Batlle v. Sabates

• Decision Date: 04 August 2009
• Docket Number: No. COA08-860.,COA08-860.
• Citation: 681 S.E.2d 788
• Parties: Lauren B. BATLLE f/k/a Lauren B. Sabates, Plaintiff, v. Arturo SABATES, Defendant.
• Court: North Carolina Court of Appeals

681 S.E.2d 788

Lauren B. BATLLE f/k/a Lauren B. Sabates, Plaintiff, v. Arturo SABATES, Defendant.

No. COA08-860.

Court of Appeals of North Carolina.

August 4, 2009.

Appeal by Plaintiff from orders entered 21 September 2007 and 11 December 2007 by Judge Christy T. Mann in Mecklenburg County District Court. Heard in the Court of Appeals 23 February 2009.

Vann Law Firm, P.A., by Christopher M. Vann, Matthews, for Plaintiff.

James, McElroy & Diehl, P.A., by William K. Diehl, Jr., and Irene P. King, Charlotte, for Defendant.

ERVIN, Judge.

Lauren B. Batlle (Plaintiff) appeals from an order entered 21 September 2007 dismissing her amended complaint with prejudice and ordering her to pay attorneys' fees as a result of her failure to provide discovery in a timely manner. Plaintiff also appeals from an order entered 11 December 2007 denying Plaintiff's motions for relief from the 21 September 2007 order pursuant to N.C. Gen. Stat. § 1A-1, Rules 59 and 60; granting Defendant's motions to strike and for sanctions; and ordering Plaintiff to pay attorneys' fees. After consideration of Plaintiff's challenges to the validity of the 21 September 2007 and 11 December 2007 orders, we affirm the decisions of the trial court.

Plaintiff and Arturo Sabates (Defendant) were married on 7 February 1986. Plaintiff and Defendant had a son (the child), who was born on 15 June 1988. Plaintiff and Defendant separated on 5 February 1990 and subsequently entered into a Separation and Property Settlement Agreement.

According to the parties' separation agreement, Defendant was required to pay Plaintiff $2,800.00 per month in child support for twenty-four months and, thereafter, to pay Plaintiff no less than 17% of his gross monthly income for the same purpose. Defendant also agreed that his child support payments to Plaintiff would "at no time be less than Two Thousand Dollars ($2,000.00)" per month. The separation agreement also required Defendant to pay "reasonable and necessary medical, hospital, surgical, drug and dental expenses incurred for" the child "upon receipt of statements therefore."

On 4 April 2006, Plaintiff filed a complaint against Defendant. With leave of court, Plaintiff filed an amended complaint on 11 September 2006 in which she sought damages for Defendant's alleged breach of the separation agreement. On 25 September 2006, Defendant filed an answer, affirmative defenses and counterclaims in which he denied certain allegations in the amended complaint, denied liability to Plaintiff on the ground of antecedent material breach and certain other affirmative defenses (including an allegation that the child had attained the age of majority), and counterclaimed against Plaintiff on the basis of an alleged breach of the separation agreement by Plaintiff and for overpayments allegedly made by Defendant to Plaintiff. On 19 October 2006, Plaintiff filed an amended reply in which she denied the material allegations of Defendant's counterclaims and asserted certain affirmative defenses.

On 31 October 2006, Defendant served interrogatories, a request for admissions, and a request for production of documents on Plaintiff. On 2 November 2006, Plaintiff sought and obtained an extension of time to answer Defendant's discovery requests until 2 January 2007. On 10 May 2007, counsel for Defendant communicated with counsel for Plaintiff for the purpose of noting that over four months had passed since Plaintiff's extension of time had expired, indicating that Defendant "anticipated receiving responses to all of the discovery served upon [Plaintiff] by the close of business on" 17 May 2007, and stating that, if no responses were received by that date, Defendant would "pursue the remedies available ... for [Plaintiff's] failure to respond."

On 25 May 2007, Defendant filed a motion for sanctions pursuant to N.C. Gen.Stat. § 1A-1, Rule 37 on the grounds that, "[a]s of this date, Plaintiff has filed no responses to any of Defendant's discovery requests." As a result, Defendant requested the court to "strike Plaintiff's pleadings, dismiss her suit with prejudice," "enter judgment on behalf of Defendant," and "award fees and expenses to Defendant." On 4 September 2007, the day upon which Defendant's motion for sanctions was scheduled for hearing, Plaintiff served responses to Defendant's discovery requests.

On 21 September 2007, the trial court entered an order sanctioning Plaintiff for failing to respond to Defendant's discovery requests in which the trial court found as a fact that:

9. Plaintiff failed to respond on January 2, 2007.

10. After January 2, 2007, Plaintiff failed to respond to the outstanding discovery requests and made no motion to the court for additional time to respond.

