{ "id": 4078743, "name": "ROBERT C. RAY AND KIMBERLY C. RAY, Plaintiffs v. GARY WAYNE GREER, M.D., AND CATAWBA VALLEY EMERGENCY PHYSICIANS, P.A., Defendants", "name_abbreviation": "Ray v. Greer", "decision_date": "2011-06-07", "docket_number": "No. COA10-767", "first_page": "358", "last_page": "368", "citations": [ { "type": "official", "cite": "212 N.C. App. 358" } ], "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": "618 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633891 ], "weight": 6, "year": 2005, "pin_cites": [ { "page": "828-29" }, { "page": "828", "parenthetical": "internal quotation marks and citations omitted" }, { "page": "826" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0819-01" ] }, { "cite": "637 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637293, 12637294, 12637295 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/637/0538-01", "/se2d/637/0538-02", "/se2d/637/0538-03" ] }, { "cite": "629 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635826 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "911" }, { "page": "911" }, { "page": "911" }, { "page": "911", "parenthetical": "\"[W]here the record on appeal permits the inference that the trial court considered less severe sanctions, this Court may not overturn the decision of the trial court unless it appears so arbitrary that it could not be the result of a reasoned decision. \" (emphasis added" } ], "opinion_index": 0, "case_paths": [ "/se2d/629/0909-01" ] }, { "cite": "615 S.E.2d 699", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633349 ], "year": 2005, "pin_cites": [ { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0699-01" ] }, { "cite": "407 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "attorney committed acts giving rise to sanction" } ], "opinion_index": 0 }, { "cite": "329 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554636, 2555469, 2556685, 2556307, 2553854 ], "year": 1991, "pin_cites": [ { "parenthetical": "attorney committed acts giving rise to sanction" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0505-05", "/nc/329/0505-01", "/nc/329/0505-02", "/nc/329/0505-03", "/nc/329/0505-04" ] }, { "cite": "399 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "405", "parenthetical": "attorney committed acts giving rise to sanction" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 276", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527617 ], "year": 1991, "pin_cites": [ { "page": "280-81", "parenthetical": "attorney committed acts giving rise to sanction" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0276-01" ] }, { "cite": "360 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "776", "parenthetical": "trial court properly sanctioned plaintiff for plaintiffs attorney's violation of court order" } ], "opinion_index": 0 }, { "cite": "320 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730978 ], "year": 1987, "pin_cites": [ { "page": "674-75", "parenthetical": "trial court properly sanctioned plaintiff for plaintiffs attorney's violation of court order" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0669-01" ] }, { "cite": "553 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "427", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 574", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11361102 ], "year": 2001, "pin_cites": [ { "page": "576", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0574-01" ] }, { "cite": "319 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "922" }, { "page": "922", "parenthetical": "Rule 8(a)(2)" } ], "opinion_index": 0 }, { "cite": "311 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685798 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "551" }, { "page": "551", "parenthetical": "Rule 8(a)(2)" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0536-01" ] }, { "cite": "197 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "600", "parenthetical": "holding that the trial court erred in dismissing plaintiff's action for failure to prosecute" } ], "opinion_index": 0 }, { "cite": "18 N.C. App. 671", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553526 ], "year": 1973, "pin_cites": [ { "page": "672", "parenthetical": "holding that the trial court erred in dismissing plaintiff's action for failure to prosecute" } ], "opinion_index": 0, "case_paths": [ "/nc-app/18/0671-01" ] }, { "cite": "285 S.E.2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "holding that the trial court correctly refused to grant a motion to dismiss for failure to prosecute" } ], "opinion_index": 0 }, { "cite": "304 N.C. 