NO. COA03-1007
Costs; Discovery--sanctions--failure to comply with discovery order
The trial court did not abuse its discretion in a divorce case by sanctioning appellant
husband under N.C.G.S. § 1A-1, Rule 37 for failure to comply with an order compelling
discovery, because: (1) given the trial court's ability to take judicial notice of the order and
appellant's admission that he had refused his attorney's requests to sign appellee's
interrogatories and did not intend to sign the interrogatories until they reflected the existence of a
prenuptial agreement, the trial court had sufficient evidence on which to base its findings of fact
without taking sworn testimony; (2) the trial court addressed the propriety of entering a default
judgment and expressly considered the feasibility of lesser sanctions, but concluded these actions
would not compel appellant to obey the court order; and (3) entering sanctions to remove the
prenuptial agreement issue from the case was the only way to compel appellant to comply with
the trial court's order.
Charles B. Brooks, II, for Mary Ellen Teresa Leder, appellee.
John T. Burns, for Joseph Leder, appellant.
CALABRIA, Judge.
This appeal arises from a trial court order for sanctions
against Joseph Leder (“appellant”) for failure to comply with an
order compelling discovery. We affirm.
On 1 October 1999, Mary Ellen Leder (“appellee”) filed an
action for divorce from bed and board, post-separation support,
permanent alimony, and equitable distribution. Appellant answered
the complaint and, as an affirmative defense, introduced a 1986
prenuptial agreement entered into by the parties in New York state.
Appellant asserted the prenuptial agreement contained a waiver ofmaintenance barring appellee's post-separation support and alimony
claims.
Appellee initiated discovery. However, appellant failed to
answer appellee's interrogatories. Rather, on 9 May 2001,
appellant filed an action for an absolute divorce and later amended
his complaint to include a request for enforcement of the
prenuptial agreement. Appellee responded with a motion to compel
discovery. On 25 April 2002, the trial court entered an order
compelling discovery, directing appellant to answer interrogatories
by 10 May 2002 and produce all requested documents by 13 May 2002.
In addition, the trial court warned appellant that “[d]isobedience
of [the] Order [would] be punishable as allowed by the Rules of
Civil Procedure for failure to make discovery, and by the contempt
powers of [the] Court.” On 14 July 2003, the trial court
consolidated appellee's and appellant's cases and ordered that no
divorce judgment incorporating the prenuptial agreement would be
entered until all discovery had been completed and the validity and
effect of the prenuptial agreement had been construed and
interpreted by the trial court.
When appellant failed to comply with the trial court's first
order to compel discovery, appellee filed a second motion to compel
discovery, a motion for a protective order, and a motion for
sanctions pursuant to N.C. Gen. Stat. § 1A-1, Rule 37 (2003). On
27 March 2003, the trial court granted all three motions. The
trial court sanctions entered pursuant to N.C. Gen Stat. § 1A-1,
Rule 37(b), included: (1) entering a default judgment against
appellant on the issues of post-separation support and permanentalimony, with the amount and duration to be determined later; (2)
striking all references to the prenuptial agreement in the
pleadings; and (3) barring the use of any evidence or reference to
the prenuptial agreement in any trial between the parties or decree
entered by any court. We note, although interlocutory in nature,
“an order imposing sanctions under Rule 37(b) is appealable as a
final judgment.” Smitheman v. National Presto Industries, 109 N.C.
App. 636, 640, 428 S.E.2d 465, 468 (1993).
Appellant first asserts that the trial court erred by basing
its findings of fact, in the “Order Regarding Sanctions,” not on
sworn testimony but on the oral argument of appellee's counsel and
of appellant, pro se. This Court has long held that “a court may
take judicial notice of earlier proceedings in the same cause.” In
re Byrd, 72 N.C. App. 277, 279, 324 S.E.2d 273, 276 (1985); N.C.
Gen. Stat. § 8C-1, Rule 201 (2003). In addition, “[s]tatements of
a party to an action, spoken or written, have long been admissible
against that party as an admission if it is relevant to the issues
and not subject to some specific exclusionary statute or rule.”
Karp v. University of North Carolina, 78 N.C. App. 214, 216, 336
S.E.2d 640, 641 (1985); N.C. Gen. Stat. § 8C-1, Rule 801(d) (2003).
In the instant case, the trial court had before it the 25 April
2002 order compelling discovery and could take judicial notice of
the order's findings of fact, conclusions of law, and decrees.
Moreover, appellant admitted to the trial court that he had refused
his attorney's requests to sign appellee's interrogatories and did
not intend to sign the interrogatories until they reflected the
existence of the prenuptial agreement. Given the trial court'sability to take judicial notice and appellant's admission, the
trial court had sufficient evidence on which to base its findings
of fact without taking sworn testimony.
Appellant next asserts that the trial court abused its
discretion by failing to consider lesser sanctions before entering
sanctions directed to the outcome of the case. In pertinent part,
N.C. Gen. Stat. § 1A-1, Rule 37(b)(2) provides that:
If a party . . . fails to obey an order to
provide or permit discovery, . . . a judge of
the court in which the action is pending may
[sanction the party by] mak[ing] such orders
in regard to the failure as are just, and
among others the following:
. . .
b. An order refusing to allow the disobedient
party to support or oppose designated
claims or defenses, or prohibiting him
from introducing designated matters in
evidence;
c. An order striking out pleadings or parts
thereof, or staying further proceedings
until the order is obeyed, or dismissing
the action or proceeding or any part
thereof, or rendering a judgment by
default against the disobedient party[.]
