Patterson v. Sweatt
| Decision Date | 02 October 2001 |
| Docket Number | No. COA00-746.,COA00-746. |
| Citation | 553 S.E.2d 404,146 NC App. 351 |
| Court | North Carolina Court of Appeals |
| Parties | William J. PATTERSON, Lisa K. Patterson, Plaintiffs, v. Philip SWEATT, individually and in his official capacity, Phillip Rainwater, individually and in his official capacity, Wendell Sessoms, individually and in his official capacity, Dale Furr, Sheriff of Richmond County, and Western Surety Company, as surety, Defendants. |
Henry T. Drake, Wadesboro, for plaintiffs-appellants.
Stott Hollowell Palmer & Windham, L.L.P., by Martha Raymond Thompson, Gastonia, for defendants-appellees Sweatt, Rainwater, Sessoms and Furr.
Kitchin Neal Webb Webb & Futrell, P.A., by Stephan R. Futrell, Rockingham, for defendant-appellee Western Surety.
On 10 August 1998, Richmond County deputies (defendants) searched the plaintiffs' [Pattersons] residence and seized cash and paperwork. At the time of the seizure, William Patterson was a suspect in relation to the sale and distribution of cocaine. Patterson was subsequently charged and plead guilty to several criminal charges including Possession with Intent to Sell and Distribute Cocaine and Maintaining a Dwelling Used for the Purposes of Keeping and Selling a Controlled Substance.
Plaintiffs have filed three lawsuits in relation to the seizure of the cash and paperwork. The first lawsuit (Patterson I) was filed in September 1998 and sought the return of money and other property. The Patterson I lawsuit also sought punitive damages against defendants, Richmond County law enforcement officers, for alleged willful and wanton conduct in converting plaintiffs' money and property. Defendants had Patterson I removed to federal court. Meanwhile, plaintiffs filed a second lawsuit (Patterson II) in state court while the civil claim was still pending in federal court. The Pattersons filed notices of depositions of the two defendant deputies in Patterson II. Upon defendants' motion, the court entered a protective order. After the protective order was entered, the trial court dismissed Patterson II because of the pending federal action. The federal court thereafter granted plaintiffs' motion for a voluntary dismissal.
In August 1999, plaintiffs re-filed their complaint, (originally Patterson II now Patterson III). Plaintiffs' counsel Henry T. Drake (Drake) confirmed his vacation for the weeks of 27 September 1999, 4 October, 11 October and for the day of 18 October 1999 with Judge Beale, the senior resident superior court judge, and notified opposing counsel by copy of his letter to Judge Beale.
On 29 September 1999, Carneval, an associate at Drake's firm, Drake & Pleasant, mailed defendants' counsel Martha Raymond Thompson (Thompson) notice of depositions of the two defendant-deputies scheduled for 15 October 1999. Thompson was on maternity leave and upon receipt of the notice, her office spoke with Carneval about delaying the depositions until her return. Carneval refused.
On 1 October 1999, counsel for defendant-surety, Futrell, filed a Special Appearance, Motion for Protective Order and Request for Expedited Hearing in relation to the depositions. On 11 October the trial court granted the motion for a protective order and awarded $312.50 in sanctions against plaintiffs. The protective order did not specify a time for the monetary sanction to be paid.
On 19 October 1999, Thompson filed a Request for Statement of Monetary Relief and plaintiffs filed a response to that request. On 16 November 1999, the defendants jointly filed and served a Motion to Dismiss or For Other Sanctions. Immediately upon receiving defendants' motion Drake, without obtaining a judge's order or filing a request for permission to do so, withdrew plaintiffs' Response to Request for Statement of Monetary Relief. Drake filed a response to defendants' motion. On 24 December 1999, Drake served notice (without certificate of service) of the videotaped deposition of Wendell Sessoms and Philip Sweatt. On 29 December 1999, Thompson filed a Motion for Protective Order to Quash the Deposition Notices and for Sanctions. Drake again served a Notice of Deposition Upon Oral Examination for the taking of the videotaped deposition of Philip Sweat. In response, Thompson filed a Second Motion for Protective Order and For Sanctions. On 19 January 2000, an order was granted postponing the depositions of Sweatt, Rainwater and Sessoms until all of defendants' motions could be heard. On 7 February 2000, the trial court heard the motions and ordered a dismissal of plaintiffs' case on several grounds: 1) the filing of Plaintiffs' Response to Request for Monetary Relief and its removal without a judge's permission; 2) plaintiffs' failure to pay $312.50 in sanctions awarded in the protective order within a reasonable amount of time; and 3) for attempting to obtain through civil action discovery, that which cannot be obtained in the criminal action. Plaintiffs appeal from both the 11 October 1999 Order allowing defendant's Motion for a Protective Order and Sanctions and the 7 February 2000 Order dismissing plaintiffs' case. For the reasons which follow we affirm the trial court's rulings.
