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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN RE PEDESTRIAN WALKWAY FAILURE
SANDRA D. MELTON, and husband, ROBERT MORRIS MELTON, JR., and
ROBERT CHRISTOPHER MELTON, Plaintiffs, v. TINDALL CORPORATION,
formerly, TINDALL CONCRETE PRODUCTS, INC., Defendant
Filed: 20 September 2005
1. Discovery--violations and other misconduct--findings and conclusions of law
The trial court did not abuse its discretion in a negligence case by dismissing plaintiff's
lawsuit pursuant to N.C.G.S. § 1A-1, Rules 37 and 41 for discovery violations and other
misconduct even though plaintiff contends the trial court's findings and conclusions that
catalogue his misconduct are unsupported by the evidence, because: (1) by failing to timely
produce a copy of his 2001 income tax return that stated profits from the sale of a house, plaintiff
did in fact deny defendant at least some discovery with respect to his profits from the sale when
defendant was trying to determine plaintiff's lost wages; (2) in his 20 October 2003 court-ordered
deposition, plaintiff was evasive when discussing specific figures concerning the costs of
building the house and stated that his father handled the books; (3) the judge was not precluded
from finding that there were false representations to the court and opposing counsel concerning
when plaintiff had filed his 2001 federal income tax return; (4) there was evidence to support the
judge's ruling that the 8 October 2003 version of plaintiff's 2001 federal income tax return
contradicted his deposition testimony that he sold his house for a profit; (5) there was sufficient
evidence for the judge's determination that plaintiff acted to frustrate a court order and
defendant's efforts to obtain discovery by having his father prepare the 2001 tax return dated 16
October 2003; and (6) there was sufficient evidence to support the judge's determination that
plaintiff engaged in a pattern of intentional misconduct to prevent defendant from pursuing
discovery on the issue of profits from the home.
2. Discovery--violations and other misconduct--failure to produce state income tax
The trial court did not abuse its discretion in a negligence case by dismissing plaintiff's
lawsuit pursuant to N.C.G.S. § 1A-1, Rules 37 and 41 for discovery violations and other
misconduct even though plaintiff contends the trial court erroneously concluded that plaintiff
committed discovery violations by failing to produce his 2001 North Carolina income tax return,
because: (1) in a request for production of documents, plaintiff was asked to turn over all
documents related in any way to his claim of lost wages caused by a pedestrian walkway failure;
(2) as plaintiff's deposition testimony was equivocal as to whether such a return had been
prepared and filed, the trial court was permitted to conclude that the document existed and had
not been produced; and (3) failure to produce the state return violated plaintiff's duty to produce
discoverable documents and supplement discovery responses as mandated by N.C.G.S. § 1A-1,
Rules 26 and 37 as well as the trial court's Case Management Orders 1 and 5.
3. Constitutional Law--invocation of Fifth Amendment right--subjecting claim to
dismissal by blocking discovery in civil case
The trial court did not err in a negligence case by conducting a Fifth Amendment analysis
concluding that plaintiff waived his Fifth Amendment right to refuse to provide self-
incriminating testimony in light of evidence that was already disclosed, and even if there was nowaiver, plaintiff had subjected his claim to dismissal by invoking the right to block discovery by
defendant seeking to determine whether plaintiff profited from the sale of a house as he had
claimed when defendant was attempting to discover plaintiff's lost wages.
4. Discovery--discovery violations--dismissal of case--consideration of lesser sanctions
The trial court did not err in a negligence case by dismissing plaintiff's claims based on
discovery violations and other misconduct without first considering less severe sanctions,
because: (1) the trial court is not required to impose lesser sanctions, but only to consider lesser
sanctions; and (2) defendant filed a motion which requested that plaintiff be sanctioned with
dismissal of his claims or in the alternative lesser sanctions, and the trial court's order
demonstrates it considered the lesser sanctions before ordering dismissal.
5. Judges--motion for recusal-_failure to show bias or prejudice
The trial court did not err in a negligence case by denying plaintiff's motion to recuse the
judge who entered the dismissal order even though plaintiff contends the judge's partiality was
suspect since his daughter was hired to work as a summer associate for defendant while she was
in law school, he strongly encouraged the parties to settle, and he refused to allow videotaped
testimony of plaintiff's expert witnesses, because: (1) the judge informed the parties about his
daughter's employment and nobody objected to his continuing to act as the presiding judge; (2)
the judge consulted with the Judicial Standards Commission which confirmed that his
disqualification was not required; (3) the judge's daughter had no knowledge of, and no
involvement with, the pedestrian walkway litigation; (4) there was no indication that the
circumstances attending his daughter's summer employment in any way biased the judge from
being evenhanded and unbiased; (5) the judge's suggestion that the parties settle was not
improper; (6) the trial court established very specific guidelines for the taking of videotaped
depositions to be used at trial and plaintiff failed to comply with those guidelines; and (7) the fact
that a judge has repeatedly ruled against a party is not grounds for disqualification of that judge
absent substantial evidence to support allegations of interest or prejudice.
