Ajayi v. Seaman

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-1084

Filed 20 August 2024

Mecklenburg County, No. 22-CVS-9706

AMINAT O. AJAYI, Plaintiff,

v.

THEODORE MICHAEL SEAMAN, Defendant.

Appeal by Plaintiff from order entered 9 June 2023 by Judge Karen Eady-

Williams in Mecklenburg County Superior Court. Heard in the Court of Appeals 11

June 2024.

Arnold & Smith, PLLC, by Ashley A. Crowder, for the Plaintiff-Appellant.

McAngus, Goudelock & Courie, PLLC, by Meredith Cushing and Jeffrey B.

Kuykendal, for the Defendant-Appellee.

GRIFFIN, Judge.

Plaintiff Aminat O. Ajayi appeals from the trial court’s order granting

Defendant Theodore Michael Seaman’s motions for sanctions of dismissal with

prejudice and award of attorney’s fees due to Plaintiff’s failure to comply with

discovery requests. Plaintiff argues the court erred by failing to consider sanctions

less severe than dismissal, by awarding attorney’s fees, and by interrupting her

presentation of evidence. We affirm the trial court’s dismissal of Plaintiff’s case and

award of attorney’s fees to Defendant, but remand for re-determination of the amount

of attorney’s fees awarded.

I. Factual and Procedural Background

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Opinion of the Court

Plaintiff filed this lawsuit against Defendant for alleged battery and assault

on 21 June 2022. On 16 August 2022, Defendant served interrogatories and requests

for production of documents (“Written Discovery”) on Plaintiff with an incorrect case

number. On 26 August 2022, Plaintiff’s counsel moved to withdraw from further

representation due to Plaintiff’s lack of communication. The court found Plaintiff had

not responded to counsel’s communications for approximately three months and

granted the motion. Plaintiff proceeded pro se throughout the remainder of the case.

In October 2022, Defendant’s counsel attempted to schedule Plaintiff’s

deposition date in December 2022. Plaintiff responded that she was unavailable in

December. This prompted Defendant’s counsel to offer potential dates in November.

Plaintiff did not respond. On 10 November 2022, Defendant filed and served Notice

of Video Deposition on Plaintiff to occur on 23 November 2022.

Plaintiff objected to Notice of Video Deposition, noting she was unavailable for

the rest of the year and requested that the deposition be scheduled in 2023. Plaintiff

did not appear at the 23 November deposition. Defendant provided four dates in

January 2023 and Plaintiff responded that she was unavailable until 17 January

2023. Defendant then set the deposition for 18 January 2023.

On 7 November 2022, Defendant filed a Motion to Compel Plaintiff to provide

responses to the Written Discovery, requesting sanctions in the forms of costs,

including attorney’s fees, for Plaintiff’s failure to respond.

On 2 December 2022, Plaintiff filed a Motion to Dismiss Defendant’s request

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for Written Discovery because the caption was incorrect. On 12 December 2022, the

court heard Defendant’s Motion to Compel responses to the Written Discovery. The

court told Defendant to reissue the Written Discovery request with the correct case

number and instructed Plaintiff to respond. That same day, Defendant re-issued the

Written Discovery request with the correct case number. The Written Discovery

requested information regarding the assault/battery incident, injuries that arose

from it, Plaintiff’s medical and provider history, medical expenses, and insurance

information.

On 12 January 2023, Plaintiff served Defendant with incomplete responses to

the Written Discovery requested. Plaintiff then failed to appear at the 18 January

2023 deposition date. On 20 January 2023, Defendant filed a Motion to Show Cause

and to Compel Deposition. On 24 January 2023, Defendant’s counsel provided

Plaintiff a letter detailing deficiencies in her responses to the Written Discovery she

had served on 12 January 2023. On 28 February 2023, Plaintiff responded to

Defendant’s letter with medical records, but no further responses or documents.

On 6 March 2023, the parties appeared before the trial court, who ordered that

Plaintiff’s deposition would be conducted on 27 March 2023. The trial court also

ordered that Plaintiff should provide full responses to the Written Discovery request

by 10 March 2023 and pay $97.00 in costs of Defendant’s counsel fees for her failure

to appear at the 18 January 2023 deposition. Plaintiff failed to produce the

documents by 10 March 2023, as ordered.

