IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-740

No. COA22-271

Filed 15 November 2022

Johnston County, No. 20 CVS 1536

LUAI ABDO, Plaintiff,

v.

KEMAL ALI JONES, Defendant.

Appeal by Plaintiff from order entered 28 October 2021 by Judge D. Jack 

Hooks, Jr., in Johnston County Superior Court. Heard in the Court of Appeals 4

October 2022.

David J. Martin for Plaintiff-Appellant.

Sue, Anderson & Bordman, LLP, by Stephanie W. Anderson, for Unnamed 

Defendant-Appellee Erie Insurance Exchange.

Russ, Worth & Cheatwood, PLLC, by Philip H. Cheatwood, for Unnamed 

Defendant-Appellee United Services Automobile Association.

COLLINS, Judge.

¶ 1 Plaintiff Luai Abdo appeals an order granting Unnamed Defendant Erie 

Insurance Exchange’s motion for sanctions and dismissing Plaintiff’s complaint with 

prejudice as to Defendant Kemal Ali Jones and Unnamed Defendants Erie and 

United Services Automobile Association (“USAA”). Plaintiff makes no argument that 

the trial court erred by dismissing the complaint against Jones. After careful review, 
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Opinion of the Court

we conclude the trial court did not err by dismissing Plaintiff’s complaint against 

Erie. However, we conclude the trial court erred by dismissing Plaintiff’s complaint 

against USAA. Accordingly, we affirm in part and reverse in part, and remand for 

further proceedings.

I. Procedural History and Factual Background

¶ 2 Plaintiff was involved in an automobile accident with Jones in July 2017. In 

June 2020, Plaintiff filed an amended complaint against Jones, which included claims 

against Erie and USAA for underinsured motorist coverage. Erie answered and

served its “First Request for Production of Documents” and “First Set of 

Interrogatories” on Plaintiff in early June. USAA answered in early July.

¶ 3 Plaintiff responded to Erie’s discovery requests by the end of July but failed to

provide all the requested documents. Erie notified Plaintiff by email on 31 August 

that his responses were deficient and requested supplemental discovery, including 

Plaintiff’s pre-accident medical records. When Erie had not received a response to its 

supplemental discovery request by December 2020, Erie filed a motion to compel. 

Plaintiff served supplemental discovery responses in March 2021 but objected to 

Erie’s request for pre-accident medical records. The trial court entered a Consent 

Order on 24 March 2021, signed by Plaintiff’s attorney and Erie’s attorney, ordering

Plaintiff to produce the requested documents by 24 May 2021.

¶ 4 Shortly after the Consent Order was entered, Plaintiff’s attorney separated 
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from his law firm. The law firm withdrew its representation of Plaintiff, and 

Plaintiff’s attorney individually entered a notice of appearance on Plaintiff’s behalf

on 12 May 2021.

¶ 5 On 25 August 2021, by which time Plaintiff still had not produced the 

court-ordered discovery, Erie filed an Amended Motion for Sanctions or, in the 

Alternative, to Dismiss for Failure to Prosecute, “pursuant to Rules 26, 33, 34, 37, 

and 41 of the North Carolina Rules of Civil Procedure,” requesting “entry of an order 

dismissing [Plaintiff’s] case as sanctions for failing to comply with the Court’s Order 

to Compel Discovery or, in the alternative, to dismiss [Plaintiff’s] case for failure to 

prosecute.” The trial court heard Erie’s motion on 27 September 2021. Plaintiff and 

Erie argued at the hearing; neither Defendant nor USAA made an appearance at the 

hearing.

¶ 6 By written order entered 28 October 2021 (“Dismissal Order”), the trial court 

found, in pertinent part:

11. That as of the date of the hearing on September 27, 

2021, [Plaintiff] had not served the unnamed defendant 

with any of the documents that he agreed to provide to the 

unnamed defendant in the March 24, 2021 Consent Order;

12. That at the hearing of this matter, [Plaintiff’s attorney] 

appeared and provided no evidence to the Court that he 

had attempted to obtain any of the documents that were 

agreed to in the March 24, 2021 Consent Order;

13. That [Plaintiff’s attorney] has willfully failed to comply 

with the March 24, 2021 Consent Order;
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14. That the Court has considered less severe sanctions 

than dismissal in ruling on these motions but believes 

dismissal appropriate as this matter [w]as handled by

[Plaintiff’s attorney] in its entirety and he has willfully 

failed to comply. While understanding the file was perhaps 

under the supervision of another partner or attorney 

during its tenure with the [former law firm], all official 

actions have been signed and handled by [Plaintiff’s 

attorney]. Thus he has been aware at all times, even if he 

was subordinate while at the [former law firm]. He was 

certainly aware on May 12, when he filed his appearance 

with the Court.

