{ "id": 8241537, "name": "BRYAN HEATH BAKER and wife, SUSAN D. BAKER; TAMMY L. HEPLER, individually and as ADMINISTRATRIX OF THE ESTATE OF JOHN ANDREW HEPLER III; STEVEN P. VANDERHOOF; MARGARET F. LINDSEY; and WALTER E. SUDDERTH, Plaintiffs v. CHARLOTTE MOTOR SPEEDWAY, INC., doing business as LOWE'S MOTOR SPEEDWAY, and TINDALL CORPORATION, formerly TINDALL CONCRETE PRODUCTS, INC., Defendants", "name_abbreviation": "Baker v. Charlotte Motor Speedway, Inc.", "decision_date": "2006-11-21", "docket_number": "No. COA05-1618", "first_page": "296", "last_page": "305", "citations": [ { "type": "official", "cite": "180 N.C. App. 296" } ], "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": "626 S.E.2d 758", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635205 ], "year": 2006, "pin_cites": [ { "page": "763", "parenthetical": "Internal quotes and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0758-01" ] }, { "cite": "629 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635826 ], "year": 2006, "pin_cites": [ { "page": "911" } ], "opinion_index": 0, "case_paths": [ "/se2d/629/0909-01" ] }, { "cite": "618 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633891 ], "year": 2005, "pin_cites": [ { "page": "829" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0819-01" ] }, { "cite": "471 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "612" } ], "opinion_index": 0 }, { "cite": "343 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798758 ], "year": 1996, "pin_cites": [ { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0313-01" ] }, { "cite": "588 S.E.2d 877", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "880", "parenthetical": "quoting State v. Scott, 343 N.C. 313, 325, 471 S.E.2d 605, 612 (1996)" } ], "opinion_index": 0 }, { "cite": "357 N.C. 645", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491605 ], "year": 2003, "pin_cites": [ { "page": "649", "parenthetical": "quoting State v. Scott, 343 N.C. 313, 325, 471 S.E.2d 605, 612 (1996)" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0645-01" ] }, { "cite": "509 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "426" } ], "opinion_index": 0 }, { "cite": "349 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571579 ], "year": 1998, "pin_cites": [ { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0634-01" ] }, { "cite": "610 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "240" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 428", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470685 ], "year": 2005, "pin_cites": [ { "page": "432" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0428-01" ] }, { "cite": "176 N.C. App. 359", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301103 ], "year": 2006, "pin_cites": [ { "page": "364", "parenthetical": "Internal quotes and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0359-01" ] }, { "cite": "177 N.C. App. 732", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8302349 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc-app/177/0732-01" ] }, { "cite": "173 N.C. App. 237", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353302 ], "year": 2005, "pin_cites": [ { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0237-01" ] }, { "cite": "351 S.E.2d 845", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "847" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 135", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12167790 ], "year": 1987, "pin_cites": [ { "page": "136-37" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0135-01" ] }, { "cite": "464 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "505" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 175", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916211 ], "year": 1995, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0175-01" ] }, { "cite": "608 S.E.2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "830", "parenthetical": "quoting Hursey v. Homes by Design, Inc., 121 N.C. App. 175, 177, 464 S.E.2d 504, 505 (1995)" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 671", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8471671 ], "year": 2005, "pin_cites": [ { "page": "678", "parenthetical": "quoting Hursey v. Homes by Design, Inc., 121 N.C. App. 175, 177, 464 S.E.2d 504, 505 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0671-01" ] }, { "cite": "587 