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Rivers v. Almand12/16/1999
notice, and a hearing. Id.
Here, the evidence confirms that Rivers committed three separate violations of the discovery rules, inexplicably failing to comply with the most elementary requirements of the discovery sections of the Civil Practice Act. See OCGA §§ 9-11-30 (a), 9-11-33 (a) (2), 9-11-34 (b) (2). While an explicit finding of willfulness by the trial court would have been preferable, "a conscious or intentional failure to act," as distinguished from accidental or involuntary noncompliance may constitute "wilful" conduct that authorizes dismissal. Washington v. South Ga. Med. Center, 221 Ga. App. 640, 641 (1) (472 SE2d 328) (1996) (full concurrence as to Division 1).
According to the undisputed evidence, Almand's counsel served copies of the interrogatories, document requests, and a notice of deposition upon Rivers's counsel of record. Yet Rivers failed to respond to the requested discovery or to appear at her deposition. The record contains no reason, excuse, or justification for her nonappearance. Nor did Rivers submit any response to Almand's motion for sanctions. From this evidence, the trial court could determine that Rivers's noncompliance was intentional. James v. Gray, 229 Ga. App. 39, 41 (494 SE2d 198) (1997). Although the trial court did not employ the word "wilful" in its order, such a finding is implicit in the evidence before us. See Schrembs v. Atlanta Classic Cars, Inc., 261 Ga. 182, 183 (402 SE2d 723) (1991). In fact, the record contains absolutely no evidence to support a contrary finding. Compare Cook, supra (evidence showed defendant unsuccessfully attempted to change place and time of deposition).
Although Rivers claims that the trial court abused its discretion, she has offered not a scintilla of evidence to support that assertion. Nothing in the record suggests even an inkling of justification for Rivers's repeated failures to comply with routine discovery. Nor did Rivers bother to provide a transcript of the motion hearing for review on appeal. See OCGA § 5-6-41; Wright v. Southern Investment Properties, 204 Ga. App. 538 (419 SE2d 764) (1992) (absent transcript or stipulation therefor, appellate court must assume the evidence supported the trial court's judgment). Based on the uncontested evidence appearing in the record, and in the absence of a transcript of the motion hearing, we cannot imagine any basis whatsoever for finding that the trial court abused its discretion in imposing the ultimate sanction of dismissal with prejudice. Daniel, supra at 149-150 (3).
2. Since the applicable law is unquestionably clear and this appeal has no arguable merit, pursuant to Court of Appeals Rule 15 (b) we impose a sanction of $500, not against Rivers herself, but against her attorney for pursuing this appeal. Upon receipt of the remittitur, we direct the trial court to impose upon counsel for Rivers a penalty of $500. Barron v. Spanier, 198 Ga. App. 801, 802 (403 SE2d 88) (1991).
Judgment affirmed with direction. Pope, P. J., and Miller, J., concur.
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