Based on its findings, the trial court ordered that, “in the Court’s discretion and after 

having considered less severe sanctions than dismissal, the unnamed defendant 

Erie’s Motion for Sanctions is hereby GRANTED and that [Plaintiff’s] Complaint is 

hereby dismissed with prejudice as to all defendants and unnamed defendants.” 

Plaintiff timely appealed.

II. Discussion

¶ 7 Plaintiff argues the following: dismissal was not proper under Rule 37 because 

Plaintiff was not engaged in systematic violations of court orders and lesser sanctions 

were available; the trial court failed to make the requisite findings of fact to support 

dismissal under Rule 41; and the trial court erred by dismissing Plaintiff’s complaint 
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Opinion of the Court

against Defendant and USAA.

1

A. Rule 37

¶ 8 Rule 37 of the North Carolina Rules of Civil Procedure authorizes a trial court

to impose sanctions, including dismissal, upon a party that “fails to obey an order to 

provide or permit discovery[.]” N.C. Gen. Stat § 1A-1, Rule 37(b)(2) (2021). “[T]rial 

courts are vested with broad discretion in ordering sanctions under Rule 37(b).” GEA, 

Inc. v. Luxury Auctions Mktg, Inc., 259 N.C. App. 443, 452, 817 S.E.2d 422, 429-30 

(2018) (citation omitted). “Not only is the decision to impose Rule 37(b) sanctions 

within the sound discretion of the trial court, but so too is the choice of Rule 37(b) 

sanctions to impose.” Id. at 452, 817 S.E.2d at 430 (citation omitted).

¶ 9 “[B]efore dismissing a party’s claim with prejudice pursuant to Rule 37, the 

trial court must consider less severe sanctions.” Hursey v. Homes by Design, Inc., 121 

N.C. App. 175, 179, 464 S.E.2d 504, 507 (1995) (citing Goss v. Battle, 111 N.C. App. 

173, 177, 432 S.E.2d 156, 159 (1993)). However, “[a] trial court is not required to list 

and specifically reject each possible lesser sanction prior to determining that 

dismissal is appropriate.” Honeycutt Contractors, Inc. v. Otto, 209 N.C. App. 180, 185, 

 

1 Erie begins its brief by pointing out that, “[n]otwithstanding the fact that [Plaintiff] 

only presented one issue for appeal in the record for appeal, [Plaintiff] presents three issues 

in his Brief.” However, we note that “[p]roposed issues on appeal are to facilitate the 

preparation of the record on appeal and shall not limit the scope of the issues presented on 

appeal in an appellant’s brief.” N.C. R. App. P. 10(b).
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703 S.E.2d 857, 860-61 (2011) (citation omitted). “A trial court may be reversed for 

abuse of discretion only upon a showing that its ruling was so arbitrary that it could 

not have been the result of a reasoned decision.” Hursey, 121 N.C. App. at 177, 464 

S.E.2d at 505 (citing White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)).

B. Dismissal as to Erie

¶ 10 Here, Erie notified Plaintiff on 31 August 2020 that his interrogatory responses 

were deficient and requested supplemental discovery, including Plaintiff’s 

pre-accident medical records; Plaintiff failed to address the deficiency in his 

interrogatory responses. Erie filed a motion to compel in December, and on 24 March 

2021, the trial court entered a Consent Order compelling Plaintiff to produce the 

requested documents by 24 May 2021. When Erie filed its motion for sanctions, over 

three months after the Consent Order’s deadline, Plaintiff had yet to produce the 

ordered documents. When Erie’s motion for sanctions was heard on 27 September 

2021, over four months after the Consent Order’s deadline, Plaintiff had yet to 

produce the ordered documents. At the hearing on Erie’s motion, Plaintiff “provided 

no evidence to the Court that he had attempted to obtain any of the documents . . . [.]”

¶ 11 In its Dismissal Order, after making findings of fact detailing Plaintiff’s 

repeated failures to produce discovery and comply with the Consent Order, the trial 

court made a finding that it “has considered less severe sanctions than dismissal in 

ruling on these motions but believes dismissal appropriate as this matter [w]as 
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handled by [Plaintiff’s attorney] in its entirety and he has willfully failed to comply.” 

Only “after having considered less severe sanctions than dismissal” did the trial court 

order Plaintiff’s complaint dismissed.

