LOUIS CARUSO,
Plaintiff
v. Onslow County
No. 03-CVS-2592
MARK HENNESSY,
Defendant.
Ward and Davis, LLP, by John A. J. Ward, for plaintiff-
appellee.
Collins and Maready, P.A., by George L. Collins, for
defendant-appellant.
STROUD, Judge.
Defendant Mark Hennessy appeals from an order of the trial
court awarding plaintiff Louis Caruso attorney's fees and costs
incurred in prosecuting motions to compel and motions for sanctions
pursuant to Rule 37 of the North Carolina Rules of Civil Procedure.
We affirm.
On 15 April 2003, plaintiff and defendant engaged in a brief
physical confrontation. Defendant initiated a criminal assault
proceeding against plaintiff after the confrontation. Plaintiff
filed a complaint against defendant on 19 August 2003, alleging
abuse of process and malicious prosecution on account of thecriminal assault proceeding. Defendant's answer to the complaint
denied the material allegations of the complaint and included a
counterclaim for assault and battery. The counterclaim requested
compensatory and punitive damages for injuries allegedly inflicted
by plaintiff during the confrontation. Plaintiff replied, denying
all material allegations in defendant's counterclaim. Plaintiff
asserted as part of his defense to defendant's counterclaim that
any injuries allegedly suffered by defendant during the
confrontation were pre-existing; he sought discovery of defendant's
medical records for the purpose of supporting this defense.
On or about 16 June 2004, plaintiff served Plaintiff's First
Set Of Interrogatories And Requests For Production Of Documents on
defendant to obtain, among other things, defendant's medical
records. On 23 September 2004, plaintiff's counsel received
defendant's responses to the First Set Of Interrogatories And
Requests For Production Of Documents.
Plaintiff filed a Motion to Compel And For Expenses pursuant
to Rule 37(a) on 14 October 2004. In the motion, plaintiff alleged
that the responses to twelve interrogatories and seven requests for
production were missing or incomplete and that defendant's
objections to five interrogatories and six requests for production
were made for the purpose of causing “unnecessary delay and
expense.” On 3 November 2004, the trial court denied all of
defendant's objections to the discovery and ordered full and
complete answers for all discovery requested in the motion. The
trial court delayed ruling on plaintiff's motion for expensespending receipt of an affidavit from plaintiff's counsel in support
of the motion. On 29 November 2004, the parties entered into a
Consent Order that all written discovery would comply with the 3
November 2004 order.
Plaintiff moved for discovery sanctions on or about 23
February 2005, alleging that defendant had failed to obey the order
of 3 November 2004 and had failed to fully respond to Plaintiff's
Second Set of Interrogatories and Requests for Production of
Documents, served on defendant on or about 19 November 2004.
Plaintiff's 23 February 2005 motion requested reasonable expenses,
pursuant to Rule 37(b), incurred in connection with that motion,
and renewed his request for reasonable expenses, pursuant to Rule
37(a), incurred in connection with his 14 October 2004 Motion to
Compel. On 5 May 2005, the trial court granted plaintiff's motion
in part, ordering defendant to serve on plaintiff's counsel, within
30 days of 5 April 2005, “full and complete supplemental answers to
all written discovery” requests previously served on defendant or
defendant's counsel. The trial court expressly permitted
defendant's counsel to apply to the court for relief via telephone
conference if he was “prohibited or . . . frustrated by any person
or entity” from complying with the order. The trial court delayed
a hearing on the requests for reasonable expenses, both those
arising under Rule 37(a) and those arising under Rule 37(b).
Beginning 3 October 2005, and continuing on 18 October 2005,
the trial court held a hearing on the requests for reasonable
expenses made in the 23 February 2005 motion for sanctions. At thehearing, defendant primarily argued that provision of medical
record release authorizations (“releases”) amounted to full
compliance with the discovery obligation to provide medical
records, and in the alternative, that he was unable to comply with
the discovery requests because of circumstances beyond his control.
The trial court considered these arguments at the hearing. The
trial court rejected defendant's first argument because its
previous orders to compel discovery had placed an affirmative duty
on defendant to provide the medical records, which could not be met
by providing releases. The trial court rejected defendant's second
argument because defendant had ample opportunity before the 3
October 2005 hearing on reasonable expenses to raise his inability
to comply with the discovery requests due to circumstances beyond
his control, but failed to do so.