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566329, 8566263, 8566297, 8566397, 8566239 ], "year": 1981, "pin_cites": [ { "parenthetical": "holding that the trial court correctly refused to grant a motion to dismiss for failure to prosecute" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0195-04", "/nc/304/0195-02", "/nc/304/0195-03", "/nc/304/0195-05", "/nc/304/0195-01" ] }, { "cite": "279 S.E.2d 13", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "15", "parenthetical": "holding that the trial court correctly refused to grant a motion to dismiss for failure to prosecute" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 502", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170391 ], "year": 1981, "pin_cites": [ { "page": "505", "parenthetical": "holding that the trial court correctly refused to grant a motion to dismiss for failure to prosecute" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0502-01" ] }, { "cite": "464 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "507" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 175", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916211 ], "year": 1995, "pin_cites": [ { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0175-01" ] }, { "cite": "362 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "869-70", "parenthetical": "plaintiffs did not answer, object, or respond in any way to defendants' requests for discovery" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 274", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358104 ], "year": 1987, "pin_cites": [ { "page": "276", "parenthetical": "plaintiffs did not answer, object, or respond in any way to defendants' requests for discovery" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0274-01" ] }, { "cite": "173 N.C. App. 237", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353302 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "251" }, { "page": "251" }, { "page": "247" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0237-01" ] }, { "cite": "361 N.C. 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3736640 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/361/0112-01" ] }, { "cite": "177 N.C. App. 732", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8302349 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "735" }, { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0732-01" ] }, { "cite": "378 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "200", "parenthetical": "noting \"that a party's motion for dismissal because the opposing party has violated a rule or court order is directed to the trial court's discretion\"" }, { "page": "200-01" }, { "page": "200", "parenthetical": "court order" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528064 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "420", "parenthetical": "noting \"that a party's motion for dismissal because the opposing party has violated a rule or court order is directed to the trial court's discretion\"" }, { "page": "420-21" }, { "page": "420", "parenthetical": "court order" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0414-01" ] }, { "cite": "418 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "303" }, { "page": "303", "parenthetical": "1992" }, { "page": "302" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 614", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5314128 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "620" }, { "page": "619-20" }, { "page": "618" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0614-01" ] }, { "cite": "171 N.C. App. 479", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8437849 ], "year": 2005, "pin_cites": [ { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0479-01" ] }, { "cite": "303 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "220" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522618 ], "year": 1983, "pin_cites": [ { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0387-01" ] }, { "cite": "103 S.E.2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1958, "pin_cites": [ { "page": "402" } ], "opinion_index": 0 }, { "cite": "248 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622411 ], "year": 1958, "pin_cites": [ { "page": "300-01" } ], "opinion_index": 0, "case_paths": [ "/nc/248/0298-01" ] }, { "cite": "229 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "198", "parenthetical": "\"It has long been recognized that one act may be punishable both 'as for contempt,' i.e., as civil contempt, and 'for contempt[]'.. . .