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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.
Teddy Harrison, PLAINTIFF v. Janice W. Harrison, DEFENDANT
Filed: 5 December 2006
There was no abuse of discretion in a trial court's findings concerning defendant's delay
in responding to discovery. Defendant contended that the findings were not supported by the
evidence, but verified motions such as plaintiff's motion for contempt have been held to
constitute sufficient evidence, and one of the challenged findings concerned delays which
occurred after defendant was already in contempt. Fairness requires that pro se litigants be held
to minimal standards of compliance with the Rules of Appellate Procedure.
2. Discovery_sanctions for violations_dismissal of claims_consideration of lesser claims
An order dismissing defendant's claims for not complying with discovery was remanded
where lesser sanctions were not considered.
Appeal by defendant from judgment entered 25 August 2005 by
Judge Rose V. Williams in Lenoir County District Court. Heard in
the Court of Appeals 19 October 2006.
Joretta Durant for plaintiff-appellee.
Gerrans, Foster & Sargeant, P.A., by Jonathon L. Sargeant, for
MARTIN, Chief Judge.
On 14 February 2003, plaintiff filed suit in Lenoir County
District Court seeking divorce from bed and board and an equitable
division of marital property. On 25 April 2003, he served
defendant with Plaintiff's First Set of Interrogatories and Request
for Production of Documents under Rules 33 and 34 of the North
Carolina Rules of Civil Procedure. On 2 May 2003, defendant filed
her Answer and Counterclaim. Eight months later, in December 2003,
plaintiff filed a Motion to Compel seeking to compel defendant torespond to his Interrogatories and Request for Production of
The motion was heard on 25 January 2004. After the hearing,
the trial court ordered defendant to respond to plaintiff's
discovery requests on or before 17 February 2004. A written order
was filed on 10 March 2004, and provided for a $50 per day fine
after the deadline, and for the issuing of a show cause notice if
defendant failed to comply. By 23 February 2004, defendant had
delivered thirteen boxes of miscellaneous disorganized documents to
plaintiff's attorney's office. A strong and unpleasant odor was
traced to the boxes, and ultimately, to a dead mouse inside one of
Counsel for plaintiff refused to accept the boxes in response
to the discovery requests, and asked defendant to remove the
materials from her office. Defendant, who had been pro se since
December 2003, when her previous counsel had withdrawn, then
retained her present counsel. She served her written Answers to
Interrogatories and Responses to Requests for Production on 22
April 2004, thirty-three days after the deadline established in the
trial court's order. The Answers indicated that the discovery
documents were available for inspection at defendant's counsel's
Counsel for both sides conferred to determine a time to
evaluate the discovery documents. These efforts were ultimately
unsuccessful. In the meantime, defendant's counsel sought to
withdraw, and his motion was granted on 27 May 2005. Plaintiff'scounsel asserted that she had granted defendant multiple extensions
prior to counsel's withdrawal.
On 11 July 2005, plaintiff filed a verified Motion for
Contempt and Show Cause seeking sanctions, including attorney's
fees and striking the defendant's answer and counterclaim. The
contempt hearing was held on 23 August 2005. The defendant
proceeded pro se. The trial court found that defendant's answers
to discovery were disorganized and completely unresponsive, with
the dead rat being icing on the cake. She did not address the
Answer, and the purported availability of the documents at
defendant's counsel's office prior to his withdrawal.
The trial court held defendant in contempt and imposed an
array of sanctions, including attorney's fees and striking
defendant's answer and counterclaim. Defendant appeals.
 Defendant first contends the trial court abused its
discretion because its findings of fact were not supported by
competent and sufficient evidence and therefore cannot be the basis
for its conclusions of law. The defendant specifically challenges
Findings 7 and 11 which read:
7. ...[O]n numerous occasions, counsel for the
Plaintiff telephoned Mr. Sargeant and
requested an opportunity to inspect the
documents. On May 14, counsel for the
Plaintiff wrote to Mr. Sargeant requesting an
opportunity to inspect the documents ....
11. That the defendant has not offered any
legal excuse as to why she has not produced
the requested documents and the defendant is
in willful civil contempt of this Court for
failure to abide by the provisions entered in
the March 10, 2004 order signed by the
Honorable Lonnie Carraway. That the Defendant
was given an opportunity to respond to the
allegations raised in the motion and did not
deny the essential allegations of the motion.
North Carolina's appellate courts are deferential to trial
courts in reviewing their findings of fact. When a trial court
sits as the trier of fact, the court's findings and judgment will
not be disturbed on the theory that the evidence does not support
the findings of fact if there is any evidence to support the
judgment, even though there may be evidence to the contrary.
Atlantic Veneer Corp. v. Robbins, 133 N.C. App. 594, 599, 516
S.E.2d 169, 173 (1999); see also Shear v. Stevens Bldg. Co., 107
N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992) (It is well settled
in this jurisdiction that when the trial court sits without a jury,
the standard of review on appeal is whether there was competent
evidence to support the trial court's findings of fact....).
