dissenting.
Because the trial court abused its discretion in dismissing this complaint without a hearing after these pro se plaintiffs did not appear at their scheduled depositions on a single occasion, I respectfully dissent. Such a dismissal is only authorized in the most flagrant cases, and the entire record of this case, even disregarding the McConnells’ affidavits7 filed with their motion to set aside, shows that, at worst, this is a case of negligence, not wilfulness.
*551The record shows that State Farm’s counsel knew that the earlier depositions were rescheduled by agreement, yet represented to the trial court that the McConnells repeatedly failed to attend the depositions for no good reason and “wilfully failed to attend three (3) depositions.” Moreover, the motion repeatedly recites that the Mc-Connells did not attend the depositions without securing a protective order even though the depositions were rescheduled by consent which, of course, obviates the need for a protective order.
The motion also shows that the day after the deposition was scheduled, State Farm’s counsel spoke with the McConnells’ new counsel, yet apparently did not reveal that a motion for sanctions would be filed. Also, the McConnells’ new lawyer filed an entry of appearance on January 26, 2005, the day after the defendants filed their motion for sanctions, but no copy of the motion was ever served upon him. The failure to serve a copy of the motion on the new counsel, under these circumstances, is inexplicable.
This conduct should not be condoned by affirming this dismissal. As Justice Benham noted, courts should “not condone a refusal to act out of a spirit of cooperation and civility and not wholly out of a sense of blind and unbridled advocacy.” (Citation and punctuation omitted.) Green v. Green, 263 Ga. 551, 554 (2) (437 SE2d 457) (1993) (denial of motion to set aside judgment reversed because counsel made no effort to inform pro se party of calendar call).
The record shows that the McConnells were participating in discovery. Less than two months after their answer was filed they filed Rule 5.2 certificates establishing that they had responded to Mazda North America’s first interrogatories, Mazda Corporation’s first request for documents, and State Farm’s requests for admissions, interrogatories, requests for production of documents, and notice to produce. About two months after that, the McConnells’ lawyer’s motion to withdraw as their counsel was granted. Nevertheless, the affidavit from State Farm’s attorney shows that they did not abandon the discovery process. The McConnells called before those first two depositions, which were rescheduled by agreement, as shown by the State Farm attorney’s letters to the McConnells with the new deposition dates, accompanied by formal Notices of Deposition. Despite this record, the defendants’ motion argued that the McConnells failed to appear for their depositions three times and “entirely disregarded the Georgia Civil Practice Act by completely failing to participate in the discovery process.” The McConnells’ only sanctionable discovery error was to miss one scheduled deposition, not three. .
That single discovery violation in this case was committed by two pro se plaintiffs who were attempting to find a new lawyer, who had participated in discovery, and who had diligently contacted opposing *552counsel throughout the process. “Customarily, in dealings between lawyers, the time and place of deposition is often changed on request, and we find no reason for the application of a different practice in a pro se matter.” Cook v. Lassiter, 159 Ga. App. 24, 25 (282 SE2d 680) (1981) (reversing trial court’s sanction of dismissing complaint after pro se plaintiff sought change of deposition time and place and opposing counsel did not respond).
This is not flagrant discovery abuse that warrants the most extreme sanction of dismissal. Consequently, as no motion to compel had been issued, a hearing was required to determine whether the failure to appear was wilful and whether alternate sanctions, if any, were more appropriate than a dismissal.
The majority finds the facts of this case similar to those in Woods v. Gatch, 272 Ga. App. 642 (613 SE2d 187) (2005), but the trial court in Woods had issued a prior order to compel attendance at a deposition. Thus, the plaintiffs failure to comply with the court’s order warranted the dismissal. In Daniel v. Corporate Property Investors, 234 Ga. App. 148 (505 SE2d 576) (1998), an unanswered motion to compel was pending for several months, before the defendant amended the motion to seek the sanction of dismissal, and all of the cases relied on in Daniel involved the failure to respond after orders to compel discovery were issued.
A case may be dismissed without a hearing if the trial court had issued an order compelling discovery that was not obeyed, and if the court can determine from the record that the failure to obey the order was wilful. Vining v. Kimoto USA, 209 Ga. App. 296, 297 (2) (433 SE2d 342) (1993) (appellant had opportunity to present legal justification or mitigating circumstance at hearing on motion to compel, so second hearing unnecessary). A “wilful” failure to act is a “conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance. A conscious or intentional failure to act is in fact wilful.” (Citation and punctuation omitted.) Stolle v. State Farm &c. Ins. Co., 206 Ga. App. 235, 236 (3) (424 SE2d 807) (1992).
