McCraw v. Hamrick

PARKER, Judge. The five “questions presented” in plaintiff’s brief raise but a single issue on appeal in this case: whether the trial court erred in its 29 October 1986 order dismissing plaintiff’s case if plaintiff failed to produce certain x-ray film within thirty days. We find that the order entered by the trial court was conditional and not self-executing and, therefore, void. In her brief, plaintiff presents five alternative attacks on the trial court’s dismissal of her case as “the product of the practical mechanics of”: “a silent motion for summary judgment”; “a Rule 41(b) motion for involuntary dismissal”; “a Rule 12(b)(6) motion for failure to state a claim”; “a Rule 12(c) motion for judgment on the pleadings”; and “simply ... an unfiled Rule 37(b) sanction for failure to comply with a condition of purge impossible to perform in a short-circuited procedure.” Under each of these five “theories” plaintiff asserts various errors against the dictates of the N.C. Rules of Civil Procedure committed by the court below. As the record makes clear, defendants Hamrick and COA filed a motion for an order to compel plaintiff to produce certain x-ray film. In response to this motion, the court could properly issue an order compelling plaintiff to produce the film pursuant to Rule 37(a) of the N.C. Rules of Civil Procedure. The court below also had express authority under Rule 37(b)(2)(c) to sanction plaintiff’s failure to comply with the court’s order to produce the film by dismissing plaintiff’s action. After a motion and order compelling discovery, defendants were not required to file a motion requesting such sanctions as plaintiff implies in her brief. G.S. 1A-1, Rule 37(b). A party wishing to avoid court-imposed sanctions for failure to comply with an order compelling discovery bears the burden of showing justification for his noncompliance. Silver394 thorne v. Land Co., 42 N.C. App. 134, 136-137, 256 S.E. 2d 397, 399, disc. rev. denied, 298 N.C. 300, 259 S.E. 2d 302 (1979). The choice of sanctions imposed under Rule 37 is a matter within the trial 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); Silverthome v. Land Co., 42 N.C. App. at 137, 256 S.E. 2d at 399. Although Rule 37 gives the trial court authority to issue orders to compel discovery and to sanction failure to comply with such orders, the court below conditioned the sanction, dismissal of plaintiff’s case, upon plaintiff’s failure to comply with the order to produce the x-ray film within thirty days. Because this order contains a condition to the dismissal of plaintiff’s action, the order is not self-executing and is void as a conditional order. See Cassidy v. Cheek, 308 N.C. 670, 303 S.E. 2d 792 (1983); Hagedorn v. Hagedorn, 210 N.C. 164, 185 S.E. 768 (1936); Flinchum v. Doughton, 200 N.C. 770, 158 S.E. 486 (1931); Lloyd v. Lumber Co., 167 N.C. 97, 83 S.E. 248 (1914). For the foregoing reasons, the order of the trial court declaring plaintiff’s case to be dismissed upon plaintiffs failure to produce certain x-ray film within thirty days is vacated, and the cause is remanded for further proceedings. Vacated and remanded. Judges Eagles and Martin concur. Judge Martin concurred in this opinion prior to 31 December 1987.