Appeal by plaintiff Robert Christopher Melton from an order
entered 11 December 2003 by Judge Thomas W. Seay, Jr., and an order
entered 13 April 2004 by Judge W. Erwin Spainhour in Mecklenburg
County Superior Court. Heard in the Court of Appeals 19 May 2005.
Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and
Kathleen A. Naggs; Mauriello Law Offices, by Christopher D.
Mauriello; and Wallace and Graham, P.A., by Mona Lisa Wallace
and Marc P. Madonia, for plaintiff appellant.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by James
T. Williams, Jr., Reid L. Phillips, and Robert J. King, III,
for defendant appellee.
Parker Poe Adams & Bernstein, by David N. Allen, John E.
Grupp, and Lori R. Keeton, for Charlotte Motor Speedway
L.L.C., amicus curiae.
Plaintiff Robert Christopher Melton (Melton) appeals from the
dismissal of his lawsuit for discovery violations and other
misconduct, and from the denial of his motion to have the trial
judge who entered the dismissal order recused. We affirm.
On 20 May 2000, a pedestrian walkway collapsed at the Lowe's
Motor Speedway (the Speedway) in Concord, North Carolina, causing
injuries to several people who were using the walkway to leave a
NASCAR event. Defendant Tindall Corporation (Tindall) had been
involved in constructing the collapsed walkway.
As a result of the walkway collapse, approximately 100 people,
including Melton, filed actions against, inter alia
, Tindall and
the Speedway. Melton's lawsuit alleged that negligence by Tindall
and the Speedway was the proximate cause of his bodily injury, lost
wages, and/or diminution in his future earning capacity.
The Honorable Chief Justice of the North Carolina Supreme
Court designated each case related to the walkway collapse an
exceptional case pursuant to Rule 2.1 of the General Rules of
Practice for the Superior and District Courts, and each case was
assigned to be heard by Superior Court Judge W. Erwin Spainhour.
As such, Melton's case was designated exceptional and assigned to
Judge Spainhour. In early 2003, the first pedestrian walkway case was tried.
In that case
, the jury found that the Speedway and Tindall were
liable. Accordingly, Judge Spainhour ruled that the issue of
liability had been established by collateral estoppel with respect
to the remaining plaintiffs. Thus, Melton's suit required only a
trial to determine his damages. The Speedway eventually settled
with Melton, leaving Tindall as the only defendant with respect to
At some point in the litigation, it became clear that Melton's
lost profits and diminution in future earnings capacity claims
hinged upon his assertion that he was self-employed as a general
contractor. Discovery indicated that Melton had built one house,
and the profits that he supposedly received from the sale of this
house were central to his claim for damages.
Discovery with respect to the profits from the sale of the
house, like all of the discovery in the pedestrian walkway cases,
was governed by a series of orders entered by Judge Spainhour, as
well as by the North Carolina Rules of Civil Procedure. Given the
voluminous discovery he was designated to oversee, Judge Spainhour
conducted a series of status conferences and entered a number of
Case Management Orders (CMOs) to govern the conduct of parties. In
CMO No. 1, entered 20 September 2001, the judge set forth, inter
, the following discovery guidelines:
It is the expectation of the Court that all discovery in
these cases will be conducted in a manner that is in
keeping with both the letter and spirit of the Rules of
Civil Procedure relating to discovery and the provisions
of this Order. It is the Court's expectation that alldiscovery responses will contain full and complete
answers and responses, and will be provided in a timely
. It is also the Court's expectation that counsel
for all parties will cooperate with one another regarding
the scheduling of depositions and other matters relating
to discovery in a manner so that the necessary discovery
in this matter can be conducted in a productive manner
with minimal involvement by the Court. Counsel for the
parties shall first engage in good faith attempts to
resolve any and all disputes and objections regarding
discovery before seeking the . . . judge's assistance.
Motions to compel shall specifically describe the
discovery requests at issue.
