Benfield v. Benfield

• Decision Date: 05 April 1988
• Docket Number: No. 8725DC290,8725DC290
• Citation: 366 S.E.2d 500,89 N.C.App. 415
• Parties: Brenda D. BENFIELD v. Gerald BENFIELD.
• Court: North Carolina Court of Appeals

Page 500

366 S.E.2d 500

89 N.C.App. 415

Brenda D. BENFIELD v. Gerald BENFIELD.

No. 8725DC290.

Court of Appeals of North Carolina.

April 5, 1988.

Michael P. Baumberger, Lenoir, for plaintiff-appellee.

Wilson and Palmer, P.A. by William C. Palmer, Lenoir, for defendant-appellant.

GREENE, Judge.

This is an action for divorce and equitable distribution. The court found the defendant-husband in "indirect criminal contempt" for failure to comply with certain discovery requests. Defendant appeals.

Pursuant to a valid notice, plaintiff scheduled a deposition of defendant for 25 February 1986. On that day, plaintiff contended defendant "failed or refused to answer, or gave evasive or incomplete answers to numerous questions...." On 21 July 1986, pursuant to plaintiff's motion to compel discovery and for sanctions, Judge Oliver Noble, Jr. ordered defendant to answer certain questions asked during the deposition and further ordered defendant to pay $200 to plaintiff's lawyer for attorney's fees in bringing the motion. On or about 28 July 1986, defendant tendered supplemental answers. On 29 July 1986, plaintiff filed a motion requesting sanctions contending the defendant had "willfully and without just cause, failed and refused once more" to answer some of the same questions.

On 15 August 1986, Judge Samuel Tate again ordered defendant to answer the questions and ordered defendant to pay $250 in attorney's fees to plaintiff's lawyer. Defendant then gave notice of appeal. On 15 August 1986, Judge Tate signed appeal entries allowing defendant sixty days to prepare and serve a proposed record on appeal. On 20 August 1986, Judge Tate vacated these appeal entries in a written order in which he found the appeal to be interlocutory. On or about 11 September 1986, plaintiff moved the district court to require defendant "to appear and show cause why he should not be held in contempt" for failing to answer the questions and pay the attorney's fees assessed in the previous order. On 9 October 1986, defendant tendered his proposed record on appeal to plaintiff. Plaintiff objected in writing to defendant's record on appeal because the appeal entries had been vacated. On 14 November 1986, defendant requested a hearing before the trial judge for the purpose of settling the record on appeal. On 20 November 1986, Judge Daniel Greene, Jr. found defendant in contempt for failing to comply with the earlier order. Judge Greene's order stated in part:

2. That the defendant shall not be allowed to support his contentions with regard to the issue of equitable distribution of marital property nor to defend against the plaintiff's allegations as to equitable distribution of marital property in this action. This provision shall not prevent the defendant from appearing or offering evidence with regard to the issue of Divorce but shall only apply to the issue of equitable distribution.

3. That the pleadings of the defendant regarding his contentions as to equitable distribution are hereby stricken.

Defendant appeals from this contempt order and the imposition of sanctions.

_________________________

The issues presented are: I) whether the first notice of appeal divested the trial court of jurisdiction to subsequently order sanctions against defendant; and II) (A) whether the trial court erred on 15 August 1986 in ordering defendant to answer the tendered questions in the deposition, (B) whether the trial court erred on 15 August 1986 in ordering defendant to pay plaintiff's attorney's fees, and (C) whether the trial court erred on 20 November 1986 in entering sanctions against defendant.

I

Defendant argues his first notice of appeal on 15 August 1986 divested the trial court of jurisdiction to enter further orders regarding his failure to answer questions asked at the deposition.

As a general rule, an order compelling discovery is not immediately appealable because it is interlocutory and does not affect a substantial right which would be lost if the ruling is not reviewed before final judgment. Dunlap v. Dunlap, 81 N.C.App. 675, 676, 344 S.E.2d 806, 807, disc. rev. denied, 318 N.C. 505, 349 S.E.2d 859 (1986). However, our Courts have held where a party is adjudged to be in contempt for noncompliance with a discovery order or has been assessed with certain other sanctions, the order is immediately appealable since it affects a substantial right under N.C.G.S. Secs. 1-277 (1986) and 7A-27(d)(1) (1983). See Willis v. Duke Power Co., 291 N.C. 19, 30, 229 S.E.2d 191, 198 (1976) (when civil litigant adjudged in contempt for failure to comply with discovery order, the order is immediately appealable); Adair v. Adair, 62 N.C.App. 493, 495, 303 S.E.2d 190, 192, disc. rev. denied, 309 N.C. 319, 307 S.E.2d 162 (1983) (striking defendant's answer for noncompliance with discovery requests affected a substantial right and was immediately appealable); Walker v. Liberty Mut. Ins. Co., 84 N.C.App. 552, 554-55, 353 S.E.2d 425, 426 (1987) (order compelling discovery not appealable unless it is enforced by sanctions pursuant to Rule 37(b) which affect a substantial right).