¶ 12 Based on the facts of this case, and the trial court’s consideration of lesser 

sanctions, the trial court’s decision to dismiss Plaintiff’s complaint against Eerie as a 

sanction for his willful failure to comply with the Consent Order was not “so arbitrary 

that it could not have been the result of a reasoned decision.” Hursey, 121 N.C. App. 

at 177, 464 S.E.2d at 505 (citation omitted). Accordingly, Plaintiff’s complaint against

Erie was properly dismissed under Rule 37.

¶ 13 Because Plaintiff’s complaint against Erie was properly dismissed under Rule 

37, we do not address Plaintiff’s argument that the trial court erred by dismissing his 

complaint under Rule 41.

C. Dismissal as to USAA

¶ 14 Plaintiff next argues that the trial court erred by dismissing his complaint 

against USAA because USAA did not file a motion to compel, join Erie’s motion for 

sanctions, attend the hearing, or request relief from the trial court. We agree.

¶ 15 The imposition of sanctions under Rule 37 for failure to obey a court order is

an abuse of discretion where there is no record evidence that the party failed to obey

a court order. See Baker v. Rosner, 197 N.C. App. 604, 677 S.E.2d 887 (2009). In 

Baker, plaintiffs filed a complaint against multiple defendants – Prudence and Ed 
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Rosner, Jo Faulk, and Nova Realty, Inc. – alleging fraud and unfair and deceptive 

trade practices. Id. at 605, 677 S.E.2d at 889. Plaintiffs requested certain documents 

be produced, and the trial court entered a consent order directing the Rosners and 

Faulk to produce the documents. Id. When the Rosners and Faulk failed to produce 

the documents, plaintiffs filed a motion for sanctions, pursuant to Rule 37. Id. The 

trial court entered an order allowing the motion for sanctions, ordering each 

defendant’s answer be stricken, and entering default judgment against each 

defendant as to plaintiffs’ claims for fraud. Id. at 606, 677 S.E.2d at 889. This Court 

concluded that the trial court abused its discretion by sanctioning Nova because 

plaintiffs did not seek discovery from Nova and Nova was not a party to the consent 

order; thus, Nova was not a disobedient party. Id. at 607, 677 S.E.2d at 890.

¶ 16 Although the parties in Baker were situated differently, Baker’s reasoning 

applies here. In this case, Erie sought discovery from Plaintiff, while USAA did not. 

When Plaintiff’s discovery responses were deficient, Erie requested supplemental 

discovery; USAA did not. When Plaintiff did not respond to Erie’s supplemental 

discovery request, Erie filed a motion to compel; USAA did not. Erie and Plaintiff 

signed the Consent Order compelling the production of documents; USAA was not a 

party to the Consent Order. When Plaintiff failed to comply with the Consent Order’s 

deadline, Erie filed a motion for sanctions, while USAA did not. Erie attended the 

hearing to argue that sanctions were appropriate; USAA did not attend the hearing. 
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The Dismissal Order granting Erie’s motion for sanctions describes Plaintiff’s failures 

to provide Erie with discovery; it makes no mention of USAA. Thus, as in Baker, 

there is no record evidence that Plaintiff violated any discovery orders as to USAA.2 

Accordingly, the trial court abused its discretion by dismissing Plaintiff’s complaint 

against USAA.

III. Conclusion

¶ 17 Plaintiff makes no argument that the trial court erred by dismissing his 

complaint against Defendant. Furthermore, the trial court did not err by dismissing 

Plaintiff’s complaint against Erie. However, the trial court erred by dismissing 

Plaintiff’s complaint against USAA. Accordingly, the trial court’s order is affirmed 

as to Defendant and Erie and reversed as to USAA, and remanded for further 

proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Judges TYSON and INMAN concur.

 

2 USAA argues that Yahudah Washitaw of E. Terra Indians v. PHH Mortg. Corp., No. 

5:17-CV-00377-BR, 2017 U.S. Dist. LEXIS 210027 (E.D.N.C. Dec. 21, 2017), supports its 

position that it need not have moved for sanctions. That court stated, “[i]f the court dismisses 

a plaintiff's complaint upon a defendant’s Rule 12(b)(6) motion and the same legal arguments 

apply to its claims against remaining defendants, the court may dismiss the complaint in its 

entirety.” Id at *4. Dismissal upon 12(b)(6) grounds is not analogous to dismissal as a 

sanction under Rule 37. We are neither bound by the federal district court’s opinion nor 

persuaded to apply its reasoning here.