(Emphasis added.) In CMO No. 5, entered 30 October 2002, the judge
made the following directive:
9. By the earlier of November 1, 2002, or two (2)
weeks before the date(s) scheduled for mediation, every
Plaintiff shall serve on Defendants' counsel (i)
to the Defendants' First Set of
Interrogatories and Request for Production of Documents,
and (ii) a certification that a complete and updated set
of medical records and bills, life care plans and
economic appraisals/reports have been provided to
Early in the litigation, the following requests for production
of documents were addressed to Melton:
REQUEST NO. 5: All statements, bills, invoices, receipts,
checks and other documents that relate in any way to the
items of expense or loss for which you seek compensation
in this action.
* * * *
REQUEST NO. 6: Any and all documents that you contend
support your claim, if any, of lost wages caused by the
Plaintiff was also asked to produce all of his federal and state
income tax returns filed for the years of 1995-2000. In a deposition taken on 5 December 2001, Melton testified
that, in 2001, he made a profit of approximately $18,000 on the
sale of the house he had built. Defense counsel later discovered
that Melton had not produced certain income tax documents for 2001
and 2002. Melton's attorney was notified of these omissions in a
9 May 2003 letter stating the following:
[I]t appears that . . . Melton has never produced copies
of his 2001 or 2002 income tax returns, or any 1099 or
W-2 forms for 2002. These documents are obviously
relevant to Mr. Melton's claim of lost earnings, since
they relate to his earning capacity and act to mitigate
his claimed damages. As such, these documents should
have been produced in response to various document
requests, including Requests no[s]. 5 and 6 in the
Speedway's First Request for Production of Documents and
Tindall's Comprehensive Request for Supplementation.
Please have these documents delivered to me by Tuesday,
In a 12 May 2003 letter, Melton's lawyer responded by noting that
Mr. Melton is unable to locate his actual  income tax
records. Along with the letter, Melton included his 2002 tax
Tindall subsequently filed a motion to compel production of
Melton's 2001 tax documents. At the hearing on this motion, the
following colloquy ensued:
[PLAINTIFF'S ATTORNEY]: . . . I contacted Mr.
Melton [with respect to the 2001 tax documents] about
three, four times to try and get them from him. He
contacted the IRS and he tried to get them, and he
couldn't get them. And that was the response I got from
THE COURT: Well, he certainly can get them. I've
done it myself. He is incorrect about that. . . .
[DEFENSE COUNSEL]: You can get the form off the web
THE COURT: Right.
[PLAINTIFF'S ATTORNEY]: Again, I'm just--we tried
to get it, and I have the letter saying the response from
him and my paralegal trying to get them. And I certainly
have no problem trying to get them. We've tried a number
of times to do that.
On 30 September 2003, Judge Spainhour entered an order requiring
Melton to obtain his 2001 federal income tax return and Form 1099
from the Internal Revenue Service and compelling production of
these documents. A Form 4506 Request for Copy or Transcript of
Tax Form was attached to the order.
Melton subsequently provided defense counsel with a 2001
federal individual income tax return dated 8 October 2003, after
entry of the order compelling production of this document . The
only income reported for 2001 on this return was $15,979.00, the
amount paid to Melton by an employer, Jensen Construction, in 2001.
Thus, this return did not reflect that Melton had profited from the
sale of a house in 2001. Melton did not produce the Form 1099
relating to the sale of his house as required by Judge Spainhour's
order. Furthermore, though the order compelling production of
documents did not specifically require Melton to produce his 2001
North Carolina income tax return, the letter from his attorney
accompanying the federal tax return indicated that Melton's income
tax records for 2001 were enclosed with the letter. No 2001 state
tax return was included in the mailing.
On 10 October 2003, Tindall filed a motion to strike Melton's
lost profits evidence on the ground that he had produced no
documents to substantiate his claim. Further, Tindall alleged thatMelton either failed to report profits from the sale of his house
to the IRS, or falsely represented to the court that he earned
profits from the sale of a house he had built. As an alternative
to striking evidence, Tindall's motion requested that it be allowed
to re-depose Melton regarding the 2001 tax return, the missing Form
1099, and all related issues. Judge Spainhour entered an order
permitting Tindall to re-depose Melton and again ordered Melton to
deliver to counsel for Tindall all documents relating in any way
to the construction and sale of the house owned by [him] that was
sold in 2001, including but not limited to the 1099 Form for such
sale, regardless of whether such documents have previously been
produced to Tindall.
