Converted WP file 050293-1

Appeal by Plaintiff and Third-Party Defendants from order entered 18 May 2004 by Judge Richard D. Boner and order entered 25 October 2004 by Timothy S. Kincaid in Superior Court, Mecklenburg County. Heard in the Court of Appeals 7 February 2006.

Wishart, Norris, Henninger & Pittman, P.A., by June K. Allison and David C. Boggs, for plaintiff-appellant.
Horack, Talley, Pharr & Lowndes, P.A., by Henry N. Pharr III and John W. Bowers, for defendant-appellees Gregory J. Godley, Carolinas Choice Distribution, a North Carolina General Partnership, and Carolinas Choice Distribution, LLC.

    WYNN, Judge.

    The choice of sanctions under Rule 37 is within the trial court's discretion and will not be overturned on appeal absent a showing of abuse of that discretion. Becker v. Pierce, 168 N.C. App. 671, 678, 608 S.E.2d 825, 830 (2005). In this appeal, Defendants argue that the trial court erred (1) in imposing sanctions and (2) in awarding $5000.00 in attorneys' fees as sanctions. Because Defendants' assignment of error regarding sanctions does not reference the order for sanctions,   (See footnote 1) we must dismiss that appeal. Furthermore, because the attorney fee award is supported by proper findings, we affirm the trial court's award of attorney fees.
    In 2002, Plaintiff Signature Distribution Services, Inc. filed a Complaint regarding a business dispute against Defendants Carolinas Choice Distribution and its general partners individually, James E. Wright, Gregory J. Godley, and Kenneth E. Davis, Jr. (collectively “Carolinas Choice”). Thereafter, Carolinas Choice filed a third-party complaint against Third-Party Defendants Signature Distribution Services, Inc., Cecil M. Forehand, and Brady Buckley (collectively “SignatureDistribution”).   (See footnote 2) On 17 November 2003, Carolinas Choice served a First Set of Interrogatories and Requests for Production on Signature Distribution. On 4 February 2004, Signature Distribution served verified responses, including objections to certain questions. Carolinas Choice filed a Motion to Compel the response to the Interrogatories and Requests for Production on 6 February 2004, and an Amended Motion to Compel on 29 March 2004.
    On 18 May 2004, Superior Court Judge Richard Boner granted the Motion to Compel responses to discovery requests. On 7 June 2004, Signature Distribution filed a Supplemental Response. On 26 August 2004, Carolinas Choice filed a Motion for Sanctions as Signature Distribution still had not produced certain documents. On 25 October 2004, Superior Court Judge Timothy Kincaid granted the Motion for Sanctions due to Signature Distribution's failure to comply with the previous Order to Compel, and ordered Signature Distribution to pay $5000.00 in attorneys' fees. The trial court also retained jurisdiction of the parties to order further sanctions if needed. On 15 September 2005, the trial court granted summary judgment in favor of Signature Distribution against all claims and counterclaims in the third-party complaint. From the 18 May 2004 and 25 October 2004 orders, Signature Distribution brought this appeal.
        __________________________________________    On appeal, Signature Distribution argues that the trial court erred (1) in imposing sanctions and (2) in awarding $5000.00 in attorneys' fees as sanctions.
    We first note that, Signature Distribution's assignment of error referenced for the arguments in its brief states as follows:
        The Court's granting of Defendants' Motion to Compel.

This assignment of error, referenced in their argument as required by North Carolina Rule of Appellate Procedure 28(b)(6), does not refer to the order granting sanctions. Therefore, the 25 October 2004 Order granting sanctions is not properly before us on appeal, as the assignment of error referring to the order is not presented in the brief, and therefore is deemed abandoned. See N.C. R. App. P. 28(b)(6) (“Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.”); see also Walker v. Walker, __ N.C. App. __, __, 624 S.E.2d 639, 641 (2005) (“[T]he 'scope of appellate review is limited to the issues presented by assignments of error set out in the record on appeal; where the issue presented in the appellant's brief does not correspond to a proper assignment of error, the matter is not properly considered by the appellate court.'” (emphasis omitted) (quoting Bustle v. Rice, 116 N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994))). But see Broderick v. Broderick, __ N.C. App. __, 623 S.E.2d 806 (2006) (Wynn, J., concurring). Also, Signature Distribution's assignment of error does not state a legal basis upon which error is assigned. N.C. R. App. P. 10(c)(1) (“Each assignment of error shall . . .state plainly, concisely and without argumentation the legal basis upon which error is assigned.”); see also Walker, __ N.C. App. at __, 624 S.E.2d at 640 (2005). Accordingly, this assignment of error is dismissed.
    Nonetheless, we note that even if this assignment of error was properly before us, we would affirm the holding of the trial court. North Carolina Rule of Civil Procedure 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 make such orders in regard to the failure as are just . . ..

        ***

        In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

N.C. Gen. Stat. § 1A-1, Rule 37(b)(2) (2005). The choice of sanctions under Rule 37 is within the trial court's discretion and will not be overturned on appeal absent a showing of abuse of that discretion. Becker, 168 N.C. App. at 678, 608 S.E.2d at 830. “A trial court may be reversed for abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.” Id. (citations omitted). The trial court made specific findings of fact that by order entered 17 May 2004, Signature Distribution was granted until 7 June 2004 to supplement their interrogatory responses and producecopies of certain specific documents in their possession and control; and, Signature Distribution failed to comply with the terms of the 17 May 2004 order by failing to provide copies of specific documents. Signature Distribution did not challenge these findings and they are binding on appeal. Accordingly, the trial court's decision was not arbitrary which leads us to the conclusion that if this matter had been properly presented to this Court, we would have found no abuse of discretion.
    Signature Distribution also contends that the amount of $5000.00 is not supported by findings of fact. But the trial court made a specific finding of fact that as a result of Signature Distribution's “failure to so comply with the terms of Judge Boner's Order, and for other good cause shown, Defendants are entitled to receive an attorneys' fees award of Five Thousand and 00/100 ($5000.00)[.]” Further, the affidavit in support of attorneys' fees stated that $10,087.75 had been incurred. As the amount of attorneys' fees was in fact less than the amount stated was incurred in the affidavit, the fees granted were reasonable. See Long v. Joyner, 155 N.C. App. 129, 137, 574 S.E.2d 171, 177 (2002) (amount of attorneys fees awarded by the trial court corresponded with the charges incurred as stated in an attorney's affidavit).
    Dismissed in part; Affirmed in part.
    Judges HUNTER and JACKSON concur.
    Report per Rule 30(e).

Footnote: 1