{ "id": 4160114, "name": "FAYETTEVILLE PUBLISHING COMPANY, Plaintiff v. ADVANCED INTERNET TECHNOLOGIES, INC., Defendant", "name_abbreviation": "Fayetteville Publishing Co. v. Advanced Internet Technologies, Inc.", "decision_date": "2008-09-02", "docket_number": "No. COA07-1203", "first_page": "419", "last_page": "431", "citations": [ { "type": "official", "cite": "192 N.C. App. 419" } ], "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": "657 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640600 ], "year": 2008, "pin_cites": [ { "page": "914", "parenthetical": "\"Where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount on appeal.\" (Citations, internal brackets and quotation marks omitted.)" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0909-01" ] }, { "cite": "640 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637658 ], "year": 2007, "pin_cites": [ { "page": "418", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/640/0415-01" ] }, { "cite": "621 S.E.2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634403 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/621/0874-01" ] }, { "cite": "616 S.E.2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633564 ], "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0366-01" ] }, { "cite": "635 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636951 ], "year": 2006, "pin_cites": [ { "page": "915-16", "parenthetical": "\"[S]hortness of time in deliberating a verdict... , in and of itself, simply does not constitute grounds for setting aside a verdict.\" (Citation and quotation marks omitted.)" } ], "opinion_index": 0, "case_paths": [ "/se2d/635/0906-01" ] }, { "cite": "628 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635568, 12635569, 12635570 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/628/0382-01", "/se2d/628/0382-02", "/se2d/628/0382-03" ] }, { "cite": "618 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633891 ], "year": 2005, "pin_cites": [ { "page": "826", "parenthetical": "\"An abuse of discretion may arise if there is no record evidence which indicates that defendant acted improperly, or if the law will not support the conclusion that a discovery violation has occurred.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0819-01" ] }, { "cite": "648 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639037, 12639038 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/648/0204-01", "/se2d/648/0204-02" ] }, { "cite": "636 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637142 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "831" }, { "page": "831" }, { "parenthetical": "citations and quotation marks omitted" }, { "page": "831" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0829-01" ] }, { "cite": "294 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "306 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571905, 8571842, 8571878, 8571771, 8571807 ], "year": 1982, "pin_cites": [ { "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0555-05", "/nc/306/0555-03", "/nc/306/0555-04", "/nc/306/0555-01", "/nc/306/0555-02" ] }, { "cite": "291 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "895", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 437", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524761 ], "year": 1982, "pin_cites": [ { "page": "441", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0437-01" ] }, { "cite": "189 N.C. App. 309", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156332 ], "year": 2008, "pin_cites": [ { "page": "318", "parenthetical": "\"Where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount on appeal.\" (Citations, internal brackets and quotation marks omitted.)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0309-01" ] }, { "cite": "131 S.E. 735", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1926, "pin_cites": [ { "page": "737" } ], "opinion_index": 0 }, { "cite": "191 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628865 ], "year": 1926, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/nc/191/0297-01" ] }, { "cite": "545 S.E.2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135880 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0445-01" ] }, { "cite": "538 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "630", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 737", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12134800 ], "year": 2000, "pin_cites": [ { "page": "738", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0737-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "693" } ], "opinion_index": 0 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "year": 2004, "pin_cites": [ { "page": "470" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0440-01" ] }, { "cite": "500 S.E.2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "470" }, { "page": "470" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 618", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651913 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "623" }, { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0618-01" ] }, { "cite": "181 N.C. App. 573", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375440 ], "year": 2007, "pin_cites": [ { "page": "576", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0573-01" ] }, { "cite": "186 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "901", "parenthetical": "\"An issue is material if [inter alia] the facts alleged would constitute a legal defense[.]