252 N.C. App. 22
N.C. Ct. App.2017Background
- Li sued Zhou (and Chung) for fraud, conspiracy, unjust enrichment, and sought recovery of previously foreclosed property and damages; Chung was dismissed, and clerk entered default against Zhou for failing to timely respond.
- Plaintiff noticed Zhou for depositions (May 13 and May 29, 2015); Zhou appeared May 13 but deposition was continued to May 29 for an interpreter; Zhou failed to appear May 29.
- Plaintiff moved to show cause; court held Zhou in contempt, ordered him deposed (Aug. 26, 2015) and to pay Plaintiff's attorney fees and costs under Rule 37(d); Zhou did not comply and further show-cause proceedings followed.
- Court found Zhou willfully failed to comply, rejected his asserted medical excuse, required him to appear with a Chinese interpreter, and assessed additional attorney fees, costs, and interpreter expenses; the court scheduled a compliance review.
- Zhou appealed the April 11, 2016 contempt/order (and, as necessary, the Dec. 2 and Aug. 11, 2015 orders).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether competent evidence supports findings that Zhou willfully disobeyed the court's discovery order and lacked good cause for missed depositions | Court had testimony and documents from Zhou's in‑court deposition showing inconsistency and insufficient medical excuse | Zhou asserts no competent evidence in record (and transcript not provided) to support the findings | Appeal dismissed as to insufficiency challenge because appellant failed to provide transcripts; trial court findings stand if supported by record elements provided to appellate court |
| Whether court could order attorney's fees and costs as sanction/condition to purge contempt under Rule 37(d) | Fees and costs are authorized by Rule 37(d) for failure to attend deposition unless failure was substantially justified | Zhou contended it was improper to condition purge on payment of fees/costs | Court affirmed: Rule 37(d) authorizes reasonable expenses, including attorney's fees, when a party fails to attend deposition |
| Whether there was a proper purpose to depose Zhou after default entry | Plaintiff needed discovery to establish damages and equitable relief (e.g., amount of damages, title issues) | Zhou argued default mooted need for deposition | Court held default does not fix damages or equitable relief; deposition was within broad discovery scope and proper |
| Whether appellate review is permissible despite missing transcript | Plaintiff relied on the record and court orders; appellee invoked appellate rules | Zhou failed to file designated hearing transcript; argued insufficiency of evidence | Court applied N.C. appellate rules: review limited to record; because transcript was not filed, the court could not review contested evidence and dismissed that contention |
Key Cases Cited
- Wilson v. Wilson, 124 N.C. App. 371 (interlocutory discovery orders generally not immediately appealable)
- Willis v. Duke Power Co., 291 N.C. 19 (contempt for failure to obey discovery order is immediately appealable where purge requires compliance)
- Clark v. Clark, 294 N.C. 554 (appellate review of contempt limited to whether findings have competent evidence)
- Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (abuse of discretion includes errors of law)
- Blevins v. Welch, 137 N.C. App. 98 (attorney's fees may be awarded in contempt matters when authorized)
- First Mt. Vernon Indus. Loan Ass'n v. ProDev XXII, LLC, 209 N.C. App. 126 (sanctions for discovery noncompliance may include attorney's fees under Rule 37)
- Reep v. Beck, 360 N.C. 34 (N.C. appellate rules are mandatory)
- State v. Berryman, 360 N.C. 209 (appellant's duty to assemble record, including transcripts when available)
- Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191 (noncompliance with appellate rules may warrant dismissal depending on impairment of review)