ROBIN DEANS,
Plaintiff-Appellee,
v
.
Mecklenburg County
No. 01 CVD 15895
DAVID TERRY,
Defendant-Appellant.
Robert D. McDonnell for plaintiff-appellee.
Timothy M. Stokes for defendant-appellant.
McGEE, Judge.
Robin Deans (plaintiff) filed a complaint on 21 August 2001
seeking enforcement of a custody, visitation, child support, and
alimony agreement entered into with her former husband, David Terry
(defendant), on 1 November 1996. The parties thereafter engaged in
a protracted period of discovery. Defendant repeatedly failed to
cooperate with plaintiff's discovery requests, as outlined below.
Requests for the Production of Documents. Plaintiff served
defendant with a request for the production of documents along with
her complaint on 14 September 2001. Defendant responded and
objected in part to the request for the production of documents.
Plaintiff filed a motion to compel defendant to provide full and
complete responses to the request for the production of documentson 12 December 2001. The trial court entered an order granting
plaintiff's motion to compel on 22 May 2002. Defendant failed to
comply with this order. The trial court again ordered defendant to
respond to plaintiff's request for the production of documents on
2 July 2003. Although defendant responded to the request, his
responses were not in a form prescribed by the North Carolina Rules
of Civil Procedure. In addition, defendant refused to produce a
copy of an email that supported his claim that he attempted to
renegotiate the amount of his child support obligation.
Depositions. Plaintiff served defendant with a subpoena duces
tecum and a notice of deposition scheduled for 21 June 2002. On 19
June 2002, defendant, who was no longer represented by counsel,
contacted plaintiff's attorney and requested that the deposition be
postponed on the condition that defendant would provide all the
subpoenaed documents in a timely fashion. Although plaintiff's
attorney agreed to the condition and postponement, defendant failed
to provide plaintiff with the subpoenaed documents. Plaintiff
thereafter served defendant with a second subpoena duces tecum and
notice of deposition scheduled for 2 October 2002. Service was
made by both certified and regular mail. On 2 October 2002,
defendant failed to appear at the time and place noted for the
deposition and production of documents.
Interrogatories. Plaintiff served defendant with her first
set of interrogatories on 1 August 2002. Defendant failed to
respond to the interrogatories. Plaintiff filed a motion to compel
defendant to answer the first set of interrogatories on 4 October2002. In an order announced in open court on 12 December 2002 and
entered 19 December 2002, the trial court granted plaintiff's
motion to compel and ordered defendant to respond to the first set
of interrogatories on or before 20 December 2002. Defendant failed
to comply with the trial court's order.
Plaintiff served defendant with a second set of
interrogatories on 6 March 2003. Defendant failed to answer the
second set of interrogatories. Plaintiff filed a motion to compel
defendant to answer plaintiff's second set of interrogatories on 12
May 2003.
The trial court granted plaintiff's motion to compel on 2 July
2003 and found that defendant had failed to comply with the trial
court's previous discovery order and plaintiff's discovery
requests. The trial court ordered defendant to respond to both the
first and second set of interrogatories no later than 14 July 2003.
Defendant complied with the trial court's order. However,
defendant attached a certificate of service to the first set of
interrogatories that indicated that the answers were made on 22
July 2002, nine days prior to plaintiff's service of the
interrogatories on defendant.
Motion for Sanctions. Plaintiff filed a motion for sanctions
pursuant to Rule 37 of the North Carolina Rules of Civil Procedure,
N.C. Gen. Stat. § 1A-1, Rule 37 (2003), on 12 May 2003, and an
amended motion for sanctions on 18 June 2003. The trial court
heard plaintiff's motion for sanctions on 13 August 2003. The
trial court made the following pertinent findings of fact in anorder entered 25 September 2003:
23. On July 15, 2003 the Defendant produced to
the Plaintiff in response to the Order the
following documents:
a. Releases for: Regions Mortgage,
Bank of America Columbia National,
Inc.[,] Greenpoint Mortgage Funding,
Inc.[,] Park Meridian Bank, Park
Mortgage Company, LLC, Home Federal
Savings and Loan/First Charter,
Peoplefirst LLC, Jaguar Credit,
Harley Davidson Credit, Land Rover
Capital Group, Paragon Acceptance
Corp.[,] Lendnetwork.com, Crisp
Evans Hughes.
