An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
3 August 2010
MARTHA EUBANKS OWEN and
LOLAN M. EUBANKS,
No. 08 CVS 334
DANIEL KHI EUBANKS and TONYA
EUBANKS, CHARLES ARTHUR HEATH
and Wife, MARY HEATH, and WAYMAN
TRACY HEATH and SUSY HEATH,
Appeal by defendant from orders entered 20 April 2009 by Judge
A. Robinson Hassell in Transylvania County Superior Court.
in the Court of Appeals 10 February 2010.
Walter C. Carpenter for plaintiff.
Donald H. Barton for defendant.
Daniel Khi Eubanks (defendant) appeals from an order granting
a motion by Martha Eubanks Owen and Lolan M. Eubanks (plaintiffs)
for sanctions against defendant.
Plaintiffs initiated a civil suit against defendant (and
others) on 3 September 2008; in that matter, defendant represented
On 4 November 2008, during discovery, defendant was
noticed for deposition to take place on 20 November 2008.
-2notice was mailed to his P.O. Box, which was also indicated on
defendant’s answer as his home address.
On 20 November 2008,
defendant did not appear at the deposition, nor was he heard from
regarding his absence.
Messages were left by plaintiff’s attorney
on defendant’s cellular and home telephones on 20 November 2008,
but defendant did not respond to either message.
Subsequently, on 22 January 2009, plaintiffs filed a motion
for sanctions; the motion hearing was set for 23 February 2009.
Notice of the hearing was mailed to defendant at the same P.O. Box.
Defendant did not respond. On 23 February 2009, when defendant did
not appear at the hearing, an order was signed by Judge Alan Z.
plaintiff’s attorney’s office for deposition.
The new notice to appear was mailed to defendant at the same
P.O. Box as before.
When defendant did not appear on 11 March 2009
as ordered, plaintiff’s attorney called that day, again leaving
messages on defendant’s home and cellular telephones.
defendant’s failure to appear for the deposition on 11 March 2009,
Defendant admitted that he had been served with the original
complaint and that his mailing address was the same P.O. Box to
which plaintiff’s attorney had sent multiple notices.
also admitted to receiving a copy of the order that he appear on 1
March 2009 to be deposed.
Defendant’s proffered excuse to the
court as to his absence at the deposition was: “I work nights in
-3Sylva, I get off in the mornings and drive an hour from Sylva to my
house in Sapphire.
wore out tired.”
Then by the time I drive over there, I’m done
In the record at the time were certificates of
service for both orders; also, defendant had appeared in superior
court on 20 April 2009 when notice was sent to him at the P.O. Box
address used for the later orders.
The lower court was not
persuaded by defendant’s arguments and granted the motion for
Those sanctions consisted of: (1) striking defendant’s answer,
(2) entering judgment by default against defendant and holding that
“the matter will be tried on issues of damages only,” and (3)
ordering defendant to pay plaintiffs $730.00 as expenses, including
$600.00 of that amount to be paid as attorney’s fees to Walter C.
Carpenter, attorney for plaintiffs.
The order by the trial court as to the default judgment is a
final order, and thus the appeal lies to this Court.
Stat. § 7A-27(b)-(d) (2009).
See N.C. Gen.
The order imposing sanctions for
failure to comply with a discovery order is appealable as a final
judgment even though it is interlocutory in nature.
Sanctions that include the striking of defendants’ answer and the
entry of a default judgment against defendants affect a substantial
right and are thus immediately appealable to this Court.
At the hearing, the remaining defendants were given an
opportunity to speak in regards to their motions to dismiss; those
motions were denied, but are not part of this appeal.
-4Group, Inc. v. Express Wire Services, Inc., 157 N.C. App. 360, 362,
578 S.E.2d 705, 707 (2003).
While this Court normally reviews imposition of sanctions
under an abuse of discretion standard, “the most drastic penalties,
dismissal or default, are examined in the light of the general
purpose of the Rules to encourage trial on the merits.”
Sabates, ___ N.C. App. ___, ___, 681 S.E.2d 788, 797 (2009) (citing
N.C. Gen. Stat. § 1A-1, Rule 37(d)) (quotations and citations
As this Court stated in Battle, then, we review such
orders using “an abuse of discretion standard while remaining
sensitive to the general preference for dispositions on the merits
that lies at the base of our rules of civil procedure.”
___, 681 S.E.2d at 797.
In applying the abuse of discretion
standard, we will affirm unless it is shown that the ruling “was so
arbitrary that it could not have been the result of a reasoned
Id. at ___, 681 S.E.2d at 798.