\"" } ], "opinion_index": 0 }, { "cite": "280 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572831 ], "year": 1972, "pin_cites": [ { "page": "518", "parenthetical": "\"An issue is material if [inter alia] the facts alleged would constitute a legal defense[.]\"" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0513-01" ] }, { "cite": "149 N.C. App. 289", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9127462 ], "year": 2002, "pin_cites": [ { "page": "294-95" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0289-01" ] }, { "cite": "360 N.C. 80", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798426 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0080-01" ] }, { "cite": "172 N.C. App. 464", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8320459 ], "pin_cites": [ { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0464-01" ] }, { "cite": "408 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "330 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510111 ], "year": 1991, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0093-01" ] }, { "cite": "179 N.C. App. 657", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8238958 ], "year": 2006, "pin_cites": [ { "page": "672", "parenthetical": "\"[S]hortness of time in deliberating a verdict... , in and of itself, simply does not constitute grounds for setting aside a verdict.\" (Citation and quotation marks omitted.)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0657-01" ] }, { "cite": "591 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "358 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985562 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0131-01" ] }, { "cite": "580 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2003, "pin_cites": [ { "page": "737" }, { "page": "737" }, { "page": "737" }, { "page": "735", "parenthetical": "citations and quotation marks omitted" }, { "page": "735" }, { "page": "735", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 208", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186665 ], "weight": 6, "year": 2003, "pin_cites": [ { "page": "215" }, { "page": "214" }, { "page": "215" }, { "page": "212" }, { "page": "212" }, { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0208-01" ] }, { "cite": "360 N.C. 290", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796224, 3794728, 3789546, 3790060, 3791954, 3795378, 3787092, 3792987 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0290-01", "/nc/360/0290-03", "/nc/360/0290-04", "/nc/360/0290-02", "/nc/360/0290-06", "/nc/360/0290-05", "/nc/360/0290-07", "/nc/360/0290-08" ] }, { "cite": "173 N.C. App. 237", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353302 ], "year": 2005, "pin_cites": [ { "page": "246", "parenthetical": "\"An abuse of discretion may arise if there is no record evidence which indicates that defendant acted improperly, or if the law will not support the conclusion that a discovery violation has occurred.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0237-01" ] }, { "cite": "361 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3747397, 3746860, 3747087, 3738736, 3735633, 3742938 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0425-01", "/nc/361/0425-06", "/nc/361/0425-02", "/nc/361/0425-03", "/nc/361/0425-05", "/nc/361/0425-04" ] }, { "cite": "180 N.C. App. 296", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8241537 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "299" }, { "page": "299" }, { "page": "299" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0296-01" ] }, { "cite": "464 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "505" }, { "page": "505" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 175", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916211 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "177" }, { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0175-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-458", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-478", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-475", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-472", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1086, "char_count": 30739, "ocr_confidence": 0.738, "pagerank": { "raw": 1.0200692407702665e-07, "percentile": 0.5450115045317314 }, "sha256": "71aa01f7d1f96f757d9cafa59a412cf9760076fe687c26ab040188019eef8ef5", "simhash": "1:cfa8dc203e3f7a55", "word_count": 4899 }, "last_updated": "2023-07-14T14:54:33.452279+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and ELMORE concur." ], "parties": [ "FAYETTEVILLE PUBLISHING COMPANY, Plaintiff v. ADVANCED INTERNET TECHNOLOGIES, INC., Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant Advanced Internet Technologies, Inc. appeals from order entered 7 March 2007 dismissing its counterclaims and order entered 26 March 2007 granting summary judgment for plaintiff. We affirm both orders.