An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA01-1578


Filed: 21 January 2003


     v .                                 Durham County
                                        No. 99 CVS 3072

    Appeal by plaintiff from orders entered 23 July 2001 and 28 August 2001 by Judge Narley L. Cashwell in Durham County Superior Court. Heard in the Court of Appeals 11 September 2002.

    Hayes Hofler & Associates, P.A., by R. Hayes Hofler, for plaintiff appellant.

    Cranfill, Sumner & Hartzog, L.L.P., by Jaye E. Bingham, for defendant appellee.

    McCULLOUGH, Judge.

    On 22 July 1996, plaintiff Charles Brown was involved in a motor vehicle accident in Durham, North Carolina. The car that collided with plaintiff was later discovered to be stolen, and the driver fled the scene. On 8 July 1999, plaintiff filed suit against his uninsured motorist coverage carrier, Liberty Mutual Insurance Company (Liberty Mutual), and alleged that the uninsured motorist's negligence proximately caused his head injury. Plaintiff further alleged he suffered depression and a decrease in his cognitive abilities due to the accident. On 9 July 1999, the complaint and summons were served upon the North CarolinaCommissioner of Insurance, who forwarded the documents to Liberty Mutual's office in Massachusetts. Due to inadvertence, the complaint and summons were not forwarded to the appropriate regional office in Charlotte, North Carolina, until 1 November 1999. Meanwhile, on 30 August 1999, plaintiff obtained an entry of default against Liberty Mutual because Liberty Mutual failed to respond to the complaint in due time.
    On 14 January 2000, plaintiff was served with “Liberty Mutual Insurance Company's First Interrogatories to Plaintiff” and “Liberty Mutual Insurance Company's First Request for Production of Documents to Plaintiff.” The first interrogatories asked plaintiff to name (1) all expert witnesses, (2) all medical practitioners who examined or treated him for injuries alleged as a result of the accident, and (3) “each medical practitioner who examined or treated [him] for any mental or physical condition since 1970.” The first request for production of documents requested plaintiff to provide, among other things,
        [t]he office records of each physician or other health care providers (including but not limited to psychiatrists, psychologists, and chiropractors) consulted by plaintiff since 1970. This request includes but is not limited to records of all such health care providers who have treated plaintiff for any injury alleged to have been the result of this accident.

    On 31 January 2000, plaintiff's attorney, Mr. Hayes Hofler, informed Liberty Mutual that plaintiff's head injury had worsened, that he suspected plaintiff had a brain injury, and that plaintiff was being referred to Dr. Thomas Gualtieri in Chapel Hill, NorthCarolina, for an evaluation to determine whether plaintiff suffered a closed head injury in the 22 July 1996 accident. Plaintiff asked Liberty Mutual to help pay the costs of the evaluation.
    Thereafter, on 16 February 2000, the parties entered into a consent order whereby plaintiff agreed to set aside the entry of default he obtained for Liberty Mutual's failure to answer the complaint in due time and Liberty Mutual agreed to withdraw its third and fourth defenses (objecting to improper party defendant, improper service of process, and statute of limitations).
    On 27 March 2000, Liberty Mutual served plaintiff with a second request for production of documents. Included was a request for “[c]opies of all records and documents relative to any mental health counseling, psychological counseling or counseling of any nature received by plaintiff, either before or after the incident referred to in the Complaint, for any marital issues, emotional issues or any other reason[,]” as well as “the 'raw data' from any psychological, neuropsychological, psychiatrist or any other mental health testing received by plaintiff either before or after the incident referred to in the Complaint.” On 29 March 2000, the trial court entered an order requiring plaintiff to respond to Liberty Mutual's second request for documents by 27 April 2000.
    On 21 September 2000, Liberty Mutual's attorney, Ms. Leigh Ann Smith, wrote to plaintiff's attorney, Mr. Hayes Hofler, confirming that Mr. Hofler would request plaintiff's medical records from his treatment with Dr. Thomas Gualtieri at North Carolina Neuropsychology, P.A. Mr. Hofler stated he promptly providedLiberty Mutual with copies of written evaluations by doctors, but also informed Ms. Smith that the “raw data” could only be delivered from one psychologist to another and was therefore unattainable. On 29 November 2000, Liberty Mutual sent Dr. Gualtieri an executed medical release signed by plaintiff and requested plaintiff's medical records. A copy of the letter was sent to Mr. Hofler, along with a separate letter asking Mr. Hofler to continue his efforts to obtain the medical records. On 5 December 2000, Liberty Mutual's attorney faxed a copy of the 29 November 2000 letter to Dr. Gualtieri again; the cover sheet stated, “We need these records as soon as possible because this matter is set for trial on January 2, 2001.”
    On 19 December 2000, Liberty Mutual filed a Motion to Compel and Motion to Continue Mediation and Trial because it had previously made several requests for Dr. Gualtieri's records but had only received the record from plaintiff's first visit with Dr. Gualtieri. Plaintiff did not respond to Liberty Mutual's second request for production of documents and provided incomplete responses to the first set of interrogatories and to the first request for production of documents. On 19 December, the trial court entered an order giving plaintiff until 28 February 2001 to respond to Liberty Mutual's discovery requests. The order also set a new mediation deadline and a new trial date. Plaintiff's attorney consented to these actions. Judge Anthony Brannon considered Liberty Mutual's Motion to Compel. On 2 April 2001, Judge Brannon entered an Order Compelling Discovery, which stated:                A.    Plaintiff will write to the medical providers listed in answers to Interrogatories and verify whether or not there are records as to pre-accident medicals for the last ten (10) years.