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "454" } ], "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0125-01" ] }, { "cite": "465 S.E.2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "564" }, { "page": "564" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917325 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "374" }, { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0370-01" ] } ], "analysis": { "cardinality": 863, "char_count": 20569, "ocr_confidence": 0.739, "pagerank": { "raw": 3.2565407791929537e-07, "percentile": 0.8692694052819295 }, "sha256": "a0c54805ef31f94b5d531885d9b78c49cf74cd4a4d2797b1d9f66586c7e63d7c", "simhash": "1:9b8b58a999261e43", "word_count": 3261 }, "last_updated": "2023-07-14T16:41:00.069129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge STEELMAN concurs in result by separate opinion." ], "parties": [ "BRYAN HEATH BAKER and wife, SUSAN D. BAKER; TAMMY L. HEPLER, individually and as ADMINISTRATRIX OF THE ESTATE OF JOHN ANDREW HEPLER III; STEVEN P. VANDERHOOF; MARGARET F. LINDSEY; and WALTER E. SUDDERTH, Plaintiffs v. CHARLOTTE MOTOR SPEEDWAY, INC., doing business as LOWE\u2019S MOTOR SPEEDWAY, and TINDALL CORPORATION, formerly TINDALL CONCRETE PRODUCTS, INC., Defendants" ], "opinions": [ { "text": "ELMORE, Judge.\nThis case is one of many suits against Charlotte Motor Speedway (defendant Speedway) and Tindall Corporation (defendant Tindall) resulting from the collapse of a pedestrian bridge at Lowe\u2019s Motor Speedway on 20 May 2000. The many cases were consolidated under the caption In Re Pedestrian Walkway Failure. In the first case to be tried, a jury determined that Tindall and Speedway were negligent, and all remaining trials concern only the issue of damages.\nAfter consolidating the cases, the court issued a series of Case Management Orders (CMOs) to apply to all following suits. These CMOs mandated, among other things, certain standards for discovery, including deadlines and subject matter to be disclosed in all cases. CMO No. 6 required disclosure of all medical reports.\nThe instant case concerns the claim brought by Walter E. Sudderth (plaintiff), who was among the persons on the pedestrian walkway when it collapsed. In his claim against defendants Speedway and Tindall, plaintiff alleged as injuries resulting from the fall compression fractures in his back; pain in his right leg, right hand, right heel, both ankles, shoulder, and neck; and swelling in both ankles.\nDuring his deposition on 9 October 2001, plaintiff disclosed for the first time an injury to his left elbow and hip as a result of a fall from a piece of equipment at his workplace (a coal mine) in 1992. In March 2004, defendant Tindall learned that plaintiff had filed a claim with the West Virginia Worker\u2019s Compensation Commission as a result of that injury; this new information led defendant Tindall to discover additional medical records concerning treatment for that injury that plaintiff had not produced. Also in March 2004, defendant Tindall learned of the existence of further medical records not produced by plaintiff relating to neck injuries existing at the time of the incident at Lowe\u2019s Motor Speedway.\nOn 1 April 2004, at a hearing on defendant Tindall's motion for sanctions against plaintiff, the trial court considered a file concerning the worker\u2019s compensation claim that was produced during a deposition taken the day before. The trial court granted the motion and, as sanctions for numerous discovery violations, dismissed plaintiff\u2019s claims with prejudice.\nPlaintiff filed a motion to alter or amend the order of dismissal on 28 April 2004 under Rule 59 of the North Carolina Rules of Civil Procedure. The court denied this motion on 2 June 2005.\nPlaintiff timely appeals the order of dismissal, the denial of the motion to alter or amend, and an earlier order, entered on 11 December 2003 by Judge Thomas W. Seay, Jr., denying a motion to recuse Judge Spainhour from the case. We consider these issues in turn below and affirm the trial court on all issues.\nFirst, plaintiff argues that the trial court abused its discretion in entering the order dismissing with prejudice plaintiffs claims as a discovery sanction. This argument is without merit.\nUnder Rule 37(b)(2) of the North Carolina Rules of Civil Procedure, if \u201ca party fails to obey an order to provide or permit discovery,\u201d one of the sanctions available to the court is \u201cdismissing the action or proceeding or any part thereof.