\nI. Background\nPlaintiff Fayetteville Publishing Company (\u201cFayetteville Publishing\u201d or \u201cFPC\u201d) filed a verified complaint on 4 January 2006 against Advanced Internet Technologies, Inc. (\u201cAIT\u201d). The complaint sought injunctive relief for the recovery of four computer servers, with a total value of eight-thousand dollars ($8,000.00). Plaintiff alleged that it entered into four co-location agreements with defendant to provide services related to four computer servers owned by plaintiff. The four servers were placed at defendant\u2019s facility, and three of the four servers were used to make plaintiff\u2019s website available to Internet users. Plaintiff and defendant also had other business relationships in addition to the co-location agreements, including web hosting and online advertising.\nPlaintiff further alleged that by letter dated 29 November 2005, defendant claimed that plaintiff was in breach of a contract for online advertising. Over the next several weeks, plaintiff requested information from defendant regarding the alleged breach. During this time, one of plaintiff\u2019s servers located at defendant\u2019s facility had a problem which needed attention by plaintiff\u2019s technical staff, but defendant would not allow plaintiff\u2019s employee access to the server. On 16 December 2005, plaintiff notified defendant by letter that defendant\u2019s services regarding the four servers and the co-location agreements were no longer required. Despite plaintiffs demands for return of the servers, defendant failed to return them.\nPlaintiff alleged that it had terminated the co-location agreements, paid all sums due under the agreements, and that it was entitled to immediate return of the four servers. Plaintiffs complaint requested an interim order for immediate possession pursuant to N.C. Gen. Stat. \u00a7 1-472 et seq. as well as temporary and permanent injunctive relief. Plaintiff obtained an order of seizure in claim and delivery on 23 January 2006 and posted a bond pursuant to N.C. Gen. Stat. \u00a7 1-475 in the amount of sixteen thousand dollars ($16,000.00). However, the servers were not seized as defendant also posted a bond on 23 January 2007 in the amount of sixteen thousand dollars ($16,000.00) pursuant to N.C. Gen. Stat. \u00a7 1-478.\nOn 27 January 2006, plaintiff filed a Verified Motion for Temporary Restraining Order and Injunctive Relief pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 65. The motion described in detail plaintiffs concerns that defendant had copied or intended to copy information from plaintiffs servers for use, possibly in a class action lawsuit defendant was pursuing as lead plaintiff against Google. The motion alleged that defendant had been \u201ctotally uncooperative\u201d with plaintiff in its efforts to prevent any use by defendant of the servers in violation of N.C. Gen. Stat. \u00a7 14-458(5). The motion sought a temporary restraining order and injunction to prevent defendant from copying, imaging, or taking any other action regarding the information on the servers. It also sought an injunction requiring defendant to turn over to plaintiff any such information which it might have already copied and to turn the servers over to a third party designated by the court to secure them until further order of the court.\nOn 30 January 2006, the court entered a temporary restraining order and preliminary injunction with the consent of both parties. The order required that defendant \u201cnot copy, image or otherwise take any physical or other action of any kind with respect to the computer servers, except the action specifically required to comply with the terms of th[e] Temporary Restraining Order.\u201d The order further required defendant to turn the servers and any information which defendant had copied or imaged from the servers over to David McCarn, the designated third party, within 2 days from entry of the order.\nOn or about 7 April 2006, defendant filed its unverified Answer and Counterclaims, also raising several affirmative defenses. Defendant pled the affirmative defenses of want of consideration, unclean hands, and a security interest in the servers. Defendant made counterclaims for breach of contract, unjust enrichment, unfair or deceptive trade practices, and fraud. Defendant prayed for compensatory and punitive damages pursuant to the counterclaims, and for \u201cdeclaratory judgment with respect to the special property and security interest and determining the rights of the parties[.]\u201d On 20 July 2006, plaintiff filed a reply, denying the material allegations in the counterclaims.\nOn 17 July 2006, plaintiff served defendant with its first Request for Production of Documents including, inter alia, \u201call documents evidencing the amounts paid by Defendant for advertising of the type that is the subject of the Answer and Counterclaims.