{ "id": 8996492, "name": "GLOBAL FURNITURE, INC., Plaintiff v. EDDIE PROCTOR, Defendant", "name_abbreviation": "Global Furniture, Inc. v. Proctor", "decision_date": "2004-07-06", "docket_number": "No. COA03-1043", "first_page": "229", "last_page": "236", "citations": [ { "type": "official", "cite": "165 N.C. App. 229" } ], "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": "173 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "915" } ], "opinion_index": 0 }, { "cite": "276 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562575 ], "year": 1970, "pin_cites": [ { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0556-01" ] }, { "cite": "284 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "499" } ], "opinion_index": 0 }, { "cite": "304 N.C. 557", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569514 ], "year": 1981, "pin_cites": [ { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0557-01" ] }, { "cite": "189 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "488" } ], "opinion_index": 0 }, { "cite": "281 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575351 ], "year": 1972, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0496-01" ] }, { "cite": "592 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2003, "pin_cites": [ { "page": "194", "parenthetical": "quoting Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972)" }, { "page": "194" }, { "page": "194" }, { "page": "194" }, { "page": "194" } ], "opinion_index": 0 }, { "cite": "357 N.C. 544", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491490 ], "weight": 5, "year": 2003, "pin_cites": [ { "page": "549", "parenthetical": "quoting Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972)" }, { "page": "549-50" }, { "page": "549" }, { "page": "549" }, { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0544-01" ] }, { "cite": "151 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "580" } ], "opinion_index": 0 }, { "cite": "268 N.C. 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564697 ], "year": 1966, "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0668-01" ] }, { "cite": "432 S.E.2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "159" }, { "page": "159", "parenthetical": "\"It is important to note that our holding today does not affect the trial court's discretionary authority, on remand, to impose the sanction of dismissal with prejudice after properly considering less severe sanctions.\"" }, { "page": "159" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 173", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520964 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "177" }, { "page": "177" }, { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0173-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "464 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1995, "pin_cites": [ { "page": "505" }, { "page": "505" }, { "page": "507" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 175", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916211 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "177" }, { "page": "177" }, { "page": "179" }, { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0175-01" ] }, { "cite": "462 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "547" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 356", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915700 ], "year": 1995, "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0356-01" ] }, { "cite": "587 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "454", "parenthetical": "quoting Williams v. N.C. Dep't of Correction, 120 N.C. App. 356, 359, 462 S.E.2d 545, 547 (1995)" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 125", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8955696 ], "year": 2003, "pin_cites": [ { "page": "129", "parenthetical": "quoting Williams v. N.C. Dep't of Correction, 120 N.C. App. 356, 359, 462 S.E.2d 545, 547 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0125-01" ] } ], "analysis": { "cardinality": 602, "char_count": 15553, "ocr_confidence": 0.739, "pagerank": { "raw": 7.504301352732036e-08, "percentile": 0.446630286167263 }, "sha256": "0babcc128a03473b8ef93ff5394e7b0e38109f2f1f99db6f76f38e8652f32d06", "simhash": "1:0f6b50661c9f98d6", "word_count": 2532 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and TIMMONS-GOODSON concur." ], "parties": [ "GLOBAL FURNITURE, INC., Plaintiff v. EDDIE PROCTOR, Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nEddie Proctor (\u201cdefendant\u201d) appeals from the trial court\u2019s 19 March 2003 order dismissing his counterclaim with prejudice as a sanction for failure to comply with a discovery order. Defendant also appeals a 2 May 2003 order finding entry of default had been improperly entered against Global Furniture, Inc., (\u201cplaintiff\u2019) and striking the entry of default. We vacate both orders and remand the 19 March 2003 sanction order for further consideration.