                B.    North Carolina Neuropsychology, P.A. is hereby ordered to produce any and all records pertaining to Charles Brown, including, but not limited to, treatment records, treatment evaluations and psychotherapy records.

                C.    Plaintiff shall respond to defendant's Second Request for Production of Documents No. 3 regarding pharmacy records preceding the accident for ten (10) years and post-accident records.

                D.    Plaintiff will respond to defendant's discovery within twenty (20) days of the date of the signing of this Order.

    Also on 2 April 2001, counsel for both parties deposed Dr. Lynda Johnson and Dr. Gualtieri. Both doctors brought their records with them; consequently, Liberty Mutual was able to view them, but copies were not made at that time. Liberty Mutual's attorney contacted Mr. Hofler a number of times after 2 April to request the medical records, but was told Liberty Mutual should have copied them at the deposition. On 9 May 2001, plaintiff was served Liberty Mutual Insurance Company's Third Request for Production of Documents. The third request consisted of one question and sought production of plaintiff's military file. The file was requested, because during his deposition, Dr. Gualtieri testified that plaintiff's symptoms could have been caused by post- traumatic stress syndrome related to his military service in Vietnam. Additionally, Dr. Gualtieri noted plaintiff's symptomscould have been caused by white matter disease of the brain, based upon his family history and a history of hypertension.
    On 30 May 2001, Liberty Mutual wrote a letter to Mr. Hofler to again inform him that Liberty Mutual had not received Dr. Gualtieri's records. On 10 July 2001, Liberty Mutual filed a second Motion to Compel and Motion for Relief under Rule 37 which requested that plaintiff produce the records of North Carolina Neuropsychology, P.A., and that plaintiff be sanctioned for failing to produce those documents. The motion was argued on 12 July 2001 before Judge Narley Cashwell; however, plaintiff's attorney did not appear at the motion hearing. After considering defendant's argument, the trial court stated:
            THE COURT: All right. This is before the Court upon the defendant's motion to compel discovery and motion for sanctions pursuant to Rule 37. Counsel, if you would prepare me an order, your motion is allowed. The order to provide military records are to be provided to you. I'm going to, however, instead of ten days, I'm going to give them 30 days. There may be a little problem getting them. I'll give them 30 days from the date of the order, and as a sanction in this matter for failure to produce the records I will prohibit the testimony of Doctor Gualtieri or any other witness on behalf of -- Judge Brannon's order was directed to North Carolina Neuropsychology P.A. -- as to any closed-head injury.

    On 27 July 2001, plaintiff filed a motion for relief pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b) (2001) and requested that the prohibition against testimony from the doctors at North Carolina Neuropsychology, P.A., be lifted so his treating physicians could testify at trial. In support of his motion, plaintiff submittedthe affidavit of Dr. Johnson and attached copies of all the medical records of North Carolina Neuropsychology, P.A. On 17 August 2001, the trial court denied plaintiff's motion for relief. On 22 August 2001, plaintiff appealed from both the 23 July 2001 order prohibiting the doctors' testimony and the trial court's order announced in open court on 20 August 2001 (reduced to writing and entered 28 August 2001) denying his motion for relief.
    On appeal, plaintiff argues the trial court abused its discretion by (I) sanctioning him by prohibiting his only treating health care providers from testifying at trial; and (II) denying his Rule 60(b) motion for relief after he presented evidence that he had done everything in his power to provide defendant with the requested discovery. For the reasons set forth herein, we disagree with plaintiff's arguments and affirm the actions of the trial court.

