Keesee v. Hamilton , 235 N.C. App. 315 ( 2014 )

NO. COA13-1039
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
BRIAN KEESEE,
Plaintiff,
v. Brunswick County
No. 09-CVS-3278
JOHN HAMILTON,
Defendant.
Appeal by plaintiff from order entered 18 March 2013 by
Judge W. Russell Duke, Jr. in Brunswick County Superior Court.
Heard in the Court of Appeals 6 February 2014.
The Lea Schultz Law Firm, P.C., by James W. Lea, III, for
plaintiff-appellant.
Hodges & Coxe, P.C., by C. Wes Hodges, II and Jennifer J.
Bennett, for defendant-appellee.
DAVIS, Judge.
Brian Keesee (“Plaintiff”) appeals from the trial court’s
order sanctioning him for his failure to respond to discovery
requests and to comply with prior court orders. After careful
review, we affirm.
Factual Background
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Plaintiff and Kimberly Marie Keesee (“Mrs. Keesee”) were
married on 3 February 2003 and separated on 17 October 2009.1 At
some point while Plaintiff and Mrs. Keesee were still married,
John Hamilton (“Defendant”) allegedly initiated an affair with
Mrs. Keesee that ultimately resulted in the Keesees’ separation.
On 24 November 2009, Plaintiff filed an action against
Defendant in Brunswick County Superior Court stating claims for
alienation of affection, criminal conversation, and intentional
infliction of emotional distress. On 24 February 2010,
Defendant filed an answer denying the material allegations of
the complaint and asserting counterclaims against Plaintiff for
electronic eavesdropping, invasion of privacy, defamation, and
defamation per se.
Defendant served his first set of interrogatories and
request for documents on Plaintiff on 1 March 2010. Plaintiff
submitted his responses and objections on 11 May 2010.
Defendant filed a motion to compel on 4 June 2010 and an amended
motion to compel on 14 September 2010.
Defendant’s motion to compel was heard on 14 February 2011.
On 16 March 2011, the Honorable James F. Ammons, Jr. entered an
1
This is the date of separation alleged by Plaintiff in his
complaint. Defendant’s counterclaim lists the date of
separation as 10 October 2010.
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order (“the Discovery Order”) providing, in pertinent part, as
follows:
2. Within ten (10) days, Plaintiff is to
provide to counsel for the Defendant full
and complete responses to the following
discovery requests:
a. Plaintiff shall produce or tender
for inspection a complete response to
Defendant’s requests for production #4
and 5, which shall comprise copies of
any and all audio, video, digital or
other form of recording containing the
communications or activities, or
featuring in any way, the Defendant .
. . and/or [Mrs. Keesee], as well as
any and all transcripts, photographs,
or other documents referencing or
recounting the content of the above-
described audio, video, or other
recordings;
c. [sic] Plaintiff shall produce or
tender for inspection a complete
response to Defendant’s request for
production number 11, which shall
comprise copies of any and all
documents, including but not limited to
statements, invoices, quotes, written
or electronic correspondence,
brochures, photographs, reports or
other information from a private
investigator or any individual with
whom Plaintiff consulted regarding the
monitoring and recording of the
activities of [Defendant] and/or [Mrs.
Keesee.]
Plaintiff filed a notice of appeal as to the Discovery
Order and a motion for a stay on 15 April 2011. On 20 December
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2012, Defendant filed a motion to dismiss Plaintiff’s appeal of
the Discovery Order based on his failure to timely prosecute the
appeal. Plaintiff’s appeal was dismissed by the Honorable
Reuben F. Young by order entered 11 January 2013.
Defendant also filed a motion to show cause, asking the
trial court to hold Plaintiff in contempt for his failure to
comply with the Discovery Order. On 4 March 2013, Defendant’s
show cause motion came on for hearing before the Honorable W.
