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Rivers v. Almand12/16/1999
SECOND DIVISION
To sanction plaintiff Mary Rivers for her total noncompliance with the discovery process, the trial court dismissed her complaint with prejudice, cast costs upon her, and awarded $500 in attorney fees. On appeal, Rivers seeks to challenge the order dismissing her case. We affirm.
Rivers instituted a personal injury lawsuit against James Almand in July 1998. Almand answered and served interrogatories and requests for production of documents on August 12, 1998. When Rivers completely failed to respond, Almand's counsel wrote a letter dated September 21, 1998, inquiring as to whether there was a problem and offering to agree to an extension if one was needed. After no reply was forthcoming, Almand's counsel sent a second letter on October 30, 1998, again requesting a response. When again met with silence, on November 24, 1998, Almand's counsel wrote another letter to Rivers's counsel seeking a response and suggesting that counsel contact him "if there is some problem of which I am unaware." Almand's counsel advised, however, that if the documents were not provided within ten days, he would file a motion to compel seeking sanctions. Subsequently, Almand moved to compel or in the alternative for sanctions including dismissal of the complaint due to "plaintiff's total and wilful failure to respond to discovery." About two weeks after this motion was filed, neither Rivers nor her counsel appeared for a noticed deposition. A court reporter certified the nonappearance of Rivers and her attorney. Almand then filed a supplemental brief to his motion to compel, pointed to this additional evidence of misconduct, and again requested the dismissal of Rivers's complaint.
Rivers did not file a written response to Almand's motion to compel or for sanctions, and the matter proceeded to a hearing. Following oral argument, the trial court dismissed Rivers's complaint with prejudice.
1. In four overlapping enumerations of error, Rivers contends that the trial court erred and abused its discretion in dismissing her complaint with prejudice. Citing to absolutely no evidence in the record, and apparently conceding the facts outlined above, Rivers now brazenly asserts that the trial court erred in dismissing her complaint. We disagree and impose sanctions for the frivolous appeal brought to this court.
Trial courts have broad discretion to control discovery, including the imposition of sanctions. Daniel v. Corporate Property Investors, 234 Ga. App. 148 (505 SE2d 576) (1998). Absent the showing of a clear abuse of discretion, a court's exercise of that broad discretion will not be reversed. Id. Here, no abuse has been shown. Tompkins v. McMickle, 172 Ga. App. 62, 64 (2) (321 SE2d 797) (1984).
The law authorizing the imposition of sanctions for discovery related abuses is not ambiguous, uncertain, or arcane. OCGA § 9-11-37 (d) (1). Provided proper discovery procedures are followed, when a party fails to appear for a properly noticed deposition, or fails to answer or object to interrogatories properly submitted under OCGA § 9- 11-33, or after appropriate service fails to respond to document requests, a trial court may take any action delineated under OCGA § 9- 11-37 (b) (2) (A) through (C). Id.; see Mayer v. Interstate Fire Ins., 243 Ga. 436, 439 (2) (254 SE2d 825) (1979). Among several other options, subsection (C) authorizes a court to enter an order "dismissing the action or proceeding or any part thereof." OCGA § 9-11-37 (b) (2) (C). Moreover, an order compelling discovery is not a condition precedent for the imposition of sanctions under subsection (d). Cook v. Lassiter, 159 Ga. App. 24, 25 (282 SE2d 680) (1981). All that is required is a motion,
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