     Prohibition of Doctors' Testimony
    By his first assignment of error, plaintiff argues the trial court abused its discretion when it sanctioned plaintiff by prohibiting his only treating health care providers from testifying at his trial. Defendant, on the other hand, argues that Rule 37(b) allows the trial court to impose sanctions for noncompliance with discovery requests and orders, as was the case here. Upon review, we agree with defendant.
    Before turning to the facts at hand, we note that, although this appeal is interlocutory, we are able to address the merits of this assignment of error, because when an order is enforced bysanctions pursuant to N.C. Gen. Stat. § 1A-1, Rule 37(b) (2001), “the order is appealable as a final judgment.” Walker v. Liberty Mut. Ins. Co., 84 N.C. App. 552, 554-55, 353 S.E.2d 425, 426 (1987).
     N.C. Gen. Stat. § 1A-1, Rule 37(b) (2001) “grants the trial judge discretion to impose sanctions upon a party for failure to comply with discovery processes.” Gardner v. Harriss, 122 N.C. App. 697, 699, 471 S.E.2d 447, 449 (1996). “The choice of sanctions under Rule 37 is within the trial court's discretion and will not be overturned on appeal absent a showing of abuse of that discretion.” Brooks v. Giesey, 106 N.C. App. 586, 592, 418 S.E.2d 236, 239 (1992), aff'd, 334 N.C. 303, 432 S.E.2d 339 (1993). See also Cheek v. Poole, 121 N.C. App. 370, 374, 465 S.E.2d 561, 564 (1996), cert. denied, 343 N.C. 305, 471 S.E.2d 68 (1996).
    “The sanction provision [of Rule 37] permits the court to make such orders as are “just” upon a party's failure to obey an order to provide or permit discovery, including refusing to permit the disobedient party to introduce the matters in question into evidence.” Bumgarner v. Reneau, 332 N.C. 624, 631, 422 S.E.2d 686, 690 (1992). Although sanctions can be severe, if they are among those expressly authorized by Rule 37, this Court cannot hold they constitute an abuse of discretion unless plaintiff shows specific evidence of injustice. Roane-Baker v. Southeastern Hospital Supply Corp., 99 N.C. App. 30, 37, 392 S.E.2d 663, 667 (1990), disc. review denied, 328 N.C. 93, 402 S.E.2d 418 (1991). See also Segrest v. Gillette, 96 N.C. App. 435, 442, 386 S.E.2d 88, 92(1989), reversed on other grounds, 331 N.C. 97, 414 S.E.2d 334 (1992), reh'g denied, 331 N.C. 386, 417 S.E.2d 791 (1992) (where defendants were properly served with plaintiff's interrogatories about expert testimony, a crucial aspect of the medical malpractice case, “[t]he fact that plaintiff's interrogatories were ultimately answered, however late, does not prevent the court from imposing sanctions under Rule 37(d) on plaintiff's motion.”).
    Plaintiff contends that he went to great expense to employ Dr. Johnson and Dr. Gualtieri and that they were the only witnesses who could testify as to whether he suffered a brain injury and as to how they treated him. Plaintiff points out that Liberty Mutual has been in possession of all the medical records since 27 July 2001. Consequently, he maintains “there is no need for either an order to compel plaintiff to produce same or to sanction plaintiff for failing to produce same” because Liberty Mutual's motion for sanctions under Rule 37 was not filed until 10 July 2001, three months after Dr. Johnson and Dr. Gualtieri produced their records at their depositions. Thus, plaintiff argues, even though the discovery responses were untimely, the trial court's sanctions constituted an abuse of discretion, because the discovery responses were served (at the 2 April 2001 depositions of Dr. Gualtieri and Dr. Johnson) prior to the making or service of the motion requesting sanctions. See Cheek v. Poole, 121 N.C. App. at 373-74, 465 S.E.2d at 563-64.
