Miller v. Ferree

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351 S.E.2d 845 (1987)

84 N.C. App. 135

Barrie M. MILLER v. Max F. FERREE, Betsy R. Ferree, Russell F. Ferree, Dr. Henry C. Landon, III, Barbara S. Landon and Ferree, Cunningham and Gray, P.A., Successor to Max F. Ferree, P.A.

No. 8623SC731.

Court of Appeals of North Carolina.

January 20, 1987.

*847 Flanary & Davies by Kenneth T. Davies, Charlotte, for plaintiff-appellee.

Moore, Willardson & Lipscomb by Larry S. Moore, Wilkesboro, for defendants-appellants Max F. Ferree and Russell F. Ferree.

E. James Moore, Wilkesboro, for defendant-appellant Ferree, Cunningham & Gray, P.A.

MARTIN, Judge.

We note initially that defendants' appeal is properly before us. "[A] judgment by a court determining its statutory authority to dismiss an action in such a way as not to bar further litigation on the merits therein may be questioned only by appeal...." Gower v. Insurance Co., 281 N.C. 577, 580, 189 S.E.2d 165, 168 (1972).

The appealing defendants contend that the trial court, upon finding plaintiff in violation of G.S. 1A-1, Rule 8(a)(2), should have dismissed his action against them with prejudice, and that its order dismissing the suit without prejudice and permitting the plaintiff to institute a similar action against them within one year should be reversed. We affirm.

It is clear that a dismissal with prejudice, pursuant to Rule 41(b), is an available sanction for a plaintiff's violation of Rule 8(a)(2). Harris v. Maready, 311 N.C. 536, 319 S.E.2d 912 (1984). It is not, however, the only available sanction and should be applied "only when the trial court determines that less drastic sanctions will not suffice." Id at 551, 319 S.E.2d at 922. The determination of whether to dismiss for violation of the rule, and whether such a dismissal should be with prejudice so as to bar a subsequent action, involves the exercise of judicial discretion.

The trial court found that "sanctions less than a dismissal without prejudice are inappropriate in this action." This finding indicates that the court considered the various sanctions available and determined that a dismissal without prejudice, taxing plaintiff for the costs of the action up to the time of dismissal, was a sufficiently severe sanction. Appellate courts should not disturb the trial court's exercise of discretion unless the challenged action is "manifestly unsupported by reason." Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980).

In Schell v. Coleman, 65 N.C.App. 91, 308 S.E.2d 662 (1983), disc. rev. denied, appeal dismissed, 311 N.C. 763, 321 S.E.2d 145 (1984), plaintiff's complaint prayed for damages for legal malpractice of $1,950,000.00. In addition, plaintiff aggravated the Rule 8(a)(2) violation by causing adverse radio and newspaper publicity, informing the N.C. Department of Insurance about the lawsuit, and causing the defendant to be served in open court. Under those circumstances, this court held that plaintiff's violation of Rule 8(a)(2) was so flagrant that the trial court's refusal to dismiss his suit amounted to an abuse of discretion.

The factors which aggravated the Rule 8(a)(2) violation in Schell are not present in this case. Although it appears from the exhibits filed in this Court that at least three newspaper articles have appeared in The Journal-Patriot of North Wilkesboro and The Elkin Tribune concerning the lawsuit, none of the articles or the headlines associated with them were of such a nature as to sensationalize the amount of damages claimed by plaintiff. Indeed, the main thrust of the articles involved the factual allegations and denials of the parties rather than the amount of damages sought. Had plaintiff complied with Rule 8(a)(2) the content of the articles would not have been appreciably different. The record does not disclose evidence of any other actions by plaintiff which would so aggravate the effect of his violation of the rule as to render it flagrant. We consequently decline to hold that the trial court's decision to dismiss this action without prejudice, rather than with prejudice, was "manifestly unsupported by reason" so as to constitute an abuse of discretion.

Affirmed.

WELLS and PARKER, JJ., concur.