{ "id": 8524364, "name": "ROBERT G. THOMPSON and wife, LINDA THOMPSON, and HANK'S GOURMET DESSERTS, INC., Plaintiffs v. HANK'S OF CAROLINA, INC., HANK'S HOMEMADE ICE CREAM, INC., CHRISTOPHER A. RISELY, JOSEPH KADANE and SUSAN E. RITTENHOUSE, Defendants", "name_abbreviation": "Thompson v. Hank's of Carolina, Inc.", "decision_date": "1993-02-16", "docket_number": "No. 913SC934", "first_page": "89", "last_page": "94", "citations": [ { "type": "official", "cite": "109 N.C. App. 89" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "311 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "66 N.C. App. 470", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525469 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/66/0470-01" ] }, { "cite": "378 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "200-01" }, { "page": "201" }, { "page": "201" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528064 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/93/0414-01" ] }, { "cite": "669 F.2d 317", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1161666 ], "year": 1982, "pin_cites": [ { "page": "321-22" } ], "opinion_index": 0, "case_paths": [ "/f2d/669/0317-01" ] }, { "cite": "360 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730978 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0669-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-109", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "267" } ], "opinion_index": 0 }, { "cite": "344 S.E.2d 64", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1986, "pin_cites": [ { "page": "65" }, { "page": "66-67", "parenthetical": "citations omitted" }, { "page": "67" }, { "page": "67" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 263", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522397 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0263-01" ] } ], "analysis": { "cardinality": 567, "char_count": 12079, "ocr_confidence": 0.754, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.394503501941619 }, "sha256": "763e2df854662acd81a3698e34f0fb07aad435bb1d06697b8d2a3a96082acf0e", "simhash": "1:f0af4d6e648f24e8", "word_count": 1970 }, "last_updated": "2023-07-14T20:43:31.464788+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and JOHN concur." ], "parties": [ "ROBERT G. THOMPSON and wife, LINDA THOMPSON, and HANK\u2019S GOURMET DESSERTS, INC., Plaintiffs v. HANK\u2019S OF CAROLINA, INC., HANK\u2019S HOMEMADE ICE CREAM, INC., CHRISTOPHER A. RISELY, JOSEPH KADANE and SUSAN E. RITTENHOUSE, Defendants" ], "opinions": [ { "text": "EAGLES, Judge.\nPlaintiffs argue that the trial court erred by dismissing their claims pursuant to G.S. \u00a7 1-109. Specifically, plaintiffs argue that the trial court lacked authority to dismiss their actions pursuant to G.S. \u00a7 1-109 and that dismissal was an inappropriate sanction.\nG.S. \u00a7 1-109 allows a defendant in a civil action or special proceeding to seek a $200.00 prosecution bond. It also provides, in pertinent part, that \u201cfailure to comply with such order within 30 days from the date thereof shall constitute grounds for dismissal of such civil action or special proceeding[.]\u201d\nIn Narron v. Union Camp Corp., 81 N.C. App. 263, 344 S.E.2d 64 (1986), Judge Brown \u201cordered plaintiffs to post the $200.00 bond specified in G.S. 1-109 and \u2018that such bond should be increased by the amount of $2,500.00 making a total of $2,700.00.\u2019 \u201d Id. at 265, 344 S.E.2d at 65. The plaintiffs neither appealed from the order nor posted the bond. Judge Winberry, relying on G.S. \u00a7 1-109, dismissed the action ex mero motu. On appeal, and after quoting G.S. \u00a7 1-109, this Court held:\nWere we to apply G.S. 1-109 literally without the benefit of earlier decisions, we might conclude that plaintiffs are correct in their assertion that the court may require a bond of $200.00 and no more.\nHowever, our Supreme Court has construed this statutory language otherwise. The operative portions of G.S. 1-109 . . . have been in effect for many years. ... A line of older authority, never overruled and unaffected by subsequent, merely formal amendments, has consistently construed these statutes as allowing the court in its discretion to require additional security for costs beyond the $200.00 statutory figure.\n* * *\nThese precedents establish the court\u2019s authority to set bond in an amount above the $200.00 statutory limit. Defendant\u2019s motion for an additional bond was timely and plaintiffs have not disputed the facts found by the court to support the additional bond required. Judge Brown\u2019s order was proper. It follows from the clear language of the statute that plaintiff\u2019s failure to post the bond subjected their action to dismissal.\nId. at 266-67, 344 S.E.2d at 66-67 (citations omitted) (emphasis ours).