\"" } ], "opinion_index": 0 }, { "cite": "291 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557249 ], "year": 1976, "pin_cites": [ { "page": "30", "parenthetical": "\"It has long been recognized that one act may be punishable both 'as for contempt,' i.e., as civil contempt, and 'for contempt[]'.. . .\"" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0019-01" ] }, { "cite": "526 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "486" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 844", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11242612 ], "year": 2000, "pin_cites": [ { "page": "846" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0844-01" ] } ], "analysis": { "cardinality": 1000, "char_count": 24517, "ocr_confidence": 0.736, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.12981973080283832 }, "sha256": "e1342a1a1392cdbbb2183a8ef04595fec6524599047f48c46cd658c61341738c", "simhash": "1:0fa9546a76ccac76", "word_count": 4045 }, "last_updated": "2023-07-14T17:12:23.503415+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and BRYANT concur." ], "parties": [ "ROBERT C. RAY AND KIMBERLY C. RAY, Plaintiffs v. GARY WAYNE GREER, M.D., AND CATAWBA VALLEY EMERGENCY PHYSICIANS, P.A., Defendants" ], "opinions": [ { "text": "BEASLEY, Judge.\nRobert and Kimberly Ray (Plaintiffs) appeal from the trial court\u2019s order granting a motion by Gary Wayne Greer, M.D. and Catawba Valley Emergency Physicians, P.A. (Defendants) to dismiss Plaintiffs\u2019 medical negligence complaint with prejudice based on a finding that Plaintiffs\u2019 counsel was in willful contempt of a previous court order. We dismiss in part and affirm in part.\nOn 5 September 2006, Attorney Karen Zaman filed a complaint on behalf of Plaintiffs, alleging claims for medical negligence and loss of consortium against Defendants. A consent discovery scheduling order dated 23 June 2008 peremptorily set the matter for trial on 26 October 2009. Following entry of a disciplinary order by the North Carolina State Bar on 29 May 2009, which, inter alia, required Ms. Zaman to arrange for a member of the Bar to serve as her law practice monitor, she associated with Attorney William Elam in this case. When the case came on for trial before Judge Calvin E. Murphy on 26 October 2009, Attorneys Zaman and Elam informed the court that a divergence of views regarding trial strategy had arisen between them. The trial court gave Plaintiffs time to consult with both attorneys to determine how to proceed and instructed Plaintiffs to return the next morning to report their decision. On 27 October 2009, Mr. Ray advised the trial court that Plaintiffs elected to proceed with Ms. Zaman as their attorney and indicated that he thought she would need co-counsel to litigate the case. Mr. Elam then made an oral motion to withdraw as counsel for Plaintiffs, which was granted by the trial court. When asked if she was ready to proceed with trial, Ms. Zaman replied that she was not prepared to go forward with the case alone but had already made attempts to associate co-counsel. Accordingly, she asked the trial court to continue the case. Based on representations by Ms. Zaman that additional counsel would be needed and on the substance of the 29 May 2009 Bar disciplinary order, Judge Murphy agreed that co-counsel was warranted and ordered Ms. Zaman to have counsel identified and present in court with her on 9 November 2009. Trial was continued to 12 July 2010.\nAt the 9 November hearing regarding the status of Ms. Zaman\u2019s co-counsel, Ms. Zaman appeared before Judge Bell without co-counsel, and the trial court gave her the opportunity to explain why she had failed to secure the same. She explained, consistent with a \u201cMotion to Extend Time for Plaintiffs\u2019 Counsel to Identify Co-Counsel\u201d filed only after the status conference, that she had diligently sought co-counsel and had spent significant time on two other medical malpractice cases. Based on Ms. Zaman\u2019s acknowledgment that she had been working on other matters, defense counsel moved to dismiss the case for the failure of Plaintiffs\u2019 attorney to comply with Judge Murphy\u2019s order. The trial court found Ms. Zaman in contempt of Judge. Murphy\u2019s order and, \u201cafter consideration of less drastic alternatives to dismissal,\u201d granted Defendants\u2019 motion and dismissed Plaintiffs\u2019 complaint with prejudice. Plaintiffs appeal.