(Emphasis added). A trial court's choice of sanctions under Rule
37 will not be reversed on appeal absent an abuse of discretion.
Brooks v. Giesey, 106 N.C. App. 586, 592, 418 S.E.2d 236, 239
(1992). In Benfield v. Benfield, 89 N.C. App. 415, 423, 366 S.E.2d
500, 505 (1988), this Court found no abuse of discretion in
striking “defendant's pleadings and prohibit[ing] him from
supporting his contentions in regard to . . . equitable
distribution . . . [after] [d]efendant wilfully disregarded [two]
order[s] of the trial court . . . to provide further answers to the
questions posed during [a] deposition.” Similar to the defendantin Benfield, appellant wilfully disregarded two trial court
directives requiring completion of discovery.
Moreover, the trial court expressly questioned and heard
arguments specifically addressing the propriety of (1) entering a
default judgment against appellant with respect to post-separation
support and permanent alimony, (2) striking all references to the
prenuptial agreement, and (3) barring the use of any evidence or
reference to the prenuptial agreement in future proceedings. The
trial court also expressly considered the feasibility of lesser
sanctions. Two days later the trial court concluded in its order
the following:
[T]he imposition of a lesser sanction than
that of entering a default judgment [against
appellant] on the issue of post-separation
support and permanent alimony; and striking
any allegation in [appellant's] divorce
complaint or his answer and counterclaim
regarding any alleged or purported prenuptial
agreement, forbidding him from introducing any
evidence of the existence of any prenuptial
agreement or mentioning the same, and ordering
the same not be incorporated in any divorce
decree entered in this matter would not compel
[appellant] to obey this Order or further
orders of the Court and the imposition of any
lesser sanctions is unwarranted.
We find no abuse of discretion.
Appellant finally asserts that several of the trial court's
findings of fact and three of its conclusions of law were not
supported by substantial evidence. This Court must determine
“whether [the] trial court's findings of fact are supported by
substantial evidence . . . [and] if the trial court's factual
findings support its conclusions of law.” Shipman v. Shipman, 357
N.C. 471, 475, 586 S.E.2d 250, 254 (2003). “'Substantial evidence'[is] relevant evidence which a reasonable mind . . . could accept
as adequate to support a conclusion.” In re Golia-Paladin, 344
N.C. 142, 149, 472 S.E.2d 878, 881 (1996).
Appellant assigns error to the trial court's findings of fact
twelve, seventeen, eighteen, twenty-three, twenty-nine, thirty, and
thirty-two. Findings of fact seventeen, twenty-three, and twenty-
nine, in sum, state appellant's conduct and demeanor made it clear
that he did not intend to comply with the trial court's order
compelling discovery, except upon terms acceptable to him and that
sanctions against him were required. As discussed above, the
evidence tended to show appellant refused to sign the
interrogatories and persisted in this refusal despite his
attorney's requests and the trial court's order.
Findings of fact eighteen, thirty, and thirty-two, in
pertinent part, state that the trial court “considered all
sanctions allowed by Rule 37,” including “entering lesser
sanctions,” but “these would not compel [appellant] to obey the
Order of the Court.” Again, as discussed above, the trial court
during the hearing and prior to entering the order considered
lesser sanctions. Further, appellant's stated reason for refusing
to answer appellee's interrogatories, in violation of the trial
court's order, was that he would not sign the interrogatories
unless they contained reference to the prenuptial agreement. Thus,
on these facts, the trial court had sufficient evidence to find:
(1) appellant's contentions concerning the prenuptial agreement
were his basis for refusing to comply with the trial court's order
compelling discovery and (2) entering sanctions to remove theprenuptial agreement issue from the case was the only way to compel
appellant to comply with the trial court's order.
Finding of fact twelve, in pertinent part, states that “while
[appellant] produced some documents, it [was] unclear whether
[appellant] produced all of the documents requested, and
[appellant] failed to produce said documents in the manner required
by the rules of civil procedure. . . .” It was undisputed that
appellant delivered a large number of documents to appellee's
counsel. Appellant asserted he properly complied with the document
request. Appellee's counsel argued appellant had not properly
complied under the rules of civil procedure but failed to enter
evidence supporting his argument. Accordingly, finding of fact
twelve was not supported by sufficient evidence. However, striking
finding of fact twelve does not affect the sufficiency of the
remaining findings of fact to support the trial court's conclusions
of law.
Appellant assigns error to conclusions of law three, five, and
six, which state, in sum, that a lesser sanction would not compel
appellant to obey the prior order or any future orders of the trial
court and would be insufficient to mitigate the prejudice to
appellee from appellant's refusal to obey the law and comply with
the orders of the trial court. Findings of fact seventeen,
eighteen, twenty-three, twenty-nine, thirty, and thirty-two were
supported by sufficient evidence and with the unchallenged findings
of fact are sufficient to support the challenged conclusions of
law. For the foregoing reasons, we affirm the trial court's order
of sanctions. Affirmed.
Judges WYNN and STEELMAN concur.
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