Russell Duke, Jr. During Plaintiff’s testimony at the show
cause hearing, he admitted that he was in possession of audio
recordings, videotapes, and written reports from a private
investigator — all of which were encompassed within the
Discovery Order but had not been provided by him. He testified
that he did not know where these materials were specifically
located but conceded that he had failed to make any efforts to
comply with the Discovery Order — which had been in effect for
almost two years at the time of Plaintiff’s testimony — by
attempting to locate them.
On 8 March 2013, the trial court entered an order (“the
Contempt Order”) finding Plaintiff in willful civil contempt and
remanded him to the custody of the Brunswick County Sheriff’s
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Office. In the Contempt Order, the trial court made the
following relevant findings of fact:
4. The Plaintiff has failed to abide by
and to obey the Discovery Order issued by
this Superior Court.
5. The Plaintiff appeared before this
Court and failed to show cause as to why he
should not be held in civil contempt of the
Discovery Order.
6. The Plaintiff has the materials ordered
to be produced in his possession, custody or
control.
7. The Plaintiff has made no demonstrable
efforts to gather and produce the recordings
and other documents, materials and
information subject to the Discovery Order
and has not sought to obtain any help to
download electronically stored information
or recordings.
8. The Plaintiff has failed and refused to
produce the materials subject to the
Discovery Order.
Based on these findings of fact, the trial court ordered,
in pertinent part, as follows:
4. Prior to his release from custody, and
as a condition of purging his contempt, the
Plaintiff is ordered to fully and completely
produce the following:
a. Plaintiff shall produce or tender
for inspection a complete response to
Defendant’s requests for production #4
and 5, which shall comprise copies of
any and all audio, video, digital or
other form of recording containing the
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communications or activities, or
featuring in any way, the Defendant . .
. and/or [Mrs. Keesee], as well as any
and all transcripts, photographs, or
other documents referencing or
recounting the content of the above-
described audio, video, digital or
other recordings;
b. Plaintiff shall produce or tender
for inspection a complete response to
Defendant’s request for production
number 11, which shall comprise copies
of any and all documents, including but
not limited to statements, invoices,
quotes, written or electronic
correspondence, brochures, photographs,
reports of other information from a
private investigator or any individual
with whom Plaintiff consulted regarding
the monitoring and recording of the
activities and communications of
[Defendant] and/or [Mrs. Keesee.]
5. The Plaintiff is ordered to pay to the
Defendant the additional sum of $1,928.50,
for the reasonable attorney’s fees incurred
by the Defendant in prosecuting the
Defendant’s Motion to show cause . . . prior
to the Plaintiff’s release from custody as
an additional condition of purging his
contempt; and
6. The Court retains jurisdiction over the
parties and the subject matter of this
action to enforce compliance with this
order.
After the entry of the Contempt Order, counsel for
Plaintiff began tendering certain documents to Defendant’s
counsel in an effort to purge Plaintiff of civil contempt.
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Defendant’s counsel prepared a detailed list of the deficiencies
in Plaintiff’s responses and provided a copy to both Plaintiff’s
counsel and the trial court. Around this same time, it became
apparent that a number of assertions previously made by
Plaintiff in his testimony at the show cause hearing had been
false. Records tendered from the private investigative firm
hired by Plaintiff and affidavits from eyewitnesses were noted
to directly conflict with Plaintiff’s prior testimony in several
respects.
First, Plaintiff, while admitting to having purchased
surveillance equipment via the Internet, had denied placing a
GPS tracking device on Defendant’s vehicle. However, records
from Plaintiff’s private investigator showed that such a device
had, in fact, been placed on Defendant’s vehicle.
Second, Plaintiff had denied that he ever made written
transcripts of audio recordings of Defendant and Mrs. Keesee.
However, counsel for Plaintiff began producing such transcripts
within 48 hours of the show cause hearing at which Plaintiff
testified that they did not exist.