\nPlaintiffs first argue that the trial court, in holding Ms. Zaman in willful contempt of a previous court order, failed to comply with the provisions of N.C. Gen. Stat. \u00a7 5A-23 that require notice or show cause order of contempt proceedings and specific findings of fact by the trial court.\nInitially, we note that although both parties understand the trial court\u2019s finding of contempt to be civil in nature, the order does not indicate whether Ms. Zaman was held to be in civil or criminal contempt. See Watkins v. Watkins, 136 N.C. App. 844, 846, 526 S.E.2d 485, 486 (2000) (\u201cWe urge our trial courts to identify whether contempt proceedings are in the nature of criminal contempt as set forth in Article I, Chapter 5A of the North Carolina General Statutes or are in the nature of civil contempt as set forth in Article II, Chapter 5A of the North Carolina General Statutes.\u201d).\nWillful violation of a court order may be punished as criminal or civil contempt of court. See N.C. Gen. Stat. \u00a7 5A-ll(a)(3) (2009) (naming \u201c[w]illful disobedience of, resistance to, or interference with a court\u2019s ... order\u201d as conduct constituting criminal contempt); N.C. Gen. Stat. \u00a7 5A-21(a) (2009) (\u201cFailure to comply with an order of a court is a continuing civil contempt as long as: (1) The order remains in force; (2) The purpose of the order may still be served by compliance with the order; (2a) The noncompliance by the person to whom the order is directed is willful; and (3) The person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable the person to comply with the order.\u201d); see also Willis v. Duke Power Co., 291 N.C. 19, 30, 229 S.E.2d 191, 198 (1976) (\u201cIt has long been recognized that one act may be punishable both \u2018as for contempt,\u2019 i.e., as civil contempt, and \u2018for contempt[]\u2019.. . .\u201d); Smith v. Smith, 248 N.C. 298, 300-01, 103 S.E.2d 400, 402 (1958) (distinguishing criminal contempt as \u201ca term applied where the judgment is in punishment of an act already accomplished, tending to interfere with the administration of justice\u201d from civil contempt, \u201ca term applied where the proceeding is had to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of such parties\u201d (internal quotations and citations omitted)).\nSummary proceedings for criminal contempt are authorized \u201cin response to direct criminal contempt when necessary to restore order or maintain the dignity and authority of the court and when the measures are imposed substantially contemporaneously with the contempt.\u201d N.C. Gen. Stat. \u00a7 5A-14(a) (2009). However,\n[proceedings for civil contempt are by motion pursuant to G.S. 5A-23(al), by the order of a judicial official directing the alleged contemnor to appear at a specified reasonable time and show cause why he should not be held in civil contempt, or by the notice of a judicial official that the alleged contemnor will be held in contempt unless he appears at a specified reasonable time and shows cause why he should not be held in contempt.\nN.C. Gen. Stat. \u00a7 5A-23(a) (2009). Such order or notice required for civil contempt proceedings \u201cmust be given at least five days in advance of the hearing unless good cause is shown.\u201d Id. This statute also provides that \u201c[i]f civil contempt is found, the judicial official must enter an order finding the facts constituting contempt and specifying the action which the contemnor must take to purge himself or herself of the contempt.\u201d N.C. Gen. Stat. \u00a7 5A-23(e).\nAlthough the trial court did not so indicate, it appears that the order purports to find Ms. Zaman in criminal contempt, as it seems to be aimed at punishing her for the already completed act of appearing on 9 November 2009 without co-counsel given that no action by which Ms. Zaman could purge herself of the contempt was specified. Further, the order does not appear aimed at coercing her to comply with that portion of the court order merely requiring her to secure presence of co-counsel in this case. However, where no fine was levied nor imprisonment ordered, the trial court apparently elected not to punish Ms. Zaman individually for her contempt of court. \u201cSince [Ms. Zaman] suffered no injury or prejudice as a result of the contempt order, [Plaintiffs\u2019] exceptions thereto and [allegations] of error are moot and will not be considered by us.