King v. Board of Regents of the University System , 238 Ga. App. 4 ( 1999 )

516 S.E.2d 581 (1999) 238 Ga. App. 4

KING
v.
BOARD OF REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA.

No. A99A0347.

Court of Appeals of Georgia.

April 22, 1999. Reconsideration Denied May 6, 1999. Certiorari Denied October 15, 1999.

Michael B. King, pro se.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, for appellee.

HAROLD R. BANKE, Senior Appellate Judge.

This is the second appearance of this case before this court. See King v. Bd. of Regents &c., 215 Ga.App. 570, 451 S.E.2d 482 (1994) ("KING I"). Only facts pertinent to the present appeal will be repeated.

Michael King, an attorney, sued the Board of Regents of the University System of Georgia pro se based on his unsuccessful tenure as a student at Georgia State University's College of Law. Based on difficulties in scheduling depositions, the court on September 8, 1993 ordered King to sit for his deposition within 30 days. Despite a properly-noticed deposition for the afternoon of September 27, 1993, King announced he would not sit for his deposition at that time. The Board moved for sanctions, and he countered by moving for a protective order shortly before the scheduled deposition. He further notified the Board he would not sit for any deposition until the court ruled on his motion for a protective order.

In December 1993 the court held a hearing on the Board's motion for sanctions and King's motion for protective order. The court first denied the motion for protective order as lacking any credible legal or factual basis, and then dismissed King's complaint for his wilful refusal to cooperate with discovery. King I reversed, holding the dismissal had to be set aside for failing to notify King of the hearing, as required by OCGA § 9-11-6(d). 215 Ga.App. at 571, 451 S.E.2d 482.

On remand, the court rescheduled the hearing and the Board served a timely written notice on King. Once again King did not attend, and the court adopted its December order with the additional finding that King had received proper notice of the rescheduled hearing. King appeals. Held:

1. King first contends he was not notified of the rescheduled hearing. This contention is specious, as the record plainly reflects otherwise.

2. Citing Dismuke v. Dismuke, 195 Ga. App. 613, 615(3), 394 S.E.2d 371 (1990), and Corey v. Renard, 151 Ga.App. 584, 260 S.E.2d 538 (1979), King contends that because his motion for protective order was pending, the court was without authority to sanction his refusal to appear for his deposition. This contention is likewise specious, for the court denied the motion for protective order before it ruled on the motion for sanctions.

3. King's final enumeration of error is that the Board did not show he wilfully refused to be deposed. Refusal to be deposed is grounds for dismissal under OCGA § 9-11-37(d). Washington v. South Ga. Med. Ctr., 221 Ga.App. 640, 641(1), 472 S.E.2d 328 (1996). Before imposing this sanction, the court must find the refusal was wilful. Schrembs v. Atlanta Classic Cars, 261 Ga. 182, 402 S.E.2d 723 (1991); Frady v. Irvin, 245 Ga. 307, 308(2), 264 S.E.2d 866 (1980).

In an eight-page order, the court detailed the evidence of King's wilfulness and repeated abuse of the discovery process. We will not repeat that evidence in detail here. Despite a court order requiring his deposition within 30 days, King refused to sit for a properly-noticed deposition on a day on which he was unquestionably available, and then announced in direct contravention of the court order that he would not sit for a deposition until a newly-filed motion for protective order was determined. "``The trial court is the trier of fact and its finding of wilfulness from the evidence presented will not be reversed where there is any evidence to support it.' [Cit.]" Oliff v. Smith, 214 Ga.App. 358, 359, 447 S.E.2d 707 (1994).

The court did not err in dismissing King's complaint.

Judgment affirmed.

BLACKBURN, P.J., and BARNES, J., concur.