On 7 November 2005, the trial court ordered defendant to pay
plaintiff $16,750.56 for attorney's fees and costs incurred by
plaintiff in prosecuting his motion to compel pursuant to Rule
37(a)(4) and motion for sanctions pursuant to Rule 37(b)(2).
Defendant appeals the trial court's order granting attorney's fees
and costs to plaintiff.
Defendant contends that the trial court abused its discretion
in awarding plaintiff attorney's fees and costs in the amount of
$16,750.56. Specifically, defendant argues that his failure to
provide medical records in response to the orders compelling
discovery was justified (1) because provision of releases toplaintiff satisfied his obligations under the orders and (2)
because he was unable to provide all the medical records ordered
due to circumstances beyond his control. Defendant argues that the
trial court abused its discretion when it did not find that his
failure to provide the requested medical records was thereby
justified. Defendant also argues that even if the award of
attorney's fees and costs was a proper exercise of the trial
court's discretion, the amount of the award is unreasonable.
(See footnote 1)
Plaintiff responds that this appeal should be dismissed under
Rule 28(b)(4) of the North Carolina Rules of Appellate Procedure
because it is an interlocutory appeal that has not been shown to
affect a substantial right. Alternatively, plaintiff contends that
if this Court considers the merits of the appeal, both the award of
attorney's fees and costs and the amount of the award were an
appropriate exercise of the trial court's discretion.
“An order to pay attorney's fees as a sanction does not affect
a substantial right,” Long v. Joyner, 155 N.C. App. 129, 134, 574
S.E.2d 171, 175 (2002), disc. review denied, 356 N.C. 673, 577
S.E.2d 624 (2003), and any appeal therefrom should be dismissed as
interlocutory, id. See also Veazey v. City of Durham, 231 N.C.
357, 362, 57 S.E.2d 377, 381 (1950); N.C. Gen. Stat. § 1-277(a)
(2005) (listing when an appeal may be taken from an order or
determination of a trial court). Nevertheless, we have chosen toexercise our discretion to consider the merits of defendant's
purported appeal by treating it as a petition for writ of
certiorari. N.C.R. App. P. 21(a)(1); Cochran v. Cochran, 93 N.C.
App. 574, 577, 378 S.E.2d 580, 582 (1989) (allowing an appeal from
a discovery order even though it did not contain enforcement
sanctions).
When a motion to compel discovery is granted pursuant to Rule
37 of the North Carolina Rules of Civil Procedure,
the court shall . . . require the party . . .
whose conduct necessitated the motion or the
party advising such conduct or both of them to
pay to the moving party the reasonable
expenses incurred in obtaining the order,
including attorney's fees, unless the court
finds that the opposition to the motion was
substantially justified or that other
circumstances make an award of expenses
unjust.
N.C. Gen. Stat. § 1A-1, Rule 37(a)(4) (2005) (emphasis added).
Similarly, if an order compelling discovery pursuant to Rule
37(a) is not complied with, the trial court is required to order
the noncompliant party to “pay the reasonable expenses, including
attorney's fees, caused by the failure [to comply], 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). In short, when a trial court
compels discovery in response to the motion of a party, or finds
that a party compelled to provide discovery failed to do so, an
award of reasonable costs is mandatory, unless an exception listed
in Rule 37 is found to apply. See Kent v. Humphries, 50 N.C. App.580, 590, 275 S.E.2d 176, 183 (remanding order to compel discovery
with instructions to award attorney's fees), modified and aff'd,
303 N.C. 675, 281 S.E.2d 43 (1981).
“The imposition of discovery sanctions is within the sound
discretion of the trial judge and will not be reversed absent a
showing of abuse of that discretion.” Smitheman v. National Presto
Industries, 109 N.C. App. 636, 640, 428 S.E.2d 465, 468 (internal
citations omitted), disc. review denied, 334 N.C. 166, 432 S.E.2d
366 (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 Motors of Am., Inc., 353 N.C. 188, 199, 540 S.E.2d 324,
331 (2000) (internal citations omitted).
We first consider defendant's contention that providing
medical record release authorizations satisfies, as a matter of
law, an obligation to provide medical records arising from a
discovery order under Rule 34 of the North Carolina Rules of Civil
Procedure. We agree with the trial court that, under the
circumstances of this case, provision of releases did not satisfy
defendant's discovery obligation to provide medical records. The
trial court found that defendant, because of his “dilatory
actions,” had been placed under “an affirmative duty [by the first
discovery order] . . . to produce the requested documents.”