\u201d Smithwick v. Frame, 62 N.C. App. 387, 391, 303 S.E.2d 217, 220 (1983). Accordingly, Plaintiffs\u2019 argument for reversal of the trial court\u2019s finding Ms. Zaman in willful contempt is dismissed.\nPlaintiffs argue that the trial court\u2019s dismissal of their claims was erroneously based on the willful contempt of their attorney and, as such, cannot stand. We disagree.\nNorth Carolina Civil Procedure Rule 41(b) provides for involuntary dismissal of a complaint \u201c[f]or failure of the plaintiff... to comply with . . . any order of court,\u201d and authorizes \u201ca defendant [to] move for dismissal of an action or of any claim therein against him.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 41(b) (2009). The standard of review for an involuntary dismissal under Rule 41(b) is \u201c(1) whether the findings of fact by the trial court are supported by competent evidence, and (2) whether the findings of fact support the trial court\u2019s conclusions of law and its judgment.\u201d Dean v. Hill, 171 N.C. App. 479, 483, 615 S.E.2d 699, 701 (2005).\nPlaintiffs argue that the dismissal order was based on an erroneous legal conclusion, and contend that \u201cif the underlying basis for the dismissal is erroneous, then the dismissal is also erroneous.\u201d In this case, the trial court\u2019s order contained specific findings, based on competent evidence, that Plaintiffs\u2019 counsel failed to comply with the court\u2019s directive that she appear at the 9 November 2009 status conference with co-counsel, which supports the conclusion that Ms. Zaman violated a court order and that sanctions were warranted. Plaintiffs argue that the record shows Ms. Zaman\u2019s efforts to secure co-counsel were diligent and substantial, that she had no ability to compel another attorney to accept the case, and that there was no reason for the order to insist on such a short amount of time in which she must procure co-counsel. However, the trial court had been quite permissive, extending the time by which Ms. Zaman was required to secure co-counsel.\nDismissal as a sanction is an option available to the trial court for a variety of reasons. The law giving rise to the procedures the trial court must follow is often a blend of the rules applicable to the various grounds for dismissal as a sanction. Rule 41(b) provides that a trial court may dismiss an action for failure to prosecute, failure to comply with an order of the court, or failure to comply with any of the rules of civil procedure. N.C. Gen. Stat. \u00a7 1A-1, Rule 41(b). Although the statutes giving rise to the particular dismissal vary, the procedure for the trial court and, thereafter, the Court of Appeals on review appears to be the same. The trial court must consider lesser sanctions before imposing the \u201cmost severe sanction\u201d available; after considering lesser sanctions, the trial court may determine the appropriate sanction in its discretion. See Foy v. Hunter, 106 N.C. App. 614, 620, 418 S.E.2d 299, 303 (1992) (\u201cBefore dismissing an action with prejudice, the trial court must make findings and conclusions which indicate that it has considered these less drastic sanctions. If the trial court undertakes this analysis, its resulting order will be reversed on appeal only for an abuse of discretion.\u201d); see also Rivenbark v. Southmark Corp., 93 N.C. App. 414, 420, 378 S.E.2d 196, 200 (1989) (noting \u201cthat a party\u2019s motion for dismissal because the opposing party has violated a rule or court order is directed to the trial court\u2019s discretion\u201d).\n\u201c[T]he trial court is not required to list and specifically reject each possible lesser sanction prior to determining that dismissal is appropriate.\u201d Badillo v. Cunningham, 177 N.C. App. 732, 735, 629 S.E.2d 909, 911, aff'd, 361 N.C. 112, 637 S.E.2d 538 (2006). In Badillo, \u201c[w]e rejected] plaintiff\u2019s argument that the trial court\u2019s conclusoiy statements that it considered lesser sanctions, without listing which specific sanctions it considered, are insufficient to support the ruling that lesser sanctions are inappropriate\u201d and concluded the following language appearing in the trial court\u2019s order was sufficient to affirm dismissal.