Just prior to being re-deposed on 20 October 2003, Melton
produced another 2001 federal income tax return dated 16 October
2003, which did include income from the sale of a house. During
the deposition, Melton stated that he had only filed one federal
income tax return for 2001: the one dated 8 October 2003. He
claimed to be waiting to file the return dated 16 October 2003
until his deposition had been completed. Melton admitted that he
did not include the income from the sale of the house he built in
the 8 October return because he didn't have the money at the time
to pay . . . the taxes. Later in the deposition, Melton's lawyer
asserted that the Fifth Amendment right against self-incrimination
allowed Melton to decline to respond to a question about whether he
deliberately didn't tell the IRS about [the] profits [from the
house]. Further, Melton generally declined to answer specificquestions about the items on the 16 October return based upon his
assertion that his father had prepared it. With respect to his
2001 state income tax return, Melton equivocated: at first, he
claimed that he had filed a 2001 North Carolina income tax return
without making payment and that a copy of the return was at his
residence, but he later indicated that the return had not even been
prepared. Melton further admitted that he did not actually have
any income tax returns for 2001 when his attorney indicated that
Melton was unable to locate such records and that he never
mistakenly thought that he had already filed his tax returns.
Following this deposition, Tindall filed a supplement to its
motion to strike the lost profits evidence in which it requested,
inter alia, that all of Melton's claims be dismissed. Just prior
to the hearing on this motion, Melton filed a motion to recuse
Judge Spainhour. Judge Spainhour entered an order referring the
recusal motion to another judge to be appointed by the North
Carolina Administrative Office of the Courts (AOC). AOC appointed
Superior Court Judge Thomas W. Seay, Jr., to rule on the motion.
After conducting a hearing, Judge Seay determined that there [was]
no believable evidence of any bias, prejudice, or favoritism for or
against any party and that neither the records in th[e] case
[nor] any evidence or exhibits offered . . . create[d] a reasonable
perception that Judge Spainhour would be unable to rule impartially
or would, for any reason, fail to provide the plaintiffs and
defendants with a fair and impartial trial. Accordingly, Judge
Seay denied the motion for recusal. After the denial of the recusal motion, Judge Spainhour
conducted a hearing on Tindall's pending motion to strike Melton's
lost profits evidence and/or dismiss his claims. In an order
entered 13 April 2004, Judge Spainhour determined the following:
27. By failing to produce his 2002 income tax returns
in a timely fashion, Melton violated both [North
Carolina Rules of Civil Procedure] 26 and 34 and
Case Management Order[s] . . . 1 and 5.
28. By failing to produce his 2001 North Carolina
income tax return, Melton violated both [North
Carolina Rules of Civil Procedure] 26 and 34 and
Case Management Order[s] . . . 1 and 5.
29. The representation to [defense] counsel in the
letter from Melton's counsel dated May 12, 2003
that Melton had been unable to locate his 2001
income tax documents was false.
30. The representations to the Court in the September
19, 2003 hearing that Melton had made repeated
efforts to obtain his 2001 federal income tax
returns from the Internal Revenue Service were
31. Melton knew at the time of the foregoing letter to
Tindall's counsel and at the time of the September
19, 2003 hearing that he had not filed his 2001
federal income tax return.
32. The October 8, 2003 version of Melton's 2001
federal income tax return contradict[s] Melton's
deposition testimony that he had sold a house for a
33. Melton's refusal to answer questions regarding the
filing of his 2001 federal income tax return,
citing his Fifth Amendment right against
self-incrimination, was inappropriate since Melton
had already admitted that he had intentionally
filed [an] incorrect return and thereby had
waived his Fifth Amendment privilege. . . .
34. Even if Melton had not waived his Fifth Amendment
rights as to the filing of the 2001 federal
return, a plaintiff who invokes the Fifth
Amendment to block discovery by the defendant in acivil action subjects his claim to dismissal. . . .
35. By having a third party prepare the October 16,
2003 version of his 2001 federal income tax
return, Melton acted to frustrate the Court's
verbal [o]rder . . . as well as Tindall's efforts
to obtain discovery on a material issue in this
36. Melton has engaged in a pattern of intentional
misconduct that was apparently designed to prevent
Tindall from pursuing discovery on the issue of the
profits of the house supposedly sold for a profit
in 2001. In doing so, Melton violated [North
Carolina Rules of Civil Procedure] 26 and 34 and
the [o]rders of th[e] Court, made
misrepresentations to th[e] Court and opposing
counsel, wrongly refused to answer questions in a
court-ordered deposition, and offered contradictory
testimony as to the existence of important
37. . . . Melton had several opportunities to mitigate
the harm caused by such conduct. For example, after
Melton's failure to produce 2001 tax records was
pointed out by Tindall, Melton could have admitted
that no such records had been generated, instead of
making misrepresentations to the Court and counsel
for Tindall on the issue. Similarly, after the
Court issued its October 13, 2003 [o]rder that
Melton be re-deposed, Melton could have testified
fully and truthfully regarding the existence and
content of the 2001 tax returns. Instead, Melton
refused to answer questions regarding the federal
return and gave contradictory testimony regarding
the state return.