(See footnote 2)
Thetrial court further found that defendant had failed to comply with
both the first discovery order and a subsequent discovery order.
There is more than adequate evidence in the record to support these
findings by the trial court, and we hold that the trial court's
determination that provision of releases was insufficient to comply
with defendant's affirmative duty to provide medical records is
supported by reason, was not arbitrary, and was therefore not an
abuse of the trial court's discretion.
(See footnote 3)
We next consider defendant's contention that his failure to
provide the medical records required by the discovery order was
justified because circumstances beyond his control prevented him
from so doing. If a party is unable to answer discovery requests
because of circumstances beyond its control, an answer cannot be
compelled. Atlantic Veneer Corp. v. Robbins, 133 N.C. App. 594,
598, 516 S.E.2d 169, 172 (1999) (upholding sanctions when party
failed to show that compelled discovery could not be reasonably
produced); Laing v. Liberty Loan Co., 46 N.C. App. 67, 71, 264
S.E.2d 381, 384 (upholding sanctions when insufficient excuses were
offered for failure to comply with a discovery order), disc. review
denied and appeal dismissed, 300 N.C. 557, 270 S.E.2d 109 (1980);
accord Societe Internationale v. Rogers, 357 U.S. 197, 2 L. Ed. 2d
1255 (1958) (holding that sanctions violated the Fifth Amendmentwhen party was unable to comply with discovery order despite good
faith efforts).
The record indicates that defendant had more than a year to
produce the medical records, during which time the trial court
granted two motions to compel and entered one consent order. The
record does not show that defendant presented any evidence of
circumstances beyond his control which made him unable to answer
the discovery requests during this period. Although the trial
court specifically gave defendant the option to apply for relief
via telephone conference if he was “frustrated” in trying to comply
with the second order, there is no record evidence to indicate that
defendant did so. For these reasons, the trial court did not abuse
its discretion when it rejected defendant's claim that he was
unable to answer due to circumstances beyond his control.
In sum, defendant did not show that his failure to produce the
medical records ordered by the trial court was substantially
justified, and he does not aver that an award of expenses would be
otherwise unjust. Therefore, the trial court was bound to award
attorney's fees and costs to plaintiff as part of the order
compelling discovery, see N.C. Gen. Stat. § 1A-1, Rule 37(a)(4)
(2005) and Kent, 50 N.C. App. at 590, 275 S.E.2d at 183, and as a
result of its finding that defendant unjustifiably failed to comply
with that order, see N.C. Gen. Stat. § 1A-1, Rule 37(b)(2) (2005).
The trial court did not abuse its discretion in so doing.
The only remaining question in defendant's appeal is whether
the $16,750.56 awarded to plaintiff for attorney's fees and costswas an abuse of discretion because it was unreasonable in amount.
We hold that the amount was not unreasonable.
Determining a reasonable amount for an award of attorney's
fees lies within the discretion of the trial court. Morris v.
Bailey, 86 N.C. App. 378, 387, 358 S.E.2d 120, 125 (1987).
Findings of fact to support the reasonableness of the amount are
required in order to show that the trial court properly exercised
its discretion. Benfield v. Benfield, 89 N.C. App. 415, 422, 366
S.E.2d 500, 504 (1988). These findings may include “the time and
labor expended, the skill required to perform the legal services
rendered, the customary fee for like work, or the experience and
ability of the attorney.” Morris, 86 N.C. App. at 387, 358 S.E.2d
at 126.
In the instant case, the trial court found that the fees and
costs for plaintiff's attorney were “reasonable and proper.” The
trial court specifically based this finding on several documents
which were included as attachments to plaintiff's motion requesting
attorney's fees and costs. These documents contained extensive
information regarding the time and labor expended, including
detailed time records of the work by plaintiff's counsel for each
hearing on the motions to compel and motion for sanctions. The
record also contains affidavits in support of the customary fee for
like work and the experience and ability of the plaintiff's
attorney. For these reasons, we conclude that the amount of the
award was supported by reason, was not arbitrary, and therefore was
not an abuse of discretion.
The trial court did not abuse its discretion by awarding the
amount of $16,750.56 to plaintiff for attorney's fees and costs
incurred in prosecuting motions to compel and motions for
sanctions. The trial court order is affirmed.
AFFIRMED.
Judges TYSON and STEPHENS concur.
Report per Rule 30(e).
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