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On 23 March 2023, Defendant filed a Motion to Show Cause, Motion to

Dismiss, and Motion for Additional Sanctions. That same day, Defendant’s counsel

emailed Plaintiff the Notice of Hearing for the Motion to Show Cause scheduled for

12 April 2023. Plaintiff responded she would be unavailable. On 24 March 2023,

Plaintiff filed a Motion to Reschedule Hearing on Order to Show Cause. This Motion

was denied.

Plaintiff appeared at the 27 March 2023 deposition, but refused to answer

questions about her current employer, how long she worked for her current employer,

whether she reported to anyone at work when she missed work due to the alleged

assault, and how many days she missed from work following the alleged assault.

Plaintiff claimed these factual inquiries were immaterial to the case.

On 10 April 2023, Defendant submitted supporting documents for his Motion

to Show Cause including the deposition transcript and an affidavit noting legal fees

incurred due to the Plaintiff’s alleged discovery violations.

On 12 April 2023, the trial court heard Defendant’s Motion to Show Cause.

Defendant’s counsel asked the court to dismiss Plaintiff’s complaint due to her

discovery violations. The court noted the repeated violations and decided to take the

Motion to Show Cause under advisement, explicitly warning Plaintiff that if there

was not full compliance by a re-hearing date of 12 May 2023, the case would be

dismissed, and Defendant’s motion for attorney’s fees would be granted.

On 12 May 2023, Defendant’s Motion to Show Cause was reheard. The trial

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court entered a written order on 9 June 2023 granting Defendant’s Motion to Show

Cause, Motion to Dismiss, and Motion for Additional Sanctions (the “Dismissal

Order”). In the Dismissal Order, the trial court found that Plaintiff’s responses to the

Written Discovery were incomplete. Additionally, the court found Plaintiff had

refused to answer numerous questions in her ordered deposition and had willfully

violated the court’s Order to Compel twice. The court entered an award of sanctions

in the amount of $6,081.00 for attorney’s fees incurred by Defendant. Additionally,

the court dismissed Plaintiff’s complaint with prejudice. On 16 June 2023, Plaintiff

appealed the Dismissal Order.

II. Analysis

Plaintiff raises three arguments on appeal. First, Plaintiff argues the trial

court should not have granted Defendant’s Motion to Dismiss with prejudice because

the court did not consider lesser sanctions first. Second, Plaintiff argues the trial

court erred in awarding Defendant’s attorney’s fees. Lastly, Plaintiff argues the trial

court erred by interrupting and questioning Plaintiff during the 12 May 2023

rehearing.

This Court reviews a trial court’s award of sanctions and attorney’s fees, as

well as a trial court’s broad discretionary power to control the trial and question

witnesses, for an abuse of discretion. See Cheek v. Poole, 121 N.C. App. 370, 374, 465

S.E.2d 561, 564 (1996); Graham v. Rogers, 121 N.C. App. 460, 465, 466 S.E.2d 290,

294 (1996); see also State v. Rios, 169 N.C. App. 270, 281, 610 S.E.2d 764, 772 (2005)

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(citing State v. Mack, 161 N.C. App. 595, 598, 602, 589 S.E.2d 168, 171, 173 (2003)).

A trial court abuses its discretion when “its decision is manifestly unsupported by

reason or so arbitrary that it could not have been the result of a reasoned decision.”

Azure Dolphin, LLC. v. Barton, 371 N.C. 579, 603, 821 S.E.2d 711, 728 (2018)

(citations omitted) (internal quotations omitted).

A. Awarding Sanctions

Trial courts have broad discretion over sanctions. See Rose v. Isenhour Brick

& Tile Co., 120 N.C. App. 235, 240, 461 S.E.2d 782, 786 (1995). Trial courts do not

abuse their discretion by imposing severe sanctions if the sanction is enumerated

“and there is no specific evidence of injustice.” Batlle v. Sabates, 198 N.C. App. 407,

417, 681 S.E.2d 788, 795 (2009) (citations omitted) (internal quotations omitted).

When a party fails to comply with a properly noticed deposition or

interrogatory, the trial court can make orders “in regard to the failure as are just,”

and require the failing party to pay reasonable expenses caused by the failure,

including attorney’s fees. N.C. R. Civ. P. 37(d). Dismissal of an action and awarding

attorney’s fees are listed sanctions for failures to comply with orders compelling

discovery. N.C. R. Civ. P. 37(b)(2)(c).