Plaintiffs argue that the trial court erred by conducting a hearing and entering a protective order while one of plaintiffs' attorneys was on an approved vacation pursuant to North Carolina Superior Court Rule 26. We disagree.
Rule 26 of the General Rules of Practice for the Superior and District Court states in pertinent part:
Gen. R. Pract. Super. and Dist. Ct. 9, 2000 Ann. R. N.C. 7.
We note initially that Rule 26 was adopted in May 1999, but it was not effective until January 1, 2000. Plaintiffs' lead attorney, Drake, was on leave in September and October of 1999, several months before Rule 26's enactment. Thus, Drake was technically not on approved vacation under Rule 26.
Assuming, however, that Rule 26 applies to plaintiffs' counsel's leave, we are nevertheless unpersuaded by plaintiffs' argument that the trial court erred in conducting a hearing and entering the protective order for several reasons. First, plaintiffs did not lack adequate representation at the hearing before the trial court. Carneval, the associate at Drake's firm who noticed the depositions of defendant deputies, appeared on behalf of plaintiffs at the hearing. Plaintiffs have failed to demonstrate how they were prejudiced by Carneval's defense before the trial court of his own notices of depositions. Secondly, although Drake acted as lead counsel for plaintiffs, it is evident from the record that Carneval and other attorneys at Drake's firm actively participated in plaintiffs' case. For example, Carneval not only signed and filed the notices of deposition, he also refused the request of defendants' attorney Thompson to postpone the depositions until she returned from maternity leave. Furthermore, Carneval and another partner at Drake's firm appeared, without Drake, on plaintiffs' behalf at the hearing on the motion for protective order. In light of this procedural history, we disagree with plaintiffs' assertions that Drake was the only attorney with the actual authority to represent plaintiffs at the hearing.
In Jenkins v. Jenkins, 27 N.C.App. 205, 206, 218 S.E.2d 518, 519 (1975), we held the trial court did not abuse its discretion in denying a motion for a continuance of a matter set for trial where lead counsel was unavailable and defendant was represented in court by a member of defendant attorney's law firm. In affirming the trial court's denial of the continuance, we noted that "[i]t is a well established rule in North Carolina that the granting of a continuance is within the discretion of the trial court, and its exercise will not be reviewed in the absence of manifest abuse of discretion." Jenkins, 27 N.C.App. at 206,218 S.E.2d at 519. Because plaintiffs were adequately represented at the hearing by counsel with actual authority, we hold that the trial court did not err in conducting a hearing and entering a protective order. We therefore overrule plaintiffs' assignment of error.
Plaintiffs next argue that the trial court erred in the 11 October 1999 protective order which awarded a sanction of attorneys' fees in favor of counsel for defendant-surety, citing plaintiffs' failure to properly notice depositions pursuant to Rule 30 of the North Carolina Rules of Civil Procedure. We disagree. Rule 30(a) states:
Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon any defendant or service ... except that leave is not required (i) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (ii) if special notice is given as provided in section (b)(2) of this rule.
N.C.G.S. § 1A-1, Rule 30(a)(1999)[emphasis added]. A Rule 26(c) protective order "is discretionary and is reviewable only for abuse of that discretion." Booker v. Everhart, 33 N.C.App. 1, 9, 234 S.E.2d 46, 53 (1977), rev'd on other grounds, 294 N.C. 146, 240 S.E.2d 360 (1978).
The only authority plaintiffs cite in support of their argument is that "discovery rules `should be construed liberally' so as to substantially...
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