Laing v. Liberty Loan Co. of Smithfield and Albemarle, 795DC743
| Decision Date | 01 April 1980 |
| Docket Number | No. 795DC743,795DC743 |
| Court | North Carolina Court of Appeals |
| Parties | H. P. LAING v. LIBERTY LOAN COMPANY OF SMITHFIELD AND ALBEMARLE. |
Harold P. Laing, Wilmington, for plaintiff-appellee.
Richard M. Pearman, Jr., Greensboro, for defendant-appellant.
The issue raised by this case is whether the trial court acted properly in striking defendant's answer and entering judgment by default. We hold the trial court properly applied the discretionary powers of sanction for discovery abuse provided in Rule 37 of the North Carolina Rules of Civil Procedure.
Plaintiff has alleged performance of a contract to provide legal service, and defendant has never really denied this contract and its performance. To prove his damages, plaintiff would have to show money was collected on the thirty-seven judgments he obtained. Business records and documents consisting of notes, security agreements and payment cards held by defendant could provide this information. He sought this information through discovery procedures. To his interrogatories seeking the amounts and dates of payments on the loans, for all but eleven of the loans, defendant answered "(n)o monies were paid." Then, when the documentary evidence for those loans on which "(n)o monies were paid" was sought through voluntary production, the information sought became unavailable. Plaintiff sought and obtained a court order to produce these documents to which defendant made no response. At the sanctions hearing, defendant's attorney made the unverified statement on oral argument that the business documents sought which were no more than four years old were no longer in existence. Upon these circumstances, the trial court invoked one of the most severe sanctions pursuant to Rule 37 which provides in pertinent part the following:
If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under section (a) of this rule or Rule 35, a judge of the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
c. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
G.S. 1A-1, Rule 37(b)(2)c. The trial court had issued an order pursuant to section (a) of Rule 37 which was ignored. The trial court sanctioned defendant for this. The rule provides that the trial court "may make such orders in regard to the failure as are just . . . ." G.S. 1A-1, Rule 37(b)(2). The issue is whether the trial court abused its discretion and entered an unjust order striking defendant's answers and entering default judgment for plaintiff.
The rule is very flexible and gives a broad discretion to the trial judge. Telegraph Co. v. Griffin, 39 N.C.App. 721, 251 S.E.2d 885, cert. den., 297 N.C. 304, 254 S.E.2d 921 (1979). If a party's failure to produce is shown to be due to inability fostered neither by its own conduct nor by circumstances within its control, it is exempt from the sanctions of the rule. The rule does not require the impossible. It does require a good faith effort at compliance with the court order. Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). In the case at hand, defendant made no good faith effort to comply with the order. No protective order was sought pursuant to G.S. 1A-1, Rule 26(c) against discovery of the material. No response was made by defendant to the motion seeking an order to produce, and the order itself was ignored. All these procedures are provided to benefit defendant. It took...
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Atlantic Veneer Corp. v. Robbins
...beyond its control, an answer cannot be compelled. Benfield v. Benfield, 89 N.C.App. 415, 366 S.E.2d 500 (1988); Laing v. Liberty Loan Co., 46 N.C.App. 67, 264 S.E.2d 381, disc. review denied, 300 N.C. 557, 270 S.E.2d 109 (1980). A "good faith effort at compliance" with the court order is r......
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Stone v. Martin
...to comply with that order, we find no abuse of discretion in the order imposing sanctions and judgment by default. See Laing v. Loan Co., 46 N.C.App. 67, 264 S.E.2d 381, disc. rev. denied, 300 N.C. 557, 270 S.E.2d 109 (1980); Silverthorne v. Land Co., 42 N.C.App. 134, 256 S.E.2d 397, disc. ......
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Milks v. Mills, No. COA08-1313 (N.C. App. 8/4/2009), COA08-1313.
...This Court has stated that this rule is "very flexible and gives a broad discretion to the trial judge." Laing v. Liberty Loan Co., 46 N.C. App. 67, 71, 264 S.E.2d 381, 384 (citation omitted), disc. review denied, 300 N.C. 557, 270 S.E.2d 109 For a court to find a party in contempt, it is "......
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Ross v. Osborne)
...require the impossible. It does require a good faith effort at compliance with the court order.Laing v. Liberty Loan Co. of Smithfield and Albemarle, 46 N.C.App. 67, 71, 264 S.E.2d 381, 384 (citing Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958)), disc. ......