In McConnell v. Wright , 280 Ga. App. 546 634 SE2d 495 2006, the Court of Appeals affirmed the trial court’s dismissal of James and Martha McConnell’s personal injury action as a sanction for the McConnells’ failure to attend their depositions. Prior to imposing this sanction, however, the trial court did not hold a hearing to determine whether the McConnells had acted willfully. We granted certiorari to determine whether, in the absence of such a hearing, the extreme sanction of dismissal was appropriate in this case. For the reasons set forth below, we reverse. The record shows that, on April 1, 2004, the McConnells filed suit against the defendants for personal injury damages arising from an auto accident. State Farm Mutual Automobile Insurance Company later joined the litigation as a potentially-liable underinsured motorist carrier. At the time that the McConnells filed their complaint, they were represented by counsel, and it is undisputed that the McConnells complied with defendants’ discovery requests during the early part of the litigation. On October 14, 2004, the McConnells’ counsel was allowed to withdraw from the case after the McConnells sent a letter to him in which they terminated his representation. Thereafter, State Farm contacted the McConnells, and, by agreement, depositions of the McConnells were scheduled for November 23, 2004. On the evening before the deposition, the McConnells contacted State Farm and asked to reschedule the depositions, apparently because they had not yet retained replacement counsel. With State Farm’s consent, the depositions were then rescheduled for December 6, 2004. Again, just prior to this second deposition date, the McConnells contacted State Farm and requested that the depositions be rescheduled. State Farm agreed, and the depositions were reset for January 19, 2005. In the interim, the McConnells spoke to an attorney about representing them, and some time prior to the January depositions, the McConnells contacted State Farm and told them that they had had an “initial conference with a lawyer who may represent them.” State Farm asked to be notified when the new attorney was retained. No further communication occurred between the parties, and the McConnells failed to show up for their depositions on January 19, 2005. The McConnells now explain that, because the depositions had been previously rescheduled with State Farm’s agreement due to their lack of counsel, they believed that the third date would also be rescheduled after they updated State Farm that they were still in the process of retaining counsel.
On January 25, 2005, State Farm filed a motion to dismiss the McConnells’ action as a sanction for failing to satisfy their discovery obligations pursuant to OCGA § 9-11-37, and on January 28, 2005, the McConnells’ new counsel filed an entry of appearance on their behalf. The McConnells contend that they were never served with the motion to dismiss, and the McConnells’ attorney also maintains that he never received the motion. For this reason, the McConnells state that they did not respond to the motion to dismiss. On May 23, 2005, the trial court granted the defendants’ motion to dismiss without holding a hearing to determine whether the McConnells had acted willfully.
