{ "id": 3733881, "name": "IN THE MATTER OF THE ESTATE OF FRANCES FAISON JOHNSON, Deceased", "name_abbreviation": "In re the Estate of Johnson", "decision_date": "2010-07-20", "docket_number": "No. COA09-993", "first_page": "641", "last_page": "649", "citations": [ { "type": "official", "cite": "205 N.C. App. 641" } ], "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": "637 S.E.2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637249 ], "year": 2006, "pin_cites": [ { "page": "288", "parenthetical": "reaffirming the rule that the trial court has power to sanction parties for failure to comply with discovery orders and that dismissal of defenses or counterclaims is an appropriate sanction within the province of the trial court" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0284-01" ] }, { "cite": "224 S.E.2d 612", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "614", "parenthetical": "holding that the \"plaintiffs, by failing to appeal, are bound by the judgments against them and in favor of defendant. . . although there might have been error in the trial leading to these judgments\"" } ], "opinion_index": 0 }, { "cite": "290 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560204 ], "year": 1976, "pin_cites": [ { "page": "89", "parenthetical": "holding that the \"plaintiffs, by failing to appeal, are bound by the judgments against them and in favor of defendant. . . although there might have been error in the trial leading to these judgments\"" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0087-01" ] }, { "cite": "677 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2009, "pin_cites": [ { "page": "889" }, { "page": "890" }, { "page": "888" } ], "opinion_index": 0 }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "323 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755493, 4755336, 4753483, 4753324, 4752111 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0622-01", "/nc/312/0622-05", "/nc/312/0622-03", "/nc/312/0622-04", "/nc/312/0622-02" ] }, { "cite": "316 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "922" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526191 ], "pin_cites": [ { "page": "299" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0292-01" ] }, { "cite": "583 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "159 N.C. App. 651", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8958039 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/159/0651-01" ] }, { "cite": "430 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 140", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531703 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0140-01" ] }, { "cite": "418 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "107 N.C. App. 34", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527099 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/107/0034-01" ] }, { "cite": "516 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "172-73", "parenthetical": "holding that the trial court did not abuse its discretion in striking the defendant's answer and entering default judgment as a sanction for failing to comply with the trial court's orders to make discovery" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 594", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11220859 ], "year": 1999, "pin_cites": [ { "page": "598-99", "parenthetical": "holding that the trial court did not abuse its discretion in striking the defendant's answer and entering default judgment as a sanction for failing to comply with the trial court's orders to make discovery" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0594-01" ] }, { "cite": "180 N.C. App. 452", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8243116 ], "year": 2006, "pin_cites": [ { "page": "456-57", "parenthetical": "reaffirming the rule that the trial court has power to sanction parties for failure to comply with discovery orders and that dismissal of defenses or counterclaims is an appropriate sanction within the province of the trial court" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0452-01" ] }, { "cite": "225 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561061, 8561029, 8561098, 8561046, 8561079 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0308-03", "/nc/290/0308-01", "/nc/290/0308-05", "/nc/290/0308-02", "/nc/290/0308-04" ] }, { "cite": "223 S.E.2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "29 N.C. App. 60", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554050 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/29/0060-01" ] }, { "cite": "213 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1975, "pin_cites": [ { "page": "214" } ], "opinion_index": 0 }, { "cite": "287 N.C. 26", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560946 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0026-01" ] }, { "cite": "5 S.E.2d 544", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "pin_cites": [ { "page": "545" } ], "opinion_index": 0 }, { "cite": "216 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606420 ], "year": 1939, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/nc/216/0497-01" ] }, { "cite": "414 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498177, 2499816, 2501001, 2498421, 2499612 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0117-01", "/nc/331/0117-05", "/nc/331/0117-02", "/nc/331/0117-04", "/nc/331/0117-03" ] }, { "cite": "411 S.E.2d 167", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 13, "year": 1991, "pin_cites": [ { "page": "170-71" }, { "page": "168" }, { "page": "170-71" }, { "page": "171" }, { "page": "171" }, { "page": "171" }, { "page": "171" }, { "page": "167" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 739", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524001 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "745-46" }, { "page": "745" }, { "page": "740" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0739-01" ] }, { "cite": "464 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "507", "parenthetical": "citation omitted" }, { "page": "505", "parenthetical": "citation omitted" }, { "page": "507" } ], "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": "179", "parenthetical": "citation omitted" }, { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0175-01" ] } ], "analysis": { "cardinality": 839, "char_count": 23031, "ocr_confidence": 0.775, "pagerank": { "raw": 4.277134884225609e-08, "percentile": 0.27016883995939533 }, "sha256": "b5c5a2122750ccdaedb7d11c31d38729bd03c12ee1151ee71617265392981d58", "simhash": "1:876bf066746c0d51", "word_count": 3744 }, "last_updated": "2023-07-14T21:30:55.510002+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ROBERT N. HUNTER^ JR. and ERVIN concur." ], "parties": [ "IN THE MATTER OF THE ESTATE OF FRANCES FAISON JOHNSON, Deceased" ], "opinions": [ { "text": "STROUD, Judge.\nPropounder appeals from a trial court\u2019s order imposing discovery sanctions pursuant to Rule 37. For the following reasons, we affirm.\nI. Background\nOn 30 September 2007, Frances Faison Johnson (\u201cdecedent\u201d), a resident of Sampson County died, survived by her two children Mary Lily Johnson Nuckolls (\u201ccaveator\u201d) and Jefferson Deems Johnson, III (\u201cpropounder Jefferson\u201d) On 23 August 1991, decedent executed a \u201cLast Will and Testament[.]\u201d On or about 17 November 1994, decedent executed a handwritten codicil to this will. On or about 4 October 2007, propounder Jefferson presented to the Clerk of Superior Court, Sampson County a handwritten document dated 19 December 2003, (\u201c2003 document\u201d) which propounder Jefferson alleged was the last will and testament of decedent. On 30 January 2008, caveator filed a verified caveat contesting the validity of the 2003 document on the grounds that decedent lacked capacity at the time the 2003 document was written, and that propounder Jefferson procured the 2003 document by undue influence, duress, and fraud. On 11 February 2008, Jefferson Johnson and his daughters, Ellen B. Johnson and Susan Johnson Fordham (referred to collectively as \u201cpropounders\u201d), filed with the trial court an \u201cElection to be Propounder.\u201d On 10 March 2008, propounders filed their response to the verified caveat and amended that response on 2 April 2008.\nOn or about 9 April 2008, caveator served her first set of interrogatories and requests for production of documents on propounder Jefferson. On or about 14 April 2008, caveator served her second set of interrogatories and requests for production of documents on propounder Jefferson. On 9 July 2009, propounder\u2019s trial counsel filed a motion to withdraw as counsel for propounders and for payment of attorney\u2019s fees. On 7 August 2008, the trial court entered two orders. The first order allowed propounders\u2019 trial counsel to withdraw and provided for payment of his attorney fees \u201cupon completion of the trial[.]