    Additionally, plaintiff contends his failure to produce the requested documents was due to inability fostered neither by hisown conduct nor by circumstances within his control, thereby exempting him from the sanctions of Rule 37(b). See Laing v. Loan Co., 46 N.C. App. 67, 71, 264 S.E.2d 381, 384, appeal dismissed, disc. review denied, 300 N.C. 557, 270 S.E.2d 109 (1980). Plaintiff also contends that the prohibition against having his doctors testify at trial “is an extremely harsh penalty which is not conducive to a trial on the merits. It would effectively preclude a trial on the merits.” Because plaintiff believes he in no way caused Liberty Mutual not to obtain the medical records, he feels the trial court's sanction is unnecessarily punitive and amounts to an abuse of discretion. We do not agree.
    The record indicates that Liberty Mutual repeatedly requested all of plaintiff's medical records related to the 22 July 1996 accident, as well as plaintiff's medical records from the ten-year period before the accident. Despite Liberty Mutual's requests, plaintiff did not produce those records (most notably, Dr. Gualtieri's records). Judge Brannon's 2 April 2001 order (prompted by Liberty Mutual's first motion to compel) gave plaintiff twenty days to respond to Liberty Mutual's discovery requests by contacting each medical provider listed in the interrogatories and verifying whether there were medical records for the ten-year period preceding the accident. Judge Brannon also ordered North Carolina Neuropsychology, P.A., to produce their records. Plaintiff's failure to respond resulted in a violation of Judge Brannon's order. Upon Liberty Mutual's second motion to compel, Judge Cashwell had authority to prohibit testimony from anyonerelated to North Carolina Neuropsychology, P.A., pursuant to Rule 37(b)(2), and did so. It appears Judge Cashwell's sanctions were supported by reason -- Liberty Mutual could not properly defend against the testimony of those doctors because the records were never provided beforehand. We also note that, despite plaintiff's previous difficulties in obtaining the medical records, he managed to attach the medical records to his motion for relief only four days after Judge Cashwell's 12 July 2001 order.
    Upon review of the record, we cannot say the trial court abused its discretion by prohibiting plaintiff from presenting testimony from doctors at North Carolina Neuropsychology, P.A. Accordingly, plaintiff's first assignment of error is overruled.
     Motion for Relief
    By his second assignment of error, plaintiff contends the trial court abused its discretion when it denied his motion for relief pursuant to Rule 60(b) after he presented evidence that he did everything in his power to provide Liberty Mutual with the requested discovery. Again, we disagree.
    As a preliminary matter, plaintiff contends that the order denying his Rule 60(b) motion was immediately appealable as a final judgment because the Rule 60(b) motion addressed an order which itself was based on Rule 37(b) sanctions. When an order is enforced pursuant to Rule 37(b), it is appealable as a final judgment. See Walker, 84 N.C. App. at 554-55, 353 S.E.2d at 426. Defendant, on the other hand, believes that plaintiff's appeal from the denial of his Rule 60(b) motion for relief is interlocutorybecause it does not dispose of the case (i.e., it is not a final judgment) and it does not affect any of plaintiff's substantial rights. See Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980). Because the case must still be rescheduled for trial, defendant believes plaintiff's Rule 60(b) motion for relief is premature and interlocutory. Alternatively, defendant believes plaintiff's Rule 60(b) motion for relief fails on the merits. As this Rule 60(b) motion turns on the appealability of a sanction imposed pursuant to Rule 37, it is appealable in the same fashion as would be an appeal from the imposition of the sanction itself. See Walker, 84 N.C. App. at 554-55, 353 S.E.2d at 426.
    Rule 60(b) provides:
            (b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. -- On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