\u201d After thirty days, defendant had neither produced the requested documents nor obtained an extension of time to respond. On 5 September 2006, plaintiffs counsel sent a letter to defendant\u2019s counsel with a copy of a motion to compel discovery, advising that he would not file the motion to compel if defendant would confirm that the documents would be produced the next week. The documents still were not produced. On 28 September 2006, plaintiff filed a Motion to Compel Discovery. The motion alleged \u201c[o]n 13 September 2006, rather than producing the requested documents, [defendant's counsel served .. . responses and objections[.]\u201d The motion further alleged that \u201c[defendant produced a paltry number of documents in response to just a few requests\u201d and made \u201cnumerous objections, often on multiple grounds, to practically every request.\u201d The motion to compel averred that defendant\u2019s objections were waived since they were not made within 30 days of the request for production as required by N.C. Gen. Stat. \u00a7 1A-1, Rule 34, and that even if the objections had not been waived, they were not meritorious.\n\u2022 On 7 November 2006, the trial court entered its order on plaintiff\u2019s motion to compel discovery. The trial court ordered defendant to copy and produce to plaintiff within ten days \u201call documents responsive to Requests 1 through 27 of Plaintiff\u2019s First Request for Production of Documents\u201d and directed how defendant should address any documents which it deemed to be proprietary or documents withheld upon a claim of attorney-client or work product privilege. The trial court withheld ruling upon plaintiff\u2019s request for attorney\u2019s fees pursuant to Rule 37 until after defendant\u2019s response to the Request for Production of Documents.\nOn 1 December 2006, plaintiff filed a Motion for Appropriate Relief, (hereinafter referred to as the \u201cRule 37 motion\u201d) seeking relief under N.C. Gen. Stat. \u00a7 1A-1, Rules 37 and 11. Plaintiff alleged that defendant made an untimely response, which was also \u201cmisleading, evasive, incomplete, and non-responsive[,]\u201d to the discovery order of 7 November 2006. Plaintiff requested that the trial court strike defendant\u2019s recent interrogatories to plaintiff and strike defendant\u2019s counterclaims against plaintiff.\nOn 7 December 2006, defendant filed a response to plaintiff\u2019s Rule 37 motion, claiming that defendant had responded to the discovery request with \u201chundreds of pages of documents and a computer disc containing 65,000 pages of material,\u201d and that although there may have been \u201cminor deficiencies\u201d in the materials provided and timing of production, defendant had made a \u201cdetermined good faith effort to provide [p]laintiff with an enormous amount of discovery in a usable form within a short time period at the expenditure of significant resources and time.\u201d\nOn 20 and 21 February 2007, Steve Young (\u201cYoung\u201d) and Sean Murray (\u201cMurray\u201d) testified for defendant at a deposition noticed by plaintiff. Young brought some responsive documents on 20 February and some on 21 February, but did not provide the requested documents in their entirety.\nOn 26 February 2007, Judge Gary Locklear heard plaintiff\u2019s Rule 37 motion. On 7 March 2007, the trial court entered its order dismissing defendant\u2019s counterclaims as a sanction for failure to comply with the order compelling discovery responses. The 7 March 2007 order stated that the trial court \u201creviewed the pleadings, the Motion, the materials and exhibits presented by the parties, the applicable authorities presented by the parties and . . . fully heard and considered the arguments of counsel for both parties[.]\u201d The order also contains twenty-one detailed findings of fact regarding the discovery issues. None of these findings were assigned as error by defendant.\nOn 14 March 2007, plaintiff filed a motion for summary judgment on the \u201cone claim asserted in the Complaint, finding that Plaintiff is the rightful owner of the subject property\u201d and for sanctions pursuant to Rule 11, including costs and attorney\u2019s fees. On 26 March 2007, the trial court heard and granted plaintiff\u2019s motion for summary judgment. On 18 June 2007, the trial court entered a further order awarding fees and expenses necessitated by Plaintiff\u2019s Motion to Compel Discovery pursuant to Rule 37 in the amount of four-thousand three hundred twenty dollars ($4,320.00). Defendant appeals from the trial court\u2019s orders of 7 March 2007, which dismissed defendant\u2019s counterclaims, and of 26 March 2007, which granted summary judgment for plaintiff.\nII. Order Dismissing Defendant\u2019s Counterclaims\nDefendant argues that the trial court made an arbitrary decision to impose sanctions, thereby abusing its discretion, because, it: (I) failed to consider all the evidence and case law before it, and (2) imposed sanctions based upon \u201cthe trial court\u2019s personal opinion of one of the officers of defendant corporation that was not formed upon evidence presented to the court[.]