1. Sanction of Dismissal

Plaintiff asserts dismissing her case as a sanction for noncompliance with

discovery requests was an abuse of discretion by the trial court because the court did

not consider lesser sanctions prior to dismissing with prejudice. Sanctions that

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determine the outcome of a case, such as dismissals, are reviewed for an abuse of

discretion. American Imports, Inc. v. G.E. Emps. W. Region Fed. Credit Union, 37

N.C. App. 121, 124, 245 S.E.2d 798, 800 (1978). But dismissals are also “examined

in the light of the general purpose of the rules to encourage trial on the merits.” Id.

We thereby review Plaintiff’s argument “utilizing 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.” See Batlle, 198 N.C. App. at 419, 681

S.E.2d at 797.

Before dismissing an action with prejudice, a trial court must first consider

less severe sanctions. See Goss v. Battle, 111 N.C. App. 173, 176–77, 432 S.E.2d 156,

158-59 (1993). When the record supports that the trial court considered less severe

sanctions, the decision will not be overturned unless it is “so arbitrary that it could

not be the result of a reasoned decision.” Badillo v. Cunningham, 177 N.C. App. 732,

734, 629 S.E.2d 909, 911 (citing Hursey v. Homes by Design, Inc., 121 N.C. App. 175,

179, 464 S.E.2d 504, 506 (1995)). Trial courts are not required to list and reject every

possible lesser sanction. Id. at 735, 629 S.E.2d at 911.

A sanction of dismissal is warranted for noncompliance with a court order. See

Ray v. Greer, 212 N.C. App. 358, 363, 713 S.E.2d 93, 96–97 (2011). “The power of the

trial court to sanction parties for failure to comply with court orders is essential to

the prompt and efficient administration of justice.” Daniels v. Montgomery Mut. Ins.

Co., 320 N.C. 669, 674, 360 S.E.2d 772, 776 (1987) (citing N.C. R. Civ. P. 41(b)). In

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Daniels, the plaintiff’s case was dismissed due to the “plaintiff’s previous refusal to

comply with a lesser sanction.” Id. at 681, 360 S.E.2d at 780. In Baker v. Charlotte

Motor Speedway, Inc., the plaintiff’s case was dismissed with prejudice due to

noncompliance with discovery, specifically the failure to produce medical records

relating to injuries alleged in the claim. 180 N.C. App. 296, 298, 636 S.E.2d 829, 831

(2006). The plaintiff appealed and this Court upheld the decision, finding that the

trial court’s sanction of dismissal was supported by valid findings of fact and that the

noncompliance “‘frustrated the purpose of discovery[,] . . . denied [the] defendants the

opportunity to prepare properly for trial[,] . . . [and] unfairly prejudiced [the

d]efendants in their defense of his claims,’ and caused [the] defendants to incur

additional costs.” Id. at 300–01, 636 S.E.2d at 832.

The clearest way a trial court can show that it considered lesser sanctions is

through explicit language in its order imposing sanctions. In re Pedestrian Walkway

Failure, 173 N.C. App. 237, 251, 618 S.E.2d 819, 828–29 (2005). For example, the

order in In re Pedestrian Walkway Failure stated:

[T]he court has carefully considered each of [the plaintiff’s]

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[.]

Id.

While such written language in orders is sufficient for a finding, it is not

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necessary to show that a trial court considered lesser sanctions before dismissing the

case. See Hursey, 121 N.C. App. at 179, 464 S.E.2d at 507. “[T]his Court will affirm

an order for sanctions where ‘it may be inferred from the record that the trial court

considered all available sanctions.’” In re Pedestrian Walkway Failure, 173 N.C. App.

at 251, 618 S.E.2d at 828 (citing Hursey, 121 N.C. App. at 179, 464 S.E.2d at 507).

Here, Plaintiff argues the trial court abused its discretion and did not consider

lesser sanctions because its Dismissal Order did not contain explicit language like

the language present in In re Pedestrian Walkway Failure. While explicit language

is not present in the Dismissal Order, the record in this case demonstrates the trial

court considered lesser sanctions. The Dismissal Order’s findings implicitly show the

trial court considered—and initially employed—less severe methods. The Dismissal

Order includes incidents of Plaintiff’s noncompliance and their cumulative effect on

the proceedings:

5. On January 13, 2023 Plaintiff served Defendant with

drastically incomplete responses to Defendant’s First Set

of Interrogatories and Requests for Production of

Documents wherein she objected to responding to a

majority of the requests and failed to provide any medical

records or bills in support of her allegations.

...