\nThe instant case is factually similar to Narron. Here, as in Narron, the trial judge exercised his discretion by setting the amount of the bond above $200.00. Furthermore, as they concede in their reply brief, plaintiffs did not directly challenge the order setting the prosecution bond. (Plaintiffs did raise assignments of error challenging the findings and conclusions of Judge Griffin. However, plaintiffs waived those assignments by failure to offer reason, argument or authority to support them in their brief. N.C.R. App. P. 28(b)(5)). Finally, plaintiffs\u2019 claims were dismissed as a result of the plaintiff\u2019s failure to timely file the bond.\nHowever, plaintiffs argue in their brief that the instant case is distinguishable from Narron.\nIn this case, in contrast to Narron, the trial court did not recite in its order that the plaintiffs must post a $200.00 bond and that such bond be increased to (sic) $7,300.00. Rather, the court, in its discretion, ordered the posting of a bond in the sum of $7,500.00. Although the trial court could properly enter such an order, in its discretion, it could not do so pursuant to N.C. Gen. Stat. \u00a7 1-109.\nWe disagree with plaintiffs\u2019 interpretation of Narron. In Narron, our Court specifically held that the plaintiffs\u2019 claims were subject to dismissal pursuant to G.S. \u00a7 1-109 because the plaintiffs failed to timely obtain a prosecution bond. Moreover, plaintiffs\u2019 attempt to distinguish Judge Griffin\u2019s order because it \u201cdid not recite . . . that the plaintiffs must post a $200.00 bond and that such bond be increased to (sic) $7,300.00\u201d fails because the order itself specifically states that \u201cthe motion of the defendants, pursuant to Section 1-109 of the General Statutes of North Carolina be, and it is hereby, allowed . . . .\u201d Clearly, Judge Griffin entered his order pursuant to G.S. \u00a7 1-109. Here, as in Narron, \u201c[i]t follows from the clear language of the statute that plaintiffs\u2019 failure to post the bond subjected their action to dismissal.\u201d Id. at 267, 344 S.E.2d at 67.\nPlaintiffs next argue that the trial court erred by imposing the sanction of dismissal without first considering less stringent sanctions. We agree.\nAs stated above, G.S. \u00a7 1-109 provides that a party\u2019s failure to comply with an order imposing a prosecution bond \u201cwithin 30 days from the date thereof shall constitute grounds for dismissal of such civil action or special proceeding^]\u201d G.S. \u00a7 1-109.\nIn Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669, 360 S.E.2d 772 (1987) our Supreme Court noted that N.C.R. Civ. P. 41(b), which grants a trial court authority to dismiss an action with prejudice if a party fails to comply with a trial court\u2019s order, is identical to the federal rule. Then, after quoting Rogers v. Kroger Co., 669 F.2d 317, 321-22 (5th Cir. 1982), our Supreme Court determined that a trial court also has inherent power to impose a sanction less harsh than dismissal. We think that holding applies with equal force here. Though G.S. \u00a7 1-109 grants a trial court discretionary authority to dismiss an action as the sanction for violation of a court order imposing a prosecution bond, the court retains its inherent discretionary authority to impose a lesser sanction.\nIn Rivenbark v. Southmark Corp., 93 N.C. App. 414, 378 S.E.2d 196 (1989) the trial court dismissed a complaint pursuant to N.C.R. Civ. P. 41(b) because the plaintiff failed to comply with a court order. On appeal this Court held \u201cthat sanctions may not be imposed mechanically. Rather, the circumstances of each case must be carefully weighed so that the sanction properly takes into account the severity of the party\u2019s disobedience.\u201d Id. at 420-21, 378 S.E.2d at 200-01. Our Court then concluded that a trial judge must consider whether a sanction less drastic than dismissal with prejudice would be effective in ensuring compliance with a court\u2019s order or would best serve the interest of justice before dismissing a complaint. The Court stated:\nHere the trial court made no findings of fact or conclusions of law which address whether less drastic sanctions would be effective in ensuring compliance with the court\u2019s order or would best serve the interests of justice. Accordingly, we vacate and remand that portion of the court\u2019s . . . order dismissing plaintiff\u2019s complaint.\nId. at 421, 378 S.E.2d at 201.\nWe believe that Rivenbark\u2019s holding applies with equal force in the context of G.S. \u00a7 1-109. Defendants argue, however, that the instant case is \u201cstrikingly similar\u201d to the situation presented in Sanford v. Starlite Disco, Inc., 66 N.C. App. 470, 311 S.E.2d 67 (1984). In Sanford, the plaintiff asserted that the trial court erred by dismissing his action, pursuant to N.C.R. Civ. P. 41(d), without taking into account the alleged excusable neglect of the plaintiff. Our Court held that language in N.C.R. Civ. P. 41(d) constitutes a \u201cmandatory directive\u201d to dismiss, and that the trial court was not required to consider the plaintiff\u2019s alleged excusable neglect. Unlike N.C.R. Civ. P. 41(d) which was at issue in Sanford, G.S. \u00a7 1-109 does not mandate dismissal upon failure to comply. Rather, it merely provides that failure to comply with the court\u2019s order constitutes a ground for dismissal. The decision to dismiss pursuant to G.S. \u00a7 1-109 lies in the sound discretion of the trial judge. Narron, 81 N.C. App. at 269, 344 S.E.2d at 67. Accordingly, Sanford is readily distinguishable.