Civil Practice – Discovery Violations – Dismissal – Jurisdiction – Deferred Ruling

The trial court could defer ruling on defendant’s motion for sanctions under N.C. R. Civ. P. 37 until after trial; this did not divest the trial court of jurisdiction to rule on the motion after a mistrial was declared.

We affirm the trial court’s order granting the motion for sanctions, dismissing plaintiff’s complaint, and requiring plaintiff to pay defendant’s costs and attorney’s fees.

Plaintiff argues that Judge James Webb’s dismissal of the action effectively constitutes an improper overruling of Judge Richard Brown’s order for a new trial. We reject this argument.

In Global Furniture, Inc. v. Proctor, 165 N.C. App. 229, 598 S.E.2d 232 (2004), we held that a trial court’s imposition of sanctions for discovery misconduct, including dismissal of an action, is not prevented by another trial court’s entry of default against the opposing party. Accordingly, we hold that Judge Webb’s deferred ruling dismissing the action did not improperly overrule Judge Brown’s order for a new trial.

The trial court found that plaintiff and plaintiff’s counsel willfully disobeyed a court order by objecting to notice of a court-ordered deposition and unilaterally refusing to produce the witness, Jamaal Dunham. The trial court found that, during one hearing on defendant’s motion for sanctions, counsel for plaintiff falsely contended that defendant’s counsel engaged in ex parte communications with the trial court by submitting a proposed order without providing a copy to counsel for plaintiff; this contention was shown to be a misrepresentation of fact.

The trial court also found that plaintiff’s counsel’s instructions to Dunham not to respond to questions in the deposition were baseless “and constituted a violation of the Court’s earlier Order and an intentional disruption of Defendant’s deposition of Mr. Dunham.” The trial court found that plaintiff’s counsel asserted a baseless and time consuming speaking objection during the same deposition that intentionally misrepresented the trial court’s earlier discovery order. The trial court also found that Dunham “was intentionally evasive and non-cooperative in his responses during deposition, and failed and refused to provide discoverable information in his testimony.”

The record contains ample evidence supporting the trial court’s findings. We discern no abuse of discretion by the trial court in dismissing plaintiff’s action as a sanction for plaintiff’s failure to comply with discovery orders.

The misconduct demonstrated by the record reflects intentional and repeated acts by counsel and client in defiance of the Rules of Civil Procedure, the Rules of Evidence, and orders of the trial court. It is unfortunate that misconduct by counsel and client has resulted in the dismissal of the action and imposition of sanctions approaching the amount of the parties’ disputed contract.

Affirmed.

Greater Harvest Global Ministries, Inc. v. Blackwell Heating & Air Conditioning, Inc. (Lawyers Weekly No. 012-084-18, 14 pp.) (Lucy Inman, J.) Appealed from Cumberland County Superior Court (Winston Gilchrist, Richard Brown & James Webb, JJ.) Nichole Hatcher for plaintiff; Steven Lawrence for defendant. N.C. App. Unpub.