Lovendahl v. Wicker

• Decision Date: 07 December 2010
• Docket Number: No. COA09-954.,COA09-954.
• Parties: Clint M. LOVENDAHL, Administrator of the Estate of Nancy Lovendahl Wicker, Plaintiff, v. Howard Bradley WICKER, Defendant.
• Court: North Carolina Court of Appeals

702 S.E.2d 529

Clint M. LOVENDAHL, Administrator of the Estate of Nancy Lovendahl Wicker, Plaintiff,

v.Howard Bradley WICKER, Defendant.

No. COA09-954.

Court of Appeals of North Carolina.

Dec. 7, 2010.

Appeal by defendant from order entered 28 April 2009 by Judge Richard W. Stone in Guilford County Superior Court. Heard in the Court of Appeals 28 January 2010.

Hicks McDonald Noecker LLP, Greensboro, by David W. McDonald; and Rightsell & Eggleston, LLP, Greensboro, by Donald P. Eggleston, for plaintiff-appellee.

Teague, Rotenstreich, Stanaland, Fox & Holt, PLLC, Greensboro, by Paul A. Daniels, for defendant-appellant.

GEER, Judge.

This appeal concerns litigation arising from a single-vehicle accident in which Nancy Lovendahl Wicker, a passenger in the vehicle, was killed. Plaintiff Clint M. Lovendahl, Ms. Wicker's son and the administrator of her estate, brought a negligence action against Ms. Wicker's husband, defendant Howard Bradley Wicker, who was operating the vehicle at the time of the accident. Defendant faces criminal charges stemming from the accident and refused to answer deposition questions on Fifth Amendment grounds. The trial court had previously entered an order requiring defendant to submit to a deposition, acknowledging defendant's right to assert his Fifth Amendment rights, but providing that he could not do so without consequences in this civil action. Defendant appeals from a subsequent order striking his affirmative defenses—contributory negligence and gross contributory negligence—for failing to comply with the discovery order. We affirm because the trial court properly found that defendant's invocation of his Fifth Amendment privilege deprived plaintiff of the information he needed to respond to defendant's contributory negligence and gross contributory negligence defenses.

Facts

Ms. Wicker died after the vehicle in which she was riding ran off the road and overturned in Randolph County, North Carolina on 27 April 2008. Defendant, who was driving the vehicle, was not seriously injured in the wreck. He was ultimately charged with a number of criminal offenses, including second degree murder. Plaintiff, after being appointed executor of Ms. Wicker's estate, filed a wrongful death action against defendant on 19 August 2008, alleging that defendant's reckless, wanton, and grossly negligent operation of the vehicle caused Ms. Wicker's death.

Plaintiff alleged that when the accident occurred, defendant was speeding and operating the vehicle in a reckless manner without regard for the safety of others. He lost control of the vehicle, causing it to "leave the paved portion of the road, hit an embankment, run over a sign, cross the road, crash violently, and land upside down off the shoulder of the opposite-travelling [sic] lane."

On 17 October 2008, defendant filed an answer in which he asserted the defenses of contributory negligence and gross contributory negligence, alleging that he and Ms. Wicker had been drinking alcohol together for several hours before the accident. Defendant further alleged that, on the night of the accident, Ms. Wicker chose to ride as a passenger in his vehicle "after she had been in his presence for the past eight or ten hours and knew [or], by exercising reasonable care, should have known, of his intoxication or impairment level, the amount of alcohol or other impairing substance which he had consumed" and that it was unsafe to ride with him.

Defendant's deposition was scheduled by agreement of counsel for 22 October 2008. On the morning of 22 October 2008, defendant filed a motion to stay proceedings, objection to deposition, motion for protective order and motion to stay discovery, and notice of hearing and request to calendar the motions for 4 December 2008. The trial court made the following unchallenged findings about what occurred at the 22 October 2008 deposition:

10. The record of the deposition of defendant was opened at 10:57 a.m. Defendant, together with his counsel, Kenneth B. Rotenstreich, Esq. of the Guilford County Bar and R. David Wicker, Jr., Esq. of the Granville County Bar was [sic] present. On the record, defendant's counsel Rotenstreich marked as Exhibit No. 1 the Objection to Deposition, Motion for Protective Order, and Motion to Stay Discovery. Rotenstreich further stated on the record, "And to proceed forward with this deposition without staying the proceedings, under the case of Peterson versus Peterson, which is a North Carolina Court of Appeals case, I think is inappropriate." Rotenstreich further stated for the record that "I will add that my client, after consultation with me, is intending to take his Fifth Amendment right against self-incrimination, based on the criminal charges pending. And that is the reason why I'm willing for the deposition to go forward, because the answers to the questions would be the same today than [sic] they would be next week or next month, because the criminal action is not set to be heard until sometime around December ... [.]" Rotenstreich further stated for the record, "And we can go to the courthouse now and be heard on our motion to stay, based on the case law of Peterson versus Peterson and all of the cases that follow." Rotenstreich further stated for the record, "Well, we're not going to participate unless the hearing's had. You're welcome to stay on the record. We're going to walk out. I will go call the judge's champers [sic] and see if there are any judges available to hear our motion as—would you join me counsel?" Rotenstreich further stated on the record, "And again, I reiterate—and I don't need to, because these—we've already talked about it—that the answer that you're going to get, because of the criminal proceedings pending, will be the same today as they will be until the criminal proceedings are complete. So to us it makes no difference; the answers are the same." Rotenstreich further stated for the record, "Counsel for the witness is telling Counsel for the plaintiff as—that Exhibit 1 exists, it's been filed, and Exhibit 2 to this deposition is a statement that the defendant intends to read in response to the questions, based on advice of counsel."

The deposition was then adjourned.

On 13 November 2008, plaintiff filed a motion to strike defendant's answer and affirmative defenses and for entry of default as a sanction for defendant's failure to answer deposition questions. On 4 December 2008, the following motions were heard by the Honorable Catherine C. Eagles, Senior Resident Superior Court Judge: defendant's objection to deposition, defendant's motion for a protective order, defendant's motion to stay discovery, and plaintiff's motion to strike.

On 19 December 2008, Judge Eagles entered an order denying defendant's motion for a protective order and denying his motion for a stay. Judge Eagles ordered that "[d]efendant shall submit to deposition within forty-five days of the date of this Order, and may elect to claim his privileges under the Fifth Amendment of the United States Constitution; however, in the event defendant should elect to claim his privileges under the Fifth Amendment, he may not do so without consequence in the present civil action." She denied plaintiff's motion to strike without prejudice "should defendant elect to claim his privileges under the Fifth Amendment in his deposition."

On 22 January 2009, defendant's deposition was reconvened. The trial court made the following unchallenged findings about those deposition proceedings:

18. On January 22, 2009, the deposition of defendant was re-convened. At the deposition, defendant was present, together with Jeremy Kosin, Esq. of the Guilford County bar and R. David Wicker, Jr., Esq.of the Granville County Bar. On the record, defendant's counsel, R. David Wicker, Jr., stated: "I represent Howard Bradley Wicker in the criminal matter that's currently pending in Randolph County. For the record, that matter is 08-CR-6792. There are—that is second-degree murder. There are a series of related misdemeanors and also a felony death under another case caption. That matter is currently set for March the 24^th on an administrative calendar." Wicker, Esq. further stated for the record: "And with that, it will be my instruction that Mr. Wicker can identify himself for the record. He can state what his current address is, but beyond that he will assert his Fifth Amendment right against self-incrimination to each and every question posed by the plaintiff in this matter. And that Fifth Amendment assertion and defense has been provided both to the plaintiff and to the court reporter. He will either read that into the record every time a question is asked or we will stipulate that that will be his answer to each and every question that you would ask, such that you don't have to ask each of your questions and he doesn't have to read that, and that will abbreviate what we have to do here today." The defendant was then sworn, and gave his name and current residence address. Other than this information, defendant, though [sic] counsel, affirmed that Exhibit 3 to the deposition would be and is interposed as a response to each and every question that the plaintiff may have asked.[ ]

On 5 February 2009, plaintiff filed a motion for sanctions, a motion to strike defendant's answer, a motion to strike his affirmative defenses, and a motion for entry of default. At the hearing on the motions before the Honorable Richard W. Stone, Superior Court Judge Presiding, defendant orally moved to continue the trial in this matter. On 19 March 2009, defendant filed a written motion for a continuance of the trial. Judge Eagles denied defendant's written motion for a continuance on 23 March 2009.

On 28 April 2009, Judge Stone entered an order imposing sanctions on defendant pursuant to Rule 37(b) of the Rules of Civil Procedure. In that order, Judge Stone first denied defendant's oral motion to continue the trial. He then found:

3. Defendant was presented with two

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