                             NO. COA13-1039

                     NORTH CAROLINA COURT OF APPEALS

                         Filed:   5 August 2014


BRIAN KEESEE,
     Plaintiff,

    v.                                Brunswick County
                                      No. 09-CVS-3278
JOHN HAMILTON,
     Defendant.


    Appeal by plaintiff from order entered 18 March 2013 by

Judge W. Russell Duke, Jr. in Brunswick County Superior Court.

Heard in the Court of Appeals 6 February 2014.


    The Lea Schultz Law Firm, P.C., by James W. Lea, III, for
    plaintiff-appellant.

    Hodges & Coxe, P.C., by C. Wes Hodges, II and Jennifer J.
    Bennett, for defendant-appellee.


    DAVIS, Judge.


    Brian Keesee (“Plaintiff”) appeals from the trial court’s

order sanctioning him for his failure to respond to discovery

requests and to comply with prior court orders.        After careful

review, we affirm.

                          Factual Background
                                         -2-
     Plaintiff and Kimberly Marie Keesee (“Mrs. Keesee”) were

married on 3 February 2003 and separated on 17 October 2009.1                      At

some point while Plaintiff and Mrs. Keesee were still married,

John Hamilton (“Defendant”) allegedly initiated an affair with

Mrs. Keesee that ultimately resulted in the Keesees’ separation.

     On   24    November      2009,    Plaintiff     filed    an   action     against

Defendant in Brunswick County Superior Court stating claims for

alienation of affection, criminal conversation, and intentional

infliction     of    emotional        distress.       On     24    February    2010,

Defendant filed an answer denying the material allegations of

the complaint and asserting counterclaims against Plaintiff for

electronic eavesdropping, invasion of privacy, defamation, and

defamation per se.

     Defendant       served    his     first   set    of     interrogatories     and

request for documents on Plaintiff on 1 March 2010.                      Plaintiff

submitted      his   responses        and   objections       on    11   May    2010.

Defendant filed a motion to compel on 4 June 2010 and an amended

motion to compel on 14 September 2010.

     Defendant’s motion to compel was heard on 14 February 2011.

On 16 March 2011, the Honorable James F. Ammons, Jr. entered an



1
  This is the date of separation alleged by Plaintiff in his
complaint.     Defendant’s   counterclaim lists the date  of
separation as 10 October 2010.
                                -3-
order (“the Discovery Order”) providing, in pertinent part, as

follows:

           2.   Within ten (10) days, Plaintiff is to
           provide to counsel for the Defendant full
           and complete responses to the following
           discovery requests:

               a. Plaintiff shall produce or tender
               for inspection a complete response to
               Defendant’s requests for production #4
               and 5, which shall comprise copies of
               any and all audio, video, digital or
               other form of recording containing the
               communications    or   activities,    or
               featuring in any way, the Defendant    .
               . . and/or [Mrs. Keesee], as well as
               any and all transcripts, photographs,
               or   other  documents   referencing   or
               recounting the content of the above-
               described   audio,   video,   or   other
               recordings;

               c. [sic] Plaintiff shall produce or
               tender   for    inspection     a    complete
               response to Defendant’s request for
               production    number    11,   which    shall
               comprise    copies    of    any    and   all
               documents, including but not limited to
               statements, invoices, quotes, written
               or       electronic         correspondence,
               brochures,    photographs,      reports   or
               other   information     from     a   private
               investigator or any individual with
               whom Plaintiff consulted regarding the
               monitoring    and    recording      of   the
               activities of [Defendant] and/or [Mrs.
               Keesee.]

    Plaintiff filed a notice of appeal as to          the Discovery

Order and a motion for a stay on 15 April 2011.       On 20 December
                                            -4-
2012, Defendant filed a motion to dismiss Plaintiff’s appeal of

the Discovery Order based on his failure to timely prosecute the

appeal.         Plaintiff’s     appeal      was     dismissed      by    the   Honorable

Reuben F. Young by order entered 11 January 2013.

    Defendant also filed a motion to show cause, asking the

trial court to hold Plaintiff in contempt for his failure to

comply with the Discovery Order.                   On 4 March 2013, Defendant’s

show cause motion came on for hearing before the Honorable W.