\u201d The second order stayed discovery for three weeks, from 4 August 2008 until 25 August 2008, to allow for propounders to \u201cretain new counsel as they deem fit\u201d and required that by 26 August 2008 each party should make available to the other party \u201ccopies of documents properly responsive to the Requests for Production of documents served on each party by the other.\u201d The trial court also ordered that \u201call counsel shall cooperate in an expeditious resumption of discovery.\u201d\nOn 19 August 2008, propounder Jefferson, acting pro se, filed a handwritten \u201cNotice of Appeal with Exceptions and Statement of Facts and Reasons on Petition for Writ of Certiorari\u201d with the Sampson County, Clerk of Superior Court. On or about 2 December 2008, caveator filed a motion to dismiss propounder Jefferson\u2019s appeal, compel discovery, and for sanctions. On 9 December 2008, propounder Jefferson filed his responses to caveator\u2019s first and second sets of interrogatories and requests for production of documents. On 23 December 2008, the trial court entered an order dismissing propounder Jefferson\u2019s \u201cNotice of Appeal\u201d and granting caveator\u2019s motion to compel. The trial court noted in its order that, \u201c[although Propounder responded to Caveator\u2019s discovery, Propounder\u2019s Responses were not timely and included numerous objections [,]\u201d and \u201c[cjaveator provided documents in accordance with the Court\u2019s August 2008 Order [but] Propounder did not provide documents in accordance with the Court\u2019s August 2008 Order[.]\u201d The trial court ordered propounder Jefferson to \u201cprovide full and complete answers and responses to Caveator\u2019s First and Second Discovery, without objection, on or before January 15, 2009[,]\u201d and for him to \u201cmake available for inspection all documents responsive to Caveator\u2019s First and Second Discovery.\u201d The trial court ordered that \u201c[fjailure to make such production shall subject Propounder to a $2,500.00 fine and Caveator also may seek other appropriate relief.\u201d The trial court denied caveator\u2019s motion for sanctions.\nOn 30 December 2008, acting pro se, propounder Jefferson filed another handwritten \u201cNotice of Appeal and Stay Request\u201d with the Sampson County Clerk of Superior Court. On or about 21 January 2009, caveator filed a second motion for sanctions requesting, inter alia, that the trial court (1) set aside, annul, and adjudicate the 2003 document \u201cnot to be the Last Will and Testament of the Decedent;\u201d (2) deem the facts set forth in caveator\u2019s verified caveat to be \u201cestablished for the purposes of the action;\u201d (3) subject propounder Jefferson to a $2,500.00 fine as required by the court\u2019s 23 December 2008 order; and (4) award caveator her costs and legal fees associated with the violated orders. On 5 February 2009, propounder Jefferson, acting pro se, filed a petition for writ of supersedeas with this Court, which included a motion for temporary stay. This Court denied propounder Jefferson\u2019s motion for temporary stay on 9 February 2009 and denied his petition for writ of supersedeas on 19 February 2009. By order dated 12 February 2008, the trial court granted caveator\u2019s second motion for sanctions. The trial court noted that \u201c[p]ropounder has had numerous opportunities to properly respond to Caveator\u2019s First and Second Discovery, to produce responsive documents, and to comply with the Court\u2019s August 11, 2008 and December 23, 2008 Orders\u201d but \u201chas exhibited continued recalcitrance and repeated disobedience of the Orders of this Court.\u201d After considering lesser sanctions, the trial court ordered that \u201c[t]he matters asserted in the Verified Caveat are accepted as true and shall be taken to be established for purposes of this action[;]\u201d annulled the probate of the 2003 document dated 19 December 2003; adjudged it \u201cnot to be the Last Will and Testament of the Decedent[;]\u201d and ordered the clerk of court to accept for probate \u201cthe Last Will and Testament of the Decedent dated August 23, 1991, as modified by the codicil dated November 17, 1994.