\nThe dispositive issue is whether the trial court considered imposition of a less drastic sanction. Here, the transcript of the hearing before Judge Wright contains no indication that Judge Wright considered lesser sanctions. Furthermore, as in Rivenbark, the trial court \u201cmade no findings of fact or conclusions of law which address whether less drastic sanctions would be effective . . . .\u201d Id. at 421, 378 S.E.2d at 201. Accordingly, we vacate the order of the trial court dismissing the plaintiff\u2019s action and remand for further proceedings on defendant\u2019s motion for dismissal not inconsistent with this opinion. Our holding here does not affect the trial court\u2019s discretionary authority, on remand, to impose the sanction of dismissal after properly considering lesser sanctions. Finally, our decision to vacate the dismissal order renders Judge Greene\u2019s 17 May 1991 order denying plaintiff\u2019s N.C.R. Civ. P. 60(b) motion null. Accordingly, it must be vacated as well.\nBecause of our disposition of the foregoing issues, we need not reach any of the remaining arguments raised on appeal.\nVacated and remanded.\nJudges ORR and JOHN concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, by Susan K. Burkhart and Maxwell & Hutson, P.A., by John C. Martin, for the plaintiff-appellants.", "Everett, Everett, Warren & Harper, by Edward J. Harper, II, for the defendant-appellees." ], "corrections": "", "head_matter": "ROBERT G. THOMPSON and wife, LINDA THOMPSON, and HANK\u2019S GOURMET DESSERTS, INC., Plaintiffs v. HANK\u2019S OF CAROLINA, INC., HANK\u2019S HOMEMADE ICE CREAM, INC., CHRISTOPHER A. RISELY, JOSEPH KADANE and SUSAN E. RITTENHOUSE, Defendants\nNo. 913SC934\n(Filed 16 February 1993)\n1. Costs \u00a7 1 (NCI4th)\u2014 prosecution bond \u2014security for costs \u2014 amount \u2014 discretion of court\nThe trial court had the discretion to require a prosecution bond as security for costs in an amount greater than the $200 set forth in N.C.G.S. \u00a7 1-109, and plaintiffs\u2019 failure to post the $7,500 bond set by the court within 30 days subjected their action to dismissal.\nAm Jur 2d, Costs \u00a7 40.\n2. Costs \u00a7 1 (NCI4th)\u2014 prosecution bond \u2014 failure to post-dismissal \u2014 consideration of other sanctions\nAlthough N.C.G.S. \u00a7 1-109 grants a trial court discretionary authority to dismiss an action as a sanction for violation of a court order imposing a prosecution bond, the court erred in imposing the sanction of dismissal without first considering less drastic sanctions.\nAm Jur 2d, Costs \u00a7 43.\nAppeal by plaintiffs from an order filed 25 April 1991 by Judge Paul M. Wright and an order filed 17 May 1991 by Judge George R. Greene in Pitt County Superior Court. Heard in the Court of Appeals 13 November 1992.\nOn 1 May 1990 plaintiffs filed a complaint against the defendants. Because a review of the complaint\u2019s allegations is not necessary to proper disposition of this appeal, we do not recount them here. On 6 February 1991 plaintiffs filed a motion to amend their complaint. Two days later the defendants filed a motion, pursuant to G.S. \u00a7 1-109, seeking to have plaintiffs file a prosecution bond. On 22 February 1991, Judge Griffin entered an order allowing plaintiffs to amend the complaint. By the same order Judge Griffin allowed the defendants\u2019 motion for the prosecution bond and ordered that:\npursuant to Section 1-109 of the General Statutes of North Carolina . . . the plaintiffs shall, within thirty days of the date of this order, either (a) give an undertaking with sufficient surety in the sum of SEVEN THOUSAND Five Hundred AND No/100 Dollars ($7,500.00), with the condition that it will be void if the plaintiffs pay the defendants all costs which the defendants recover of them in this action, ... or (b) deposit the sum of SEVEN THOUSAND Five HUNDRED AND NO/100 DOLLARS ($7,500.00) with such Clerk as security to the defendants for such costs.\nOn 5 April 1991 the defendants filed a motion to dismiss the plaintiffs\u2019 claims for failure to post the prosecution bond within the thirty day period. On 12 April 1991, the plaintiffs filed a motion for extension of time in which to post the prosecution bond. On 25 April 1991 Judge Wright filed an order granting the defendants\u2019 motion and dismissing plaintiffs\u2019 claims. On 18 April 1991 plaintiffs filed a motion to reconsider pursuant to N.C.R. Civ. P. 60(b). That motion was denied by Judge Greene in an order filed 17 May 1991.\nPlaintiffs filed separate notices of appeal from the orders dismissing their claims and denying N.C.R. Civ. P. 60(b) relief.\nPatterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, by Susan K. Burkhart and Maxwell & Hutson, P.A., by John C. Martin, for the plaintiff-appellants.\nEverett, Everett, Warren & Harper, by Edward J. Harper, II, for the defendant-appellees." }, "file_name": "0089-01", "first_page_order": 117, "last_page_order": 122 }