Russell Duke, Jr.              During Plaintiff’s testimony at the                    show

cause hearing, he admitted that he was in possession of audio

recordings,       videotapes,         and   written      reports    from       a   private

investigator       —     all    of    which       were   encompassed        within       the

Discovery Order but had not been provided by him.                          He testified

that he did not know where these materials were specifically

located but conceded that he had failed to make any efforts to

comply with the Discovery Order — which had been in effect for

almost    two    years    at    the    time   of    Plaintiff’s         testimony    —   by

attempting to locate them.

    On 8 March 2013, the trial court entered an order (“the

Contempt Order”) finding Plaintiff in willful civil contempt and

remanded him to the custody of the Brunswick County Sheriff’s
                                 -5-
Office.   In   the   Contempt   Order,   the   trial   court   made   the

following relevant findings of fact:

          4.   The Plaintiff has failed to abide by
          and to obey the Discovery Order issued by
          this Superior Court.

          5.   The Plaintiff appeared before this
          Court and failed to show cause as to why he
          should not be held in civil contempt of the
          Discovery Order.

          6.   The Plaintiff has the materials ordered
          to be produced in his possession, custody or
          control.

          7.   The Plaintiff has made no demonstrable
          efforts to gather and produce the recordings
          and    other   documents,    materials   and
          information subject to the Discovery Order
          and has not sought to obtain any help to
          download electronically stored information
          or recordings.

          8.   The Plaintiff has failed and refused to
          produce   the   materials  subject  to   the
          Discovery Order.

    Based on these findings of fact, the trial court ordered,

in pertinent part, as follows:

          4.   Prior to his release from custody, and
          as a condition of purging his contempt, the
          Plaintiff is ordered to fully and completely
          produce the following:

               a.   Plaintiff shall produce or tender
               for inspection a complete response to
               Defendant’s requests for production #4
               and 5, which shall comprise copies of
               any and all audio, video, digital or
               other form of recording containing the
                                        -6-
                     communications    or     activities, or
                     featuring in any way, the Defendant . .
                     . and/or [Mrs. Keesee], as well as any
                     and all transcripts, photographs, or
                     other    documents      referencing  or
                     recounting the content of the above-
                     described audio,     video, digital or
                     other recordings;

                     b.   Plaintiff shall produce or tender
                     for inspection a complete response to
                     Defendant’s   request   for   production
                     number 11, which shall comprise copies
                     of any and all documents, including but
                     not limited to statements, invoices,
                     quotes,     written    or     electronic
                     correspondence, brochures, photographs,
                     reports of other information from a
                     private investigator or any individual
                     with whom Plaintiff consulted regarding
                     the monitoring and recording of the
                     activities    and   communications    of
                     [Defendant] and/or [Mrs. Keesee.]

            5.   The Plaintiff is ordered to pay to the
            Defendant the additional sum of $1,928.50,
            for the reasonable attorney’s fees incurred
            by   the   Defendant   in  prosecuting   the
            Defendant’s Motion to show cause . . . prior
            to the Plaintiff’s release from custody as
            an additional condition of purging his
            contempt; and

            6.   The Court retains jurisdiction over the
            parties and the subject matter of this
            action to enforce compliance with this
            order.

    After       the     entry   of    the     Contempt    Order,    counsel   for

Plaintiff      began     tendering    certain     documents    to    Defendant’s

counsel   in    an     effort   to   purge    Plaintiff   of   civil   contempt.
                                       -7-
Defendant’s counsel prepared a detailed list of the deficiencies

in Plaintiff’s responses and provided a copy to both Plaintiff’s

counsel and the trial court.           Around this same time, it became

apparent    that   a   number     of    assertions    previously        made   by

Plaintiff in his testimony at the show cause hearing had been

false.      Records tendered from the private investigative firm

hired by Plaintiff and affidavits from eyewitnesses were noted

to directly conflict with Plaintiff’s prior testimony in several

respects.

    First,     Plaintiff,   while       admitting    to    having   purchased

surveillance equipment via the Internet, had denied placing a

GPS tracking device on Defendant’s vehicle.                 However, records

from Plaintiff’s private investigator showed that such a device

had, in fact, been placed on Defendant’s vehicle.

    Second,     Plaintiff   had    denied    that    he   ever   made    written

transcripts of audio recordings of Defendant and Mrs. Keesee.

However, counsel for Plaintiff began producing such transcripts

within 48 hours of the show cause hearing at which Plaintiff

testified that they did not exist.