\u201d Defendant further argues that even if the decision to impose sanctions was proper, the trial court\u2019s choice of dismissal of the counterclaims as a sanction was excessive and not merited by the facts of the case.\nA. Standard of Review\n\u201cIf a party . . . fails to obey an order to provide or permit discovery ... a judge of the court in which the action is pending may make such orders in regard to the failure as are just, [including] .\u2022. . [a]n order . . . dismissing the action . . N.C. Gen. Stat. \u00a7 1A-1, Rule 37(b)(2). \u201cSanctions under Rule 37 are within the sound discretion of the trial court....\u201d Hursey v. Homes by Design, Inc., 121 N.C. App. 175, 177, 464 S.E.2d 504, 505 (1995). \u201cBefore dismissing the action, however, the [trial] court must first consider less severe sanctions.\u201d Baker v. Charlotte Motor Speedway, Inc., 180 N.C. App. 296, 299, 636 S.E.2d 829, 831 (2006), disc. review denied, 361 N.C. 425, 648 S.E.2d 204 (2007).\nThis Court reviews the trial court\u2019s action in granting sanctions pursuant to Rule 37, including dismissal of claims, for abuse of discretion. Baker, 180 N.C. App. at 299, 636 S.E.2d at 831. \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 [or was] manifestly unsupported by reason.\u201d Id. (citations and quotation marks omitted); see also In re Pedestrian Walkway Failure, 173 N.C. App. 237, 246, 618 S.E.2d 819, 826 (2005) (\u201cAn abuse of discretion may arise if there is no record evidence which indicates that defendant acted improperly, or if the law will not support the conclusion that a discovery violation has occurred.\u201d), disc. review denied, 360 N.C. 290, 628 S.E.2d 382 (2006).\nB. Analysis\nDefendant specifically contends that at the end of the hearing on 26 February 2007, the trial court \u201cadmitted that it did not read the entire case file., that it did not read all the law that was handed up by the parties, and that it did not read the affidavits in support of the [defendant.\u201d Defendant further contends, citing portions of the transcript, that the trial court rendered its decision after only \u201ca cursory review of a portion of the case file and some of the case law before it, over whatever portion of an hour remained after the court had lunch.\u201d Finally defendant quotes these comments from the trial judge as he rendered judgment in open court:\nI get the impression that [Mr. Briggs] insists on, not only doing his business his way, but his way is the only satisfactory way for him, I think, to resolve these Court issues. . . . He\u2019s strong willed. But he\u2019s \u2014 he\u2019s imposed his rules, I think, with respect to these discovery issues. And he\u2019s adamant about doing it his way. And I think that is now inured to his detriment[.]\u201d\nThe trial judge\u2019s comments during the hearing as to its consideration of the entire case file, evidence and law are not controlling; the written court order as entered is controlling. Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 208, 215, 580 S.E.2d 732, 737 (2003), aff\u2019d per curiam, 358 N.C. 131, 591 S.E.2d 521 (2004). \u201cA judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court. The announcement of judgment in open court is the mere rendering of judgment, not the entry of judgment.\u201d Draughon, 158 N.C. App. at 214, 580 S.E.2d at 737. The order entered on 7 March 2007 states specifically that the trial court \u201creviewed the pleadings, the Motion, the materials and exhibits presented by the parties, the applicable authorities presented by the parties and . . . fully heard and considered the arguments of counsel for both parties\u201d before making its ruling. Furthermore, the short time which passed between hearing the motion and rendering the order in open court is not per se grounds for setting it aside. See State v. Whitman, 179 N.C. App. 657, 672, 635 S.E.2d 906, 915-16 (2006) (\u201c[S]hortness of time in deliberating a verdict... , in and of itself, simply does not constitute grounds for setting aside a verdict.\u201d (Citation and quotation marks omitted.)). Again, the written order is controlling. Draughon, 158 N.C. App. at 215, 580 S.E.2d at 737. The motion was heard on 26 February 2007, then the order was executed 28 February 2007 and entered 7 March 2007. Between 26 February and 7 March 2007, the trial court had ample time to review the evidence and law, as stated in the written order.\nAdditionally, the order contains twenty-one detailed findings of fact regarding the discovery issues, and none of these findings of fact were assigned as error by defendant. These findings are therefore \u201cpresumed to be supported by competent evidence and [are] binding on appeal.\u201d Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). In fact, defendant does not even argue that the trial court\u2019s findings of fact are not supported by the evidence, but only that there was other evidence which was favorable to defendant. Re-weighing evidence presented to the trial court is not appropriate for this Court under an abuse of discretion standard of review. Hursey, 121 N.C. App. at 177, 464 S.E.2d at 505.