JD Dawson Co. v. ROBERTSON MARKETING

376 S.E.2d 254 (1989)

J.D. DAWSON COMPANY v. ROBERTSON MARKETING, INC.

No. 883SC738.

Court of Appeals of North Carolina.

February 21, 1989.

*255 Ward and Smith, P.A. by Kenneth R. Wooten, New Bern, for plaintiff, appellee.

Darden, Coyne, Bruce & Harris, P.A. by H. Buckmaster Coyne, Jr., and Robert A. Bruce, Morehead City, for defendant, appellant.

HEDRICK, Chief Judge.

Defendant first contends the "trial court committed reversible error as a matter of law in imposing sanctions in the form of striking defendant's answer, crossclaim and counteraction [sic] and amendment to crossclaim [sic] in response to plaintiff's motion to compel discovery and motion for sanctions." Essentially, defendant argues plaintiff's motion to compel and motion for sanctions pursuant to Rule 37 of the North Carolina Rules of Civil Procedure were insufficient to support the trial court's order striking defendant's pleadings because the motions did not specifically ask for all of the particular sanctions imposed.

Rule 37(d) states in pertinent part: If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or (31)(a) to testify on behalf of a party fails ... (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories... the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act to pay the reasonable expenses, including attorney's fees, caused *256 by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

Under Rule 37(b)(2)(C), a court may sanction a party by "striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party...." "The choice of sanctions under Rule 37 lies within the court's discretion and will not be overturned on appeal absent a showing of abuse of that discretion." Routh v. Weaver, 67 N.C.App. 426, 429, 313 S.E.2d 793, 795 (1984).

Here, plaintiff, in its motion, requested an order imposing sanctions upon defendant pursuant to Rule 37. Although plaintiff did not specify the section of Rule 37 it wished to proceed under, it did state in the motion that plaintiff had served "Plaintiff's First Interrogatories and Requests for Production of Documents" on defendant and that "Defendant has failed to timely respond to the aforesaid discovery requests and has refused, and continues to refuse, to provide responses to said requests." Plaintiff prayed in its motion for "full recovery of expenses, including attorneys' fees, occasioned by Defendant's failure to make timely discovery, and for such other and further relief as the Court may deem appropriate." While the better practice would be to specify the section of the rule under which the moving party wishes to proceed, we hold that under these circumstances defendant had sufficient notice that it may have any or all of the sanctions available under Rule 37(d) imposed against it. We hold the trial court did not err in striking parts of defendant's "Answer, Crossclaim and Counteraction, and Amendment to Crossclaim" pursuant to Rule 37 and further find no evidence of abuse of discretion. Defendant gave no legitimate reason for its failure to respond to plaintiff's discovery request and concedes in its brief that "these factors may not constitute good cause excusing defendant's failure to properly respond...." The trial court imposed the sanctions under Rule 37 that it deemed appropriate. Since we can find no abuse of judicial discretion, we must uphold the sanctions imposed.

Defendant next contends the "trial court abused its discretion in ordering a shortened notice period and ordering relief in the form of striking defendant's pleadings on plaintiff's motion to compel and motion for sanctions." As we have previously found no abuse of discretion as to the sanctions imposed by the trial court, we will only address defendant's "shortened notice period" argument.

It is defendant's contention that it was "extremely prejudiced [in its] ability to adequately prepare for the hearing" because it received actual notice of the 4 March 1988 hearing on 2 March 1988, and the hearing location was changed at the last minute.

Rule 6(d) of the North Carolina Rules of Civil Procedure, in pertinent part, provides:

A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application.

Plaintiff filed an ex parte application with the trial judge which was granted. Defendant was afforded notice by telephone as well as written notice. The record reflects that defendant appeared at the hearing. The trial court's order states that "[t]he Court, hearing no objection to the nature and form of the hearing and the notice thereof given to the Defendant and upon Defendant being present and announcing that it was ready to proceed with the hearing, the Court proceeded to consider the matters presented." Defendant did in fact participate in the hearing.

It is well-settled that "a party entitled to notice of a motion may waive such notice." Brandon v. Brandon, 10 N.C. App. 457, 460, 179 S.E.2d 177, 179 (1971). Defendant, like the defendant in Brandon, has suggested no additional testimony that would have been available to it at a later *257 hearing and does not show how it would have benefited from a later hearing. Assuming arguendo, that notice was improperly given, defendant has waived the notice requirement by attending the hearing of the motions and participating in it. See Story v. Story, 27 N.C.App. 349, 219 S.E.2d 245 (1975).

Likewise, the record reflects that defendant did not object at the hearing to the change in the hearing location. Defendant has failed to show any possible resulting prejudice and cannot now be heard to complain about the location of the hearing. These assignments of error have no merit.

Lastly, defendant argues the "trial court committed reversible error in entering its March 11, 1988 order on the grounds that defendant's motion for relief from order of March 4, 1988 was a proper use of N.C.R. CIV.P. 60(b) as a matter of law, and that based on the facts of this case, the entry of such order was an abuse of discretion." Defendant concedes in its brief that the 4 March 1988 order is not a final order as to the portions which strike defendant's answer and affirmative defenses. Defendant's sole contention set forth by these assignments of error is that the 4 March 1988 order striking defendant's counterclaim in its entirety effectively dismisses the action and therefore is a final judgment or order as required by Rule 60(b).

Even assuming that the 4 March 1988 order was a final judgment or order, defendant has failed to set forth any valid grounds for relief in his Rule 60(b) motion. It is clear by the wording of defendant's motion that it is attempting to assert errors in law in the 4 March 1988 order as a basis for relief. In substance, defendant sought only to raise additional arguments in its Rule 60(b) motion in an effort to show that the trial court acted contrary to law in the 4 March 1988 order. It is well-settled in this jurisdiction that erroneous judgments may only be corrected by appeal "and that a motion under G.S. 1A-1, Rule 60(b) of the Rules of Civil Procedure cannot be used as a substitute for appellate review." Town of Sylva v. Gibson, 51 N.C.App. 545, 548, 277 S.E.2d 115, 117, disc. rev. denied and appeal dismissed, 303 N.C. 319, 281 S.E.2d 659 (1981). Furthermore, even if the Rule 60(b) motion is considered a proper motion under the circumstances, defendant has shown no abuse of discretion. This assignment of error is meritless.

AFFIRMED.

WELLS and LEWIS, JJ., concur.