\u201d N.C.R. Civ. P. 37(b)(2). Before dismissing the action, however, the court must first consider less severe sanctions. Cheek v. Poole, 121 N.C. App. 370, 374, 465 S.E.2d 561, 564 (1996).\n\u201cThe trial court\u2019s decision regarding sanctions will only be overturned on appeal upon showing an abuse of... discretion.\u201d Joyner v. Mabrey Smith Motor Co., 161 N.C. App. 125, 129, 587 S.E.2d 451, 454 (2003). The court will be reversed upon \u201ca showing that [the] ruling was so arbitrary that it could not have been the result of a reasoned decision.\u201d Becker v. Pierce, 168 N.C. App. 671, 678, 608 S.E.2d 825, 830 (2005) (quoting Hursey v. Homes by Design, Inc., 121 N.C. App. 175, 177, 464 S.E.2d 504, 505 (1995)). The ruling \u201cshould not be disturbed unless \u2018manifestly unsupported by reason.\u2019 \u201d Cheek, 121 N.C. App. at 374, 465 S.E.2d at 564 (quoting Miller v. Ferree, 84 N.C. App. 135, 136-37, 351 S.E.2d 845, 847 (1987)).\nIn its 13-page order of dismissal, the court makes 33 findings of fact detailing the 1992 injury and plaintiff\u2019s noncompliance with the court\u2019s CMOs requiring discovery regarding that incident. Plaintiff contends that many of the findings of fact are not supported by competent evidence. These contentions are without merit.\nFindings of Fact Nos. 11-13 detail the conflicting evidence given in response to Interrogatory No. 4: In his initial response, plaintiff claimed the incident at Lowe\u2019s Motor Speedway \u201cexacerbated\u201d preexisting back injuries but produced no documentation regarding those injuries; later, at the hearing on the motion for sanctions, plaintiff\u2019s counsel stated that there were no pre-existing injuries. The findings of fact note that while plaintiff\u2019s counsel stated at the hearing that the injuries did not exist, plaintiff failed to amend his response to that effect. In his brief to this court, plaintiff admits the truth of these findings, stating only that he had no opportunity to amend his response before the case was dismissed. This statement has no bearing on the validity of the court\u2019s findings of fact or abuse of discretion in so finding.\nFindings of Fact Nos. 14, 16-23, and 25-30 all pertain to plaintiffs failure to disclose various facts regarding his 1992 injury, including medical records and doctors\u2019 names arising therefrom, and information pertaining to the resulting worker\u2019s compensation claim. In sum, the findings state that plaintiff neither produced the medical records and other information pertaining to the claim nor explained why they were not produced.\nPlaintiff argues first that he did not himself recall nor make his attorney aware of the 1992 injury and treatment that created the records until his 2001 deposition, after which time he produced the documents in question. Plaintiff\u2019s memory failure has no relevance to the validity of the court\u2019s findings of fact. Plaintiff cites no case law, and this Court has found none, supporting the contention underlying plaintiff\u2019s argument that sanctions are only appropriate for such omissions when they occur in bad faith. Nor does plaintiff\u2019s production of the documents in May 2004 negate the omission, inasmuch as the records should have been produced along with plaintiff\u2019s other medical records in September 2001.\nPlaintiff then argues that defendant Tindall never requested the records at. issue, and so their nonproduction was not a violation of the court\u2019s CMOs. In its discovery requests, however, defendant Tindall requested the names and addresses of all health care providers used by plaintiff within 10 years prior to the incident and all documents related to such treatment, a request which clearly encompasses the injury sustained in 1992.\nPlaintiff correctly states that there is an error in Finding of Fact No. 20, in which the court states that one particular physician was not named in plaintiff\u2019s initial response. This incorrect fact, however, was not essential or dispositive to the court\u2019s decision, and as such is not sufficient grounds for a finding of abuse of discretion.\nBased on these findings of fact, the court concluded that plaintiff\u2019s actions cumulatively \u201cfrustrated the purpose of discovery, . . . denied defendants the opportunity to prepare properly for trial, . . . unfairly prejudiced Defendants in their defense of his claims,\u201d and caused defendants to incur additional costs. This conclusion of law is supported by valid findings of fact, and thus the sanction of dismissal was not \u201cmanifestly unsupported by reason.