7. Plaintiff failed to contact the undersigned and failed to

serve supplemental responses.

8. A hearing on Defendant’s Motion to Compel was held on

March 6, 2023 and the Honorable Judge Reginald

McKnight ordered Plaintiff “shall fully and completely

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supplement...” the responses and “Plaintiff’s supplemental

written responses shall be delivered to defense counsel by

5:00pm on March 10, 2023.” Judge McKnight also ordered

Plaintiff to sit for her deposition, at which she refused to

answer numerous questions.

9. Plaintiff failed to produce the complete supplemental

discovery responses to Defense Counsel by March 10, 2023.

10. Thereafter, Plaintiff counsel served some incomplete

responses to the Interrogatories and provided some

medical records.

...

13. As of the date of the instant hearing, Plaintiff still had

not provided complete Responses pursuant to the Order to

Compel and it was determined Plaintiff willfully violated

the Court’s Order.

14. At the hearing on April 12, 2023, Judge Eady-Williams

provided Plaintiff with an additional thirty (30) days to

provide complete responses and set a follow-up hearing for

May 12, 2023.

15. On May 12, 2023, the follow-up hearing on Defendant’s

Motion to Show Cause was heard by the Honorable Judge

Eady-Williams.

16. As of the date of the hearing, Plaintiff still had not

complied with the [c]ourt’s Order to Compel and it was

determined Plaintiff willfully violated the [c]ourt’s Orders.

...

20. Pursuant to Rule 37(b)(2) of the North Carolina Rules

of Civil Procedure, if a party fails to obey an order entered

pursuant to Rule 37(a) of the North Carolina Rules of Civil

Procedure, a judge of the court in which the action is

pending may make such orders in regard to the failure as

are just, including but not limited to, dismissing the action,

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and/or requiring the party failing to obey the order to pay

the reasonable expenses, including attorney’s fees, caused

by the failure to comply.

The Dismissal Order acknowledges the court had previously provided an

additional thirty days for compliance and set a rehearing date. Instead of ruling at

the outset on Defendant’s Motion to Show Cause, the court provided Plaintiff an

additional thirty days to comply. Finding of fact 20 also shows the trial court was, at

a minimum, aware dismissal was but one of the sanctions that Rule 37(b)(2) allowed

it to impose; the trial court nonetheless chose dismissal.

The remainder of the record further shows the trial court considered lesser

sanctions. During the 12 April 2023 hearing on Defendant’s Motion to Show Cause,

the trial court noted Plaintiff’s “pattern of noncompliance” and issued a warning that,

if Plaintiff did not comply by the rehearing date within thirty days, the sanctions of

fees and dismissal would be imposed. The judge stated:

What [defense counsel] has requested is, in my estimation,

an extreme yet valid request. Extreme to the extent that it’s

rare that [c]ourts will dismiss cases, disposit – matters, just

dispose it, get rid of it for discovery issues. . . . But what

[defense counsel] has also presented is what she deems a

pattern of noncompliance, a pattern of behavior, and she’s

also provided cases where it’s not unheard of for a [c]ourt

to dismiss a case when there’s, A, a pattern; or B, willful

non-compliance.”

...

I’m taking the motion for contempt under advisement for a

period of 30 days. At the end of 30 days, I want this matter

to come back on to see if there’s been compliance – full

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compliance. If not, I’m dismissing the case, period. I’m

granting the sanctions [defense counsel] requested and I’m

granting the attorney’s fees she’s requested.

...

And so, [Plaintiff], I think I’m bending over backwards, and

[defense counsel] knows that, and so I’m giving you 30

days, otherwise, I’m dismissing the case. I want to know

in 30 days whether that information has been received, and

if not, it will be dismissed with prejudice, which means you

cannot refile the claim.

(Emphasis added).

The judge noted her understanding that while dismissing a case is rare, the

evidence presented by Defendant supported her doing so. But instead of dismissing

the case at the initial hearing on Defendant’s Motion to Show Cause, the judge

provided Plaintiff another chance to comply with the discovery requests. The judge

declined to require that interim attorney’s fees be paid in the thirty-day period, and

instead wanted to wait to see if there had been compliance to grant attorney’s fees.