\nIn regard to the trial judge\u2019s comments regarding Mr. Briggs, CEO of defendant, the court\u2019s order made no reference to and no findings regarding Mr. Briggs. Even if we were to assume that the trial judge\u2019s comments regarding Mr. Briggs were not supported by the evidence, as defendant claims, the comments are irrelevant. According to the written order, the trial judge\u2019s comments regarding Mr. Briggs were not a part of the basis for the trial court\u2019s ruling. The order did find extensive facts, which are binding on appeal, completely unrelated to Mr. Briggs, to support its conclusions of law. In short, defendant has shown no prejudice arising from these comments, therefore this argument is without merit. See State v. Wright, 172 N.C. App. 464, 469, 616 S.E.2d 366, 369 (\u201cA trial judge \u201cmust abstain from conduct or language which tends to discredit or prejudice any litigant in his or her courtroom . . . [but] the burden of showing prejudice [is] upon the appellant.\u201d (Citations and quotation marks omitted.)), aff\u2019d per curiam, 360 N.C. 80, 621 S.E.2d 874 (2005).\nDefendant also argues that even if the decision to impose discovery sanctions was appropriate, the choice of dismissal as a sanction was not proper because there was no \u201cclear, willful violation of the discovery rulesf.]\u201d We disagree.\nThe trial court found as fact:\n19. ... Documents clearly responsive to Plaintiff\u2019s requests that were required to be produced pursuant to the Discovery Order were not initially produced and then were produced piecemeal by Defendant. This piecemeal production was contrary to the Discovery Order, and was done by Defendant on its own authority, without any approval by the Court. 20. Defendant also undertook a defiant posture with respect to its obligations under the Discovery Order, as reflected in the January 27 letter drafted by Defendant, not Defendant\u2019s outside attorneys. Defendant elected to respond to the discovery on its own terms, even though its own terms were inconsistent with the requirements of the Discovery Order.\nThese findings were supported by the evidence and were not challenged by defendant on appeal.\nEven when violation of a discovery order is clear from the record, a trial court is required to consider less severe sanctions before dismissing the action. Baker, 180 N.C. App. at 299, 636 S.E.2d at 831. The trial court noted in the order that it had\nconsidered imposing less severe sanctions than the dismissal of the counterclaims of Defendant; however, after considering all possible sanctions pursuant to Rule 37 of the North Carolina Rules of Civil Procedure, the Court concludes that the appropriate remedy in light of the misconduct of Defendant as described [in the findings of fact], is dismissal of the counterclaims in this action. This decision, in the opinion of the Court, when considering all the facts and circumstances, is consistent with and necessitated by the interests of justice in this case and for the administration of justice as a whole.\nOn this record, we discern no abuse of discretion in the dismissal of defendant\u2019s counterclaims as a sanction for failure to comply with a discovery order. This assignment of error is overruled.\nIII. Summary Judgment\nDefendant next argues that the trial court erred in granting summary judgment to plaintiff because there are \u201cunsolved questions of fact regarding the ownership of the servers, the main issue in plaintiff\u2019s claims\u201d and that \u201cdefendant\u2019s denials, negative averments, and affirmative defenses remain]] of record, raising both factual and legal issues.\u201d\nA. Standard of Review\nSummary judgment is proper where \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c). \u201cWith regard to an affirmafive defense, summary judgment is appropriate if the movant establishes that the non-movant cannot prevail on at least one of the elements\u2019 of his affirmative defense.\u201d Bunn Lake Prop. Owner\u2019s Ass\u2019n, Inc. v. Setzer, 149 N.C. App. 289, 294-95 (2002); Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972) (\u201cAn issue is material if [inter alia] the facts alleged would constitute a legal defense[.]\u201d).\n\u201cThe party moving for summary judgment bears the burden of bringing forth a forecast of evidence which tends to establish that there is no triable issue of material fact.\u201d Inland Constr. Co. v. Cameron Park II, Ltd., LLC, 181 N.C. App. 573, 576, 640 S.E.2d 415, 418 (2007) (citation and quotation marks omitted).\nWhen a motion for summary judgment is made and supported as provided in this rule; an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 56(e). In other words, \u201c[o]nce the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.\u201d Draughon, 158 N.C. App. at 212, 580 S.E.2d at 735 (citations and quotation marks omitted). \u201cFurther, this Court has held that a defendant\u2019s unverified pleadings are insufficient to defeat a motion for summary judgment since they do not comply with the requirements of Rule 56(e).