1. Process and Service--failure to serve within thirty days--new summons issued--
jurisdiction proper
The trial court properly denied defendant's motion to dismiss for lack of jurisdiction
based on an alleged improper service of process under N.C.G.S. § 1A-1, Rule 4(c) and (d),
because: (1) the original summons was issued on 12 February 1997, was not served within thirty
days, and plaintiff did not seek an endorsement or an alias or pluries summons within 90 days;
and (2) plaintiff's election to issue a new summons whereby plaintiff's action was deemed to
have begun on 22 July 1997 meant the summons was properly issued on that date.
2. Discovery--sanctions--failure to serve answers or objections to interrogatories--
failure to serve written responses to request for production
The trial court did not abuse its discretion by awarding sanctions under N.C.G.S. § 1A-1,
Rule 37(d) based on defendant's failure to serve answers or objections to interrogatories or to
serve written responses to a request for production under N.C.G.S. § 1A-1, Rule 34 even though
defendant alleges the trial court failed to consider less severe sanctions, because it is apparent the
trial court considered all available sanctions before entering its order when the trial court did not
impose the more severe sanctions requested by plaintiff.
Richard M. Greene for plaintiff-appellee.
Stephen E. Lawing for defendant-appellant.
WALKER, Judge.
Plaintiff is engaged in importing and selling furniture to
wholesalers and showrooms. Defendant GEKA is a French company
which manufactures furniture in France and distributes its product
in the United States. Plaintiff alleges GEKA terminated its
distributorship agreement with plaintiff in order to avoid payingcommissions on furniture sales for which plaintiff had solicited
customers. On 12 February 1997, plaintiff filed a complaint which
included claims for breach of contract, quantum meruit, unfair and
deceptive trade practices and an accounting. Plaintiff has filed
a voluntary dismissal as to defendants Mercier and Maulin.
During the course of discovery, plaintiff alleges that GEKA
repeatedly failed to disclose information and documents requested
in interrogatories and requests for the production of documents.
Plaintiff filed a motion for sanctions on 10 September 1999. The
findings of the trial court can be summarized as follows: Plaintiff
filed its first set of interrogatories and first request for
production of documents on 1 October 1997. GEKA was requested to
provide information and documents relating to its sales to Masco
Corporation, Beacon Hill, or any of their associates or
subsidiaries. GEKA answered the interrogatories and provided the
documents requested after a protective order was entered. However,
no information regarding sales to Intro-Europe, a subsidiary of
Masco Corporation and affiliate of Beacon Hill, was provided.
Plaintiff notified GEKA that the documents provided were incomplete
and gave GEKA two weeks to produce additional documents. On 8
October 1998, GEKA supplemented its answers; however, no
information was provided concerning Intro-Europe.
Further, in April 1999, two officials of Beacon Hill admitted
in depositions that GEKA had sold furniture to Intro-Europe.
Plaintiff then filed its second set of interrogatories and request
for production of documents requesting specific information in
regard to GEKA's sale of furniture to Intro-Europe. GEKA answeredplaintiff's interrogatories on 25 August 1999 but failed to respond
to plaintiff's request for production of documents. As a result of
GEKA's failure to comply with discovery, the plaintiff's third
motion for sanctions was granted in part and denied in part. The
trial court ordered that GEKA's answer be stricken, that it pay
attorney's fees in the amount of $1,970.00 and that a default
judgment be entered in favor of plaintiff as to the issues of
breach of contract and quantum meruit. However, the trial court
denied plaintiff's motion for sanctions “as to all damage issues.”
[1]In its first assignment of error, GEKA contends the trial
court lacked jurisdiction because it was not properly served with
a summons. The original summons was issued on 12 February 1997,
when the complaint was filed; however, the summons was never served
and, on 22 July 1997, a second summons was issued and served on
GEKA's registered agent. GEKA moved to dismiss for lack of
jurisdiction which was denied by the trial court on 9 August 1999.
GEKA asserts that plaintiff's failure to comply with the
requirements of Rule 4(d) of the N.C. Rules of Civil Procedure
rendered the summons invalid and thus did not confer jurisdiction
over GEKA.
Service of a summons must be made “within 30 days after the
date of the issuance of the summons.” N.C.R. Civ. P. 4(c)(1999).
If service is not completed within that time it becomes “dormant.”