\u201d As such, it will not be overturned by this Court.\nThe trial court also fulfilled the requirement that it consider less severe sanctions before dismissing the case, In its order of dismissal, Conclusion of Law No. 5 in the order of dismissal reads:\n5. The Court has carefully considered each of the foregoing acts, as well as their cumulative effect, and has also considered the available and appropriate remedies and sanctions for such misconduct. After such consideration, the Court, in its discretion, has determined that sanctions less severe than dismissal would not be adequate given the seriousness and the repetition of the misconduct described above.\n(emphasis added). In an earlier case in this series of consolidated cases, this Court held that almost identical language \u201csufficiently demonstrate [d] that Judge Spainhour considered lesser sanctions before ordering a dismissal.\u201d In re Pedestrian Walkway Failure, 173 N.C. App. 237, 251, 618 S.E.2d 819, 829 (2005); see also Badillo v. Cunningham, 177 N.C. App. 732, 629 S.E.2d 909, 911 (2006). There is no material difference between this language and the language in the instant case; as such, we find that the trial court fulfilled the requirement of considering lesser sanctions before ordering dismissal.\nBecause the trial court\u2019s findings of fact were supported by competent evidence and the trial court considered lesser sanctions before ordering dismissal, we find no abuse of discretion in the court\u2019s order.\nPlaintiff next argues that the trial court abused its discretion in denying plaintiff\u2019s motion to alter or amend the order of dismissal. This argument is without merit.\nN.C. Gen. Stat. Sec. 1A-1, Rule 60(b)(2) provides for a new trial based on newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) [.] ... In order for evidence to be newly discovered evidence under these rules, it must have been in existence at the time of the trial, and not discoverable through due diligence. The trial court\u2019s rulings on these motions will not be overturned absent an abuse of discretion.\nBroadbent v. Allison, 176 N.C. App. 359, 364, 626 S.E.2d 758, 763 (2006) (Internal quotes and citations omitted).\nAfter Judge Spainhour dismissed plaintiffs action with prejudice, plaintiffs counsel investigated the worker\u2019s compensation incident and discovered, apparently for the first time, that plaintiff had missed no work as a result of the 1992 injuries and had returned the funds sent to him from the state\u2019s worker\u2019s compensation commission as reimbursement for lost wages. The evidence that plaintiff proffers as newly discovered is an affidavit by plaintiff, medical records- pertaining to the injury, and other information regarding the worker\u2019s compensation claim.\nAs before, plaintiff contends that several findings of fact in the court order are not supported by competent evidence. Again, the findings of fact concern plaintiff\u2019s failure to disclose the injury and medical records. The arguments here are a repetition of plaintiff\u2019s arguments regarding the order of dismissal, including plaintiff\u2019s not recalling certain information and defendant\u2019s not having requested certain information. They are no more meritorious in this context than they were in his previous argument.\nPlaintiff then contends that Conclusions of Law Nos. 1 and 3, which state the information is not newly discovered because it should have been produced during discovery, are invalid. Plaintiff argues that the evidence qualifies as \u201cnewly discovered\u201d because it was in existence at the time of the hearing and plaintiff was \u201cexcusably ignorant\u201d of it. See Faulkenberry v. Faulkenberry, 169 N.C. App. 428, 432, 610 S.E.2d 237, 240 (2005). Plaintiff bases this assertion on the fact that, when -the evidence was produced after the hearing, it had been newly discovered by plaintiff\u2019s attorney. Plaintiff himself, of course, was aware of the evidence before litigation began, since the evidence was merely a record of an incident that had happened to him and medical treatment arising therefrom. The fact that plaintiff did not make his attorney aware of the incident until defendants brought it to light is of no relevance. Plaintiff makes no attempt to argue in what way he could be considered \u201cexcusably ignorant\u201d of the evidence involved. As such, this argument is without merit.