b. Tax Returns: 2000 Preliminary
1040, 2001 Preliminary 1040, 2002
Colby Holdings
c. Answers to Plaintiff['s] First
Set of Interrogatories
d. Letter from Carmel Country Club
e. Lawsuit filed in Georgia (Charter
Bank v. Colby Holdings & David
Terry[)]
The responses were not in a form prescribed by
the Rules of Civil [P]rocedure.
24. Among the items ordered to be answered by
the Defendant were the Plaintiff's First Set
of Interrogatories which were served upon the
Defendant on or about August 1, 2002. In the
documents served upon the Plaintiff by the
Defendant in his July 15, 2003 responses was a
document which purports to be the answers to
the First Set of Interrogatories served on the
Defendant. The Plaintiff attached to his
answers a document indicating the answers to
the First Set of Interrogatories were
personally served by the Defendant on the
Plaintiff and her attorney on July 22, 2002.
The Court notes the Defendant was seemingly
able to answer these First Set of
Interrogatories before they were served on him
by the Plaintiff. The Defendant filed a false
and misleading document to the Court with theintent to deceive the Court.
25. On July 14, 2003 the Defendant responded
to the Plaintiff's Second Set of
Interrogatories and Request for the Production
of Documents as follows:
Request: Please produce any and all
writings, records[,] diaries and
documentation which in any way
support your claim that you
attempted to renegotiate the amount
of your obligation of child support
as alleged in your Answer.
Response: The email is in the
possession of Mr. Kornberg and Ms.
Trosch has shown it to Mr. McDonnell
in the past. I will present it in
the near future.
26. The Defendant's response clearly shows he
or his attorney are [sic] in possession of the
document requested, but refuses without
justification to disclose the document to the
Plaintiff. This conduct is indicative of the
Defendant's ongoing failure to respond to
discovery request[s] by the Plaintiff.
27. The Court has reviewed the contents of the
Clerk's file and finds the Defendant has
exhibited a pattern of conduct which has,
without just cause, been obstructive and has
caused unreasonable delays on the progress of
this case towards a final solution.
28. Movant has incurred reasonable expenses,
including attorney's fees and court reporter
fees, caused by the failure of the Defendant
to provide discovery as described above.
. . . .
39. The Defendant has willingly refused to
obey this Court's Orders or to show any good
faith in complying with the Rules of Civil
Procedure.
40. This action was filed in August of 2001.
This case has multiple Orders to Compel which
have not been complied with. The Defendant,
by not abiding by this Court's Orders, hasprevented this case to progress to a
conclusion.
41. The Defendant has failed to respond to the
discovery requests of the Plaintiff pursuant
to the Rules of the North Carolina Rules of
Civil Procedure and has served false and
misleading documents in the discovery process.
The Defendant's intentional conduct has
exacerbated and unfairly delayed the progress
of this case.
The trial court also made the following conclusions of law:
42. The Defendant has repeatedly refused to
answer discovery and to respond to the orders
of this Court. The Defendant's conduct
amounts to a fraud upon the Court. The
Defendant has a total disregard to the
judicial process and to this Court. As such,
the Defendant ought to be subject to the
sanctions set fourth [sic] in Rule 37(d) of
the N.C. Rules of Civil Procedure for his
failure to respond to this Court's prior
orders, failure to follow the Rules of Civil
Procedure, for his fraudulent and misleading
conduct and for his failure to appear for
deposition.
43. The Plaintiff is entitled to be
compensated for her attorney's fees in the
prosecution of the child support and alimony
claims which allow the court ability to grant
attorney's fees.
The trial court then entered the following order of sanctions
and award of attorney's fees:
1. The Defendant is barred from entering
evidence supporting any of his defenses raised
in his Answer and Counter Claim with the
exception of the defense of ability to pay.
This defense will be held open and reviewed by
the Court subject to the Plaintiff's ability
to obtain adequate financial documentation
from the Defendant after showing good faith in
her efforts to obtain the documents.
