Littrell v. Ghrist

Blackburn, Judge. Randy Littrell appeals the trial court’s order striking his answer and counterclaim and entering a default judgment on William [466] Ghrist’s complaint, and the trial court’s denial of his motion for new trial. Decided March 16, 1994. Robert F. Oliver, for appellant. English, Tunkle & Smith, Richard Tunkle, for appellee. Ghrist filed the underlying action to recover damages for injuries he allegedly received as a result of Littrell’s alleged assault and battery upon his person. The trial court determined that defendant Littrell failed to comply with its order to file a pretrial information sheet form and failed to attend a calendar call as previously ordered. Upon this determination, the trial court ordered that Littrell’s answer and counterclaim be stricken and that a default judgment be entered in Ghrist’s favor. The trial court left open the amount of damages until a hearing on that issue. Littrell contends that the trial court’s order striking his answer and counterclaim imposed overly harsh sanctions. We agree. The present case is controlled by our opinion in All South Mini Storage ‡‡2, Ltd. v. Woodcon Constr. Sues., 205 Ga. App. 393 (422 SE2d 282) (1992), in which we reversed the trial court’s order striking the defendant’s answer and dismissing its counterclaim for the defendant’s failure to appear at the pretrial conference. We noted that the trial court’s power to impose less drastic sanctions, such as contempt and attorney fees, was preferred as they allowed the presentation of the merits of the case. Id. at 394. See also Triple A Distrib. v. Carrier Reps, 193 Ga. App. 348 (2) (387 SE2d 624) (1989). The sanction imposed for appellant’s failure to appear at a pretrial conference was too harsh. See Ambler v. Archer, 230 Ga. 281 (196 SE2d 858) (1973); Boatright v. First Nat. Bank, 166 Ga. App. 167 (303 SE2d 506) (1983). Judgment reversed. Birdsong, P. J., and Cooper, J., concur.