11. On May 10, 2007, Defendant's counsel sent a letter to Plaintiff through counsel reminding her that the discovery had been due for quite some time, and requested that Plaintiff serve her responses by the close of business on Thursday, May 17, 2007. The letter was served as a "good faith effort pursuant to Rule 37 of the North Carolina Rules of Civil [P]rocedure to resolve the issue of outstanding discovery with [Plaintiff's counsel] prior to pursuing relief from the court."

12. Plaintiff ignored the deadline of May 17, 2007.

13. On [25 May 2007], Defendant filed and served on Plaintiff his motion pursuant to Rule 37 of the North Carolina Rules of Civil Procedure. On the same date, a Notice of Hearing was filed and served on counsel for Plaintiff, setting the hearing for September 4, 2007 at 10:00 a.m.

14. As of the filing of the Motion, Plaintiff had not responded in any fashion to the discovery requests served upon her in October 2006.

. . . .

17. As of the date of the hearing on September 4, 2007, Plaintiff had not served any responses to any of the discovery.

18. During Plaintiff's counsel's argument in court on September 4, he served Defendant's counsel with a written response to discovery and attached documentation. Counsel for Defendant did not have an opportunity to review the untimely written responses or documentation during the hearing and the Court makes no findings with respect to the sufficiency of the responses or documentation.

. . . .

20. Plaintiff had no legitimate excuse or justification for failing to respond to discovery Plaintiff had for ten (10) months prior to the hearing.

. . . .

22. The Court has considered lesser discovery sanctions, and dismissal of Plaintiff's lawsuit with prejudice is the only just and appropriate sanction in view of the totality of the circumstances of the case[.] ...

23. Defendant made his motion in good faith, and after making efforts to resolve this discovery issue with Plaintiff through counsel.

Based on these findings of fact, the trial court concluded as a matter of law that:

2. The Court has considered lesser sanctions than dismissal of Plaintiff's lawsuit with prejudice. Lesser sanctions would be unjust and inappropriate in view of the totality of the circumstances of the case, which demonstrate the severity of the disobedience of Plaintiff in refusing to make discovery in a lawsuit she instituted, her unjustified noncompliance with the mandatory North Carolina Rules of Civil Procedure, and untimely response on the day of the hearing.

3. Rule 37(b)(2)(c) of the North Carolina Rules of Civil Procedure authorizes dismissal of an action with prejudice for failure to comply with responding to Defendant's discovery requests, and dismissal of Plaintiff's Amended Complaint and all claims thereto, with prejudice, is the appropriate sanction in this case.

As a result, the trial court dismissed Plaintiff's amended complaint with prejudice and awarded Defendant $4,000 in attorneys' fees and expenses.

On 5 October 2007, Plaintiff filed a motion pursuant to N.C. Gen.Stat. § 1A-1, Rule 59 to amend the judgment and a motion pursuant to N.C. Gen.Stat. § 1A-1, Rule 60(b) for relief from judgment or order. Plaintiff alleged in her motion that the order dismissing her complaint was "too severe" and unjustified "under the circumstances." Plaintiff contended that she was entitled to "relief from the judgment" due to insufficient evidence pursuant to N.C. Gen.Stat. § 1A-1, Rule 59(a)(7), and because the judgment was contrary to N.C. Gen.Stat. § 1A-1, Rule 59(a)(9). Plaintiff also contended that she was entitled to an amendment of the judgment pursuant to N.C. Gen.Stat. § 1A-1, Rule 59(e). Finally, Plaintiff alleged that "she [was] entitled to relief from judgment or [o]rder" pursuant to N.C. Gen.Stat. § 1A-1, Rule 60(b), on the grounds of "mistake, inadvertence, surprise or excusable neglect" and for "any other reason justifying relief from the operation of the judgment." Although Plaintiff admitted in her motion "that she did not produce the responses ... in a timely fashion," she contended that "she never refused to respond to the discovery requests;" that the "fact that she prepared" draft responses was "indicative of her intent to respond;" and that the discovery requests were not "fair" and "were overly broad, called for documents and information outside the scope of the instant action," and "could only have been intended to harass the plaintiffs and delay the proceedings." As a result, Plaintiff contended that the trial court should have considered the discovery produced at the hearing "to be in substantial compliance with the discovery requests, and allowed this case to proceed[.]"

An affidavit reiterating the contentions advanced in Plaintiff's motion and alleging that the discovery "requests were intended solely for the purpose of harassment and delay" and "included requests for information which was beyond the statutorily prescribed period of recovery" was attached to Plaintiff's motion. In this affidavit, Plaintiff also stated that she "was extremely busy at the time" that she received the discovery requests, "did not have access to [her] records because we had moved from our home," and...