(Citations omitted.) After considering other sanctions, Judge
Spainhour concluded that sanctions less severe than dismissal
would not be adequate given the seriousness of the misconduct.
Accordingly, Melton's claims were dismissed pursuant to N.C. Gen.
Stat. § 1A-1, Rules 37 and 41.
From the dismissal of his claims and the denial of his recusal
motion, Melton now appeals.
We first address Melton's arguments concerning the dismissal
of his claims due to discovery violations and other misconduct.
These arguments lack merit.
At the outset, we note that Judge Spainhour dismissed Melton's
claims pursuant to both N.C. Gen. Stat. § 1A-1, Rules 37 and 41.
Rule 37 provides that [i]f a party . . . fails to obey an order to
provide . . . discovery . . . [,] a judge of the court in which the
action is pending may make such orders in regard to the failure as
are just, and among others . . . [a]n order . . . dismissing the
action or proceeding or any part thereof . . . . N.C. Gen. Stat.
§ 1A-1, Rule 37(b)(2)(c) (2003). The imposition of sanctions under
Rule 37 is in the sound discretion of the trial judge and cannot
be overturned absent a showing of abuse of that discretion.
Bumgarner v. Reneau, 332 N.C. 624, 631, 422 S.E.2d 686, 690 (1992).
An abuse of discretion may arise if there is no record
evidence which indicates that defendant acted improperly, or if the
law will not support the conclusion that a discovery violation has
occurred. See Cloer v. Smith, 132 N.C. App. 569, 573, 512 S.E.2d
779, 782 (1999) (discussing a trial court's findings with respect
to discovery violations and holding that the deposition transcript
supports the trial court's findings that counsel for [one of the
parties] refused to allow [the party] to answer some questions,
and, in other instances, 'told [the party] what to say'); King v.
Koucouliotes, 108 N.C. App. 751, 754, 425 S.E.2d 462, 464
(conducting a legal analysis to determine whether . . . trialwitnesses and trial exhibits are discoverable), disc. review
improvidently allowed, 335 N.C. 164, 436 S.E.2d 132 (1993).
Further, [t]he choice of sanctions under Rule 37 is within the
trial court's discretion and is reviewable only for an abuse of
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).
Rule 41 permits a trial court to dismiss an action or claim
[f]or failure of the plaintiff . . . to comply with the rules
[of Civil Procedure] or any order of [the] court. N.C. Gen. Stat.
§ 1A-1, Rule 41(b). [T]he power to sanction disobedient parties,
even to the point of dismissing their actions or striking their
defenses, did not originate with Rule 41(b). It is longstanding
and inherent. For courts to function properly, it could not be
otherwise. Minor v. Minor, 62 N.C. App. 750, 752, 303 S.E.2d 397,
399 (1983) (citation omitted). Dismissal under Rule 41(b) is left
to the sound discretion of the trial court and will not be
disturbed on appeal in the absence of a showing of abuse of
discretion. Kerik v. Davidson Cty., 145 N.C. App. 222, 227, 551
S.E.2d 186, 190 (2001).
 Melton first contends that the findings and conclusions by
Judge Spainhour that catalogue his misconduct are unsupported by
evidence in the record. Melton specifically cites five allegedly
First, he alleges there is no evidence in support of Judge
Spainhour's finding that Tindall was denied discovery relating tothe costs of, and profits from, the sale of Melton's house in 2001.
However, by failing to timely produce a copy of his 2001 income tax
return that stated profits from the sale of the house, Melton did,
in fact, deny Tindall at least some discovery with respect to his
profits from the sale. Moreover, in his 20 October 2003 court-
ordered deposition, Melton was evasive when discussing specific
figures concerning the costs of building the house and stated that
his father handled the books. Thus, there is ample evidentiary
support for Judge Spainhour's finding.