\u201d Weatherford v. Glassman, 129 N.C. App. 618, 623, 500 S.E.2d 466, 470 (1998).\n\u201cOn appeal, an order allowing summary judgment is reviewed de novo.\u201d Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004). De novo review\nof the grant of a motion for summary judgment requires a two-part analysis of whether, (1) the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact; and (2) the moving party is entitled to judgment as a matter of law.\nVon Viczay v. Thoms, 140 N.C. App. 737, 738, 538 S.E.2d 629, 630 (2000) (citation and quotation marks omitted), aff\u2019d per curiam, 353 N.C. 445, 545 S.E.2d 210 (2001).\nB. Affirmative Defenses\nDefendant argues that even if dismissal of its counterclaims was proper, the affirmative defenses contained in its answer are still viable in opposition to plaintiffs claim for possession of the servers. Defendant argues that the order dismissing its counterclaims left \u201cthree Defenses ... and two Affirmative Defenses not associated with Counterclaims undeniably of record\u201d and that the \u201ctruth and weight of the exhibits attached to the Answer\u201d are also still at issue. Therefore, defendant argues, a genuine issue of material fact remains so that summary judgment was improperly granted in favor of plaintiff. Plaintiff argues that because it established ownership of the servers and defendant failed to establish the elements of any affirmative defenses, the trial court properly granted summary judgment in its favor. We agree with plaintiff.\nIn order to prevail in its action for return of the servers, plaintiff needed to show that it was entitled to immediate possession of the property. Young v. Stewart, 191 N.C. 297, 301, 131 S.E. 735, 737 (1926); Black\u2019s Law Dictionary 481 (8th ed. 2004) (\u201cA claim in detinue lies at the suit of a person who has an immediate right to the possession of the goods against a person who is in actual possession of them, and who, upon proper demand, fails or refuses to deliver them up without lawful excuse.\u201d). In support of its summary judgment motion, plaintiff relied upon its verified complaint as well as affidavits from employees of plaintiff which clearly set forth the facts establishing plaintiff\u2019s ownership of the servers, plaintiff\u2019s satisfaction of its obligations to defendant under the co-location agreements, defendant\u2019s possession of the servers, and defendant\u2019s wrongful detention of the servers. On these facts, we conclude that plaintiff met its burden to forecast evidence demonstrating its entitlement to summary judgment. Draughon, 158 N.C. App. at 212, 580 S.E.2d at 735.\nPlaintiff having met its burden, the burden shifted to defendant \u201cto produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.\u201d Draughon, 158 N.C. App. at 212, 580 S.E.2d at 735 (citations and quotation marks omitted). Defendant did not contest plaintiff\u2019s ownership of the servers. Defendant argues that \u201cthree Defenses . . . and two Affirmative Defenses,\u201d in its answer create a genuine issue of material fact, but defendant appears to rely solely on one affirmative defense \u2014 a security interest in the servers arising from plaintiff\u2019s alleged breach of contract. However, defendant did not forecast any evidence demonstrating specific facts as to its security interest or any other affirmative defense. Defendant did not state before the trial court or in its brief what material facts related to the security interest were in dispute. The record contains a copy of the Co-location Agreement between the parties which would have created a security interest in the servers if plaintiff \u201cfail[ed] to pay ... or otherwise breachfed the co-location] Agreement,\u201d but defendant did not submit any affidavits or other evidence of plaintiff\u2019s failure to pay or another breach of the agreement. In fact, defendant submitted no evidence at all in opposition to the summary judgment motion, but rested on its unverified answer to oppose the motion. This is unavailing. Glassman, 129 N.C. App. at 623, 500 S.E.2d at 470. (\u201c[A] defendant\u2019s unverified pleadings are insufficient to defeat a motion for summary judgment since they do not comply with the requirements of Rule 56(e).\u201d).\nWe conclude therefore, that plaintiff\u2019s evidence tended to establish that there was no genuine issue of material fact as to its ownership and right to immediate possession. Defendant failed to forecast evidence opposing plaintiff\u2019s evidence of ownership and right to possession or in support of a security interest in plaintiff\u2019s servers. Therefore, this argument is without merit.\nC. Ongoing Discovery\nDefendant also argues that the trial court erred in granting summary judgment \u201cwhen discovery was still ongoing, before plaintiff had been required to respond to defendant\u2019s request for production of documents and denying defendant the same opportunity for discovery as plaintiff[.]\u201d Plaintiff argues that there was no discovery pending at the time summary judgm\u00e9nt was granted.