\nPlaintiff also challenges Conclusion of Law No. 2, which states that plaintiff failed to demonstrate a sound basis to alter or amend the order. Again, plaintiff\u2019s argument is without merit. Plaintiff claims that the order of dismissal was based solely on an apparent discrepancy between plaintiff\u2019s deposition testimony and information revealed by later discovery. This claim is incorrect. The order lists a number of other discovery violations, including failure to name all treating physicians, failure to provide all medical records, and failure to provide any information whatsoever about the worker\u2019s compensation claim, that were the basis for dismissal.\nThe evidence plaintiff has provided is in no way \u201cnewly discovered evidence,\u201d and this motion is without basis. As such, we find no abuse of .discretion in the court\u2019s order.\nPlaintiffs final argument is rooted in an earlier failed attempt to have Judge Spainhour recused from the case. The motion to recuse was denied by Judge Seay, who found that Judge Spainhour had violated no provisions of the Code of Judicial Conduct.\nThe grounds for recusal given by plaintiff are the judge\u2019s \u201cex parte communications with defendants, and actions taken as a result of those communications.\u201d Specifically, the judge requested that defendants create a proposed schedule of the remaining trials in the matter of In Re Pedestrian Walkway Failure, which the judge then adopted virtually wholesale.\nThe relevant portion of the Code of Judicial Conduct states:\n(7) ... A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:\n(a) Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided:\n(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and\n(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.\nABA-CJC Canon 3.\nThe ex parte communications plaintiff complains of were of an entirely administrative nature, concerning only the timing and order of the dozen or more of the consolidated cases still to be tried. Our Supreme Court has held that \u201cex parte communication relating] only to the administrative functioning of the judicial system [is] not. . . improper.\u201d State v. McNeill, 349 N.C. 634, 653, 509 S.E.2d 415, 426 (1998).\nWhen this court reviews a recusal order,\nthe burden is upon the party moving for disqualification to demonstrate objectively that grounds for disqualification actually exist. Such a showing must consist of substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially.\nLange v. Lange, 357 N.C. 645, 649, 588 S.E.2d 877, 880 (2003) (quoting State v. Scott, 343 N.C. 313, 325, 471 S.E.2d 605, 612 (1996)). Here, plaintiff has not met that burden. He demonstrates only that the ex parte communications regarding scheduling took place, not that they constitute \u201cbias, prejudice or interest on the part of the judge.\u201d Id. The motion to recuse Judge Spainhour was properly denied.\nAffirmed.\nJudge McGEE concurs.\nJudge STEELMAN concurs in result by separate opinion.\n. In Finding of Fact No. 23, the Court relates plaintiff\u2019s statement that a certain record was not produced because, at the time of the hearing, it had been destroyed by the treating physician. Although this record could not have been produced, plaintiffs attempts to obtain it were not conveyed to the court until the hearing on the motions for sanctions. FYirther, the court notes that plaintiff presents no evidence as to whether the record was in existence in September 2001, when it was first requested.\n. Although plaintiff\u2019s original motion to recuse was based on a handful of incidents and circumstances of judicial conduct, plaintiff in his brief to this Court bases his argument only on the existence of ex parte communications between Judge Spainhour and defendants.", "type": "majority", "author": "ELMORE, Judge." }, { "text": "STEELMAN, Judge\nconcurring in the result.\nI concur in the result reached by the majority in this matter.