2. The Defendant shall pay to the Plaintiff's
attorney the sum of $7,247.92 for work
regarding the discovery issues thus far inthis action. . . .
Since defendant does not challenge any of the trial court's
findings of fact, they are conclusive on appeal. Draughon v.
Harnett County Bd. of Educ., ___ N.C. App. ___, ___, 602 S.E.2d
717, 718 (2004) (citing Koufman v. Koufman, 330 N.C. 93, 97, 408
S.E.2d 729, 731 (1991)).
Although "[a]n order compelling discovery is normally not
appealable, because it is not a final judgment and does not affect
a substantial right[,] . . . 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,
disc. review denied, 334 N.C. 166, 432 S.E.2d 366 (1993).
Therefore, this Court may properly hear this appeal.
Defendant's sole assignment of error is that the trial court
erred in imposing sanctions and awarding attorney's fees to
plaintiff for defendant's failure to comply with discovery
requests. When a party fails to comply with discovery requests, a
trial court may impose sanctions pursuant to Rule 37 of the North
Carolina Rules of Civil Procedure, including attorney's fees. N.C.
Gen. Stat. § 1A-1, Rule 37. Rule 37(d) states, in pertinent part:
If a party . . . fails (i) to appear before
the person who is to take his deposition,
after being served with a proper notice, or
(ii) to serve answers or objections to
interrogatories submitted under Rule 33, after
proper service of the interrogatories, or
(iii) to serve a written response to a request
for inspection submitted under Rule 34, after
proper service of the request, the court in
which the action is pending on motion may make
such orders in regard to the failure as are
just, and among others it may take any actionauthorized under subdivisions a, b, and c of
subsection (b)(2) of this rule.
Id. The action a trial court is permitted to take under Rule
37(b)(2) includes entering "[a]n order refusing to allow the
disobedient party to support or oppose designated claims or
defenses, or prohibiting him from introducing designated matters in
evidence[.]" N.C. Gen. Stat. § 1A-1, Rule 37(b)(2)(b).
We have stated that "[t]he imposition of sanctions under Rule
37(d) is in the sound discretion of the trial judge." Imports,
Inc. v. Credit Union, 37 N.C. App. 121, 124, 245 S.E.2d 798, 800
(1978). "The choice of sanctions under Rule 37 . . . 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). Therefore,
this Court's ability to reverse a trial court's order of sanctions
for failure to comply with discovery requests is limited to when
the trial court's order is "'manifestly unsupported by reason.'"
Henderson v. Wachovia Bank of N.C., 145 N.C. App. 621, 629, 551
S.E.2d 464, 470, disc. review denied, 354 N.C. 572, 558 S.E.2d 869
(2001) (quoting Crutchfield v. Crutchfield, 132 N.C. App. 193, 195,
511 S.E.2d 31, 34 (1999)).
Defendant admits that his response to the trial court's 2 July
2003 discovery order was insufficient in that he failed to submit
(1) any financial statements which would support his claim that he
made expenditures on behalf of the minor child for whom support was
sought, and (2) an email message he sent to plaintiff seeking a
renegotiation of child support. However, defendant argues that thetrial court erred in imposing sanctions because he "substantially
complied" with the trial court's 2 July 2003 order. We do not find
defendant's argument persuasive. The record exhibits a
longstanding pattern of disobedient conduct and numerous incidents
of defendant's failure to comply with discovery requests. Over a
period exceeding two years, defendant failed to produce requested
documents, answer interrogatories, attend a deposition, or comply
with court orders. Moreover, defendant admits that he failed to
submit various financial documents as well as a pertinent email
message, and he offers no excuse for these failures. Due to
defendant's repeated noncompliance with discovery requests and
orders, we cannot find that the trial court abused its discretion,
or that its sanctions were manifestly unsupported by reason.
