Dunn v. Dunn
| Decision Date | 10 July 1989 |
| Docket Number | No. 23045,23045 |
| Citation | 298 S.C. 499,381 S.E.2d 734 |
| Parties | Jill Elaine DUNN, Appellant, v. John Anderson DUNN, Respondent. |
| Court | South Carolina Supreme Court |
Thomas E. McCutchen and Evans Taylor Barnette, Whaley, McCutchen, Blanton & Rhodes, Columbia, for appellant.
Harvey L. Golden and J. Michael Taylor, Law Offices of Harvey L. Golden, P.A., Columbia, for respondent.
Jill Dunn (Wife) appeals a Family Court Order, imposing sanctions against her under Rule 37(b), SCRCP for failing to resume a recessed deposition. We reverse.
Did the Family Court judge abuse his discretion in awarding a $500 sanction under Rule 37(b), SCRCP against Wife for failing to resume her deposition until she received a signed copy of the court's Order compelling discovery?
Wife, represented by Evans Barnette, Esquire, brought a petition in the Family Court seeking, inter alia, a divorce from John Dunn (Husband), represented by Harvey Golden, Esquire. During Wife's deposition, Mr. Golden posed numerous questions to Wife relating to an extramarital sexual relationship. Wife refused to answer these questions, asserting her right against self-incrimination under the Fifth Amendment.
Mr. Golden recessed Wife's deposition and moved for an order requiring Wife to elect between answering the questions or foregoing all affirmative relief requested in her petition. This motion was argued February 9, 1988, and Family Court Judge Arrants granted Mr. Golden's motion, ruling from the bench in the presence of both attorneys. Judge Arrants requested Golden draw an Order.
Wife elected to resume the deposition, which was rescheduled by agreement of counsel for the afternoon of February 12, 1988. According to Mr. Barnette, the deposition was rescheduled by an associate of Mr. Golden and himself on the express condition that a copy of the signed Order would be available to Wife before proceeding. Mr. Barnette contends Mr. Golden's associate assured him that having the Order would be "no problem." Mr. Golden's position is that, although the Order was discussed, its receipt by Mr. Barnette was not a precondition to resuming the deposition.
When Mr. Golden arrived at Mr. Barnette's office in Columbia, South Carolina to begin the deposition on the afternoon of February 12, 1988, the Order had not yet arrived. Although Mr. Golden represented the Order had been signed and was en route from Camden, South Carolina at that time, Mr. Barnette advised Wife to wait to resume her deposition until the Order arrived, lest she inadvertently waive her rights. Wife relied upon Mr. Barnette's advice and refused to resume until the Order arrived. Mr. Barnette offered to proceed with Wife's parents' depositions, which were also scheduled to be taken that afternoon. Mr. Golden refused to alter his discovery schedule or to wait the short time which would have been required to obtain the Order. Mr. Golden became outraged. An acrimonious exchange took place between the lawyers. Thereafter, Mr. Golden left Mr. Barnette's office without taking any of the depositions.
Mr. Golden then moved for sanctions against Wife under Rule 37(b), SCRCP, for Wife's failure to resume the deposition as scheduled. This motion was heard March 3, 1988. The court took the matter of sanctions under advisement, but later issued an Order imposing a sanction of $500 in attorney's fees upon Wife, finding her refusal to resume was unreasonable. The lower court based this finding on the fact that Wife's attorney had been informed the Order had been signed.
Wife appeals this Order.
South Carolina Rules of Civil Procedure, Rule 37(b) instructs that when a party fails to comply with a discovery order, "the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds the failure was substantially justified or that...
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