111 N.C. App. 173
N.C. Ct. App.
1993

Lead Opinion

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.



Dissenting Opinion

Judge LEWIS

dissenting.

I respectfully dissent because I do not believe a trial judge should be required to state whether or not he or she has considered discovery sanctions less severe than dismissal with prejudice. This is an issue of first impression in North Carolina. Although our courts have stated that a trial judge need not impose less drastic discovery sanctions under Rule 37 before more severe sanctions, see Fulton v. East Carolina Trucks, Inc., 88 N.C. App. 274, 362 S.E.2d 868 (1987), our courts have not discussed whether a trial judge must first consider lesser sanctions.

The majority draws support from the Supreme Court case of Harris v. Maready, 311 N.C. 536, 319 S.E.2d 912 (1984). In that case the Court of Appeals reversed the trial court for refusing to grant a Rule 41(b) involuntary dismissal for a Rule 8(a)(2) violation. The Supreme Court’s opinion clarified that it was not error for the trial judge to refuse to impose the severe sanction of dismissal, stating that:

dismissal for a violation of Rule 8(a)(2) is not always the best sanction available to the trial court and is certainly not the only sanction available. 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.

311 N.C. at 551, 319 S.E.2d at 922. Because the Supreme Court was addressing a different, almost opposite, situation under a different rule, I believe that Harris is not relevant to the case at hand.

The imposition of sanctions under Rule 37 is within the discretion of the trial judge, see Roane-Barker v. Southeastern Hosp. Supply Corp., 99 N.C. App. 30, 392 S.E.2d 663 (1990), disc. rev. denied, 328 N.C. 93, 402 S.E.2d 418 (1991), and the sanction imposed was clearly authorized under Rule 37. N.C.G.S. § 1A-1, Rule 37(b)(2)c. (1990). The trial judge was certainly aware of the other options available under Rule 37, but chose, for obvious reasons, to impose the severe sanction of dismissal with prejudice.

It is an imposition on judicial economy to remand the case at hand so that the judge may state for the record that he considered other sanctions but believes the sanction chosen was appropriate. I believe a trial judge naturally considers the options before him when making various decisions, and that it is superfluous to require the judge to formally state that he has considered lesser options. This rule was made applicable to sanctions under Rule 41, but Rule 37 applied to the case at hand, which involved only discovery proceedings.

With all trial courts overburdened by volume and complexity of cases, I can see no justifiable reason to fetter a discretionary ruling with another requirement for “findings” or “considerations.” Since we presume that citizens “know the law,” why not presume as well that trial judges know the law and their range of sanctions? If they know what they can do, is it not reasonable to believe that the judge did in fact consider all the options available before ordering the sanction imposed?

I see no reason to create another time consuming, space devouring judicially enacted requirement. I would affirm the decision of the trial court and therefore respectfully dissent from the majority opinion.