Third, when asked if he had ever brought any recordings or
transcripts from his surveillance of Defendant and Mrs. Keesee
with him to prior court proceedings, Plaintiff had denied ever
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doing so. However, several witnesses submitted affidavits
stating that they had witnessed Plaintiff with such materials
while in court.
On 8 March 2013 and again on 12 March 2013, Judge Duke
presided over telephonic hearings arranged by Plaintiff’s
counsel in connection with Plaintiff’s request that the trial
court release him from jail so that he could assist in the
efforts to bring himself into compliance with the Contempt
Order. During these hearings, counsel for Defendant requested
that the trial court sanction Plaintiff pursuant to Rule 37 of
the North Carolina Rules of Civil Procedure for his continuing
failure to provide adequate discovery responses and his failure
to comply with prior court orders requiring him to produce
responsive documents as a condition of purging his contempt.
The trial court denied Plaintiff’s request for relief and
entered an order (“the Sanctions Order”) on 18 March 2013
sanctioning Plaintiff by dismissing his complaint with prejudice
and entering a default judgment in favor of Defendant on his
counterclaims. Plaintiff gave timely notice of appeal to this
Court.
Analysis
I. Interlocutory Appeal
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We first note that the Sanctions Order left unresolved the
question of Defendant’s entitlement to monetary damages on his
counterclaims. Therefore, the order is interlocutory. See
Duncan v. Duncan, 102 N.C. App. 107, 111, 401 S.E.2d 398, 400
(1991) (holding that appeal of default judgment ordering
subsequent hearing on damages was interlocutory).
An interlocutory order may be appealed, however, if the
order implicates a substantial right of the appellant that would
be lost if the order was not reviewed prior to the issuance of a
final judgment. Guilford Cty. ex rel. Gardner v. Davis, 123
N.C. App. 527, 529, 473 S.E.2d 640, 641 (1996). This Court has
previously held that “where a party is found 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. Gen. Stat. §]
1-277 . . . .” Cochran v. Cochran, 93 N.C. App. 574, 576, 378
S.E.2d 580, 581 (1989). As such, we have jurisdiction over
Plaintiff’s appeal.
II. Subject Matter Jurisdiction of Trial Court Over Telephonic
Hearings
Plaintiff’s first argument on appeal is that the trial
court lacked subject matter jurisdiction to preside over the
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telephonic hearings that took place on 8 March and 12 March 2013
and to enter the subsequent Sanctions Order. We disagree.
We review questions of subject matter jurisdiction de novo.
McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592
(2010). “Pursuant to the de novo standard of review, the court
considers the matter anew and freely substitutes its own
judgment for that of the trial court.” Trivette v. Yount, 217
N.C. App. 477, 482, 720 S.E.2d 732, 735 (2011) (citation,
quotation marks, and brackets omitted), aff’d in part, rev’d in
part on other grounds, and remanded, 366 N.C. 303, 735 S.E.2d
306 (2012).
Judge Duke was commissioned to preside over a special
session of Brunswick County Superior Court at the time
Defendant’s motion to show cause was heard on 4 March 2013. The
parties do not dispute that, by its terms, his commission was to
last for one day or “until the business is completed.” Four
days after the 4 March 2013 hearing, Judge Duke entered the
Contempt Order, concluding as a matter of law that “[t]he Court
has jurisdiction of the subject matter of this action and over
the person of the Plaintiff” and that “[t]he Court retains
jurisdiction over the parties and the subject matter of this
action to enforce compliance with this order.”
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Plaintiff argues that although Judge Duke possessed
jurisdiction to enter the Contempt Order, he lacked jurisdiction
to take any action thereafter. Plaintiff contends that once
Judge Duke entered the Contempt Order, there was no further
“business” left for him to conduct, and that, as such, the
limited jurisdiction conferred upon him by his commission had
ended.
