Hayes v. Browne , 76 N.C. App. 98 ( 1985 )

331 S.E.2d 763 (1985)

Earlyne W. HAYES, Administratrix of the Estate of Roy Lee Hayes, Deceased
v.
T. Marcus BROWNE, Administrator of Estate of Conrad Jude Mentel, Jr. and Durham West, Inc.

No. 8414SC1136.

Court of Appeals of North Carolina.

July 16, 1985.

Hunter, Hodgman, Green & Donaldson by Richard M. Green and Arthur J. Donaldson, Greensboro, for plaintiff-appellant.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by Ronald C. Dilthey and Theodore B. Smyth, Raleigh, for defendant-appellee Durham West, Inc.

JOHNSON, Judge.

At the outset, we note that plaintiff's appeal is from an interlocutory order imposing sanctions for failure to complete discovery. Nevertheless, we choose to exercise our discretion and pass on the merits of plaintiff's appeal from the dismissal of the action. See, Routh v. Weaver, 67 N.C. App. 426, 428, 313 S.E.2d 793, 795 (1984).

Plaintiff's first assignment of error is that the trial court lacked authority to dismiss the action. G.S. 1A-1, Rule 37(d) North Carolina Rules of Civil Procedure provides in pertinent part:

If a party ... fails to serve answers to interrogatories submitted under Rule 33, after proper service of such interrogatories, a judge of the court in which the action is pending ... on motion and notice may make such orders as may be just including ... dismissing the action or proceeding or any part thereof....

This Court ruled in Hammer v. Allison, 20 N.C.App. 623, 202 S.E.2d 307, cert. denied, 285 N.C. 233, 204 S.E.2d 23 (1974), that where plaintiff was properly served with interrogatories, but refused to answer them without good cause, and did not serve on defendant objections to any of the interrogatories, or ask for an extension of time to answer, the trial court properly dismissed plaintiff's action.

Plaintiff relies on Willis v. Duke Power, 291 N.C. 19, 229 S.E.2d 191 (1976), wherein the court held that where plaintiff had inadvertently omitted portions of the interrogatories, the court had no authority to dismiss plaintiff's action for failure to serve answers to interrogatories. Two salient features distinguish Willis from the case sub judice. In Willis, the defendant filed timely objections to the interrogatories, and secondly, defendant moved for a protective order. Nothing in the record supports a finding that plaintiff in the case at bar filed motions objecting to the interrogatories, or that motions were filed asking for an enlargement of time within which to complete the interrogatories. Further, plaintiff in the instant case served answers to the interrogatories after defendant had filed a motion to dismiss. Plaintiff's reliance on Willis is clearly misplaced. Plaintiff also urges this court to follow the reasoning in White v. Southard, 236 N.C. 367, 368, 72 S.E.2d 756-57 (1952), wherein the court held that "when an answer has been filed, whether before or after the time for answering had expired, so long as it remains filed of record, the clerk is without authority to enter a judgment by default." What plaintiff has failed to consider is that the defendant's answer in White was sufficient to establish the basis or lack thereof of defendant's liability.

The instant case involves an automobile accident and charges were brought in a dram shop action against a tavern. The very nature of the action evinces a need for defendant Durham West, Inc. to ascertain its liability and the issue of damages through discovery. Plaintiff's failure to comply with the Rules of Discovery (Rule 33) has clearly prejudiced the defendant's ability to prepare for trial. We therefore find no merit in plaintiff's assignment of error on the issue of the court's authority to dismiss the action.

Plaintiff's second assignment of error is that even if the trial court had authority to impose sanctions, the action was an abuse of discretion. Plaintiff urges the court to adhere to the reasoning that "absent a showing of willful, deliberate disregard of the judicial process or the plaintiff's rights, or that the defendant was ``defiant or obdurate,' the severe sanction of default judgment must be set aside." United Artists Corp. v. Freeman, 605 F.2d 854 (5th Cir. 1975). We reject that reasoning. This Court has addressed the requirement of willful and found that "the language of G.S. 1A-1 Rule 37(d) requires no such finding." Imports, Inc. v. Credit Union, 37 N.C.App. 121, 124, 245 S.E.2d 798, 800 (1978). The 1975 amendment to Rule 37(d) deletes the specific reference to "willful" from the rule. If a non-complying party wishes to avoid court-imposed sanctions for his failure to answer interrogatories, the burden is upon him to show that there is justification for his noncompliance. Silverthorne v. Coastal Land Co., 42 N.C.App. 134, 256 S.E.2d 397, cert. denied, 298 N.C. 300, 259 S.E.2d 302 (1979). The language of Rule 37(d) as amended specifically provides that a party may not remain silent, but must apply for a protective order or an enlargement of time. See, Comment to Rule 37(d) 1975 Amendment. In the instant case, plaintiff failed to exercise either of these alternatives. The imposition of sanctions is in the sound discretion of the trial judge, and we find no evidence to support a finding that the trial judge abused that discretion. Rather, we are presented with a plaintiff who committed dilatory, inconsiderate, and reprehensible abuse of the discovery process for which it was justly sanctioned. See, Laing v. 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).

Plaintiff's last assignment of error is that dismissal of the claim denied her due process. We find no merit in this contention. Plaintiff cited no authority which held Rule 37(d) unconstitutional. The trial judge appropriately exercised his discretion in applying the rule to plaintiff's case. We see no evidence which supports a finding that plaintiff was denied due process. Accordingly, we must affirm the decision of the trial court.

Affirmed.

COZORT, J., concurs.

WELLS, J., concurs in the result.