J. CALVIN CUNNINGHAM and
LORI WATSON BERGER
v
.
Davidson County
No. 01 CVD 3362
CYNTHIA B. SAMS
Cunningham & Crump, PLLC, by R. Flint Crump, and The Causey
Law Office, by Lori Watson Berger, for plaintiff-appellee.
William J. O'Malley, for defendant-appellant.
WYNN, Judge.
Defendant appeals a default judgment entered 29 July 2003
after the trial court struck her Answer and Counterclaim and all
other pleadings as sanctions for failure to comply with a discovery
order and failure to appear at a show cause hearing. For the
reasons stated herein, we affirm.
The plaintiff-attorneys in this case, J. Calvin Cunningham and
Lori Watson Berger, represented Cynthia Sams (now O'Malley) in a
domestic action that ultimately was resolved under the
representation of Ms. Sams's current attorney, William J. O'Malley.
The matter arose when Mr. Cunningham and Ms. Berger brought legal
proceedings against Ms. Sams to recover their unpaid legal fees.
The trial court entered partial summary judgment in favor of Mr.Cunningham and Ms. Berger, leaving only the issue of the
“reasonableness of the time for which Ms. Sams was billed by Mr.
Cunningham and Ms. Berger.” Ms. Sams appealed the order on summary
judgment, but this Court dismissed the appeal as being
interlocutory on 26 February 2003.
Under The North Carolina State Bar's Revised Rule of
Professional Conduct 3.7, Mr. Cunningham and Ms. Berger moved to
have Mr. O'Malley disqualified as Ms. Sams's attorney because they
intended to call him as a witness during the jury trial on the
reasonableness of attorney fees. After the trial court entered an
order disqualifying Mr. O'Malley and his firm, Hahn & Chastain,
P.A., from any further representation in any capacity in the
matter, Ms. Sams appealed. Ms. Sams filed a Petition for Writ of
Supesedeas and Motion for Temporary Stay on 21 March 2003 to stay
all further proceedings in the trial court pending review of the
order disqualifying counsel. This Court initially denied the
motion for temporary stay on 24 March 2003, but then rescinded that
order ex mero motu on 4 April 2003 and allowed the temporary stay
for the “limited purpose of staying further proceedings in the
district court related to or affected by Judge Mark Culler's 2 July
2002 order disqualifying defendant's counsel.” Then, on 22 April
2003, this Court entered an Order allowing Defendant's petition for
writ of supersedeas and stayed “proceedings in the district court
related to or affected by Judge Mark Culler's 2 July 2002 order
disqualifying defendant's counsel . . . pending disposition of
defendant's appeal.” This Court upheld the trial court's orderdisqualifying defense counsel from representing Defendant at trial,
but reversed the trial court's order disqualifying defense counsel
from representing Defendant in any other capacity in this matter
and the order disqualifying defense counsel's law firm. Cunningham
v. Sams, No. COA02-1623, 2003 N.C. App. LEXIS 2347 (Nov. 18, 2003).
Thereafter this case came before Judge James M. Honeycutt, for
a hearing upon Defendant's Motion for Protective Order and
Application for Stay Order. Judge Honeycutt denied Ms. Sams's
motions in an order entered 27 March 2003. On 23 April 2003 Judge
Honeycutt entered an Order Compelling Discovery after Ms. Sams
failed to show for a scheduled deposition. At this time, the trial
court permitted Mr. O'Malley to act as Ms. Sams's attorney.
On 24 April 2003 Plaintiffs gave Ms. Sams notice for her
deposition to occur at the offices of Cunningham & Crump in
Davidson County, North Carolina. However, Ms. Sams failed to
appear for this deposition, did not file a motion for a protective
order, and did not give Plaintiffs any reason for her lack of
attendance.
On 28 May 2003 Plaintiffs moved for sanctions against Ms. Sams
for her failure to comply with previous discovery orders. The
sanctions requested included striking Ms. Sams's Answer and
Counterclaim and an entry of Judgment for Plaintiffs for the relief
sought in their Complaint. On 9 June 2003 Judge Theodore S.
Royster, Jr. held a hearing regarding the motion for sanctions,
along with other matters, at which both Ms. Sams and her attorney
failed to appear. On 23 June 2003 Judge Royster entered an Orderto Show Cause and an Order to Appear, ordering Ms. Sams to appear.
On 1 July 2003 Judge Royster held the hearing on Plaintiffs' Motion
for Sanctions and Defendant again failed to appear, despite the
Order to Appear. Ms. Sams's attorney appeared at the hearing, and
the trial court gave Ms. Sams's attorney forty minutes to get Ms.
Sams to the hearing. During this break, Ms. Sams's attorney left
the courthouse and did not return for the remainder of the hearing.
The trial court granted Plaintiffs' motion for sanctions and
the Answer and Counterclaims and all other pleadings were stricken
pursuant to Rule 37(b)(2) of the North Carolina Rules of Civil
Procedure. On 29 July 2003 Judge Royster entered a judgment by
default in favor of Plaintiffs in the amount prayed for in their
Complaint, along with attorney fees for the preparation of the 21
May 2003 deposition. Ms. Sams appealed.
____________________________________________
On appeal, Defendant argues that the trial court erred and
abused its discretion in striking its Answer and Counterclaim and
in entering judgment by default. We disagree.
Rule 37(b)(2) of the North Carolina Rules of Civil Procedure
authorizes a trial court to sanction a party for failure to comply
with a court order compelling discovery. The trial court is given
broad discretion to “make such orders in regard to the failure as
are just” and authorized to, among other things, prohibit the
introduction of certain evidence, strike pleadings, dismiss the
action, or render judgment against the disobedient party. N.C.