The order from which defendant first appealed contained no enforcement sanctions. It only ordered defendant to answer the questions by a certain date. The portion of the order requiring defendant to pay the attorney's fees of plaintiff is authorized by N.C.G.S. Sec. 1A-1, Rule 37(a)(4). This order granting attorney's fees is interlocutory, as it does not finally determine the action nor affect a substantial right which might "be lost, prejudiced or be less than adequately protected by exception to entry of the interlocutory order." J. & B. Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C.App. 1, 6, 362 S.E.2d 812, 815 (1987); cf. Bell v. Moore, 31 N.C.App. 386, 388, 229 S.E.2d 235, 237 (1976) (order staying collection of costs for depositions was interlocutory where final judgment on costs would be entered at termination of the second suit or upon expiration of the statute of limitations).

As the order from which defendant first appealed was not properly appealable, the "attempted appeal was a nullity, notwithstanding [that] the Judge signed the appeal entries...." Cox v. Cox, 246 N.C. 528, 532, 98 S.E.2d 879, 883 (1957). The trial court's signing of the appeal entries did not grant defendant a right to appeal. Veazey v. City of Durham, 231 N.C. 357, 365, 57 S.E.2d 377, 384, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). The trial judge "has nothing to do with the granting of an appeal;" he is simply authorized to perform ministerial acts such as "setting the amount of the appeal bond and settling the case on appeal," or executing other duties necessary to perfect an appeal allowed by law. Id. at 365, 57 S.E.2d at 384. See also Harrell v. Harrell, 253 N.C. 758, 761, 117 S.E.2d 728, 730 (1961) ("A Superior Court Judge can neither allow nor refuse an appeal."). Accordingly, the first appeal of 15 August 1986, did not divest the trial court of jurisdiction to subsequently enter sanctions against defendant. See Veazey, 231 N.C. at 364, 57 S.E.2d at 382-83 (a litigant cannot deprive the superior court of jurisdiction to try and determine a case on its merits by taking an appeal from a nonappealable interlocutory order).

II

The second appeal of 20 November 1986 is appealable as it seeks relief from an order holding defendant in contempt of court for his failure to comply with a discovery order. Willis, 291 N.C. at 30, 229 S.E.2d at 198. This appeal tests the validity "both of the original discovery order and the contempt order...." As a general rule, orders concerning discovery matters will not be overturned absent a showing of abuse of discretion by the trial court. Hudson v. Hudson, 34 N.C.App. 144, 145, 237 S.E.2d 479, 480, disc. rev. denied, 293 N.C. 589, 239 S.E.2d 264 (1977).

A

In the 21 July 1986 order compelling discovery, the trial judge ordered defendant to answer certain questions posed to him during his oral deposition. The court found the defendant "failed or refused to answer, or gave evasive or incomplete answers to various questions" and that there was no justification for this action. Among the answers the court found evasive included those relating to the ownership of an insurance agency which defendant had started during the course of the marriage. Defendant admitted he was a stockholder and president of the insurance agency, which was incorporated soon after the date of separation. Prior to the time of incorporation, the business had operated as a sole proprietorship.

The questions at issue included:

Q. Where are your stock certificates?

A. I don't know.

Q. Do you know how many shares of stock you own?

A. No, sir, I don't.

Q. Do you know where your corporate books are?

A. No, I don't.

Q. Are there any corporate books?

A. I would assume.

Following the 21 July 1986 order, defendant filed "Supplemental Answers to Deposition" in which he stated his answers to the above questions were the "SAME AS PREVIOUSLY ANSWERED." On 15 August 1986, the trial court again found these answers "evasive in nature" and again specifically ordered defendant to answer the questions.

Rule 37(a)(3) of the Rules of Civil Procedure specifically provides that an evasive or incomplete answer is to be treated as a failure to answer. Defendant argues that he did answer the questions to the best of his knowledge and nothing more is required. Our courts have held that if a party is unable to answer discovery requests because of circumstances beyond its control, it cannot be compelled to answer. Laing v. Liberty Loan Co., 46 N.C.App. 67, 71, 264 S.E.2d 381, 384, disc. rev. denied, 300 N.C. 557, 270 S.E.2d 109 (1980). A "good faith effort at compliance" with the court order is required of the deponent. Id. at 71, 264 S.E.2d at 384. Here, there was no showing defendant was ordered to provide information he could not produce. Rather than demonstrating a good faith effort at compliance, d...