                    (1) Mistake, inadvertence, surprise, or excusable neglect;

                    (2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

                    (3)    Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

                    (4) The judgment is void;

                    (5)    The judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated,or it is no longer equitable that the judgment should have prospective application;

                    (6) Any other reason justifying relief from the operation of the judgment.
“An order granting or denying relief under North Carolina General Statutes § 1A-1, Rule 60(b) will not be disturbed on appeal unless it appears that there was a substantial miscarriage of justice or that the decision is manifestly unsupported by reason.” Hooper v. Pizzagalli Construction Co., 112 N.C. App. 400, 407-08, 436 S.E.2d 145, 150 (1993), disc. review denied, 335 N.C. 770, 442 S.E.2d 516 (1994). See also Clark v. Penland, 146 N.C. App. 288, 292, 552 S.E.2d 243, 245 (2001).    
    Plaintiff acknowledges that his attorney, Mr. Hofler, did not attend the 16 July 2001 hearing on Liberty Mutual's motion to compel and motion for sanctions under Rule 37(b). In his Rule 60(b) motion, Mr. Hofler acknowledged that he had a mix-up with his schedule and inadvertently missed the hearing. However, he also argued that the trial court's sanction did not appear to have been precipitated by his absence at the hearing. Plaintiff maintains he always cooperated with Liberty Mutual and tried to produce the medical records. He further contends the records were produced -- first at the depositions of Dr. Johnson and Dr. Gualtieri on 2 April 2001, and again as an attachment to plaintiff's motion for relief on 27 July 2001. Thus, even if the records should have been produced earlier, plaintiff argues their delivery on 27 July 2001 (approximately one month before the 20 August 2001 trial date) gavedefendant ample time to prepare for trial. Plaintiff also points to the fact that Liberty Mutual's attorney looked over the records at the depositions on 2 April 2001 and asked questions based on those records. Plaintiff further contends that, during the motion to compel and for sanctions under Rule 37(b), Liberty Mutual's attorney did not know of and did not inform the trial court of plaintiff's attorney's efforts at cooperation. In sum, plaintiff believes the denial of his Rule 60(b) motion constituted a substantial miscarriage of justice which this Court can and must reverse.
    Plaintiff's Rule 60(b) motion appears to be predicated upon subsection (b)(1), which allows the court to relieve a party from a final judgment, order, or proceeding upon a showing of mistake, inadvertence, surprise, or excusable neglect. In this case, plaintiff's Rule 60(b) motion focused on his “meritorious defenses” to Liberty Mutual's Motion to Compel and Motion for Relief under Rule 37, which is immediately appealable as previously stated, as well as the reasons for his attorney's failure to appear at the 16 July 2001 hearing. Plaintiff's attorney stated he was hand- delivered copies of defendant's motion to compel and notice of hearing (set for 16 July 2001) while the parties were in Durham County Superior Court on other matters pertaining to the case. Plaintiff's attorney acknowledged that he and defendant's counsel discussed a hearing date of 16 July 2001. However, he had a number of professional and personal demands upon his time and inadvertently failed to write the hearing date on his calendar anddid not inform his office staff of the hearing date. Consequently, he was out of town on 16 July 2001 and did not attend the hearing.
    Our Court has previously stated that
        an attorney's negligence in handling a case constitutes inexcusable neglect and should not be grounds for relief under the “excusable neglect” provision of Rule 60(b)(1). . . . Allowing an attorney's negligence to be a basis for providing relief from orders would encourage such negligence and present a temptation for litigants to use the negligence as an excuse to avoid court-imposed rules and deadlines.

Briley v. Farabow, 348 N.C. 537, 546, 501 S.E.2d 649, 655 (1998); see also Henderson v. Wachovia Bank of N.C., 145 N.C. App. 621, 626, 551 S.E.2d 464, 468, disc. review denied, 354 N.C. 572, 558 S.E.2d 869 (2001).
    In upholding the trial court's denial of defendant's Rule 60(b) motion, we are also guided by Parris v. Light, 146 N.C. App. 515, 553 S.E.2d 96 (2001), disc. review denied, 355 N.C. 349, 562 S.E.2d 283 (2002), a factually similar case in which this Court upheld the dismissal of the plaintiff's case when her attorney acted similarly to Mr. Hofler in the case before us. In upholding the dismissal and finding no abuse of discretion on the part of the trial court, the Parris Court stated, “This Court has recently reaffirmed the principle that a trial court must consider an attorney's conduct in determining whether there is inexcusable neglect under Rule 60(b).” Id. at 520, 553 S.E.2d at 98; see also Henderson, 145 N.C. App. 621, 551 S.E.2d 464; and Clark, 146 N.C. App. 288, 552 S.E.2d 243. We believe this reasoning applies to thefacts before us. Plaintiff's attorney's actions constituted inexcusable neglect, and the trial court properly denied relief under Rule 60(b). Accordingly, plaintiff's final assignment of error is overruled.
    After careful examination of the proceedings below and the arguments of the parties, we conclude the trial court did not abuse its discretion in sanctioning plaintiff and prohibiting his doctors from testifying at trial. We further conclude that the trial court did not err in denying plaintiff's Rule 60(b) motion for relief. The trial court's orders are hereby
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

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