Hall v. Carter , 90 N.C. App. 668 ( 1988 )

WELLS, Judge.

Rule 37(a)(4) of the North Carolina Rules of Civil Procedure provides that if a motion for an order compelling discovery is granted,

the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

Plaintiff in the present case does not challenge the trial court’s authority to require him to pay the “reasonable expenses incurred” by defendants in obtaining the 13 April order compelling discovery. Moreover, plaintiff concedes that the $200 taxed against him has not been paid. But he contends that his failure to pay is excused because the 13 April order does not set a definite and clearly ascertainable time within which payment is to be made. The last paragraph of the 13 April order provides as follows:

NOW, THEREFORE, and pursuant to the provisions of Rule 37 of the Rules of Civil Procedure, It Is Ordered that plaintiff Kenneth Fowler within 15 days from the date of entry of this order serve upon defendants Newkirk full and complete written answers to the interrogatories of said defendants of date December 8, 1986. It Is FURTHER ORDERED that the sum of $200 — shall be taxed to said plaintiff for the costs of obtaining this order.

Plaintiff contends that in the absence of an unambiguous order clearly setting a time certain for payment, costs taxed pursuant to Rule 37(a)(4) are not due and owing until after final judgment.

We cannot agree with plaintiff that expenses assessed pursuant to Rule 37(a)(4) are not due and payable until final judgment, but rather hold that it is within the trial court’s discretion to require that such expenses be paid at any time after entry of an order pursuant to the rule. Accordingly, the better practice would be for all such orders to include a provision as to when payment of such expenses shall be made. Since the order entered by Judge Brannon in this case did not set a time certain for the payment of the expenses assessed against plaintiff, we hold that the drastic remedy of dismissal granted by Judge Barnette was improper and reverse. We remand for an appropriate order setting a time certain for plaintiffs compliance with Judge Brannon’s order.

Reversed and remanded.

Judges BECTON and PHILLIPS concur.