Opinion
No. COA04-495
Filed 1 March 2005 This case not for publication
Appeal by defendant from order entered 25 September 2003 by Judge Rebecca T. Tin in District Court, Mecklenburg County. Heard in the Court of Appeals 7 December 2004.
Robert D. McDonnell for plaintiff-appellee. Timothy M. Stokes for defendant-appellant.
Mecklenburg County No. 01 CVD 15895.
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 documents on 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 October 2002. 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 an order 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, People first 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 the intent 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, has prevented 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 in this 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 action authorized 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 the trial 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. Marshall Basinger (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 Court of 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).