    Third, when asked if he had ever brought any recordings or

transcripts from his surveillance of Defendant and Mrs. Keesee

with him to prior court proceedings, Plaintiff had denied ever
                                         -8-
doing    so.      However,     several     witnesses    submitted       affidavits

stating that they had witnessed Plaintiff with such materials

while in court.

      On 8 March 2013 and again on 12 March 2013, Judge Duke

presided       over    telephonic   hearings       arranged      by    Plaintiff’s

counsel in connection with Plaintiff’s request that the trial

court release him from jail so that he could assist in the

efforts    to    bring   himself    into       compliance   with      the    Contempt

Order.     During these hearings, counsel for Defendant requested

that the trial court sanction Plaintiff pursuant to Rule 37 of

the North Carolina Rules of Civil Procedure for his continuing

failure to provide adequate discovery responses and his failure

to   comply     with   prior   court   orders      requiring     him    to    produce

responsive documents as a condition of purging his contempt.

      The trial court denied Plaintiff’s request for relief and

entered    an    order   (“the   Sanctions        Order”)   on   18     March    2013

sanctioning Plaintiff by dismissing his complaint with prejudice

and entering a default judgment in favor of Defendant on his

counterclaims.         Plaintiff gave timely notice of appeal to this

Court.

                                    Analysis

I. Interlocutory Appeal
                                      -9-
    We first note that the Sanctions Order left unresolved the

question of Defendant’s entitlement to monetary damages on his

counterclaims.       Therefore,    the   order         is   interlocutory.       See

Duncan v. Duncan, 102 N.C. App. 107, 111, 401 S.E.2d 398, 400

(1991)    (holding    that   appeal      of      default      judgment    ordering

subsequent hearing on damages was interlocutory).

    An interlocutory order may be appealed, however, if the

order implicates a substantial right of the appellant that would

be lost if the order was not reviewed prior to the issuance of a

final judgment.       Guilford Cty. ex rel. Gardner v. Davis, 123

N.C. App. 527, 529, 473 S.E.2d 640, 641 (1996).                    This Court has

previously held that “where a party is found in contempt for

noncompliance with a discovery order or has been assessed with

certain   other   sanctions,   the    order       is    immediately      appealable

since it affects a substantial right under [N.C. Gen. Stat. §]

1-277 . . . .”       Cochran v. Cochran, 93 N.C. App. 574, 576, 378

S.E.2d 580, 581 (1989).           As such, we have jurisdiction over

Plaintiff’s appeal.

II. Subject Matter Jurisdiction of Trial Court Over Telephonic
    Hearings

    Plaintiff’s      first   argument       on   appeal      is   that   the   trial

court lacked subject matter jurisdiction to preside over the
                                           -10-
telephonic hearings that took place on 8 March and 12 March 2013

and to enter the subsequent Sanctions Order.                      We disagree.

       We review questions of subject matter jurisdiction de novo.

McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592

(2010).     “Pursuant to the de novo standard of review, the court

considers       the     matter    anew     and     freely    substitutes        its   own

judgment for that of the trial court.”                      Trivette v. Yount, 217

N.C.    App.     477,    482,    720     S.E.2d    732,     735    (2011)   (citation,

quotation marks, and brackets omitted), aff’d in part, rev’d in

part on other grounds, and remanded, 366 N.C. 303, 735 S.E.2d

306 (2012).

       Judge     Duke    was     commissioned      to     preside    over   a    special

session     of    Brunswick        County        Superior    Court     at   the       time

Defendant’s motion to show cause was heard on 4 March 2013.                            The

parties do not dispute that, by its terms, his commission was to

last for one day or “until the business is completed.”                                Four

days after the 4 March 2013 hearing, Judge Duke entered the

Contempt Order, concluding as a matter of law that “[t]he Court

has jurisdiction of the subject matter of this action and over

the    person    of     the    Plaintiff”    and     that    “[t]he    Court     retains

jurisdiction over the parties and the subject matter of this

action to enforce compliance with this order.”
                                            -11-
    Plaintiff        argues       that       although      Judge     Duke     possessed

jurisdiction to enter the Contempt Order, he lacked jurisdiction

to take any action thereafter.                     Plaintiff contends that once

Judge Duke entered          the Contempt Order,            there was         no further

“business”    left    for    him       to   conduct,     and   that,    as    such,    the

limited jurisdiction conferred upon him by his commission had

ended.

