Vick v. Davis

335 S.E.2d 197, 77 N.C. App. 359, 1985 N.C. App. LEXIS 4092

• Court: Court of Appeals of North Carolina
• Decided: October 15, 1985
• Docket: 8510SC207
• Status: Published

Opinions

WEBB, Judge.

Although it is interlocutory a party may appeal from an order imposing sanctions by striking his defense and entering judgment as to liability. See Adair v. Adair, 62 N.C. App. 493, 303 S.E. 2d 190, disc. rev. denied, 309 N.C. 319, 307 S.E. 2d 162 (1983).

The defendant contends that the court abused its discretion in entering default judgment and in awarding attorney’s fees. G.S. 1A-1, Rule 37(b) provides in part:

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, and among others the following:

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

“The choice of sanctions under Rule 37 lies within the court’s discretion and will not be overturned on appeal absent a showing of abuse of that discretion.” Routh v. Weaver, 67 N.C. App. 426, 429, 313 S.E. 2d 793, 795 (1984).

In this case the trial judge found as facts that the defendant refused to identify a material witness, that the defendant was ordered by the court to identify this witness on 18 October 1984, that the defendant failed and refused to comply with that order, that the defendant “acted wilfully and in bad faith in failing to comply,” and that the defendant “has had numerous opportunities to produce the evidence sought . . . which evidence was available to him, and has shown a . . . disregard of his known responsibilities.” These findings of fact are clearly supported by the evidence. This places the sanctions ordered within the discretion of the court.

The defendant also argues that because the plaintiffs have a claim for punitive damages the entry of default judgment deprives the defendant of due process of law. It would not incriminate the defendant or cause punitive damages to be entered against him to furnish the name of the person as ordered by the court. It was not error to strike the defendant’s answer for his failure to furnish her name. See Stone v. Martin, 56 N.C. App. 473, 289 S.E. 2d 898, disc. rev. denied, 306 N.C. 392, 294 S.E. 2d 220 (1982). This assignment of error is overruled.

In his third assignment of error the defendant argues that the trial court abused its discretion in awarding the plaintiffs attorney’s fees in addition to the other sanctions imposed. In addition to striking the disobedient party’s pleadings and entering default judgment, among other possible sanctions, the court is authorized to “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.” G.S. 1A-1, Rule 37(b)(2)(E). We have already determined that the trial court properly found the defendant’s noncompliance unjustified. Therefore, the award of attorney’s fees to the plaintiff was appropriate. The trial court awarded attorney’s fees in the amount of $1,300.00. In light of the fact that the plaintiffs’ attorneys have spent eight and a half months attempting to obtain discovery from the defendant, we cannot say that this figure is unreasonable. This assignment of error is overruled.

Affirmed.

Judge Johnson concurs. Judge PHILLIPS concurs in part; dissents in part.