\nThe order entered by Judge Spainhour on 19 April 2004 documents numerous discovery violations by plaintiff of the Case Management Orders entered in this case, from September of 2001 through and including the date of the hearing of 1 April 2004. These violations included the failure to make full and complete discovery responses and failure to supplement discovery responses. Specifically, plaintiff failed to provide medical treatment records pertaining to his 1992 injury, complaints of neck pain in 1995 and 1996, and right shoulder pain in 1998. In addition, the trial court cited to plaintiffs deposition testimony in which he denied back treatment or examination of his back prior to the walkway collapse. This testimony was belied by the file of plaintiffs 1992 worker\u2019s compensation case, which was uncovered by defendant on the day prior to the sanctions hearing during the deposition of plaintiffs employer.\nPlaintiffs primary argument is that he simply \u201cforgot\u201d about his prior injuries and treatments, and that the sanction of dismissal is too harsh. It is clear that the trial court considered the assertions by plaintiff of multiple memory lapses and did not find them to be persuasive.\nEach of the findings of fact were supported by competent evidence before the trial court and are binding upon this Court. It was the cumulative effect of multiple discovery violations that led to the imposition of the sanction of dismissal. I discern no abuse of discretion on the part of the trial judge in dismissing plaintiffs case.", "type": "concurrence", "author": "STEELMAN, Judge" } ], "attorneys": [ "Marvin K. Blount, The Blount Law Firm, for plaintiff-appellant Walter E. Sudderth.", "James T. Williams, Jr., Brooks, Pierce, McLendon, Humphrey & Leonard LLP, for defendant-appellee Tindall Corporation.", "David N. Allen, Parker, Poe, Adams & Bernstein LLP, for co-defendant Charlotte Motor Speedway." ], "corrections": "", "head_matter": "BRYAN HEATH BAKER and wife, SUSAN D. BAKER; TAMMY L. HEPLER, individually and as ADMINISTRATRIX OF THE ESTATE OF JOHN ANDREW HEPLER III; STEVEN P. VANDERHOOF; MARGARET F. LINDSEY; and WALTER E. SUDDERTH, Plaintiffs v. CHARLOTTE MOTOR SPEEDWAY, INC., doing business as LOWE\u2019S MOTOR SPEEDWAY, and TINDALL CORPORATION, formerly TINDALL CONCRETE PRODUCTS, INC., Defendants\nNo. COA05-1618\n(Filed 21 November 2006)\n1. Discovery\u2014 pre-existing injury not disclosed \u2014 sanctions\u2014 dismissal \u2014 no abuse of discretion \u2014 bad faith not required\nThe dismissal of plaintiff\u2019s negligence claim with prejudice as a discovery sanction was not an abuse of discretion where the court\u2019s findings were supported by competent evidence and lesser sanctions were considered. Plaintiff argued that he did not initially disclose a pre-existing injury because he did not at first recall it, but there is no authority for the proposition that sanctions are only appropriate for omissions in bad faith, nor does a later production of the documents negate the omission.\n2. Discovery\u2014 pre-existing injury \u2014 failure to disclose \u2014 sanctions \u2014 failure to tell attorney not relevant\nThere was no abuse of discretion in the denial of a motion to modify an order of dismissal which had been entered as a sanction for not producing information about an existing injury during discovery. The newly discovered evidence cited by plaintiff was merely a record of an incident and the resulting treatment of which plaintiff was aware. His failure to enlighten his attorney is not relevant.\n3. Judges\u2014 recusal denied \u2014 ex parte communications\u2014 administrative\nA motion to recuse a judge for ex parte communications was properly denied where the communications complained of were administrative, involving only the timing and order of the dozen or more suits still to be tried concerning the collapse of a pedestrian walkway. Plaintiff did not demonstrate bias, prejudice, or interest by the judge.\nJudge Steelman concurring.\nAppeal by plaintiff from orders entered 28 April 2004 and 3 June 2005 by Judge W. Erwin Spainhour in Mecklenburg County Superior Court and order entered 11 December 2003 by Judge Thomas W. Seay, Jr., in Mecklenburg Superior Court. Heard in the Court of Appeals 13 September 2006.\nMarvin K. Blount, The Blount Law Firm, for plaintiff-appellant Walter E. Sudderth.\nJames T. Williams, Jr., Brooks, Pierce, McLendon, Humphrey & Leonard LLP, for defendant-appellee Tindall Corporation.\nDavid N. Allen, Parker, Poe, Adams & Bernstein LLP, for co-defendant Charlotte Motor Speedway." }, "file_name": "0296-01", "first_page_order": 326, "last_page_order": 335 }