\u201d The trial court also ordered propounder Jefferson to pay caveator $2,500.00 in accordance with the Court\u2019s 23 December 2008 Order[,]\u201d and awarded caveator $4,500.00 in attorney\u2019s fees. On 13 February 2009, propounder Jefferson filed notice of appeal to this Court. Propounders Ellen B. Johnson and Susan Johnson Fordham did not appeal.\nII. Rule 37 Sanctions and Caveat Proceedings\nPropounder Jefferson challenges the trial court\u2019s order imposing sanctions pursuant to Rule 37. Rule 37(b)(2) of the North Carolina Rules of Civil Procedure provides that, \u201cif a party . . . fails to obey an order to provide or permit discovery[,]\u201d a trial court is permitted to enter a default judgment against the disobedient party, strike pleadings or parts of pleadings, and require the disobedient party to pay reasonable expenses, including attorney\u2019s fees caused by the disobedient party\u2019s failure to comply with the order. N.C. Gen. Stat. \u00a7 1A-1, Rule 37(b)(2) (2007). \u201c[B]efore dismissing a party\u2019s claim with prejudice pursuant to Rule 37, the trial court must consider less severe sanctions.\u201d Hursey v. Homes by Design, Inc., 121 N.C. App. 175, 179, 464 S.E.2d 504, 507 (1995) (citation omitted). \u201cSanctions under Rule 37 are within the sound discretion of the trial court and will not be overturned on appeal absent a showing of abuse of that discretion.\u201d Id. at 177, 464 S.E.2d at 505 (citation omitted).\nPropounder Jefferson first argues that the trial court erred in imposing sanctions pursuant to Rule 37, as the factual question of devisavit vel non remained at issue in this caveat proceeding and this factual issue should have been decided by a jury, not by the trial court\u2019s Rule 37 sanction which resulted in a default judgment. Propounder Jefferson also contends that \u201cRule 37 sanctions may not be used to determine the validity of a will, as caveat proceedings are in rem and must be treated accordingly.\u201d Propounder Jefferson argues that \u201c[a] caveat proceeding is unique in nature as it is not a civil action, but is a special proceeding in rem\u201d and is treated \u201cdifferently under the North Carolina Rules of Civil Procedure.\u201d\nIn In re Vestal, 104 N.C. App. 739, 745-46, 411 S.E.2d 167, 170-71 (1991), disc. review denied, 331 N.C. 117, 414 S.E.2d 767 (1992), this Court addressed the issue of whether Rule 37 sanctions that struck the pleadings and dismissed the action with prejudice were appropriate in a caveat proceeding. In Vestal, the caveators filed a caveat contending that the paper writing submitted by the propounder was not the decedent\u2019s last will and testament. Id. at 740, 411 S.E.2d at 168. The propounder subsequently filed an answer and a request for interrogatories. Id. After waiting over a year for the caveators to answer the interrogatories, the propounder filed a motion to compel. Id. The trial court granted the propounder\u2019s motion to compel and ordered the caveators to answer the propounder\u2019s interrogatories within two weeks. Id. Because the caveators had not responded within two weeks as ordered, the propounder filed a second motion to compel. Id. The trial court granted the propounder\u2019s motion, concluding that the caveators had \u201cwilfully and blatantly ignored and refused to comply\u201d with the trial court\u2019s order and pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 37, \u201cstruck the caveators\u2019 pleadings and dismissed the proceeding with prejudice.\u201d Id. On appeal, the caveators, relying on In re Redding, 216 N.C. 497, 498, 5 S.E.2d 544, 545 (1939), argued that (1) \u201cthe trial court lack[ed] the authority to dismiss a caveat proceeding with prejudice as a sanction pursuant to Rule 37 for violation of an order compelling discoveryf;]\u201d (2) \u201c[t]he proceedings to caveat a will are in rem without regard to particular persons, and must proceed to judgment, and motions as of nonsuit, or requests for direction of a verdict on the issues, will be disallowed[;]\u201d and (3) \u201c[o]nce a will has been propounded for probate in solemn form, the proceedings must continue until the issue of devisavit vel non is appropriately answered, and no nonsuit can be taken either by the propounders or caveators.