\nI. Background\nDefendant is a former employee of plaintiff. Plaintiff instituted this action on 29 August 2002 and alleged defendant obtained confidential information following termination from employment and disclosed it to third parties to promote his own business interests. Defendant answered and counterclaimed for a unhonored severance package, withheld wages, extortion, blackmail, blacklisting, unjust enrichment, and racketeering. Plaintiff moved for and was granted an extension of time until 7 January 2003 to answer defendant\u2019s counterclaim.\nOn 6 December 2002, plaintiff served defendant with \u201cPlaintiffs Second Set of Interrogatories and Requests for Production of Documents.\u201d On 9 December 2002, defendant objected to plaintiffs discovery requests, asserted attorney-client privilege to the requested information that was in his attorney\u2019s possession, and failed to answer the interrogatories or produce the requested documents. Plaintiff moved to compel discovery. After hearing, defendant was ordered to answer each interrogatory and produce all documents requested by 5 January 2003.\nOn 30 December 2002, plaintiff filed a motion to dismiss defendant\u2019s counterclaim pursuant to N.C.R. Civ. P. 12(b)(1) and 12(b)(6). This motion was served on defendant by first-class mail.\nDefendant filed his responses to plaintiff\u2019s second set of interrogatories and requests for production of documents on 2 January 2003. On 11 March 2003, plaintiff moved for sanctions and alleged that defendant\u2019s answer violated the trial court\u2019s earlier order to compel discovery. On the same day, defendant moved for an entry of default on defendant\u2019s counterclaim, which Superior Court Judge Christopher M. Collier granted on 13 March 2003. Defendant filed a response to plaintiff\u2019s motion for sanctions, and, on 14 March 2003, filed a motion for default judgment.\nJudge Larry Ford heard and granted plaintiff\u2019s motion for sanctions on 17 March 2003. By order entered 19 March 2003, defendant\u2019s counterclaim was stricken and dismissed with prejudice. Defendant\u2019s motion for default judgment was heard on 14 April 2003. On 2 May 2003, Judge Ford entered an order concluding that no hearing had been held on the motion to dismiss and no ruling had been obtained at the time of entry of default. Plaintiff\u2019s reply was not due at the time the entry of default was entered against plaintiff pursuant to N.C.R. Civ. P. 12(a)(1). Judge Ford\u2019s order ruled that entry of default was improperly entered, ordered the entry stricken, and denied defendant\u2019s motion for default judgment. Defendant appeals.\nII. Issues\nThe issues are whether the trial court erred in: (1) dismissing defendant\u2019s counterclaim as a sanction for non-compliance with an order compelling discovery; (2) striking the entry of default entered by another superior court judge; and (3) striking the entry of default because plaintiff\u2019s motion failed to comply with the North Carolina Rules of Civil Procedure.\nIII. Sanctions\nDefendant argues the trial court erred in striking his counterclaim as a sanction for non-compliance with the trial court\u2019s earlier order compelling discovery.\nRule 37(b)(2) of the North Carolina Rules of Civil Procedure authorizes a trial court to sanction a party for failure to comply with a court order compelling discovery. The trial court is given broad discretion to \u201cmake such orders in regard to the failure as are just\u201d and authorized to, among other things, prohibit the introduction of certain evidence, strike pleadings, dismiss the action, or render judgment against the disobedient party. N.C. Gen. Stat. \u00a7 1A-1, Rule 37(b) (2003).\n\u201cThe administration of [discovery] rules, in particular the imposition of sanctions, is within the broad discretion of the trial court. The trial court\u2019s decision regarding sanctions will only be overturned on appeal upon showing an abuse of that discretion.\u201d Joyner v. Mabrey Smith Motor Co., 161 N.C. App. 125, 129, 587 S.E.2d 451, 454 (2003) (quoting Williams v. N.C. Dep\u2019t of Correction, 120 N.C. App. 356, 359, 462 S.E.2d 545, 547 (1995)); see also Hursey v. Homes by Design, 121 N.C. App. 175, 177, 464 S.E.2d 504, 505 (1995). \u201cA 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.\u201d Hursey, 121 N.C. App. at 177, 464 S.E.2d at 505 (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)).\nA. Abuse of Discretion\nDefendant asserts the trial court abused its discretion and argues he made good faith efforts to comply with the order compelling discovery. We disagree. The trial court considered the evidence and arguments. Defendant asserted no knowledge of the requested information and inability to comply because another of his attorney\u2019s clients was in possession of the information requested. Defendant concedes this was the same evidence and argument presented during the hearing on plaintiff\u2019s motion to compel. Defendant presents no new argument not considered by the trial court.\nDefendant has failed to show that the trial court\u2019s order was not a result of a reasoned decision. The trial court did not abuse its discretion in imposing sanctions on defendant for his failure to comply with the order compelling discovery. This portion of his assignment of error is overruled.