\n[T]he Court having reconsidered this matter and the arguments of counsel, as well as the applicable case law, and having considered certain lesser discovery sanctions as urged by plaintiff, the Court being of the opinion that dismissal of the case was and remains the only appropriate sanction in view of the totality of the circumstances of the case, which circumstances amply demonstrate the severity of the disobedience of counsel for plaintiff in failing to make discovery and thereby impeding the necessary and efficient administration of justice, the Court being of the opinion that lesser sanctions in this case would be inappropriate[.]\nId. at 734-35, 629 S.E.2d at 911. In so holding, we noted that\n[i]n In re Pedestrian Walkway Failure, 173 N.C. App. 237, 618 S.E.2d 819 (2005), this Court addressed the plaintiffs assertion that the trial court erred in dismissing his claims without considering lesser sanctions. The order dismissing the claims stated that: \u201cthe Court has carefully considered each of [plaintiffs] acts [of misconduct], as well as their cumulative effect, and has also considered the available sanctions for such misconduct. After thorough consideration, the Court has determined that sanctions less severe than dismissal would not be adequate given the seriousness of the misconduct....\u201d In re Pedestrian Walkway Failure, 173 N.C. App. at 251, 618 S.E.2d at 828-29. The Court held that this language sufficiently demonstrated that the trial judge in fact considered lesser sanctions. Id.\nWe see no material difference between that language and the order of the trial court in the instant case. Judge Albright states that, given the severity of disobedience by plaintiffs counsel, lesser sanctions would be inappropriate. The record supports the seriousness of plaintiffs misconduct: Plaintiff did not answer or object to any of Nationwide\u2019s interrogatories or requests for production of documents. Neither did plaintiff seek a protective order or proffer any justification for this inaction. This Court has previously upheld a trial court\u2019s dismissal of an action based upon similar circumstances of a disregard of discovery due dates. See Cheek [v. Poole], 121 N.C. App. [370,] 374, 465 S.E.2d [561,] 564 [(1996)] (plaintiff did not object to discovery requests and failed to respond within extended time to comply); Fulton v. East Carolina Trucks, Inc., 88 N.C. App. 274, 276, 362 S.E.2d 868, 869-70 (1987) (plaintiffs did not answer, object, or respond in any way to defendants\u2019 requests for discovery). Moreover, Judge Albright expressly states that lesser sanctions were urged by the plaintiff. As such, we can infer from the record that the trial court did in fact consider lesser sanctions. On this record, plaintiff simply fails to establish an abuse of the trial court\u2019s discretion in dismissing the action. We affirm.\nId. at 735, 629 S.E.2d at 911.\n\u201cThe trial court is not required to impose lesser sanctions, but only to consider lesser sanctions.\u201d In re Pedestrian Walkway Failure, 173 N.C. App. at 251, 618 S.E.2d at 828 (internal quotation marks and citations omitted). We are mindful that \u201cthis Court will affirm an order for sanctions where \u2018it may be inferred from the record that the trial court considered all available sanctions\u2019 and \u2018the sanctions imposed were appropriate in light of [the party\u2019s] actions in th[e] case.\u2019 \u201d Id. (quoting Hursey v. Homes by Design, Inc., 121 N.C. App. 175, 179, 464 S.E.2d 504, 507 (1995)); see also Badillo, 177 N.C. App. at 734, 629 S.E.2d at 911 (\u201c[W]here the record on appeal permits the inference that the trial court considered less severe sanctions, this Court may not overturn the decision of the trial court unless it appears so arbitrary that it could not be the result of a reasoned decision. \u201d (emphasis added).\nOur courts have also recognized the severity of dismissing an action as a sanction.\nDismissal is the most severe sanction available to the court in a civil case. See Daniels [v. Montgomery Mut. Ins. Co.], 81 N.C. App. [600,] 604, 344 S.E.2d [847,] 849 [(1986)]. An underlying purpose of the judicial system is to decide cases on their merits, not dismiss parties\u2019 causes of action for mere procedural violations. See Jones v. Stone, 52 N.C. App. 502, 505, 279 S.E.2d 13, 15, disc. rev. denied, 304 N.C. 195, 285 S.E.2d 99 (1981) (holding that the trial court correctly refused to grant a motion to dismiss for failure to prosecute); Green v. Eure, Secretary of State, 18 N.C. App. 671, 672, 197 S.E.2d 599, 600 (1973) (holding that the trial court erred in dismissing plaintiff\u2019s action for failure to prosecute). In accord with this purpose, claims should be involuntarily dismissed only when lesser sanctions are not appropriate to remedy the procedural violation. See Daniels, 81 N.C. App. at 604, 344 S.E.2d at 849; Harris v. Maready, 311 N.C. 536, 551, 319 S.E.2d 912, 922 (1984).