\u201d Id. at 745, 411 S.E.2d at 170-71. In affirming the trial court\u2019s sanctions, this Court expressly rejected these arguments. Id. at 745, 411 S.E.2d at 171. In addressing whether a trial court can summarily adjudicate a caveat proceeding, this Court stated that \u201c[t]he caveator\u2019s reading of Redding is overbroad and overlooks cases allowing dismissal such as In re Mucci, 287 N.C. 26, 213 S.E.2d 207 (1975) [(affirming the trial court\u2019s grant of amotion for entry of a directed verdict)] and In re Edgerton, 29 N.C. App. 60, 223 S.E.2d 524, disc. rev. denied, 290 N.C. 308, 225 S.E.2d 832 (1976) [(affirming the trial court\u2019s grant of summary judgment)].\u201d Id. Further, this Court noted that \u201cthe caveator\u2019s argument overlooks the express power of a trial court to enforce its order compelling discovery by dismissal\u201d as Rule 37(b)(2) \u201cprovides that upon a party\u2019s failure to comply with the court\u2019s order, \u2018the judge may make such orders in respect to the failure to answer as are just[,]\u2019 \u201d including an order dismissing the action, and \u201cwe may not overturn the court\u2019s decision unless an abuse of that discretion is shown.\u201d Id. at 745-46, 411 S.E.2d at 171. (citation omitted). \u201cAfter careful review of the record,\u201d this Court found \u201cno abuse of discretion.\u201d Id. at 746, 411 S.E.2d at 171.\nAs propounder Jefferson raises the same issues as the caveators in Vestal, we hold that Vestal is controlling. Here, on 7 August 2008 and again on 23 December 2008, propounder Jefferson was ordered by the trial court to produce answers to caveator\u2019s requests for discovery. By its 12 February 2009 order, the trial court found that \u201c[p]ropounder has had numerous opportunities to properly respond to Caveator\u2019s First and Second Discovery, to produce responsive documents, and to comply with the Court\u2019s August 11, 2008 and December 23, 2008 Orders[,]\u201d but had \u201cexhibited continued recalcitrance and repeated disobedience of the Orders of this Court.\u201d Before entry of a default judgment as a sanction, the trial court considered lesser sanctions, Hursey, 121 N.C. App. at 179, 464 S.E.2d at 507, but \u201cconcludefd] that less drastic sanctions than those ordered below will not suffice nor are they appropriate under the facts of this case.\u201d We note that propounder Jefferson makes no argument claiming that the trial court abused its discretion in its selection of sanctions. After careful review of the record, we find no abuse of discretion. Accordingly, the trial court did not err in ordering as a sanction that the matters alleged in the verified caveat were deemed to be true and established; annuling the probate of the 2003 document submitted by propounder Jefferson and adjudicating it not to be the last will and testament of the decedent; and ordering that the clerk of court admit to probate \u201cthe Last Will and Testament of the Decedent dated August 23, 1991, as modified by the codicil dated November 17, 1994.\u201d See Harrison v. Harrison, 180 N.C. App. 452, 456-57, 637 S.E.2d 284, 288 (2006) (reaffirming the rule that the trial court has power to sanction parties for failure to comply with discovery orders and that dismissal of defenses or counterclaims is an appropriate sanction within the province of the trial court); Atlantic Veneer Corp. v. Robbins, 133 N.C. App. 594, 598-99, 516 S.E.2d 169, 172-73 (1999) (holding that the trial court did not abuse its discretion in striking the defendant\u2019s answer and entering default judgment as a sanction for failing to comply with the trial court\u2019s orders to make discovery).\nPropounder Jefferson, in an attempt to distinguish Vestal, argues that Vestal relied on In re Mucci, 287 N.C. 26, 213 S.E.2d 207 (1975), where the trial court issued a directed verdict because there were no outstanding factual issues and thus no question of devisavit vel non. Thus, summary adjudication, such as entry of default judgment, is available only if there are no issues of fact. Propounder Jefferson concludes that, since there were still disputed factual issues in this case, the trial court\u2019s application of Rule 37, which summarily adjudicated this proceeding, was in error. In addition to citing Mucci, propounder Jefferson also cites to In re Jarvis, 107 N.C. App. 34, 418 S.E.2d 520 (1992), aff\u2019d in part, reversed in part, 334 N.C. 140, 430 S.E.2d 922 (1993), and In re Smith, 159 N.C. App. 651, 583 S.E.2d 615 (2003) in further support of his argument. None of the cases cited by propounder Jefferson address the application of Rule 37 sanctions in a caveat proceeding when a party had repeatedly ignored a trial court\u2019s order to comply with discovery; they merely reaffirm the rule in Mucci that summary adjudication is available for caveat proceedings. 