\nB. Effect of Entry of Default\nDefendant contends the entry of default against plaintiff established that his counterclaim was admitted and prohibited the trial court from imposing sanctions. We disagree.\nEven if defendant\u2019s counterclaim was deemed admitted, Rule 37(b) of the North Carolina Rules of Civil Procedure allows a trial court to refuse \u201cto allow the disobedient party to support or oppose designated claims or defenses\u201d or dismiss \u201cthe action or proceeding or any part thereof . . . .\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 37(b)(2)(b)-(c) (2003). Rule 37 does not require the disobedient party\u2019s claims to be denied. The entry of default did not prevent the trial court from sanctioning defendant for failure to comply with the order to compel discovery.\nC. Lesser Sanctions\nDefendant also argues the trial court failed to consider lesser sanctions. We agree.\n\u201c[Bjefore dismissing a party\u2019s claim with prejudice pursuant to Rule 37, the trial court must consider less severe sanctions.\u201d Hursey, 121 N.C. App. at 179, 464 S.E.2d at 507 (citing Goss v. Battle, 111 N.C. App. 173, 177, 432 S.E.2d 156, 159 (1993)). The trial court is not required to impose lesser sanctions, but only to consider lesser sanctions. Goss, 111 N.C. App. at 177, 432 S.E.2d at 159 (\u201cIt is important to note that our holding today does not affect the trial court\u2019s discretionary authority, on remand, to impose the sanction of dismissal with prejudice after properly considering less severe sanctions.\u201d).\nIn Hursey, we examined the transcript and held the trial court did not err in imposing sanctions pursuant to Rule 37(b). 121 N.C. App. at 179, 464 S.E.2d at 507. The trial court considered two options in Hursey. striking both the answer and counterclaim, or only striking the counterclaim. Id. Here, the transcript shows the trial court only considered striking defendant\u2019s counterclaim. Additionally, the trial court issued an order in response to the parties\u2019 request for judicial settlement of the record on appeal. Judge Ford\u2019s order imposing sanctions, stated, \u201cthe Court did not consider . . . the imposition of lesser sanctions as a part of the March 19, 2003 Order\nWe vacate the order dismissing defendant\u2019s counterclaim as a sanction and remand for a hearing on lesser sanctions. As in Goss, the trial court has the discretionary authority, on remand, to dismiss defendant\u2019s counterclaim with prejudice, but must first consider less severe sanctions. 111 N.C. App. at 177, 432 S.E.2d at 159.\nIV. Entry of Default\nDefendant asserts the trial court erred in striking the entry of default entered by another judge. We agree.\nRule 55 of the North Carolina Rules of Civil Procedure allows the trial court to enter default \u201c[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or is otherwise subject to default judgment as provided by these rules or by statute ....\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 55(a) (2003). Rule 55 also grants the trial court the authority to set aside an entry of default \u201c[f]or good cause shown.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 55(d) (2003).\nJudge Collier entered default on 13 March 2003 pursuant to defendant\u2019s motion. Defendant moved for default judgment on 14 April 2003. After hearing this motion, Judge Ford ordered the entry of default entered by Judge Collier to be stricken. Although Rule 55(d) allows the trial court to set aside an entry of default and, in effect overrule a trial court\u2019s earlier order, plaintiff never moved to set aside entry of default pursuant to this rule. Further, Judge Ford made no findings that it was striking Judge Collier\u2019s entry of default pursuant to Rule 55 for \u201cgood cause shown.\u201d Instead, Judge Ford made specific findings of fact regarding the pleadings and concluded, contrary to Judge Collier\u2019s entry of default, that \u201cplaintiff is not in default on defendant\u2019s counterclaim.\u201d\nOur Supreme Court has long recognized:\n\u201cThe power of one judge of the superior court is equal to and coordinate with that of another.\u201d Michigan Nat\u2019l Bank v. Hanner, 268 N.C. 668, 670, 151 S.E.2d 579, 580 (1966). Accordingly, it is well established in our jurisprudence that no appeal lies from one Superior Court judge to another; that one Superior Court judge may not correct another\u2019s errors of law; and that ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action.\nState v. Woolridge, 357 N.C. 544, 549, 592 S.E.2d 191, 194 (2003) (quoting Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972)). One judge may reconsider another judge\u2019s ruling \u201conly in the limited situation where the party seeking to alter that prior ruling makes a sufficient showing of a substantial change in circumstances during the interim which presently warrants a different or new disposition of the matter.\u201d Woolridge, 357 N.C. at 549-50, 592 S.E.2d at 194 (quoting State v. Duvall, 304 N.C. 557, 562, 284 S.E.2d 495, 499 (1981)).