\nDefendant did not make this argument before the trial court, which ordinarily results in waiver of the argument on appeal. See State v. Hope, 189 N.C. App. 309, 318, 657 S.E.2d 909, 914 (2008) (\u201cWhere a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount on appeal.\u201d (Citations, internal brackets and quotation marks omitted.)). Furthermore, we conclude that even if this issue had been properly preserved for appeal, defendant\u2019s argument is without merit.\nThis Court has held that summary judgment is premature \u201cwhen discovery procedures, which might lead to the production of evidence relevant to the motion, are still pending and the party seeking discovery has not been dilatory in doing so.\u201d American Travel Corp. v. Central Carolina Bank, 57 N.C. App. 437, 441, 291 S.E.2d 892, 895, disc. review denied, 306 N.C. 555, 294 S.E.2d 369 (1982) (citation and quotation marks omitted). However, the record sub judice contains no indication that any discovery procedures which might have led to the production of relevant evidence were still pending when the summary judgment motion was granted. Defendant argued that discovery was pending because plaintiff failed to respond to Defendant\u2019s Request for Document Production, but the 7 March 2007 order specifically decrees that \u201cPlaintiff is not required to respond to any discovery by or from defendant relating to the counterclaims, including but not limited to the pending Defendant\u2019s Request . to Plaintiff Fayetteville Publishing Company for Document Production.\u201d (Emphasis added.) Defendant quibbles with the wording of the trial court\u2019s order, arguing that plaintiff was still required to respond to any requests for documents which did not have to do with the counterclaims. However, we read the trial court\u2019s order as negating defendant\u2019s entire Request for Document Production. It therefore appears from the record that there was no discovery request from defendant to plaintiff outstanding at the time of entry of summary judgment. Defendant\u2019s argument is without merit.\nIV. Conclusion\nThe trial court\u2019s order dismissing defendant\u2019s counterclaims for failure to comply with discovery was supported by reason and was therefore not an abuse of discretion. Defendant failed to demonstrate a genuine issue of material fact for trial under Rule 56, so the trial court did not err in granting summary judgment for plaintiff on its claim for possession of the servers. Accordingly, the 7 March 2007 and the 19 April 2007 orders of the trial court are affirmed.\nAffirmed.\nJudges HUNTER and ELMORE concur.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Helms Mulliss & Wicker, PLLC, by H. Landis Wade, Jr. and A. Jordan Sykes, for plaintiff-appellee.", "Amber A. Corbin for defendant-appellant." ], "corrections": "", "head_matter": "FAYETTEVILLE PUBLISHING COMPANY, Plaintiff v. ADVANCED INTERNET TECHNOLOGIES, INC., Defendant\nNo. COA07-1203\n(Filed 2 September 2008)\n1. Judges\u2014 comment \u2014 discovery\u2014sanctions\u2014dismissal of counterclaims \u2014 written order controlling\nThere was no abuse of discretion in the dismissal of defendant\u2019s counterclaims as a sanction for failure to a comply with a discovery order. The written court order as entered is controlling rather than the trial judge\u2019s comments during the hearing, and the short time between the hearing and the order is not per se grounds for setting it aside.\n2. Discovery\u2014 sanctions \u2014 dismissal of counterclaims\nThe choice of dismissal of defendant\u2019s counterclaims as a discovery sanction was proper where there were findings that defendant\u2019s response to a discovery order was piecemeal and defiant, and the trial court noted that it had considered less severe sanctions.\n3. Civil Procedure\u2014 summary judgment \u2014 affirmative defenses \u2014 forecast of evidence\nThe trial court did not err by granting summary judgment for plaintiff in an action for the recovery of computer servers where defendant argued that its affirmative defenses remained viable even if the dismissal of its counterclaims was proper. Defendant did not forecast any evidence demonstrating specific facts as to its security interest or any other affirmative defense.\n4. Discovery\u2014 summary judgment \u2014 no pending procedures leading to relevant evidence\nThere was no merit to the argument that the trial court erred by granting summary judgment when discovery was allegedly ongoing, even if the issue had been preserved for appeal. The record contains no indication that any discovery procedures which might have led to the production of relevant evidence was still pending when the summary judgment motion was granted.\nAppeal by defendant from summary judgment entered 26 March 2007 by Judge Gregory A. Weeks in Cumberland County Superior Court. Heard in the Court of Appeals 19 March 2008.\nHelms Mulliss & Wicker, PLLC, by H. Landis Wade, Jr. and A. Jordan Sykes, for plaintiff-appellee.\nAmber A. Corbin for defendant-appellant." }, "file_name": "0419-01", "first_page_order": 447, "last_page_order": 459 }