Plaintiff also argues that, under Rule 26, she was entitled to respond to

discovery by objections. However, Rule 37(d) provides “the failure to act described in

this section may not be excused on the ground that the discovery sought is

objectionable unless the party failing to act has applied for a protective order as

provided in Rule 26(c).” N.C. R. Civ. P. 37(d). The record does not reflect Plaintiff

ever applied for a protective order. The court found in its Dismissal Order the record

did not show Plaintiff was substantially justified in her failure to comply with

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discovery requests, and Plaintiff was without justification for the failure to comply

with the Order to Compel. Thus, Plaintiff’s argument that she was entitled to

respond to discovery by objections is unfounded.

2. Sanction of Awarding Attorney’s Fees

Plaintiff asserts that the trial court (1) erred in awarding attorney’s fees as a

sanction and (2) that the trial court awarded an unreasonable amount of attorney’s

fees. We disagree that awarding attorney’s fees was error, but we agree that the

amount awarded is unsupported.

When there is no justification for a non-moving party’s failure to comply with

an order to compel discovery, the court is required to award attorney’s fees to the

moving party. Kent v. Humphries, 50 N.C. App. 580, 590, 275 S.E.2d 176, 183 (1981)

(citing N.C. R. Civ. P. 37(a)(4)). An award of expenses should be a reimbursement to

the successful movant and not a punishment to the non-complying party. Benfield v.

Benfield, 89 N.C. App. 415, 422, 366 S.E.2d 500, 504 (1988) (citing 4A J. Moore, J.

Lucas & D. Epstein, Moore’s Federal Practice Par. 37.02 [10-1] at 37–47 (2d ed. 1987)).

To determine the reasonableness of attorney’s fees, “the record must contain findings

of fact as to the time and labor expended, the skill required, the customary fee for like

work, and the experience or ability of the attorney.” Cotton v. Stanley, 94 N.C. App.

367, 369, 380 S.E.2d 419, 421 (1989) (citation omitted). An affidavit may attest fees

incurred, but an affidavit that contains only a conclusory statement and does “not

state a comparable rate by other attorneys in the area with similar skills for like

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work” is insufficient evidence to establish the awarded amount was reasonable.

Porters Neck Ltd., LLC. v. Porters Neck Country Club, Inc., 276 N.C. App. 95, 105,

855 S.E.2d 819, 828 (2021).

Here, Plaintiff repeatedly failed to comply with Defendant’s discovery and

deposition requests, and the trial court properly awarded attorney fees to Defendant

for expenses incurred in obtaining the Order to Compel. See Kent, 50 N.C. App. at

590, 275 S.E.2d at 183. However, the record evidence is insufficient to support the

amount of attorney’s fees awarded to Defendant. The record is not completely void of

findings the fees were reasonable; it contains defense counsel’s affidavit, a bill for the

video deposition, and a bill for the transcript report. These materials were part of

the record, and proper for the trial court to rely upon them to determine the amount

of attorney’s fees to award. See Benfield, 89 N.C. App. at 422, 366 S.E.2d at 504.

Nonetheless, the record is insufficient to support the amount of attorney’s fees

awarded. Defense counsel’s affidavit attests:

9. Accordingly, the total amount of attorneys’ fees sought

to be recovered in defense of this lawsuit is $4,675.00 and

the total amount of paralegal fees to be recovered is

$1,136.00.

10. I believe that these hourly rate amounts are reasonable

based on my experience and training during the relevant

time period handling this type of case, the location where

the matter is pending and the work necessary based on

Plaintiff’s failure to prosecute her claim. It is my opinion

that the total fee of $4,675.00 representing 27.5 hours of

attorney time and 14.2 hours of paralegal time spent on the

matter is reasonable.

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11. The time and tasks taken in defense of the claim were

reasonable and necessary for the defense of the action on

behalf of Defendants.

12. The total sum of legal fees incurred in this matter is

$5,811.00.

The affidavit includes the attorney’s billable rate and the number of hours

expended. However, the affidavit does not contain any specific comparable rates from

other similarly skilled attorneys. The record lacks evidence from which the trial court

could make a finding of fact regarding comparable fees. Without such comparisons,

we may not uphold the amount awarded. See Porters Neck, 276 N.C. App. at 105, 855

S.E.2d at 828.

We affirm the trial court’s award of attorney’s fees for Defendant, but remand

the Dismissal Order for the trial court to reconsider the amount of attorney’s fees.

The court should consider the reasonableness of defense counsel’s fees as compared

to similarly situated attorneys in the area.

B. Exercising and Controlling Trials

Plaintiff argues that the trial court abused its discretion by questioning her

during her evidentiary presentation and argument. Plaintiff further contends that

the court abused its discretion by making comments and inferences on the record

regarding her education and level of understanding of the legal process.