\nWilder v. Wilder, 146 N.C. App. 574, 576, 553 S.E.2d 425, 427 (2001) (emphasis added).\nBecause the drastic sanction of dismissal is not always the best sanction available to the trial court and is certainly not the only sanction available, dismissal is to be applied only when the trial court determines that less drastic sanctions will not suffice. Less drastic sanctions include: (1) striking the offending portion of the pleading; (2) imposition of fines, costs (including attorney fees) or damages against the represented party or his counsel; (3) court ordered attorney disciplinary measures, including admonition, reprimand, censure, or suspension; (4) informing the North Carolina State Bar of the conduct of the attorney; and (5) dismissal without prejudice.\nFoy, 106 N.C. App. at 619-20, 418 S.E.2d at 303 (1992) (internal quotation marks and citations omitted). \u201c[S]anctions may not be imposed mechanically[;] [r]ather, the circumstances of each case must be carefully weighed so that the sanction properly takes into account the severity of the party\u2019s disobedience.\u201d Rivenbark, 93 N.C. App. at 420-21, 378 S.E.2d 196, 378 S.E.2d at 200-01.\nIn the case sub judice, the trial court found that:\n(3) Judge Murphy entered an Order . . . continuing the trial. . . and putting in place certain deadlines and conditions that were to be met between the time the Order and the time of trial.\n(4) Included in the Order . . . was a provision reading . . . \u201cCounsel for the parties will appear ... on November 9, 2009 for a hearing regarding the status of co-counsel, at which time Ms. Zaman shall have identified co-counsel to try this case with her. Such co-counsel shall be present at the hearing to indicate his or her willingness to proceed with this case as co-counsel to Ms. Zaman.\u201d\n(6) At the appointed date and time of the status hearing, as ordered by Judge Murphy, and placed on the civil motions calendar by the Clerk of Court, Ms. Zaman did not have co-counsel present with her in Court and indicated to the Court that she had not yet secured co-counsel for this case.\n(8) Counsel for the Defendants made an oral motion to dismiss the case, with prejudice, for violation of the previous Order entered by Judge Murphy.\n(9) The Court considered less drastic alternatives to dismissal of the case for Ms. Zaman\u2019s failure to abide by Judge Murphy\u2019s Order.\nThe trial court then concluded that Ms. Zaman failed to comply with a previous order of the court \u201cby not having identified co-counsel to try this case with her and by not having said co-counsel present in Court on November 9, 2009 to indicate his or her willingness to proceed as co-counsel to Ms. Zaman.\u201d In ordering the case dismissed with prejudice, the trial court specified that such was \u201c[b]ased on the foregoing findings of fact and conclusions of law, and after considerations of less drastic alternatives to dismissal.\u201d\n[A] trial court may enter sanctions when the plaintiff or his attorney violates a rule of civil procedure or a court order. Harris v. Maready, 311 N.C. 536, 551, 319 S.E.2d 912, 922 (1984) (Rule 8(a)(2)); Rivenbark v. Southmark Corp., 93 N.C. App. 414, 420, 378 S.E.2d 196, 200 (1989) (court order). The sanctions may be entered against either the represented party or the attorney, even when the attorney is solely responsible for the delay or violation. See Smith [v. Quinn], 324 N.C. [316,] 318-19, 378 S.E.2d [28,] 30-31 [(1989)]; Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669, 674-75, 360 S.E.2d 772, 776 (1987) (trial court properly sanctioned plaintiff for plaintiffs attorney\u2019s violation of court order); cf. Turner v. Duke Univ., 101 N.C. App. 276, 280-81, 399 S.E.2d 402, 405, disc. rev. denied, 329 N.C. 505, 407 S.E.2d 552 (1991) (attorney committed acts giving rise to sanction).\nFoy, 106 N.C. App. at 618, 418 S.E.2d at 302. In Foy, both parties and their attorney displayed a repeated pattern of behavior which suggested that lesser sanctions would be ineffective.