287 N.C. at 36, 213 S.E.2d at 214. We also note that even though propounder Jefferson argues that summary adjudication was in error because the issue of devisavit vet non was unresolved, the record clearly reflects that it was propounder Jefferson\u2019s repeated disobedience of the trial court\u2019s orders to comply with discovery that prevented the investigation and development of those issues. In essence, propounder Jefferson argues that, as long as a party in a caveat proceeding alleges an issue of fact in his pleadings but refuses to support his allegations by discovery responses, even to the extent of disobedience of a court order, the caveat proceeding must be allowed to go to a jury on those factual issues. This result would clearly contravene our rules of discovery. As stated in Vestal, propounder'Jefferson\u2019s argument \u201coverlooks the express power of a trial court to enforce its order compelling discovery by dismissal^]\u201d Vestal, 104 N.C. App. at 745, 411 S.E.2d at 171, pursuant to Rule 37(b)(2); see Green v. Maness, 69 N.C. App. 292, 299, 316 S.E.2d 917, 922 (noting that \u201c[o]ur courts and the federal courts have held consistently that the purpose and intent of [the discovery rules] is to prevent a party who has discoverable information from making evasive, incomplete, or untimely responses to requests for discovery[,]\u201d and \u201cthe trial court has express authority under G.S. 1A-1, Rule 37, to impose sanctions on a party who balks at discovery requests\u201d), disc. review denied, 312 N.C. 622, 323 S.E.2d 922 (1984). Therefore, we are not persuaded by propounder Jefferson\u2019s attempt to circumvent our discovery rules. Propounder Jefferson next contends that \u201cIn Re Vestal should be overruled[.]\u201d Propounder Jefferson argues that Vestal \u201cdoes not distinguish between caveat proceedings in which all questions of fact have been settled and those in which the issue of devisavit vel non remains unanswered.\u201d Propounder Jefferson further contends that \u201c[t]he failure to draw such a distinction renders Vestal exceedingly broad, and its logic completely swallows a \u2018body of very well settled law.\u2019 \u201d In the alternative, propounder Jefferson argues that \u201cIn Re Vestal is distinguishable from [this] claim as it deals with a case of sanctions against a caveator as opposed to a propounder.\u201d\nOur Supreme Court has held that, \u201c[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d In re Appeal from Civil Penalty Assessed for Violations of Sedimentation Pollution Control Act, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Therefore, the opinion in Vestal is binding on this Court. As to propounder Jefferson\u2019s argument in the alternative, he cites no case in support of his contention that Rule 37 sanctions should only be applicable to a caveator, as opposed to a propounder and nothing in Vestal indicates any distinction should be drawn between sanctions against caveators or against propounders. In fact, N.C. Gen. Stat. \u00a7 1A-1, Rule 37(b)(2) states that sanctions may be imposed against any party who \u201cfails to obey an order to provide or permit discovery[.]\u201d As the Court in Vestal issued Rule 37(b)(2) discovery sanctions against the caveator for \u201cwilfully and blatantly-ignoring] and refusing] to comply\u201d with the trial court\u2019s order, 104 N.C. App. at 740, 411 S.E.2d at 167, the trial court here could also issue discovery sanctions pursuant to Rule 37(b)(2) for propounder Jefferson\u2019s \u201ccontinued recalcitrance and repeated disobedience of the Orders of [the] Court.\u201d Therefore, propounder Jefferson\u2019s arguments are overruled.\nFinally propounder Jefferson, citing Baker v. Rosner, - N.C. App. -, 677 S.E.2d 887 (2009), argues that \u201cit is unjust to sanction three propounders for a single propounder\u2019s failure to comply with a discovery order.