attend ordered); Wetherington Koepenick Horne, Inc., & (“In 107) (1980) any explanation or absence of submitting long delay justification for the in the record moving protective adequate response we find no abuse or dismissing plaintiffs complaint.”). of the trial court Presiding Judge Andrews and I am authorized to state that join Presiding Judge in this Blackburn dissent. July Decided July denied

Reconsideration Bridgers, Bridgers, Delong, R. W. & Charles Steven Caldwell appellants. Saccoccia, *6 Henry appellee. Sapp, Mary Green, Jr., Adams, P. & D.

Green only judicial to take notice of the Petkas Not was the trial court entitled Grizzard, (1984), specifically but the record of that was part made a current case. Cars, Swindell v.Atlanta Classic 261 Ga. 182 Schrembs Swindell,