    In rejecting Plaintiff’s argument, we find instructive our

decision in Hockaday v. Lee, 124 N.C. App. 425, 477 S.E.2d 82

(1996).      In Hockaday, this Court held that a superior court

judge commissioned to preside over a special session of superior

court set to last for two weeks or “until the business of the

court was completed” possessed jurisdiction to enter an order

taxing costs and fees outside of the two-week period because the

business of the court was not completed until the execution of

the judgment and the settling of the costs.                          Id. at 428, 477

S.E.2d at 84 (quotation marks and brackets omitted).

    Similarly,       in     the    present      case,    Judge     Duke’s    commission

granted   him   authority         to    preside     over   a   special       session   of

Brunswick    County       Superior      Court      for   one   day     “or   until     the

business [was] completed.”                  Judge Duke’s jurisdiction did not

expire    simply   by     virtue       of   him    entering    the     Contempt   Order
                                       -12-
because enforcement issues related to that order could — and, in

fact, did — arise, leaving the business of that session of court

unfinished.

      The present case is distinguishable from In re Delk, 103

N.C. App. 659, 406 S.E.2d 601 (1991), which Plaintiff cites in

support of his jurisdictional argument.              In Delk, we held that

an   out-of-district     judge   assigned     to   preside     over   a    special

session of superior court did not have jurisdiction to enter a

show cause order.       Id. at 661, 406 S.E.2d at 602.            However, the

trial judge in Delk entered the show cause order prior to the

commencement of the special session.           Id.    Here, conversely, the

telephonic hearings and Sanctions Order took place after the

special session had begun and while the business of the court

was not yet finished.

      Thus,   Judge   Duke   had      jurisdiction    to   preside     over   the

telephonic    hearings    and    to   subsequently     enter    the    Sanctions

Order   based    upon     his    continuing        jurisdiction       to   ensure

compliance with the Contempt Order.                Accordingly, Plaintiff’s

argument on this issue is overruled.

III. Sanctions Order
                                         -13-
    Plaintiff’s       final   argument          is   that    the   Sanctions    Order

contains erroneous findings and must therefore be vacated.                         We

disagree.

    Rule     37   authorizes       a    trial    court      to   impose   sanctions,

including the entry of a default judgment, against a party who

fails   to   comply    with    a       discovery     order.        N.C.R.   Civ.   P.

37(b)(2),(d).     “Sanctions [imposed] under Rule 37 are within the

sound discretion of the trial court and will not be overturned

on appeal absent a showing of abuse of that discretion.”                       Hursey

v. Homes by Design, Inc., 121 N.C. App. 175, 177, 464 S.E.2d

504, 505 (1995).       “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.”

Id.; see In re Pedestrian Walkway Failure, 173 N.C. App. 237,

246, 618 S.E.2d       819, 826 (2005) (holding that                  trial court’s

decision to impose sanctions may only be overturned “if there is

no record which indicates that [a] defendant acted improperly,

or if the law will not support the conclusion that a discovery

violation has occurred”), disc. review denied, 360 N.C. 290, 628

S.E.2d 382 (2006).

    Although a trial court must consider lesser sanctions prior

to dismissing an action with prejudice for failure to comply
                                      -14-
with discovery, it is not required to expressly list and reject

each lesser sanction that it considered in its order.                   Badillo

v. Cunningham, 177 N.C. App. 732, 735, 629 S.E.2d 909, 911,

aff’d per curiam, 361 N.C. 112, 637 S.E.2d 538 (2006).                 Here, in

Finding of Fact 12 of the Sanctions Order, Judge Duke stated

that    he   had    considered    lesser   sanctions      before   deciding   to

impose the sanctions contained therein.

       Plaintiff argues that the trial court abused its discretion

by     finding     in   the   Sanctions    Order   that    Plaintiff    was   in

continuing civil contempt at the time of the show cause hearing.

Specifically, he points to a provision in the Sanctions Order

stating that the trial court made its findings of facts after

             having reviewed the file in this matter,
             having   presided   over   the    hearing   on
             Defendant’s Motion to Show Cause in which
             the Plaintiff was found to be in continuing
             civil   contempt   for    failure    to   make
             discovery, having presided over a telephonic
             hearing on March 8, 2013, having presided
             over a telephonic hearing on March 12, 2013,
             and having otherwise heard arguments of
             counsel for both parties and being fully
             advised in this matter[.]

