Schrembs v. Atlanta Classic Cars, Inc. ( 1990 )

Deen, Presiding Judge,

dissenting.

Considering very similar procedural circumstances, this court has previously held that imposition of the harsh sanction of dismissal of a complaint or answer pursuant to OCGA § 9-11-37 is error, where no opportunity to explain the failure to comply is afforded. Lewis v. Foster, 186 Ga. App. 819 (368 SE2d 575) (1988); Serwitz v. Gen. Elec. Credit Corp., 174 Ga. App. 747 (331 SE2d 95) (1985); Harwood v. Great American Mgmt. &c., 164 Ga. App. 703 (298 SE2d 263) (1982). These cases not having been overruled, they should still be controlling in this situation. The imposition of sanctions was therefore error, and I would respectfully dissent from the majority opinion.

Decided October 3, 1990 Rehearing denied November 1, 1990 C. Alan Mullinax, for appellant. John A. Swann, for appellee.

I am authorized to state that Presiding Judge McMurray joins in this dissent.