Opinion
A92A0546.
DECIDED JUNE 9, 1992.
Motion for sanctions. Fulton State Court. Before Judge Etheridge, Senior Judge.
Sumner Hewes, William E. Sumner, David A. Webster, for appellant.
Downey, Cleveland, Parker Williams, Y. Kevin Williams, Long, Aldridge Norman, Phillip A. Bradley, Long, Weinberg, Ansley Wheeler, Joseph W. Watkins, Kevin B. Buice, Mozley, Finlayson Loggins, William D. Harrison, for appellee.
After appellant-plaintiff failed to appear at a scheduled deposition, appellee-defendant moved for sanctions. The trial court granted appellee's motion and dismissed appellant's complaint, finding that appellant had "wilfully failed to appear at depositions and to participate in the discovery process." Appellant appeals from this order.
OCGA § 9-11-37 (d) (1) provides, in part, that, if a "party fails to appear before the officer who is to take his deposition, after being served with a proper notice ..., the court in which the action is pending on motion may ... take any action authorized under [OCGA § 9-11-37] (b) (2) (A) through (b) (2) (C)...." OCGA § 9-11-37 (d) "authorizes a dismissal or default judgment for wilful failure to be deposed or to answer interrogatories." Maxey v. Covington, 126 Ga. App. 197, 199 ( 190 S.E.2d 448) (1972). "Proper notice" of deposition may be made by serving a party's attorney of record, and does not require actual notice to the party himself. OCGA § 9-11-5 (b); Carter v. Merrill Lynch c., 130 Ga. App. 522, 523 (2) ( 203 S.E.2d 766) (1974). In the instant case, the trial court was authorized to find that "proper notice" had been served on counsel and that appellant's "[f]ailure to maintain contact and cooperate with [his] counsel about the pending litigation so that discovery can be made [was] wilful misconduct." [Cits.] Phillips v. Peachtree Housing, 138 Ga. App. 596-597 (3) ( 226 S.E.2d 616) (1976). See also Swindell v. Swindell, 233 Ga. 854, 857 (3) ( 213 S.E.2d 697) (1975). "The result is the same even though the party may claim that it was counsel who failed to communicate with him. [Cit.] `[A party] may authorize his attorney to act for him but he cannot transfer his responsibility to act.' [Cit.]" (Emphasis in original.) Thurman v. Unicure, Inc., 151 Ga. App. 880, 882 (2) ( 261 S.E.2d 785) (1979).
"`This court has repeatedly held that it will not reverse a trial court's decision on discovery matters absent a clear abuse of discretion. (Cits.)' [Cit.]" Nixon v. Sandy Springs Fitness Center, 167 Ga. App. 272 (1) ( 306 S.E.2d 362) (1983). "The trial [court] is the trier of fact and [its] finding of wilfulness from the evidence presented will not be reversed where there is any evidence to support it." Wetherington v. Koepenick Horne, 153 Ga. App. 302, 304 (2) ( 265 S.E.2d 107) (1980). "There was ... some evidence upon which the trial court's finding [of wilfulness] was based, and it did not abuse its discretion in [dismissing the complaint for appellant's wilful failure to attend a scheduled deposition]." Swindell v. Swindell, supra at 857 (3). "Nor is it significant that prior to the hearing on the motion to dismiss [appellant's complaint his] deposition was [in fact] taken.... This court previously has held that [responses made to discovery requests only] after the propounder had filed a motion seeking the sanction of dismissal [will] not nullify the motion. [Cits.]" Rucker v. Blakey, 157 Ga. App. 615, 616 ( 278 S.E.2d 158) (1981). See also Merrill Lynch, c. v. Echols, 138 Ga. App. 593, 594-595 (2) ( 226 S.E.2d 742) (1976).
Judgment affirmed, Pope and Johnson, JJ., concur.