May 6, 2008
"A Rather Preposterous Story"
The North Carolina Court of Appeals overturned sanctions imposed on a defendant in a civil case who had failed to appear at his scheduled deposition. The court below had imposed attorney's fees, court reporter fees and struck two affirmative defenses. The story of the hapless defendant:
The parties began discovery, and defendant received notice of a deposition scheduled for 5 April 2007. Defendant failed to appear at the deposition, which was to be held at plaintiffs' attorneys' offices in Washington, North Carolina. Defendant was aware of the deposition and the time for which it was scheduled. Indeed, he spoke on the telephone to a legal assistant at his attorneys' offices that morning, who reminded him of the event and asked him to arrive early to speak with his lawyer. However, although defendant left his house in Williamston, North Carolina, more than sufficiently early to arrive in time for the deposition, defendant claims to have gotten lost in Washington, with which he was unfamiliar. Defendant could not remember the street address for the offices and had neglected to bring a letter that his attorneys sent him with the pertinent information. Defendant compounded his mistake by searching for a sign with the name of his own attorneys' firm, rather than that of plaintiffs'. Unsurprisingly, none of the people that defendant approached in Washington had heard of defendant's attorneys' firm, which was located in Williamston. Eventually, defendant gave up in his search and returned home. He did not realize his mistake until he received a call from his attorneys, inquiring as to the reason for his absence. Defendant promptly offered to reschedule the deposition at plaintiffs' convenience, and his attorneys wrote to plaintiffs' lawyers, offering to pay for both the attorneys' and court reporters' time and expenses and to reschedule the deposition.
The court majority concluded that:
Given defendant's attempts to cure his failure to attend his deposition, his affidavit explaining the misunderstanding, which was presented to the trial court at hearing, and the severity of the sanctions imposed, we find that the trial court's sanctions were "manifestly unsupported by reason.” Id. (quotations and citations omitted). Accordingly, we reverse and vacate that part of the trial court's order striking defendant's pleadings relating to the affirmative defenses of contributory negligence and gross contributory negligence. The remaining sanction, payment of attorneys' fees and court reporter costs, is affirmed.
A dissent would affirm the strike of the affirmative defenses:
At the hearing on the motion for sanctions, defendant recounted a rather preposterous story of having forgotten the name and address of plaintiff's law firm; thus, he sought directions to his own lawyer's office. No one in Washington, N.C., knew how to direct him to his lawyer's office, which is not surprising since his attorney is from Greensboro. He never called his lawyer and eventually went home.
The dissent would defer to the trial court's discretion and affirm as all sanctions imposed. (Mike Frisch)
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