Gen. Stat. § 1A-1, Rule 37(b)(2) (2003). The trial judge has broad discretion in imposing sanctions
under Rule 37. F. E. Davis Plumbing Co., Inc. v. Ingleside W.
Assocs., 37 N.C. App. 149, 153, 245 S.E.2d 555, 557, cert. denied,
295 N.C. 648, 248 S.E.2d 250 (1978). This Court will not overturn
a sanctions ruling pursuant to Rule 37 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).
The test for abuse of discretion is whether a decision is
manifestly unsupported by reason, or so arbitrary that it could not
have been the result of a reasoned decision. Frost v. Mazda Motor
of Am., Inc., 353 N.C. 188, 199, 540 S.E.2d 324, 331 (2000).
Under Rule 37, “where an answer to the complaint has been
filed a party may move the court to order the answer stricken and
if granted, for entry of default judgment against the disobedient
party.” O'Neal v. Murray, 105 N.C. App. 102, 104, 411 S.E.2d 628,
629-30 (1992). “[B]efore dismissing a party's claim with prejudice
pursuant to Rule 37, the trial court must consider less severe
sanctions.” Hursey v. Homes by Design, Inc., 121 N.C. App. 175,
179, 464 S.E.2d 504, 507 (1995) (citing Goss v. Battle, 111 N.C.
App. 173, 177, 432 S.E.2d 156, 159 (1993)). The trial court is not
required to impose lesser sanctions, but only to consider lesser
sanctions. Goss, 111 N.C. App. at 177, 432 S.E.2d at 159.
The sanctions imposed in this case were harsh. However, such
a motion is left to the discretion of the trial court. Brooks, 106
N.C. App. at 592, 418 S.E.2d at 239. Here, Defendant's repeated
failure to appear for a deposition, even after the trial courtentered an Order Compelling Discovery, was deliberate and an
exercise of dilatory tactics. Defendant also failed to appear for
a hearing after she was given notice of an Order to Appear.
Defendant argues that the Order for Sanctions was predicated
upon prior erroneous orders. Defendant argues that the 24 April
2003 notice of a deposition was defective because it required
Defendant to attend her deposition in an inappropriate county,
Davidson County. “A resident of the State may be required to
attend for examination by deposition only in the county wherein he
resides or is employed or transacts his business in person.” N.C.
Gen. Stat. § 1A-1, Rule 30(b) (2003). At the time of the
deposition Defendant's county of residence was Guilford County.
However, Defendant did not move for a protective order or challenge
the service until after the date of the deposition passed.
If a party fails “to appear before the person who is to take
his deposition . . . the court in which the action is pending on
motion may make such orders in regard to the failure as are just.”
N.C. Gen. Stat. § 1A-1, Rule 37(d) (2003). “The failure to act
described in this section may not be excused on the ground that the
discovery sought is objectionable unless the party failing to act
has applied for a protective order as provided by Rule 26(c).” Id.
Since Defendant failed to apply for a protective order as required
by Rule 37(d), she cannot now argue that the deposition was
objectionable. As Defendant's failure to attend the 21 May 2003
deposition was inexcusable, her argument, that the order forsanctions was based on a faulty interpretation of the facts and
law, is unfounded.
It is in the trial court's discretion to issue sanctions.
Brooks, 106 N.C. App. at 592, 418 S.E.2d at 239. The trial court's
decision was not unreasonable or arbitrary. Frost, 353 N.C. at 199
540 S.E.2d at 331. Therefore, the trial court did not abuse its
discretion in ordering sanctions imposed on Defendant.
Before striking Defendant's Answer and Counterclaim the trial
court considered less severe sanctions. Hursey, 121 N.C. App. at
179, 464 S.E.2d at 507. In the Findings of Fact of the Order for
Sanctions and Judgment by Default the trial court found:
This Court has considered Rule 37(b)(2) and
all remedies available to the Plaintiffs under
said rule. The Court has considered striking
a portion of the Defendant's pleadings in this
matter as a remedy to the Plaintiffs.
However, there is only one issue to be
determined in this case, which is
reasonableness of attorney fees. The Court
has considered holding the Defendant is[sic]
contempt as a remedy to the Plaintiffs.
However, the Defendant has been held in
contempt and still refuses to abide by the
rules of discovery. The Court has considered
awarding the Plaintiffs' reasonable attorney
fees. However, the Court has previously
awarded attorney fees to the Plaintiff and the
Defendant still refuses to abide by the rules
of discovery. After consideration, the Court
finds that under the circumstances in the case
at bar, the only fair and just remedy is to
enter judgment by default in favor of the
Plaintiffs.
Since the trial court considered lesser sanctions, it was in its
discretion to strike Defendant's Answer and Counterclaim and all
other pleadings. Goss, 111 N.C. App. at 177, 432 S.E.2d at 159. As the trial court did not err in striking the Answer and
Counterclaim, entry of a default judgment in favor of Plaintiffs
was proper.
Defendant also argues that the trial court erred in awarding
Plaintiffs attorney fees. However, since the Defendant cited no
authority to support this argument, it is deemed abandoned. N.C.
R. App. P. 28(b)(6).
Defendant also asserts numerous other assignments of error.
Since there is no err in the entry of the default judgment, these
do not need to be addressed. Regardless, we find no error as to
the remaining assignments of error.
Affirmed.
Judges MCCULLOUGH and THORNBURG concur.
Report per Rule 30(e).
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