Couch v. Private Diagnostic Clinic

• Decision Date: 06 November 2001
• Docket Number: No. COA00-1032.,COA00-1032.
• Citation: 146 NC App. 658,554 S.E.2d 356
• Court: North Carolina Court of Appeals
• Parties: Finesse G. COUCH, Individually and as Administratrix of the Estate of Carnell Simmons Couch, Plaintiff, v. PRIVATE DIAGNOSTIC CLINIC and Duke University, Defendant.

554 S.E.2d 356

146 NC App. 658

Finesse G. COUCH, Individually and as Administratrix of the Estate of Carnell Simmons Couch, Plaintiff, v. PRIVATE DIAGNOSTIC CLINIC and Duke University, Defendant.

No. COA00-1032.

Court of Appeals of North Carolina.

November 6, 2001.

McMillan, Smith & Plyler, by Stephen T. Smith, Raleigh, for appellant Maria P. Sperando.

North Carolina State Bar, by Carolin Bakewell; Attorney General Roy A. Cooper, III, by Assistant Attorney General Staci Tolliver Meyer, for the State.

HUNTER, Judge.

Appellant Maria P. Sperando ("Sperando") appeals an order of the trial court imposing sanctions for her violations of the North Carolina Rules of General Practice for the Superior and District Courts and the Rules of Professional Conduct. For reasons set forth herein, we reverse and remand on the issue of attorney's fees, but affirm the remainder of the trial court's order. Sperando, an attorney licensed to practice in Florida and New York, was admitted pro hac vice to represent Finesse G. Couch ("Couch"), the plaintiff in the underlying medical malpractice action against Private Diagnostic Clinic and Duke University (collectively "defendants"). During trial, Sperando was delivering her closing argument to the jury when she made several statements regarding the veracity of the defense witnesses and opposing counsel.

Sperando characterized defense witnesses and opposing counsel as liars approximately nineteen times during her closing argument, including such statements as, defense witnesses "came up here and told lies. In your face lies"; "`[t]here is nothing worse than a liar because you can't protect yourself from a liar.... [T]hese people, and all the doctors that they paraded in here who told you lie, after lie, after lie'"; " [t]hey lied to your face, blatantly. They didn't care. They tried to make fools of everybody in the courtroom' "; "... `[t]hat's not even—that's not shading the truth.... How is that not a lie? How is that not a lie?'"; "`[s]o you see, when I say a lie, okay, I want the record to reflect that I mean a lie'"; "... `how do you think that they intend to get out from under all these lies?'"; "`[t]his is another blatant lie'"; "`[defense counsel] parade[d] these witnesses in one after another and lied to your face. I mean, they were not even smooth about it.'" Couch v. Private Diagnostic Clinic, 133 N.C.App. 93, 97, 515 S.E.2d 30, 34-35, affirmed, 351 N.C. 92, 520 S.E.2d 785 (1999).

Sperando also questioned the veracity of defense counsel in front of the jury, referring to all of the lies that defense witnesses told and defense counsel "... `knew before [the witnesses] put their hands on the Bible that they were going to tell those lies and [defense counsel] put them up anyway. That's heavy. That's a heavy accusation.'" Id. Defense counsel made one initial objection to Sperando's statements, which objection was overruled by the trial court.

At the close of the trial, the jury returned a verdict in favor of Couch. Defendants appealed. This Court reversed as to Private Diagnostic Clinic on an unrelated issue. See Couch, 133 N.C.App. at 104,

515 S.E.2d at 39. A divided panel affirmed the verdict against Duke University despite its argument that Sperando's conduct was prejudicial and required the granting of a new trial. Id. All three judges expressed concern over Sperando's conduct, with the dissent taking the position that Duke University was entitled to a new trial as a result of Sperando's "grossly improper" conduct. Id. at 105, 515 S.E.2d at 39.

Duke University then appealed to our Supreme Court on the sole ground that Sperando's conduct was prejudicial to the defense, requiring a new trial. The Supreme Court evenly split on the issue of remanding the case for a new trial, thereby allowing this Court's decision to affirm to stand without precedential value. See Couch v. Private Diagnostic Clinic, 351 N.C. 92, 520 S.E.2d 785

. However, a unanimous Supreme Court characterized Sperando's conduct as "grossly improper." Id. at 93, 520 S.E.2d at 785. The Supreme Court determined that the trial court had erred in failing to sustain defense counsel's initial objection or to subsequently intervene ex mero motu to prevent Sperando's conduct. Id. A unanimous Supreme Court concluded:

Furthermore, this Court, being of the opinion that plaintiff's counsel's conduct violated Rule 12 of the General Rules of Practice for the Superior and District Courts and was not in conformity with the Rules of Professional Conduct, remands this cause to the trial court for the determination of an appropriate sanction.