Thereafter, the action may be revived or “continued in existence”
by either securing an endorsement of the original summons or
issuing an alias or pluries summons within ninety days. N.C.R.
Civ. P. 4(d)(1999). If the summons is not served within thirtydays nor revived within ninety days, the action is discontinued.
N.C.R. Civ. P. 4(e)(1999); Shiloh Methodist Church v. Keever
Heating & Cooling, 127 N.C. App. 619, 621, 492 S.E.2d 380, 382
(1997); County of Wayne v. Whitley, 72 N.C. App. 155, 323 S.E.2d
458 (1984). If an action is discontinued, a new summons may be
issued; however, the action is deemed to have commenced on this
later date. Shiloh at 622, 492 S.E.2d at 382. Nevertheless, GEKA
contends that under this Court's ruling in Integon General Ins. Co
v. Martin, 127 N.C. App. 440, 490 S.E.2d 242 (1997), the plaintiff
was required to seek an extension of the original summons.
However, Integon is distinguishable. There, second, third and
fourth summonses were issued, each within ninety days of the
preceding summons. However, none of these summonses was indicated
as alias or pluries summonses and each failed to reference the
original summons. This Court held that these omissions broke the
“chain of custody” required to continue the original action and
that the service of the fourth summons had the “double effect of
initiating a new action and discontinuing the original one.”
Integon at 441, 490 S.E.2d at 244.
In the case at bar, the original summons was issued on 12
February 1997 and was not served within thirty days. Thereafter,
plaintiff did not seek an endorsement nor an alias or pluries
summons within ninety days. Rather, plaintiff elected to issue a
new summons whereby plaintiff's action was deemed to have begun on
22 July 1997, the date it was issued. The trial court properly
denied GEKA's motion to dismiss for lack of jurisdiction. [2]GEKA next contends the trial court erred in that it
awarded sanctions without considering less severe sanctions. When
a party fails to serve answers or objections to interrogatories or
to serve written responses to a request for production under Rule
34, the trial court is authorized to “make such orders in regard to
the failure as are just” which include imposition of sanctions.
N.C.R. Civ. P. 37(d)(1999). Permissible sanctions under Rule 37
include striking a party's pleadings, rendering a default judgment
and requiring a party to pay reasonable attorney's fees caused by
its failure. “Sanctions under Rule 37 are within the sound
discretion of the trial court and will not be overturned on appeal
absent a showing of abuse of that discretion.” Hursey v. Homes By
Design, Inc., 121 N.C. App. 175, 177, 464 S.E.2d 504, 505 (1995).
The trial court may be reversed for abuse of discretion only upon
a showing that its ruling was so arbitrary that it could not have
been the result of a reasoned decision. White v. White, 312 N.C.
770, 777, 324 S.E.2d 829, 833 (1985).
GEKA does not dispute the authority of the trial court to
impose sanctions in accordance with Rule 37. However, it argues
that the trial court must consider less severe sanctions before
striking a party's pleadings. See Cheek v. Poole, 121 N.C. App.
370, 465 S.E.2d 561 (1996); Goss v. Battle, 111 N.C. App. 173, 432
S.E.2d 156 (1993). GEKA asserts that there is nothing in the
record or in the order to indicate the trial court considered less
severe sanctions; thus, the order should be vacated.
In its motion for sanctions, plaintiff requested that thetrial court strike and dismiss GEKA's answer, deem the fac
tual
allegations in the complaint to be established, render a default
judgment against GEKA, and require GEKA to pay expenses and
attorney's fees. After a hearing, the trial court elected not to
impose the more severe sanctions requested by plaintiff, but
instead plaintiff's motion was “allowed in part and denied in
part.” The trial court ordered that GEKA's answer be stricken,
that plaintiff be granted a default judgment on its first and
second claims, and that GEKA pay expenses and attorney's fees. The
trial court explicitly denied plaintiff's motion for sanctions as
to “all damage issues.” Here, the transcript of the hearing
reveals that plaintiff requested more severe sanctions while GEKA
argued that it should not be sanctioned. The trial court allowed
plaintiff's request in part. Thus, it is apparent that the trial
court considered all available sanctions before entering its order.
See Hursey v. Homes By Design, 121 N.C. App. 175, 464 S.E.2d 504
(1995). We conclude the trial court did not abuse its discretion
in imposing sanctions in light of GEKA's actions in this case.
Affirmed.
Judges HUNTER and CAMPBELL concur.
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