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TURNER et al. v. GRAY et al.
BANKE, Judge.
Breach of contract; fraud. DeKalb State Court. Before Judge Carlisle.
This is an appeal from an order dismissing the appellants' complaint due to their failure to comply with court ordered discovery. Held:
The appellees filed interrogatories directed to the appellants on August 3, 1978. The appellants made no response until October 26, 1978, the day before a hearing on a motion by the appellees to compel answers to the interrogatories. Following that hearing, on October 27, 1978, the appellants were ordered to amend and perfect the answers which they had submitted on October 26 however, this order was not complied with until December 29, 1978, the date of a hearing on a motion by the appellees to dismiss the action for failure to comply with the October 27 order. Held:
Code Ann. 81A-137 (b) (2) (C) provides that the trial court may in its discretion dismiss an action as sanction for a plaintiff's failure to comply with an order to provide discovery. However, it has been held that in order to impose such a sanction, the court must find a conscious or intentional failure to act, as distinguished from an accidental or involuntary noncompliance. Smith v. Mullinax, 122 Ga. App. 833 (3) (178 SE2d 909) (1970); Merrill Lynch &c., Inc. v. Echols, 138 Ga. App. 593 (2), 594 (226 SE2d 742) (1976). Under these decisions, and in the absence of any evidence justifying the appellants' long delay in submitting an adequate response to the interrogatories, we find no abuse of discretion in the trial court's decision to dismiss the complaint.
Scheer & Elsner, Robert A. Elsner, for appellants.
SUBMITTED JUNE 13, 1979 -- DECIDED JULY 12, 1979.
Friday May 22 03:11 EDT

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