One (1) letter sent to counsel for the
defendant thirteen (13) months after the
written Responses were served on plaintiff and
the day after the hearing on defendant's
counsel's Motion to Withdraw from this case on
Monday, May 23, 2005 can not support Findings
of Fact Numbers 7 and 11 of the order for
Sanctions in the case at bar. [Defendant Brief
After a careful review of the record, we cannot agree with
defendant's contention. North Carolina Courts have previously
allowed verified motions to constitute sufficient evidence. H. L.Coble Constr. Co. v. Hous. Auth. of Durham, 244 N.C. 261, 264, 93
S.E.2d 98, 100-01 (1956); Tillis v. Calvine Cotton Mills, Inc.,
244 N.C. 587, 589, 94 S.E.2d 600, 603 (1956); see also Page v.
Sloan, 281 N.C. 697, 705, 190 S.E.2d 189, 194 (1972) (holding that
a verified complaint is equivalent to affidavit). Plaintiff's
verified Motion for Contempt specifically stated that counsel for
plaintiff conferred with counsel for defendant in an attempt to
gain access to the discovery materials, and would constitute an
adequate basis for finding 7. This argument is without merit.
Defendant also challenges finding 11 that defendant did not
comply with the initial order to provide discovery and did not deny
the essential elements of the allegation. It is uncontroverted
that the trial court had directed the defendant to comply with
discovery requests by 17 February 2004, and defendant conceded that
she did not offer any discovery materials until 23 February 2004.
At that point, she was already in contempt. Though we are not
unsympathetic to the difficulties faced by a pro se litigant, we
have recognized that fairness to opposing parties requires holding
pro se litigants to minimal standards of compliance with the Rules
of Civil Procedure. House Healers Restorations, Inc. v. Ball, 112
N.C. App. 783, 787, 437 S.E.2d 383, 386 (1993) (Defendants should
not be penalized with more discovery and litigation ... because ...
[plaintiff] was initially acting pro se and its first attorney was
 Defendant argues that the trial court failed to explicitly
consider lesser sanctions before dismissing the defendant's claims,
as required by our previous decision in Goss v. Battle
, 111 N.C.
App. 173, 176, 432 S.E.2d 156, 159 (1993). She further argues
this issue is dispositive for the purposes of this appeal. We
Plaintiff has urged us to overrule Goss,
citing the vigorous
dissent of Judge Lewis in that case:
It is an imposition on
judicial economy to remand ... so that the judge may state for the
record that he considered other sanctions but believes the sanction
chosen was appropriate .... [A] trial judge naturally considers
the options before him when making various decisions. Id.
179, 432 S.E.2d at 160 (Lewis, J., dissenting).
However, it is
axiomatic that one panel of the Court of Appeals may not overrule
another panel. In re Appeal from Civil Penalty
, 324 N.C. 373, 384,
379 S.E.2d 30, 36 (1989). Therefore, we are bound by Goss
Alternatively, plaintiff asks us to distinguish the present
case from Goss
, arguing that this case is closer to
Hursey v. Homes
by Design, Inc
., 121 N.C. App. 175, 179, 464 S.E.2d 504, 507
. However, Hursey
is distinguishable because the trial court
there specifically considered multiple options before settling on
a less severe sanction. Id.
Similarly, plaintiff also seeks to analogize this case to
Chateau Merisier, Inc. v. Le Mueble Artisanal GEKA, S.A.,
App. 684, 687, 544 S.E.2d 815, 818 (2001). However, in Chateau
, this Court noted that the trial court had allowed some ofthe sanctions requested by the plaintiff there, and disallowed
others; this sufficed to establish that various options had been
considered before the imposition of sanctions. Id.
By contrast, the record here is bereft of any such indication.
The transcript of the hearing showed that the trial court granted
plaintiff the entire panoply of sanctions which he had requested.
Plaintiff notes that the trial court did not impose the $50 per
diem penalty which had been provided for in the earlier order to
compel. In addition, the Show Cause Order specifically requested
criminal contempt as an option, but the trial court did not impose
However, neither of these two sanctions were considered by the
District Court at the contempt hearing. Instead, the court asked
plaintiff's counsel the measures the latter was seeking and awarded
them in toto
. These facts do not show the trial court considered
lesser sanctions as required by Goss
prior to striking defendant's
counterclaim. For this reason, we must vacate the contempt order
and remand the case to the Lenoir County District Court for
consideration of sanctions in light of the principles set forth in
Our ruling does not indicate in any way an approval by this
Court of dilatory tactics such as those employed by defendant. We
note that the contempt hearing was held in August 2005, two and
one-half years after plaintiff's first filing, and a year and one-
half after the initial order directing defendant to comply with
plaintiff's discovery requests. Nor is this Court oblivious to the egregious tactics that have
been deployed in this case, such as the insertion of a dead mouse
in disorganized, unresponsive, and voluminous discovery materials
sent to plaintiff's counsel's office, well after the expiration of
a deadline imposed one and one-half years before the contempt
hearing. Since both parties are small business owners, the
breakdown in the discovery process has made it impossible for
marital assets to be appropriately appraised, in turn rendering
equitable distribution impossible.
This Court reaffirms that trial courts are not without the
power to sanction parties for failure to comply with discovery
orders. Dismissal of defenses or counterclaims is an appropriate
remedy, and is within the province of the trial court. Jones v.
, 144 N.C. App. 558, 565, 551 S.E.2d 867, 872 (2001).
This Court will not disturb a dismissal absent a showing of abuse
of discretion by the trial judge. Id. (
citing Benton v. Hillcrest
., 136 N.C. App. 42, 524 S.E.2d 53 (1999)). However,
, if the trial court chooses to exercise this option, it
must do so after considering a variety of sanctions.
The order is thus vacated, and the case remanded to the trial
court for proceedings consistent with this order.
ORDER VACATED; REMANDED.
Judges ELMORE and JACKSON concur.
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