Second, Melton asserts that the record does not support the
determinations that he falsely represented to the court and
opposing counsel that he had filed his 2001 federal income tax
return before 8 October 2003. The basis of this argument is
Melton's contention that his lawyer's statements, which indicated
that the 2001 federal income tax return was filed as of a hearing
in September of 2003, are not attributable to Melton. However, it
is the established law of this State that, especially with respect
to discovery, admissions of attorneys are binding upon their
clients, and are generally conclusive. Karp v. University of
North Carolina, 78 N.C. App. 214, 216, 336 S.E.2d 640, 641 (1985);
see also Henderson v. Wachovia Bank of N.C., 145 N.C. App. 621,
624, 551 S.E.2d 464, 467 (noting that there is a preference in the
law to impute lawyer conduct to clients), disc. review denied, 354
N.C. 572, 558 S.E.2d 869 (2001). The facts and circumstances of
the instant case do not justify deviation from this principle.
Thus, Judge Spainhour was not precluded from finding that therewere false representations to the court and opposing counsel
concerning when Melton had filed his 2001 federal income tax
Third, Melton avers that there was no evidence in support of
Judge Spainhour's ruling that the 8 October 2003 version of
Melton's 2001 federal income tax return contradicted his deposition
testimony that he sold his house for a profit. However, it is
undisputed that the 8 October 2003 version of Melton's 2001 federal
tax return did not report a profit from the sale of a house and
that Melton's deposition testimony indicated that he did profit
from the sale of a house.
Fourth, Melton alleges that there was no evidentiary support
for Judge Spainhour's determination that he acted to frustrate a
court order and Tindall's efforts to obtain discovery by having his
father prepare the 2001 tax return dated 16 October 2003. Our
review indicates that Judge Spainhour ordered Melton to be deposed
on, inter alia, the issuance and filing of tax documents relating
to his income in 2001. However, Melton testified during his
court-ordered deposition that he was not familiar with the figures
on the revised return because his father had prepared it. This
evidence was sufficient to permit Judge Spainhour's determination
that Melton acted to frustrate the order and that he had hindered
Tindall's efforts to obtain discovery.
Fifth, Melton argues there was no evidence to support Judge
Spainhour's determination that he had engaged in a pattern of
intention misconduct to prevent Tindall from pursuing discovery onthe issue of profits from the home. In essence, this argument is
a catch-all argument in which Melton insists that, because there
was no evidence of any misconduct at all, Judge Spainhour could not
find the misconduct to be intentional. However, as already
indicated, the evidence of misconduct was substantial. Moreover,
the evidence before Judge Spainhour easily permitted him to
conclude that Melton had engaged in a pattern of misconduct to
 Melton next argues that Judge Spainhour erroneously
concluded that he had committed discovery violations by failing to
produce his 2001 North Carolina income tax return. We do not
Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the
pending action . . . , including the existence, description,
nature, custody, condition and location of any . . . documents, or
other tangible things . . . . N.C. Gen. Stat. § 1A-1, Rule
26(b)(1) (2003). Discovery may be made by an appropriate request
for the production of documents. N.C. Gen. Stat. § 1A-1, Rule
26(a). A party generally has no duty to supplement discovery that
was complete when made; however [a] duty to supplement responses
may be imposed by order of the court, agreement of the parties, or
at any time prior to trial through new requests for supplementation
of prior responses. N.C. Gen. Stat. § 1A-1, Rule 26(e)(3). Any party may serve on any other party a request . . . to
produce . . . any designated documents . . . . N.C. Gen. Stat. §
1A-1, Rule 34(a) (2003). [I]nspection and related activities will
be permitted as requested, unless the request is objected to, in
which event the reasons for objection shall be stated. N.C. Gen.
Stat. § 1A-1, Rule 34(b).
In addition, Judge Spainhour's CMO No. 1 required the parties
to conduct discovery in accordance with both the letter and spirit
of the Rules of Civil Procedure relating to discovery and ordered
all discovery responses to contain full and complete answers and
responses, and [to] be provided in a timely fashion. Judge
Spainhour's CMO No. 5 required discovery responses to be
In a request for production of documents, Melton was asked to
turn over all documents related in any way to his claim of lost
wages caused by the walkway failure. On 9 May 2003, a defense
attorney wrote a letter to Melton's lawyer stating that he did not
yet have Melton's 2001 tax records and that these records should
have been produced pursuant to the request for production of
documents. Melton's attorney replied that the 2001 records had
been lost but did not assert that they were not discoverable.
Thereafter, Judge Spainhour ordered Melton to be re-deposed
regarding the issuance and filing of tax documents relating to his
income in 2001 and required him to produce all documents relating
in any way to the construction and sale of the house . . . that was
sold in 2001. Melton has never argued that his 2001 state taxreturn was not covered by defense requests and orders of the court,
and he does not dispute that, as of the date of his dismissal
hearing, he had not produced his 2001 state tax return. As
Melton's deposition testimony was equivocal as to whether such a
return had been prepared and filed, Judge Spainhour was permitted
to conclude that the document existed and had not been produced.