We note that defendant contends that plaintiff has not
suffered prejudice from defendant's failure to provide the email
message, and argues that plaintiff's counsel had previously seen
the email. Assuming arguendo that plaintiff's counsel had indeed
seen the email message, this would not preclude the trial court
from entering sanctions. A party is not required to show prejudice
in order to obtain sanctions as the result of a failure to comply
with the discovery process. Roane-Barker v. Southeastern Hospital
Supply Corp., 99 N.C. App. 30, 37, 392 S.E.2d 663, 668 (1990),
disc. review denied, 328 N.C. 93, 402 S.E.2d 418 (1991).
Defendant next argues that he should not be subject to the
imposition of sanctions because his failure to comply with
discovery requests were the result of a mistake made by A. MarshallBasinger (Basinger), defendant's former attorney. According to
Basinger's testimony before the trial court, Basinger's
representation of defendant began in approximately October 2002.
At that time, a motion to compel defendant's compliance with
discovery requests and a motion for contempt for defendant's
failure to comply with discovery requests were already pending
before the trial court. Basinger made a motion to withdraw as
counsel on 15 April 2003, and at the time of the 2 July 2003 order,
defendant was represented by Leonard Kornberg (Kornberg).
Following Kornberg's substitution as defendant's counsel, and in
response to the trial court's 2 July 2003 order, defendant supplied
responses to some of plaintiff's discovery requests on 15 July
2003. These responses were not in compliance with the North
Carolina Rules of Civil Procedure. Since defendant's noncompliance
with the discovery process occurred both before and after
Basinger's representation of defendant, defendant cannot blame
Basinger for his noncompliance.
Defendant next argues the trial court erred in failing to
consider less severe sanctions and that the sanctions imposed are
disproportionate. In support of his argument, defendant cites Goss
v. Battle, 111 N.C. App. 173, 176, 432 S.E.2d 156, 158 (1993),
where our Court held that before a trial court can impose the
sanction of dismissal under Rule 37(d), the trial court must
consider lesser sanctions. We find Goss inapposite to this case.
In Goss, the trial court imposed the "'extreme sanction'" of
dismissal. Id. at 176, 432 S.E.3d at 159 (quoting Harris v.Maready, 311 N.C. 536, 551, 319 S.E.2d 912, 922 (1984)). In
contrast, the sanction in this case bars defendant from entering
evidence supporting any of his defenses with the exception of the
defense of ability to pay. Since defendant is still permitted to
enter evidence on one of his defenses, and plaintiff still bears
the burden of proof in her case against defendant, we do not find
that the sanction in this case is as severe as an outright
dismissal.
Defendant cites no North Carolina authority for the
proposition that a trial court must consider lesser sanctions
before ordering that a party is precluded from entering evidence in
support of that party's defenses. Defendant instead relies on a
case from the United States Court of Appeals for the District of
Columbia Circuit, Bonds v. District of Columbia, 93 F.3d 801
(1996), cert. denied, 520 U.S. 1274, 138 L. Ed. 2d 211 (1997). In
Bonds, the trial court barred the defendant from offering any fact
witnesses at trial as a sanction for discovery violations. Id. at
807. The Court of Appeals reversed, stating that before the trial
court could enter such a sanction, "the [trial] court was obliged
to consider whether the more severe sanction was necessary to
further interests other than deterrence, or if not, whether a less
severe sanction would have been more proportionate to the nature of
the [defendant's] discovery violation and its effects on the
litigation." Id. at 809.
The Courts of this State "are not bound by decisions of
Federal circuit courts other than those of the United States Courtof Appeals for the Fourth Circuit arising from North Carolina law."
Whitehead v. Sparrow Enter., Inc., ___ N.C. App. ___, ___, 605
S.E.2d 234, 237 (2004). Furthermore, we note that there is no
consensus among the federal courts of appeal regarding whether
lesser sanctions must be considered before "litigation-ending
sanctions" are imposed. 8A Charles Alan Wright, Arthur R. Miller
& Richard L. Marcus, Federal Practice and Procedure, § 2284 (2d ed.
1994 & Supp. 2004).
The sanctions were proportionate to the severity of
defendant's conduct. The record is replete with evidence of
defendant's chronic disregard of the discovery process over a
period exceeding two years. The trial court did not abuse its
discretion in its imposition of sanctions and its award of
attorney's fees.
Affirmed.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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