\u201d Propounder Jefferson argues that sanctions against the other propounders in this case, Ellen Johnson and Susan Fordham, were not \u201cjust\u201d because the sanctions that dismissed the whole case were levied against propounder Jefferson only, but the effect of those sanctions was to dismiss the claims of these other propounders who had never been found to be in violation of a discovery order. In Baker, the trial court ordered that all four defendants\u2019 answers be stricken and entered default judgment as a sanction pursuant to Rule 37 for failure to comply with the trial court\u2019s order. Id. at -, 677 S.E.2d at 889. This Court reversed the Rule 37 sanctions against one of the individual defendants as that individual defendant was not in violation of the trial court\u2019s order. Id. at -, 677 S.E.2d at 890. The individual defendant in Baker was a party to the appeal. Id. at -, 677 S.E.2d at 888. Contrary to Baker, propounders Ellen Johnson and Susan Fordham are not parties to this appeal. The record does not contain any notice of appeal for either Ellen Johnson or Susan Fordham from the trial court\u2019s 12 February 2009 order granting caveator\u2019s second motion for sanctions, even though the record shows that Ellen Johnson and Susan Fordham were given notice by caveator of all the hearings related to this caveat. In contrast to propounder Jefferson\u2019s current argument, in his pro se \u201cNotice of Appeal with Exceptions and Statement of Facts and Reasons on Petition for Writ of Certiorari[,]\u201d he states that his\ntwo daughters [propounders Ellen Johnson and Susan Fordham] are technically \u2018propounders\u2019 having been aligned as such of record herein by [their former attorney] at the outset of this proceeding. They are mere passive parties to it since I, not they, are the real party-propounder in interest. They take nothing, under the Will and did not even need to be made partiespropounder.... There is no need to have my daughters available for his or Mr. Jones\u2019 depositions ....\nOur Supreme Court has stated that \u201c[a]ppellate courts do not generally vindicate the rights of parties aggrieved at trial who could appeal but choose not to do so.\u201d Henderson v. Matthews, 290 N.C. 87, 89, 224 S.E.2d 612, 614 (1976) (holding that the \u201cplaintiffs, by failing to appeal, are bound by the judgments against them and in favor of defendant. . . although there might have been error in the trial leading to these judgments\u201d). As propounders Ellen Johnson and Susan Fordham did not file a notice of appeal, the 12 February 2008 order granting caveator\u2019s second motion for sanctions is a final judgment against those parties. Therefore, we are not persuaded by propounder Jefferson\u2019s argument.\nIII. Conclusion\nAs the trial court did not abuse its discretion in imposing sanctions pursuant to Rule 37, we affirm the trial court\u2019s order.\nAFFIRMED.\nJudges ROBERT N. HUNTER^ JR. and ERVIN concur.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Ward and Smith, .P.A., by Jenna Fruechtenicht Butler, for caveator-appellee.", "Everett & Everett, Attorneys at Law, by Lewis M. \u201cLuke\u201d Everett, for propounder-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF THE ESTATE OF FRANCES FAISON JOHNSON, Deceased\nNo. COA09-993\n(Filed 20 July 2010)\n1. Discovery\u2014 sanctions \u2014 allegations in caveat deemed to be true \u2014 prior will admitted to probate\nThe trial court did not abuse its discretion by ordering as a discovery sanction that the matters in a verified caveat were deemed to be true, annulling the probate of a subsequent will, and ordering that the prior will and codicil be admitted to probate.\n2. Discovery\u2014 caveat proceedings \u2014 sanctions\nThe Court of Appeals rejected the argument of a propounder that a caveat proceeding must be allowed to go to a jury if a party alleges an issue of fact and refuses to support his allegations in discovery responses. The Court also rejected the argument that sanctions under N.C.G.S. \u00a7 1A-1, Rule 37 should only be applicable to a caveator.\n3. Appeal and Error\u2014 notice of appeal \u2014 required\nDiscovery sanctions against three propounders of a will for the failure of one to comply with an order were upheld where the other two propounders did not give notice of appeal.\nAppeal by propounder from an order entered on or about 11 February 2009 by Judge W. Allen Cobb, Jr. in Superior Court, Sampson County. Heard in the Court of Appeals 3 December 2009.\nWard and Smith, .P.A., by Jenna Fruechtenicht Butler, for caveator-appellee.\nEverett & Everett, Attorneys at Law, by Lewis M. \u201cLuke\u201d Everett, for propounder-appellant." }, "file_name": "0641-01", "first_page_order": 669, "last_page_order": 677 }