Further, we conclude that there was no error in Judge Spainhour's
conclusion that Melton's failure to produce the 2001 state return
violated his duties to produce discoverable documents and
supplement discovery responses as mandated by N.C. Gen. Stat. § 1A-
1, Rules 26 and 37, as well as CMOs Nos. 1 and 5.
 In his next argument on appeal, Melton contends that Judge
Spainhour's Fifth Amendment analysis was inappropriate. Judge
Spainhour concluded that Melton had waived his Fifth Amendment
right to refuse to provide self-incriminating testimony, but that,
even if there was no waiver, Melton had subjected his claim to
dismissal by invoking the right to block discovery by defendant.
This Court has held that a civil plaintiff who invokes the
Fifth Amendment to thwart discovery subjects his claim to
dismissal. Sugg v. Field, 139 N.C. App. 160, 164, 532 S.E.2d 843,
846 (2000). However, before dismissing a claim based upon
plaintiff's refusal to testify in reliance upon the privilege
against self-incrimination, [a] court must employ [a] balancing
test . . . weighing [plaintiff]'s privilege against
self-incrimination against the other party's rights to due processand a fair trial. Id. (citations omitted).
In the instant case, one of the purposes of the court-ordered
deposition of Melton was to determine whether he profited from the
sale of a house. Defense counsel was asking questions designed to
show whether there were such profits, in which case Melton had been
dishonest on the only 2001 federal tax return that he had actually
filed, or no such profits existed, in which case Melton was being
dishonest with defense counsel and the court. Therefore, Melton's
decision to assert the Fifth Amendment, rather than answer a
question concerning why he did not tell the IRS about the profits,
served to impede Tindall's ability to obtain accurate discovery
about the nature of the profits from the sale of the house. Judge
Spainhour's order is replete with references to the importance of
this information, and it properly indicates that the value of
asserting the Fifth Amendment was minimal in light of the conduct
Melton had already disclosed. Accordingly, even assuming arguendo
that Melton did not waive his right to assert the Fifth Amendment,
Judge Spainhour properly ruled that, by so doing, Melton subjected
his claims to dismissal.
 In his next argument on appeal, Melton contends that Judge
Spainhour erred by dismissing his claims without first considering
less severe sanctions. A dismissal pursuant to Rule 41 should be
applied 'only when the trial court determines that less drastic
sanctions will not suffice.' Miller v. Ferree, 84 N.C. App. 135,
136, 351 S.E.2d 845, 847 (1987). Likewise, '[b]efore dismissinga party's claim with prejudice pursuant to Rule 37, the trial court
must consider less severe sanctions.' Global Furn., Inc. v.
Proctor, 165 N.C. App. 229, 233, 598 S.E.2d 232, 235 (2004)
(citation omitted). The trial court is not required to impose
lesser sanctions, but only to consider lesser sanctions. Id.
Moreover, this Court will affirm an order for sanctions where it
may be inferred from the record that the trial court considered all
available sanctions and the sanctions imposed were appropriate in
light of [the party's] actions in th[e] case. Hursey v. Homes by
Design, Inc., 121 N.C. App. 175, 179, 464 S.E.2d 504, 507 (1995).
In the instant case, Tindall filed a motion which requested
that Melton be sanctioned with the dismissal of his claims but also
requested, in the alterative, lesser sanctions. Judge Spainhour's
order states that
[t]he Court has carefully considered each of [Melton's]
acts [of misconduct], as well as their cumulative effect,
and has also considered the available sanctions for such
misconduct. After thorough consideration, the Court has
determined that sanctions less severe than dismissal
would not be adequate given the seriousness of the
misconduct . . . .
We conclude that this sufficiently demonstrates that Judge
Spainhour considered lesser sanctions before ordering a dismissal.
Thus, we conclude that Judge Spainhour did not abuse his
discretion by dismissing Melton's claims. The corresponding
assignments of error are overruled, and the dismissal order is
 We next address Melton's argument that Judge Seay erred by
denying the motion to recuse Judge Spainhour.