\nJudge Ford\u2019s order made findings of fact regarding the pleadings in this action. At the time Judge Ford entered his order, plaintiff had filed a Rule 12(b) motion to dismiss, on which the trial court had not yet ruled when it entered default. The order concludes, based on these pleadings, \u201centry of default was improperly entered\u201d under Rule 12(a)(1) of the North Carolina Rules of Civil Procedure. By striking the entry of default, Judge Ford\u2019s order improperly implies that Judge Collier erred as a matter of law and misapplied the Rules of Civil Procedure. See Woolridge, 357 N.C. at 549, 592 S.E.2d at 194.\nWe hold the trial court erred in striking the entry of default ex mero motu without finding that plaintiff had shown \u201cgood cause\u201d or that a substantial change in circumstances had occurred to warrant a different disposition. N.C. Gen. Stat. \u00a7 1A-1, Rule 55; Woolridge, 357 N.C. at 549, 592 S.E.2d at 194. The trial court also erred in reversing Judge Collier\u2019s entry of default. Judge Ford was without jurisdiction to reconsider another judge\u2019s ruling on the same matter without finding \u201cgood cause\u201d or a substantial change in circumstances. N.C. Gen. Stat. \u00a7 1A-1, Rule 55; Woolridge, 357 N.C. at 549, 592 S.E.2d at 194. As plaintiff neither moved nor presented evidence of \u201cgood cause\u201d to set aside the entry of default, Judge Ford\u2019s jurisdiction and authority extended only to grant or deny defendant\u2019s motion for default judgment. Defendant neither assigns error to nor argues that portion of the trial court\u2019s order denying his motion for default judgment.\nWe vacate that portion of Judge Ford\u2019s order striking Judge Collier\u2019s entry of default and reinstate the entry of default.\nV. Notice of Hearing\nDefendant contends the trial court erred in striking the entry of default because plaintiff did not include written notice of hearing with its motion to dismiss. As we hold the trial court erred in striking the entry of default, this assignment of error is moot. See Highway Comm. v. School, 276 N.C. 556, 564, 173 S.E.2d 909, 915 (1970).\nFurther, Rule 7 of the North Carolina Rules of Civil Procedure states:\nAn application to the court for an order shall be by motion which, unless made during a hearing or trial or at a session at which a cause is on the calendar for that session, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 7(b)(1) (2003). Based on a plain reading of this rule, a calendar request or notice of hearing need not accompany a valid motion.\nVI. Conclusion\nThe trial court erred by not considering lesser sanctions. The trial court\u2019s order of 19 March 2003 granting plaintiff\u2019s motion for sanctions is vacated, and this case is remanded for consideration of lesser sanctions.\nThe trial court also erred in striking Judge Collier\u2019s entry of default and overruling another superior court judge\u2019s order without making required findings. The portion of the trial court\u2019s 2 May 2003 order striking the entry of default is vacated.\nVacated and Remanded.\nJudges McGEE and TIMMONS-GOODSON concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Patrick, Harper & Dixon, LLP, by Stephen M. Thomas and Evans W. Fisher, for plaintiff-appellee.", "Brawley & Harwell, P.A., by Brian R. Harwell, for defendant-appellant." ], "corrections": "", "head_matter": "GLOBAL FURNITURE, INC., Plaintiff v. EDDIE PROCTOR, Defendant\nNo. COA03-1043\n(Filed 6 July 2004)\n1. Discovery\u2014 noncompliance \u2014 sanctions\nThe trial court did not abuse its discretion by entering sanctions against defendant for not complying with a discovery order.\n2. Discovery\u2014 discovery sanctions \u2014 not precluded by default\nSanctions against defendant for failure to comply with a discovery order were not precluded by an entry of default against plaintiff on defendant\u2019s counterclaims.\n3. Discovery\u2014 sanctions \u2014 dismissal\u2014failure to consider lesser measure\nA trial court\u2019s dismissal of a counterclaim as a sanction for failure to comply with a discovery order was set aside for failure to consider lesser sanctions.\n4. Judges\u2014 default entry of one stricken by another \u2014 no good cause of change of circumstances finding\nThe trial court erred by striking an entry of default by another superior court judge ex mero motu without finding good cause or a substantial change in circumstances.\n5. Civil Procedure\u2014 motion \u2014 calendar request or notice of hearing\nA calendar request or notice of hearing need not accompany a valid motion, although the issue in this case was moot.\nAppeal by defendant from orders entered 19 March 2003 and 2 May 2003 by Judge Larry G. Ford in Iredell County Superior Court. Heard in the Court of Appeals 28 April 2004.\nPatrick, Harper & Dixon, LLP, by Stephen M. Thomas and Evans W. Fisher, for plaintiff-appellee.\nBrawley & Harwell, P.A., by Brian R. Harwell, for defendant-appellant." }, "file_name": "0229-01", "first_page_order": 261, "last_page_order": 268 }