In rejecting Plaintiff’s argument, we find instructive our
decision in Hockaday v. Lee, 124 N.C. App. 425, 477 S.E.2d 82(1996). In Hockaday, this Court held that a superior court
judge commissioned to preside over a special session of superior
court set to last for two weeks or “until the business of the
court was completed” possessed jurisdiction to enter an order
taxing costs and fees outside of the two-week period because the
business of the court was not completed until the execution of
the judgment and the settling of the costs. Id. at 428, 477
S.E.2d at 84 (quotation marks and brackets omitted).
Similarly, in the present case, Judge Duke’s commission
granted him authority to preside over a special session of
Brunswick County Superior Court for one day “or until the
business [was] completed.” Judge Duke’s jurisdiction did not
expire simply by virtue of him entering the Contempt Order
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because enforcement issues related to that order could — and, in
fact, did — arise, leaving the business of that session of court
unfinished.
The present case is distinguishable from In re Delk, 103
N.C. App. 659, 406 S.E.2d 601 (1991), which Plaintiff cites in
support of his jurisdictional argument. In Delk, we held that
an out-of-district judge assigned to preside over a special
session of superior court did not have jurisdiction to enter a
show cause order. Id. at 661, 406 S.E.2d at 602. However, the
trial judge in Delk entered the show cause order prior to the
commencement of the special session. Id. Here, conversely, the
telephonic hearings and Sanctions Order took place after the
special session had begun and while the business of the court
was not yet finished.
Thus, Judge Duke had jurisdiction to preside over the
telephonic hearings and to subsequently enter the Sanctions
Order based upon his continuing jurisdiction to ensure
compliance with the Contempt Order. Accordingly, Plaintiff’s
argument on this issue is overruled.
III. Sanctions Order
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Plaintiff’s final argument is that the Sanctions Order
contains erroneous findings and must therefore be vacated. We
disagree.
Rule 37 authorizes a trial court to impose sanctions,
including the entry of a default judgment, against a party who
fails to comply with a discovery order. N.C.R. Civ. P.
37(b)(2),(d). “Sanctions [imposed] under Rule 37 are within the
sound discretion of the trial court and will not be overturned
on appeal absent a showing of abuse of that discretion.” Hursey
v. Homes by Design, Inc., 121 N.C. App. 175, 177, 464 S.E.2d
504, 505 (1995). “A trial court may be reversed for abuse of
discretion only upon a showing that its ruling was so arbitrary
that it could not have been the result of a reasoned decision.”
Id.; see In re Pedestrian Walkway Failure, 173 N.C. App. 237,
246, 618 S.E.2d 819, 826 (2005) (holding that trial court’s
decision to impose sanctions may only be overturned “if there is
no record which indicates that [a] defendant acted improperly,
or if the law will not support the conclusion that a discovery
violation has occurred”), disc. review denied, 360 N.C. 290, 628
S.E.2d 382 (2006).
Although a trial court must consider lesser sanctions prior
to dismissing an action with prejudice for failure to comply
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with discovery, it is not required to expressly list and reject
each lesser sanction that it considered in its order. Badillo
v. Cunningham, 177 N.C. App. 732, 735, 629 S.E.2d 909, 911,
aff’d per curiam, 361 N.C. 112, 637 S.E.2d 538 (2006). Here, in
Finding of Fact 12 of the Sanctions Order, Judge Duke stated
that he had considered lesser sanctions before deciding to
impose the sanctions contained therein.
Plaintiff argues that the trial court abused its discretion
by finding in the Sanctions Order that Plaintiff was in
continuing civil contempt at the time of the show cause hearing.
Specifically, he points to a provision in the Sanctions Order
stating that the trial court made its findings of facts after
having reviewed the file in this matter,
having presided over the hearing on
Defendant’s Motion to Show Cause in which
the Plaintiff was found to be in continuing
civil contempt for failure to make
discovery, having presided over a telephonic
hearing on March 8, 2013, having presided
over a telephonic hearing on March 12, 2013,
and having otherwise heard arguments of
counsel for both parties and being fully
advised in this matter[.]