“The court shall exercise reasonable control over the mode and order of

interrogating witnesses and presenting evidence so as to (1) make the interrogation

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Opinion of the Court

and presentation effective for the ascertainment of the truth, (2) avoid needless

consumption of time, and (3) protect witnesses from harassment or undue

embarrassment.” N.C. R. Evid. 611(a). A trial court’s questions should be viewed “in

the light of all the facts and attendant circumstances disclosed by the record.”

Andrews v. Andrews, 243 N.C. 779, 781, 92 S.E.2d 180, 181 (1956). Trial judges are

not prohibited from expressing their opinions and making comments in trials where

they serve as the fact finder. See Hancock v. Hancock, 122 N.C. App. 518, 528, 471

S.E.2d 415, 421 (1996).

Trial judges have “the duty to supervise and control [proceedings], including

the direct and cross-examination of witnesses, to ensure fair and impartial justice for

both parties.” State v. Fleming, 350 N.C. 109, 126, 512 S.E.2d 720, 732 (1999) (citing

State v. Agnew, 249 N.C. 382, 395, 241 S.E.2d 684, 692 (1978)). Trial judges also have

a duty to question witnesses “to clarify testimony or to elicit overlooked pertinent

facts.” Id. (citation and quotation marks omitted); see State v. Quick, 329 N.C. 1, 25,

405 S.E.2d 179, 193 (1991) (holding court properly used its questioning authority to

“to clarify ambiguous testimony and to enable the court to rule on the admissibility

of certain evidence”).

In Angarita v. Edwards, this Court held that a trial court did not abuse its

discretion when questioning and interrupting a defendant. 278 N.C. App. 621, 628,

863 S.E.2d 796, 802 (2021). Considering the trial judge’s interruptions, the Court

found “it [was] apparent that the trial judge interrupted only in the interests of

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expediency and to bring a pro se [d]efendant into compliance with the rules of

evidence.” Id. Additionally, in the absence of evidence of the trial judge’s personal

bias, the Court found the judge’s apparent bias against or attitude toward the

defendant arose “from a disapproval of [the d]efendant’s disorganized arguments and

mode of presenting evidence.” Id. at 629, 863 S.E.2d at 803. Further, the Court in

Angarita held the trial court’s interruption of defendant was, if anything, helpful to

the defendant’s ability to express their case. Id. at 629, 863 S.E.2d at 802.

Here, the trial court acted as fact finder and asked Plaintiff questions, made

comments, and expressed inferences in pursuit of that duty. The purpose of the 12

May rehearing was to assess Plaintiff’s compliance with the prior Order to Compel.

Similar to the facts in Angarita, the record and hearing transcript in this case tend

to show the trial court’s efforts to expediently reach the important matters before the

court, particularly in light of Plaintiff’s repeat failure to adhere to court rules and

unfocused presentation of evidence. The trial court steered Plaintiff toward the legal

matter that needed discussion—why she had not complied with ordered discovery.

The judge also interrupted Defendant’s attorney to focus the proceeding.

Plaintiff contends the trial judge’s conduct prevented her ability to properly

present her case pro se. Plaintiff’s choice to represent herself does not alter the court’s

duties and abilities during trial. See Brown v. Kindred Nursing Ctrs. E., L.L.C., 364

N.C. 76, 84, 692 S.E.2d 87, 92 (2010) (explaining that the rules apply equally to all

parties, notwithstanding representation status); Bledsole v. Cnty. of Wilkes, 135 N.C.

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App. 124, 125, 519 S.E.2d 316, 317 (1999). Further, the court allowed Plaintiff ample

opportunity to explain why she had failed to comply with the Order to Compel, which

the court considered pivotal to its ultimate decision. The record here does not support

Plaintiff’s contention that the trial abused its discretion.

III. Conclusion

We hold the trial court did not abuse its discretion when presiding over the 12

May 2023 hearing. The trial court also did not err in sanctioning Plaintiff by

dismissing her case and by awarding Defendant attorney’s fees. However, we hold

the trial court’s determination of the amount awarded was based on insufficient

evidence. We affirm the trial court’s Dismissal Order, but remand to the trial court

for a redetermination of the amount of attorney’s fees to be awarded. The court is

free to hear additional evidence as needed to reach its determination.

AFFIRMED AND REMANDED.

Judges TYSON and ZACHARY concur.

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