Per Rule 37(b) of the North Carolina Rules of Civil Procedure,
discovery” when an action is pending, one possible sanction is
“[a]n order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting him from
introducing designated matters in evidence[.]”
N.C. Gen. Stat. §
1A-1, Rule 37(b)(2) (2009).
Per Rule 37(d), if a party fails to attend his or her
deposition, “the court in which the action is pending on motion may
make such orders in regard to the failure as are just, and among
-5others it may take any action authorized under subdivisions a, b,
and c of subsection (b)(2) of this rule.”
N.C. Gen. Stat. § 1A-1,
Rule 37(d) (2009).
Defendant first argues that the trial court erred by entering
the default judgment against him because the trial court did not
adequately consider whether other, lesser sanctions would have been
We first note that this Court has consistently upheld trial
court orders entering default judgments and imposing sanctions
justification to appear for their depositions.
See Cutter v.
Brooks, 36 N.C. App. 265, 267-68, 243 S.E.2d 423, 424-25 (1978)
(holding that the imposition of such sanction is within the sound
discretion of the trial judge); Adair v. Adair, 62 N.C. App. 493,
497-98, 303 S.E.2d 190, 193 (1983) (holding that a trial judge may
enter default judgment as sanction for failure to appear for
deposition after having received proper notice).
Despite the almost total lack of case law cited by defendant
in support of this argument, it is clear from the record that the
trial court did consider whether lesser sanctions would properly
punish defendant for the discovery violations.
The trial court
prefaced its findings of fact with the following:
including the verified motion of Plaintiffs’
attorney, and the Court having carefully
reviewed the Court file and having heard from
[defendant] and having heard the arguments of
counsel, and pursuant to N.C.G.S. §1A-1 Rule
-637 and the Court’s inherent authority . . .
the trial court then concluded that,
having heard evidence and arguments as to the
awarding of expenses[, the court] finds as
fact that the sum of $730.00 constitutes
reasonable expenses, including attorney’s
fees, incurred by Movant and should be awarded
In plaintiff’s motion for sanctions, the expenses and fees
totaling $730.00, incurred in connection with the motion were
Reporter, $130.00; attorney’s fees, $200.00; and anticipated court
time for motion, $400.00. As the court noted at the hearing, these
charges reflect plaintiff’s attorney’s preparation twice for the
two depositions that defendant failed to attend and a third time
for the hearing to demonstrate defendant’s failure to attend.
Therefore, the expenses and attorney fees to be paid are reasonable
and justified under the circumstances. Adair at 497-98, 303 S.E.2d
at 193; Brooks at 267-68, 243 S.E.2d at 424-25.
argument on this point is overruled.
Defendant next argues that the trial court erred in finding as
fact that defendant was properly served with a notice to take
This argument is invalid.
Defendant denies receiving notice to appear at the deposition.
The notice to take deposition was mailed to defendant’s P.O. Box on
4 November 2008, and telephone calls were made on 20 November 2008
to defendant’s cellular and home telephones, where messages were
-7left to the same effect.
A certificate of service in the record
shows that defendant was served by mail a copy of Judge Thornburg’s
23 February 2009 order instructing him to appear on 11 March 2009
to be deposed; indeed, defendant acknowledged in open court that he
received a copy of the order and that he did not attend because it
The record supports the finding of fact that
defendant was properly served with notice and, thus, this argument
Defendant’s final argument is that the trial court erred in
finding as fact that the motion made on 22 January 2009 and the
order entered on 23 February 2009 were duly served on him.
argument is invalid.
As to the motion, defendant argues that it did not have the
required certificate of service attached and thus was in violation
of Rule 5(b) of the North Carolina Rules of Civil Procedure.
record, however, contains the motion, the notice of motion hearing,
and a certificate of service indicating that both were served on
defendant on 22 January 2009.
As to the order, defendant’s assignment of error is that he
was not duly served with the order, but in his brief argues that,
although it was signed on 23 February 2009 and accompanied by a
certificate of service dated 24 February 2009, it was “filed
stamped [sic]” 3 April 2009, in violation of Rule 5(d)(7) of the
North Carolina Rules of Civil Procedure, which requires that such
orders be filed within five days after service. Regardless of this
-8discrepancy between the assignment of error and his argument, the
record contains a valid certificate of service for the order, and
the order itself clearly bears a stamp showing it was filed on 25
As such, this argument is overruled.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).