(Emphasis added.)          Plaintiff claims he could not have been in

continuing civil contempt at the time of the show cause hearing

because the Contempt Order had not yet been issued.                    Plaintiff

argues    that     this   mischaracterization      may   have   influenced    the
                                    -15-
trial   court’s     decision   to   impose       more   stringent    sanctions

against him.

    Pursuant to N.C. Gen. Stat. § 5A-21, failure to comply with

a court order constitutes continuing civil contempt as long as

          (1) The order remains in force;

          (2) The purpose of the order may still be
          served by compliance with the order;

          (2a) The noncompliance by the person to whom
          the order is directed is willful; and

          (3)    The person to whom the order is
          directed is able to take reasonable measures
          that would enable the person to comply with
          the order.

N.C. Gen. Stat. § 5A-21(a) (2013).

    At the hearing on Defendant’s motion to show cause and as

memorialized in the ensuing Contempt Order, the trial court made

the requisite findings necessary to hold Plaintiff in continuing

civil   contempt.       Specifically,      the    trial   court     found,   in

pertinent part, as follows:

          4.   The Plaintiff has failed to abide by
          and to obey the Discovery Order issued by
          this Superior Court.

          5.   The Plaintiff appeared before this
          Court and failed to show cause as to why he
          should not be held in civil contempt of the
          Discovery Order.
                                     -16-
          6.   The Plaintiff has the materials ordered
          to be produced in his possession, custody or
          control.

          7.   The Plaintiff has made no demonstrable
          efforts to gather and produce the recordings
          and    other   documents,    materials   and
          information subject to the Discovery Order
          and has not sought to obtain any help to
          download electronically stored information
          or recordings.

          8.   The Plaintiff has failed and refused to
          produce   the   materials  subject  to   the
          Discovery Order.

          9.     The Discovery Order remains in force.

          10. The purpose of the Discovery Order may
          still be served by compliance with the same.

          11. The Plaintiff’s noncompliance with the
          performance obligations of the Discovery
          Order is willful.

          12. The Plaintiff is able to comply with
          the performance obligations of the Discovery
          Order or is able to take reasonable measures
          that would enable him to comply with the
          performance obligations of the Discovery
          Order.

Thus,   the    trial   court   did    not   err   by   using   the   phrase

“continuing civil contempt” when it entered the Sanctions Order.

However, even assuming arguendo that the trial court’s use of

the phrase was inaccurate, Plaintiff has failed to offer any

persuasive argument as to why any such error would require that

the Sanctions Order be vacated as an abuse of the trial court’s
                                           -17-
discretion — given the abundant evidence supporting the court’s

decision to impose sanctions on Plaintiff.

      Finally, Plaintiff alleges that Finding of Fact 6 of the

Sanctions Order constitutes an erroneous finding upon which the

trial court relied in determining the sanctions to be imposed.

Specifically, Plaintiff refers to the fact that Finding of Fact

6 mistakenly states that Plaintiff testified at a hearing on 6

March 2013 that he had not made written transcripts of the audio

recordings of Defendant and Mrs. Keesee when, in actuality, this

testimony    took       place   at    a    hearing       held     on     4    March    2013.

Plaintiff argues that the trial court’s use of the incorrect

hearing    date    in     the   Sanctions       Order      rose    to        the   level   of

prejudicial       error    because        it   “contributed         to       Judge    Duke’s

ultimate decision to impose the harshest sanctions possible.”

      Nothing      in     the   Sanctions         Order,     however,          supports     a

conclusion that Judge Duke considered the precise date on which

Plaintiff gave this testimony to be relevant in his decision-

making process regarding the imposition of sanctions.                                Rather,

as   the   Sanctions       Order     makes     clear,      the    imposition          of   the

sanctions at issue was based on the fact that Plaintiff engaged

in conduct such as producing transcripts that he had previously

testified    did    not    exist.         Given    the     wealth       of     evidence     to
                               -18-
support the entry of the Sanctions Order, we conclude that any

clerical error as to the date of the hearing was not material to

the trial court’s decision to impose sanctions and, therefore,

any such error was harmless.

                           Conclusion

    For the reasons stated above, we affirm.

    AFFIRMED.

    Judges CALABRIA and STROUD concur.
