Tuesday, May 06, 2008, 5:14 PM

COA Splits Over Sanction For Failing To Attend Depo

Today, in Moore v. Mills, the Court of Appeals (COA), in a 2-1 decision, reversed a sanction entered against a defendant who failed to attend his deposition. Judge Elmore wrote the majority decision, joined by Judge Arrowood. Judge McCullough dissented.

The defendant was sued for negligence arising from a car accident. He pleaded contributory negligence as an affirmative defense. Plaintiffs noticed his deposition to be held at their counsel's office in Washington, N.C. Defendant drove to Washington from his home in Williamston but got lost in Washington. He brought no documents with him that could help him locate plaintiffs' counsel, and he couldn't remember the name of plaintiffs' counsel. He approached people in Washington asking if they had heard of his lawyer, which they hadn't, since his lawyer was from Greensboro. He gave up his search and went home. His lawyers offered to pay for plaintiffs' counsel's time and the court reporter and to reschedule the deposition. But plaintiffs would have none of that. They moved for sanctions, asking the trial court to award attorneys' fees and court reporter costs AND to strike defendant's contributory negligence defense. The trial court obliged. Defendant appealed.

The majority upheld the fee sanction but held that the trial court abused its discretion in striking defendant's contributory negligence defense. "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,'" the Court held. Judge McCullough accused the majority of having "freely substituted its judgment for that of the trial court," contrary to the abuse-of-discretion standard of review.

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