Goss v. Battle

432 S.E.2d 156, 111 N.C. App. 173, 1993 N.C. App. LEXIS 719

• Court: Court of Appeals of North Carolina
• Decided: July 20, 1993
• Docket: 9221SC900
• Status: Published

Opinions

EAGLES, Judge.

The sole issue presented by this appeal is whether a trial court must consider less severe sanctions before dismissing a plaintiff’s complaint under Rule 37(d) of the North Carolina Rules of Civil Procedure. Appellants argue the rule enunciated in Foy v. Hunter, 106 N.C. App. 614, 418 S.E.2d 299 (1992) and Rivenbark v. Southmark Corp., 93 N.C. App. 414, 378 S.E.2d 196 (1989), which require a trial court to consider lesser sanctions before dismissing an action under Rule 41(b), should be extended to include a trial court’s decision to dismiss an action under Rule 37(d) as well. We agree.

Appellees argue that Rule 37(d) specifically provides for the sanction of dismissal for failure to comply with discovery rules and, therefore, the trial court did not err in dismissing plaintiffs’ action. Dismissal is specifically listed as an appropriate sanction in N.C. R. Civ. Pro. 41(b) and G.S. § 1-109. The language of these provisions does not expressly require a trial court to consider lesser sanctions before dismissing. However, our courts have interpreted these provisions to require a trial court to consider lesser sanctions before ordering a dismissal pursuant to these provisions. Harris v. Maready, 311 N.C. 536, 319 S.E.2d 912 (1984) (dismissal pursuant to Rule 41(b) to be ordered only when the trial court determines less drastic sanctions will not suffice); Thompson v. Hanks of Carolina, Inc., 109 N.C. App. 89, 426 S.E.2d 278 (1993) (requiring trial court to consider lesser sanctions before dismissing pursuant to G.S. § 1-109).

Our Supreme Court has held: “Although an action may be dismissed under Rule 41(b) for a plaintiff’s failure to comply with Rule 8(a)(2), this extreme sanction is to be applied only when the trial court determines that less drastic sanctions will not suffice.” Maready, 311 N.C. at 551, 319 S.E.2d at 922. See also Foy, 106 N.C. App. at 620, 418 S.E.2d at 303. Also in the context of Rule 41(b), this Court has held that “sanctions may not be imposed mechanically. Rather, the circumstances of each case must be carefully weighed so that the sanction properly takes into account the severity of the party’s disobedience.” Rivenbark, 93 N.C. App. at 420-21, 378 S.E.2d at 200-01. Likewise, in construing G.S. § 1-109, this Court has held, “the trial court erred by imposing the sanction of dismissal without first considering less stringent sanctions." Thompson, 109 N.C. App. at 92, 426 S.E.2d at 281.

The determination of what sanction, if any, should be imposed under Rule 41(d) and G.S. § 1-109 lies in the sound discretion of the trial court. Rivenbark, 93 N.C. App. at 420, 378 S.E.2d at 200; Thompson, 109 N.C. App. at 93, 426 S.E.2d at 281. Likewise, the determination of what, if any, sanction to be imposed under Rule 37(d) lies in the sound discretion of the trial court. Plumbing Co. v. Associates, 37 N.C. App. 149, 153, 245 S.E.2d 555, 557 (1978). In the context of Rule 41(d) and G.S. § 1-109, this Court requires the trial court to first consider less severe sanctions. The same policy requires the trial court consider less severe sanctions before dismissing pursuant to Rule 37(d).

Appellees argue that this Court has upheld dismissals under Rule 37(d) for failure to respond to discovery in cases such as Fulton v. East Carolina Trucks, Inc., 88 N.C. App. 274, 362 S.E.2d 868 (1987). However, Fulton is distinguishable from the present case. In Fulton, this Court rejected the appellant’s argument that a trial court must impose, not merely consider, a less stringent sanction before ordering dismissal under Rule 37(d). Fulton, 88 N.C. App. at 275, 362 S.E.2d at 869. Here, appellants argue the trial court must at least consider a less severe sanction before ordering a dismissal, but do not argue that the trial court must first impose a less severe sanction.

Here, we have reviewed the transcript of the 10 April 1992 hearing and the order filed 23 April 1992. Neither indicate the trial court considered a less severe sanction before dismissing the action. Accordingly, the order of the trial court dismissing the plaintiffs’ action is vacated, and is remanded for further proceedings not inconsistent with this opinion. It is important to note that our holding today does not affect the trial court’s discretionary authority, on remand, to impose the sanction of dismissal with prejudice after properly considering less severe sanctions.

Vacated and remanded.

Judge GREENE concurs. Judge LEWIS dissents.