(See footnote 1)
[A] party has a right to be tried before a judge whose
impartiality cannot reasonably be questioned. State v. Fie
N.C. 626, 627, 359 S.E.2d 774, 775 (1987). Therefore, [o]n motion
of any party, a judge should [be] disqualif[ied] . . . in a
proceeding in which his impartiality may reasonably be questioned,
including but not limited to instances where . . . he has a
personal bias or prejudice concerning a party . . . . Code of
Judicial Conduct, Canon 3(C)(1)(a) (2005).
Melton insists that Judge Spainhour's impartiality was suspect
because his daughter, while in law school, was hired to work as a
summer associate in the media and communications law department of
the firm representing Tindall. The record tends to show that, upon
being informed of the offer of employment to his daughter, Judge
Spainhour informed counsel for all of the parties involved in the
pedestrian walkway litigation, and none objected to his continuing
to act as the presiding judge. At a 29 April 2003 hearing, Judge
Spainhour again informed counsel for the plaintiffs and defendants
in the pedestrian walkway matter of his daughter's employment.
Judge Spainhour also indicated that he had consulted with the NorthCarolina Judicial Standards Commission, which had confirmed that
his disqualification was not required. Again, no party objected to
Judge Spainhour continuing to preside over any of the pedestrian
walkway cases. On 31 October 2003, Judge Spainhour sent an e-mail
to counsel for Melton, Tindall, and the Speedway stating that his
daughter would be working a second summer with Tindall's law firm.
The record indicates that Judge Spainhour's daughter had no
knowledge of, and no involvement with, the pedestrian walkway
In addition to the general rules requiring impartiality, a
judge must be disqualified from hearing a case in which his son or
daughter is acting as a lawyer in the proceeding. Code of
Judicial Conduct, Canon 3(C)(1)(d)(ii) (2005). However, in the
instant case, Judge Spainhour's daughter was not acting as a lawyer
in the pedestrian walkway cases, and there is no indication that
the circumstances attending her summer employment in any way
prevented Judge Spainhour from being evenhanded and unbiased.
Therefore, his daughter's employment situation did not require
Judge Spainhour's recusal.
Melton next argues that Judge Spainhour had to be recused
because he strongly encouraged the parties to reach a settlement.
Specifically, Melton takes issue with an e-mail to his attorney and
Tindall's attorneys in which Judge Spainhour noted that he was
concerned about Tindall's motion to strike filed after Melton's
court-ordered deposition and suggested that the parties seriously
re-visit the idea of a settlement before . . . the hearing [on themotion]. We note that a trial judge's decision to explor[e]
settlement possibilities [is] a function to be commended to all
trial judges in civil cases and is not generally a ground for
disqualifying a judge. Roper v. Thomas
, 60 N.C. App. 64, 76, 298
S.E.2d 424, 431 (1982), disc. review denied
, 308 N.C. 191, 302
S.E.2d 244 (1983). Moreover, even where a trial judge becomes
ostensibly angry at the failure of settlement negotiations, his
disqualification is not necessarily required under the law. State
, 94 N.C. App. 250, 258-59, 380 S.E.2d 400, 404,
appeal dismissed, disc. review denied
325 N.C. 711, 388 S.E.2d 466
(1989). In the instant case, we are unpersuaded that Judge
Spainhour's suggestion that the parties settle was improper.
Therefore, Judge Seay did not err by declining to order recusal on
Finally, Melton alleges impropriety in Judge Spainhour's
refusal to allow videotaped testimony of Melton's expert witnesses.
The record indicates that Judge Spainhour established very specific
guidelines for the taking of videotaped, for-trial depositions
and that Melton had not complied with these guidelines.
Accordingly, Judge Spainhour denied his request to allow videotaped
testimony of Melton's expert witnesses. This ruling did not
constitute a ground for recusal in light of the facts and
circumstances of the instant case. See Love v. Pressley
, 34 N.C.
App. 503, 506, 239 S.E.2d 574, 577 (1977) ([T]he fact that a trial
judge has repeatedly ruled against a party is not grounds for
disqualification of that judge absent substantial evidence tosupport allegations of interest or prejudice.
), disc. review
, 294 N.C. 441, 241 S.E.2d 843 (1978).
Thus, we conclude that Judge Seay did not err by denying
Melton's motion to recuse Judge Spainhour. The corresponding
assignments of error are overruled, and the recusal order is
For the foregoing reasons, the orders appealed from are
Judges TIMMONS-GOODSON and TYSON concur.
Melton has also filed a petition for writ of certiorari
requesting review of Judge Seay's recusal order [i]n the event
this Court determine[d] the [r]ecusal [o]rder . . . [was] not
appealable. As we have determined that the recusal order is
appealable, the petition for a writ of certiorari
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