Phillips v. Peachtree Housing

Webb, Judge. 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 SE2d 766); Houston Gen. Ins. Co. v. Stein Steel &c. Co., 134 Ga. App. 624 (215 SE2d 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 SE2d 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 SE2d 902). See also Lee v. Morrison, 138 Ga. App. 332; Swindell v. Swindell, 233 Ga. 854 (213 SE2d 697); 4A Moore’s Federal Practice § 37.05. 3. Failure to maintain contact and cooperate with *597 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. Argued April 12,1976 Decided April 22, 1976. Rodger E. Davison, for appellant. Harper & Matthews, Eugene Harper, Robert B. Matthews, for appellee. 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.