\nIn the case before us, on 29 May 2009, Ms. Zaman was required by a Consent Order issued by the Disciplinary Hearing Commission of the North Carolina State Bar to have supervision on all matters related to her practice of law. On 26 October 2009, when the case was called for trial, Ms. Zaman\u2019s co-counsel made an oral motion to withdraw as counsel for Plaintiffs which was allowed because he and Ms. Zaman had divergent views on trial strategy. Plaintiffs were aware that Ms. Zaman and her co-counsel had differing views on trial strategy. Judge Murphy allowed Plaintiffs until the next day to decide which counsel they would continue to retain. Because Ms. Zaman was unable to try the case without co-counsel, Ms. Zaman made an oral motion to continue the case which the trial court granted. In its order granting Ms. Zaman\u2019s motion to continue, the trial court set a date of 9 November 2009 \u201cfor a hearing regarding the status of co-counsel, at which time [Ms. Zaman] shall have identified co-counsel to try this case with her.\u201d Plaintiffs were well aware that Ms. Zaman was required to secure co-counsel and were aware that her failure to do so was a violation of the court\u2019s order. With this knowledge, Plaintiffs proceeded with Ms. Zaman\u2019s representation. At the 9 November 2009 hearing, Ms. Zaman did not have co-counsel accompanying her and indicated that she had not yet secured co-counsel. Thereafter, Defendants made an oral motion to dismiss the case for Ms. Zaman\u2019s violation of the trial court\u2019s 30 October 2009 order. In an order filed 1 December 2009, the trial court dismissed Plaintiffs\u2019 complaint with prejudice.\nThe trial court made a finding of fact in the December 2009 order that the trial court had considered less drastic alternatives to dismissal. The order went on to further state that, \u201c[b]ased upon the foregoing findings of fact and conclusion of law, and after consideration of less drastic alternatives to dismissal, the [c]ourt hereby orders that this cased be dismissed.\u201d Here, the ultimate sanction of dismissal was imposed primarily due to a direct violation of a court order, which is permitted under N.C. Gen. Stat. \u00a7 1A-1, Rule 41(b). In re Pedestrian, 173 N.C. App. at 247, 618 S.E.2d at 826.\nWe thus conclude that the imposition of the most severe sanction in this case did not constitute an abuse of the trial court\u2019s discretion.\nAccordingly, we affirm the dismissal of Plaintiffs\u2019 complaint. We also dismiss Plaintiffs\u2019 arguments regarding the statutory notice and findings of fact provisions related to Ms. Zaman\u2019s contempt order.\nDismissed in part; Affirmed in part.\nJudges McGEE and BRYANT concur.", "type": "majority", "author": "BEASLEY, Judge." } ], "attorneys": [ "Ferguson, Stein, Chambers, Gresham & Sumter, PA, by John W. Gresham, for Plaintiff-Appellants.", "Shumaker, Loop & Kendrick, LLP, by Scott M. Stevenson, Karen H. Stiles, and Scott A. Hefner, for Defendant-Appellees." ], "corrections": "", "head_matter": "ROBERT C. RAY AND KIMBERLY C. RAY, Plaintiffs v. GARY WAYNE GREER, M.D., AND CATAWBA VALLEY EMERGENCY PHYSICIANS, P.A., Defendants\nNo. COA10-767\n(Filed 7 June 2011)\n1. Appeal and Error\u2014 preservation of issues \u2014 contempt\u2014 mootness\nPlaintiffs\u2019 argument that the trial court erred by allegedly failing to comply with statutory provisions before it held plaintiffs\u2019 trial counsel in willful contempt of a previous court order was dismissed as moot because the attorney suffered no injury or prejudice as a result of the contempt order.\n2. Contempt\u2014 attorney\u2019s willful violation of court order\u2014 sanctions \u2014 dismissal of case\nThe trial court did not abuse its discretion by imposing the most severe sanction and dismissing plaintiffs\u2019 claims based on the willful contempt of their trial attorney. The trial court was not required to impose lesser sanctions, but only to consider lesser sanctions. The dismissal was imposed primarily due to a direct violation of a court order, N.C.G.S. \u00a7 1A-1, Rule 41(b).\nAppeal by Plaintiffs from order entered 1 December 2009 by Judge W. Robert Bell in Catawba County Superior Court. Heard in the Court of Appeals 11 January 2011.\nFerguson, Stein, Chambers, Gresham & Sumter, PA, by John W. Gresham, for Plaintiff-Appellants.\nShumaker, Loop & Kendrick, LLP, by Scott M. Stevenson, Karen H. Stiles, and Scott A. Hefner, for Defendant-Appellees." }, "file_name": "0358-01", "first_page_order": 368, "last_page_order": 378 }