dissenting.
“[B]efore dismissing a party’s claim with prejudice pursuant to Rule 37, the trial court must consider less severe sanctions.”1 While the majority concludes that the trial court considered less severe sanctions before dismissing the claim, as the record does not support this conclusion, I would reverse and remand for consideration of less severe sanctions. Accordingly, I must respectfully dissent.
The majority correctly notes that Rule 37(d) of the North Carolina Rules of Civil Procedure authorizes á trial court to sanction a party pursuant to Rule 37(b)(2) for failure to serve answers or objections to interrogatories. N.C. Gen. Stat. § 1A-1, Rule 37(d). The trial court is given broad discretion to “make such orders in regard to the failure as are just” and authorized to, inter alia, dismiss the action, or render judgment against the disobedient party. N.C. Gen. Stat. § 1A-1, Rule 37(b)(2) (2005).
While the trial court is afforded discretion in imposing discovery sanctions; because a dismissal with prejudice is the ultimate punishment in a civil case, “before dismissing a party’s claim with prejudice pursuant to Rule 37, the trial court must consider less severe sanctions.” Hursey, 121 N.C. App. at 179, 464 S.E.2d at 507 (citing Goss, 111 N.C. App. at 177, 432 S.E.2d at 159). The trial court is not required to impose lesser sanctions, but only to consider lesser sanctions. Goss, 111 N.C. App. at 177, 432 S.E.2d at 159.
The following procedural history occurred prior to Judge Albright’s dismissal order:
13 November 2003: Plaintiff files Complaint
9 December 2004: Order calendering case for trial the week of 13 June 2005 and setting a 31 May 2005 discovery deadline
*73715 December 2004: Notice of Appearance by counsel for Unnamed Defendant Nationwide Insurance Companies
24 January 2005: Nationwide filed its Answer and sent Plaintiff Interrogatories
I March 2005: Letter from Nationwide’s counsel to Plaintiffs counsel regarding overdue interrogatories
23 March 2005: Nationwide filed a Motion to Compel Discovery asking for expenses and attorneys’ fees
II April 2005: Order dismissing case with prejudice
In this case, the trial court did not state in its original dismissal order that it had considered lesser sanctions. Only after Plaintiff filed a motion to reconsider did the trial court make the conclusory statement that the trial court had “considered certain lesser discovery sanctions[.]” But it is not evident from the record or from the trial court’s orders what form of lesser sanctions the trial court had considered.
Significantly, Nationwide never asked for dismissal of the case. Indeed, the trial court dismissed this action with prejudice in an order responding to Nationwide’s motion to compel discovery which requested expenses and attorneys fees. The trial court never entered an order compelling responses to interrogatories nor does it appear from the record that it considered awarding expenses and attorneys’ fees to Nationwide, the requested sanction.
Furthermore, while Plaintiff was late in responding to interrogatories, as of the first dismissal order, there was still over a month left until the 31 May 2005 discovery deadline. Also, Plaintiff had never violated a court order to compel discovery, as the trial court never took that initial step before dismissing the case with prejudice.
The majority cites to In re Pedestrian Walkway Failure, - N.C. App. -, 618 S.E.2d 819 (2005), to support its conclusion that the trial court’s conclusory statement was sufficient to determine it had considered lesser sanctions. But in In re Pedestrian Walkway Failure, the defendant filed a motion which requested that the plaintiff be sanctioned with the dismissal of his claims but also requested, in the alterative, lesser sanctions. Id. at -, 618 S.E.2d at 828. Moreover, the trial court in In re Pedestrian Walkway Failure dismissed the case pursuant to Rule 37(d) and Rule 41(b) for the plaintiff’s repeated attempts to frustrate the discovery process and a court *738order by failing to turn over his 2001 tax records, giving evasive and contradictory answers to a court ordered deposition, and falsely representing to the court the status of his 2001 tax filings. Id. at -, 618 S.E.2d at 826-27.
Also in both Cheek v. Poole, 121 N.C. App. 370, 372, 465 S.E.2d 561, 563 (1996) and Fulton v. East Carolina Trucks, Inc., 88 N.C. App. 274, 275, 362 S.E.2d 868, 869 (1987), the other cases cited by the majority, the defendant’s requested dismissal as a sanction for discovery violations, unlike here, where Nationwide only requested expenses and attorneys’ fees as a sanction.
The sanction imposed in this case was harsh. This Court has previously stated:
Dismissal is the most severe sanction available to the court in a civil case. An underlying purpose of the judicial system is to decide cases on their merits, not dismiss parties’ causes of action for mere procedural violations. In accord with this purpose, claims should be involuntarily dismissed only when lesser sanctions are not appropriate to remedy the procedural violation.
Wilder v. Wilder, 146 N.C. App. 574, 576, 553 S.E.2d 425, 427 (2001) (internal citations omitted).
Dismissal with prejudice is the ultimate sanction, and it must be evident from the record that the trial court first considered lesser sanctions. See Goss, 111 N.C. App. at 177, 432 S.E.2d at 159. It is evident from the record that Plaintiff had never violated a court order, therefore, an order compelling discovery and awarding attorneys’ fees would have been an appropriate remedy to the procedural violation. See Wilder, 146 N.C. App. at 576, 553 S.E.2d at 427. The trial court’s conclusory statement is not sufficient for this Court to determine if lesser sanctions were considered and why they were inappropriate to remedy the procedural violation. Therefore, this case should be reversed and remanded.
. 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)); see also N.C. Gen. Stat. § 1A-1, Rule 37(d) (2005).