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Phillips v. Peachtree Housing

Court of Appeals of Georgia
Apr 22, 1976
226 S.E.2d 616 (Ga. Ct. App. 1976)

Opinion

52020.

ARGUED APRIL 12, 1976.

DECIDED APRIL 22, 1976.

Imposition of sanction. Hart Superior Court. Before Judge Williford.

Rodger E. Davison, for appellant.

Harper Matthews, Eugene Harper, Robert B. Matthews, for appellee.


This appeal is from an order entered pursuant to CPA § 37 (d) (Code Ann. § 81A-137 (d)) striking defendant's defensive pleadings and entering judgment against him by default for his failure to appear on three occasions at the times and places noticed for taking of his deposition.

1. The complaint that the court erred in imposing sanctions under § 37 (d) without first ordering compliance is without merit. Carter v. Merrill Lynch, Pierce, Fenner Smith, 130 Ga. App. 522 (1) ( 203 S.E.2d 766); Houston Gen. Ins. Co. v. Stein Steel c. Co., 134 Ga. App. 624 ( 215 S.E.2d 511); Merrill Lynch, Pierce, Fenner Smith v. Echols, 138 Ga. App. 593.

2. Although it is the better practice to make a specific finding of wilfulness, we have held that it is not reversible error for the trial court to fail to do so ( Smith v. Byess, 127 Ga. App. 39 (1) ( 192 S.E.2d 552); Merrill Lynch, Pierce, Fenner Smith v. Echols, supra), particularly where, as here, the motion for sanctions alleges wilful conduct. Morton v. Retail Credit Co., 128 Ga. App. 446 ( 196 S.E.2d 902). See also Lee v. Morrison, 138 Ga. App. 332; Swindell v. Swindell, 233 Ga. 854 ( 213 S.E.2d 697); 4A Moore's Federal Practice § 37.05.

3. Failure to maintain contact and cooperate with counsel about the pending litigation so that discovery can be made is wilful misconduct. Smith v. Byess, 127 Ga. App. 39, supra; Carter v. Merrill Lynch, Pierce, Fenner Smith, 130 Ga. App. 522, supra; Houston Gen. Ins. Co. v. Stein Steel c Co., 134 Ga. App. 624, supra; Swindell v. Swindell, supra.

4. The motion to impose sanctions was properly served upon defendant's attorney by mail. "Service by mail is complete upon mailing." CPA § 5 (b) (Code Ann. § 81A-105 (b)).

5. Remaining enumerations are without merit.

6. The motion to assess penalty for a frivolous appeal is denied.

Judgment affirmed. Deen, P. J., and Quillian, J., concur.

ARGUED APRIL 12, 1976 — DECIDED APRIL 22, 1976.


Summaries of

Phillips v. Peachtree Housing

Court of Appeals of Georgia
Apr 22, 1976
226 S.E.2d 616 (Ga. Ct. App. 1976)
Case details for

Phillips v. Peachtree Housing

Case Details

Full title:PHILLIPS v. PEACHTREE HOUSING

Court:Court of Appeals of Georgia

Date published: Apr 22, 1976

Citations

226 S.E.2d 616 (Ga. Ct. App. 1976)
226 S.E.2d 616

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