(Emphasis added.) Plaintiff claims he could not have been in
continuing civil contempt at the time of the show cause hearing
because the Contempt Order had not yet been issued. Plaintiff
argues that this mischaracterization may have influenced the
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trial court’s decision to impose more stringent sanctions
against him.
Pursuant to N.C. Gen. Stat. § 5A-21, failure to comply with
a court order constitutes continuing civil contempt as long as
(1) The order remains in force;
(2) The purpose of the order may still be
served by compliance with the order;
(2a) The noncompliance by the person to whom
the order is directed is willful; and
(3) The person to whom the order is
directed is able to take reasonable measures
that would enable the person to comply with
the order.
N.C. Gen. Stat. § 5A-21(a) (2013).
At the hearing on Defendant’s motion to show cause and as
memorialized in the ensuing Contempt Order, the trial court made
the requisite findings necessary to hold Plaintiff in continuing
civil contempt. Specifically, the trial court found, in
pertinent part, as follows:
4. The Plaintiff has failed to abide by
and to obey the Discovery Order issued by
this Superior Court.
5. The Plaintiff appeared before this
Court and failed to show cause as to why he
should not be held in civil contempt of the
Discovery Order.
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6. The Plaintiff has the materials ordered
to be produced in his possession, custody or
control.
7. The Plaintiff has made no demonstrable
efforts to gather and produce the recordings
and other documents, materials and
information subject to the Discovery Order
and has not sought to obtain any help to
download electronically stored information
or recordings.
8. The Plaintiff has failed and refused to
produce the materials subject to the
Discovery Order.
9. The Discovery Order remains in force.
10. The purpose of the Discovery Order may
still be served by compliance with the same.
11. The Plaintiff’s noncompliance with the
performance obligations of the Discovery
Order is willful.
12. The Plaintiff is able to comply with
the performance obligations of the Discovery
Order or is able to take reasonable measures
that would enable him to comply with the
performance obligations of the Discovery
Order.
Thus, the trial court did not err by using the phrase
“continuing civil contempt” when it entered the Sanctions Order.
However, even assuming arguendo that the trial court’s use of
the phrase was inaccurate, Plaintiff has failed to offer any
persuasive argument as to why any such error would require that
the Sanctions Order be vacated as an abuse of the trial court’s
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discretion — given the abundant evidence supporting the court’s
decision to impose sanctions on Plaintiff.
Finally, Plaintiff alleges that Finding of Fact 6 of the
Sanctions Order constitutes an erroneous finding upon which the
trial court relied in determining the sanctions to be imposed.
Specifically, Plaintiff refers to the fact that Finding of Fact
6 mistakenly states that Plaintiff testified at a hearing on 6
March 2013 that he had not made written transcripts of the audio
recordings of Defendant and Mrs. Keesee when, in actuality, this
testimony took place at a hearing held on 4 March 2013.
Plaintiff argues that the trial court’s use of the incorrect
hearing date in the Sanctions Order rose to the level of
prejudicial error because it “contributed to Judge Duke’s
ultimate decision to impose the harshest sanctions possible.”
Nothing in the Sanctions Order, however, supports a
conclusion that Judge Duke considered the precise date on which
Plaintiff gave this testimony to be relevant in his decision-
making process regarding the imposition of sanctions. Rather,
as the Sanctions Order makes clear, the imposition of the
sanctions at issue was based on the fact that Plaintiff engaged
in conduct such as producing transcripts that he had previously
testified did not exist. Given the wealth of evidence to
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support the entry of the Sanctions Order, we conclude that any
clerical error as to the date of the hearing was not material to
the trial court’s decision to impose sanctions and, therefore,
any such error was harmless.
Conclusion
For the reasons stated above, we affirm.
AFFIRMED.
Judges CALABRIA and STROUD concur.