In some instances, the total failure to comply with discovery may be sanctioned without first issuing an order to compel. OCGA § 9-11-37 (d). But without an order to compel outstanding, the trial court “must conduct a hearing on the question of whether the offending party’s failure to respond to discovery was wilful before imposing the extreme sanction of default or dismissal.” (Footnote omitted.) Green-briar Homes v. Builders Ins., 273 Ga. App. 344, 347 (5) (615 SE2d 191) (2005) (reversing trial court’s dismissal of case for discovery violations without a hearing, where no order to compel outstanding). See also Stolle v. State Farm &c. Ins. Co., supra, 206 Ga. App. at 236-237 (3) (affirming trial court’s dismissal of case for discovery violations after a hearing, where no order to compel outstanding). Dismissing a *553case for discovery violations is warranted “only where a clear record of delay or contumacious conduct by the plaintiff exists and a lesser sanction would not better serve the interest of justice. (Cit.)” (Citations and punctuation omitted.) Harwood v. Great American Mgmt. &c., 171 Ga. App. 488, 490 (320 SE2d 269) (1984).
A failure to make any timely response to interrogatories authorizes the invocation of sanctions under subsection (d), regardless of the reason for the failure. However, in determining the particular sanctions to be imposed, this discretion is not without limits. Where the trial court exercises its discretion under subsection (d) to strike or bar the support of defenses in a manner that has the effect of establishing liability in the case, such harsh sanctions should be utilized only in cases of a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance.
(Citations and punctuation omitted.) Kemira, Inc. v. Amory, 210 Ga. App. 48, 51 (1) (435 SE2d 236) (1993).
Although “[t]rial courts have broad discretion to control discovery, including the imposition of sanctions, . . . [i]n determining the particular sanctions to be imposed, this discretion is not without limits.” (Punctuation and footnotes omitted.) ASAP Healthcare Network v. Southwest Hosp. &c., 270 Ga. App. 76, 77-78 (1) (606 SE2d 98) (2004).
When a party fails to obey an order to provide or permit discovery, including an order to produce, the trial court has the option of imposing several sanctions of which the most severe is that imposed here — striking out pleadings and rendering judgment by default against the disobedient party. As a general rule, a trial court should attempt to compel compliance with its orders through the imposition of less drastic sanctions, reserving the sanctions of dismissal and default for the most flagrant cases — where the failure to comply is wilful, in bad faith or in conscious disregard of an order.
(Footnotes omitted.) Motani v. Wallace Enterprises, 251 Ga. App. 384, 385 (1) (554 SE2d 539) (2001). In this case, although no order to compel was pending, the trial court apparently did not consider the option of imposing less drastic sanctions, possibly because it misunderstood the facts because of the defendants’ representations.
These facts are very different from those in King v. Bd. of Regents &c. of Ga., 238 Ga. App. 4 (516 SE2d 581) (1999), in which we affirmed *554the dismissal of a complaint for a plaintiffs refusal to attend a deposition despite the trial court’s order compelling plaintiff to do so. The order of dismissal was supported by an eight-page order in which the trial court detailed the evidence of the plaintiffs wilfulness and repeated abuse of the discovery process. The facts also do not approach those of James v. Gray, 229 Ga. App. 39, 40 (494 SE2d 198) (1997), in which we affirmed the dismissal of a complaint based in part on evidence that, after plaintiff s counsel called opposing counsel to confirm on the day of the deposition and obtained directions, he called back to say his client would not appear.
Decided July 14, 2006 Conoscienti & Kendall, Joseph A. Conoscienti, Michael C. Kendall, Maureen E. Murphy, for appellants. Harper, Waldon & Craig, Russell D. Waldon, Kimberly A. McNamara, Kilpatrick Stockton, Jason Wenker, Wayne C. Wilson, for appellees.The defendants have not shown flagrant disobedience in this case, and the trial court abused its discretion in dismissing their complaint without a hearing. Therefore, we should remand the case for a hearing. For these reasons, I respectfully dissent to the majority opinion.
I am authorized to state that Judge Ellington joins in this dissent.
These affidavits explain fully the reasons why they did not attend their depositions.