Id.

On remand, a hearing was held on 9 February 2000. The judge from the original trial testified that Sperando appeared to be professional throughout the trial. He also stated that he did not sustain the objection to Sperando's comments because he did not think that her conduct constituted a violation of any rule.

On 31 March 2000, the trial court entered an order imposing sanctions against Sperando. However, on 30 May 2000, the trial court entered an order withdrawing the 31 March 2000 order on its own motion. In the trial court's order of withdrawal, it noted that during the hearing, Sperando testified under oath that the only time she had ever been disciplined by a court or a state bar for improper conduct was when she "was late once and that was the only time." In its order of withdrawal, the trial court found that Sperando and her attorney had failed to disclose a 9 December 1999 order from the Superior Court of Guilford County which found Sperando to be in violation of several rules, including the Rules of Professional Conduct. The order from Guilford County determined that Sperando had "conducted herself in a reprehensible manner in wilful violation of [the rules]," and concluded that her pro hac vice status in that case must be revoked.

On 1 June 2000, the trial court entered an amended order sanctioning Sperando. The trial court's order, which included twenty-seven pages of extensive and thorough factual findings, authority, and conclusions, imposed the following sanctions upon Sperando: (1) a censure; (2) revocation of her pro hac vice status to represent Couch; (3) a partial reimbursement to Duke University for its attorney's fees in the amount of $53,274.50; (4) reimbursement to Couch for any costs she incurred in defending the appeal to the Supreme Court; (5) withdrawal from any cases pending in North Carolina in which Sperando represented clients, and a one year suspension of Sperando's ability to practice pro hac vice in North Carolina; (6) the requirement that Sperando report the order as an Order of Discipline when required to do so; (7) the requirement that prior to again being admitted to practice in the State pro hac vice, Sperando attend continuing legal education classes, and attach a copy of the court's order and an affidavit showing compliance with the order to any motion to appear pro hac vice in North Carolina for the next five years; (8) that its order be delivered to the state bars of Florida and New York; and (9) that Sperando file an affidavit with supporting documentation by 14 July 2000 establishing her compliance with the order. Sperando appeals.

We address the following issues in this appeal: (1) the appropriate standard of appellate review of the trial court's order of sanctions; (2) Sperando's argument that the trial court was without authority to impose attorney's fees as a sanction; (3) Sperando's argument that she was denied due process of law when the Supreme Court determined her to be in violation of the Rules of General Practice and Rules of Professional Responsibility; (4) Sperando's argument that the trial court's imposition of sanctions was "excessive and disproportionate"; and (5) Sperando's argument that the trial court's findings and conclusions are not supported by sufficient evidence.

I. Standard of Review

The State argues that the proper standard for this Court's review of the propriety of the trial court's sanctions is abuse of discretion. Sperando argues that this Court must sit as one of original jurisdiction on such issues. Indeed, it does not appear that this Court or our Supreme Court has clearly determined the proper standard for appellate review of the propriety of a trial court's sanctions imposed upon an attorney for violations of the General Rules of Practice for the Superior and District Courts and the Rules of Professional Conduct. However, we find instructive existing case law applicable to the review of sanctions imposed under our Rules of Civil Procedure, and in cases involving the trial court's exercise of its inherent authority.

In general, this Court exercises de novo review over whether to sanction an attorney under Rule 11 of our Rules of Civil Procedure. Page v. Roscoe LLC, 128 N.C.App. 678, 680, 497 S.E.2d 422, 424 (1998). However, once it is determined that sanctions were proper, "... `we must review the actual sanctions imposed under an abuse of discretion standard.'" Id. at 680, 497 S.E.2d at 424 (quoting Dodd v. Steele, 114 N.C.App. 632, 635, 442 S.E.2d 363, 365, disc. review denied, 337 N.C. 691, 448 S.E.2d 521 (1994)); see also, e.g., VSD Communications, Inc. v. Lone Wolf Publishing Group, 124 N.C.App. 642, 644-45, 478 S.E.2d 214, 216 (1996)

.

It is equally well-established that the propriety of sanctions imposed for violation of discovery orders or other rules violations is reviewed for abuse of discretion. See State v. Weeks, 322 N.C. 152, 171, 367 S.E.2d 895, 906 (1988)

(although trial court "not required to impose any sanctions for abuse of discovery orders, what sanctions to impose, if any, is within the trial court's discretion"); see also, e.g., Crutchfield v. Crutchfield, 132 N.C.App. 193, 195, 511 S.E.2d 31, 33-34 (1999); Hursey v. Homes By Design, Inc., 121 N.C.App. 175, 177, 464 S.E.2d 504, 505 (1995); Goss v. Battle, 111 N.C.App. 173, 177, 432 S.E.2d 156, 159 (1993).

Moreover, ...