St. Clair v. Rakestraw

313 S.E.2d 228 (1984)

Gabriel William ST. CLAIR and Sandra Price v. Mavis St. Clair RAKESTRAW and husband, Olan Rakestraw.

No. 8226SC1169.

Court of Appeals of North Carolina.

April 3, 1984.

*230 Warren & McKaig by Joseph Warren, III, and India Early Keith, Charlotte, for plaintiffs-appellees.

Badger & Johnson by David R. Badger, Charlotte, for defendant-appellant.

PHILLIPS, Judge.

Though the defendant contends with some force that the judge's refusal to continue the case improperly deprived her of a fair trial, by in effect requiring her to represent herself in this complicated and substantial case in which she had reason to believe counsel would assist her but no preparations for trial had been made, and her husband could not appear as a witness, the view of the appeal that we take makes it unnecessary to consider this contention.

The one assignment of error that does require determination pertains to the court permitting the plaintiffs to read into evidence the deposition of the plaintiff St. Clair. The court's ruling, pursuant to Rule 32(a)(4) of the North Carolina Rules of Civil Procedure, was based upon findings, which the affidavit of St. Clair's physician clearly supported, that he was unable to attend court because of illness and advanced age; but according to the record defendant received no notice the deposition was going to be taken and its receipt into evidence was therefore improper.

Summons and complaint were served on defendant October 6, 1980, and the deposition was taken at plaintiff St. Clair's home October 28, 1980, three days before the defendant's first lawyer became counsel of *231 record in the case by moving for an extension of time within which to file answer. Since the deposition was being taken before thirty days had expired following issuance of the complaint and summons, leave therefor was obtained from the court, as required by Rule 30(a) of the North Carolina Rules of Civil Procedure, and the court's order was attached to the notice, both dated October 13, 1980. Neither of the defendants nor their lawyer attended the deposition and before it was read into evidence, Mrs. Rakestraw, in opposing its admission, remarked to the court as follows:

This deposition was taken in my father's home. And, I live next door. And, Mr. WarrenI didn't know thenI knew later that he was who he was. He arrived with another attorney. And then, my niece, Sandra St. Clair Slade Price, she arrived in a car; and then, my sister-in-law, Margie Price, sheMargie St. Clair, she arrived. All of these people went in my father's home. This was like two days before I had been told I never knew that there was a deposition. And, I was told that they took a deposition from my father. And, I think the circumstances that worried me and bothered me that they were doing these things to my father. And, I didn't know what they were doing to my father. I felt real ill and worried and wondered and was anxious and wanted to help him; but I was helpless.

Rule 32 of the North Carolina Rules of Civil Procedure in pertinent part provides:

(a) Use of depositions. At the trial ... any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with the following provisions: .... (4) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:... that the witness is unable to attend or testify because of age, illness, infirmity... (Emphasis added).

Though the court did properly determine that Mr. St. Clair was unable to attend court, since the record shows defendant was neither present nor represented at the taking of the deposition, the court should also have determined whether defendant had been properly served with notice. The record contains no indication that this question was addressed and the record does not show that any type of valid service was made on her. The record does reveal, however, that the notice addressed to Mrs. Rakestraw, which had been delivered to the sheriff, was returned unserved at the express request of plaintiffs' attorney. The damaging effect of the deposition is beyond question. Under the circumstances, therefore, we are compelled to conclude that its receipt into evidence was prejudicial error and that a new trial is required.

Too, even if defendant had been properly notified, the willingness of the plaintiffs to go ahead with the deposition without inquiring of defendant, who was next door, if she and her lawyer were going to attend, though not necessarily legal error, is nevertheless not to their credit. Strangers and lifetime enemies alike, engaged in litigation in this country, almost universally extend such courtesies to their adversaries; that the blood relative participants in this case could not do likewise is something to ponder, with sadness.

The merits of plaintiffs' several cross-assignments of error cannot be considered. Through them plaintiffs contend that the court erred in denying their motion to amend the complaint to allege defendant converted still other articles not previously alleged, by dismissing various of their claims at the end of their evidence, and in refusing to permit the jury to consider punitive damages in connection with plaintiffs' conversion and malicious prosecution claims. The purpose of cross-assignments of error, as Rule 10(d) of the North Carolina Rules of Appellate Procedure makes *232 plain, is to allow review of actions or omissions by the trial court which deprive the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal is taken. But plaintiffs' cross-assignments show no alternative ground for upholding the judgment that defendant appealed from; instead, they purport to show that the judgment was erroneously entered and an altogether different kind of judgment should have been obtained. Such issues can only be raised by appeal; and plaintiffs neither appealed from the judgment nor asked by their own petition for writ of certiorari that the errors now complained of be reviewed. Stevenson v. N.C. Dept. of Insurance, 45 N.C.App. 53, 262 S.E.2d 378 (1980).

As to the defendant appellant's appeal, the judgment is reversed and the cause remanded for a new trial. As to the issues raised by the plaintiff appellees, the trial court's rulings are affirmed.

Affirmed as to plaintiff appellees.

Reversed and remanded as to the defendant appellant.

EAGLES, J., concurs in result.

ARNOLD, J., dissents.

ARNOLD, Judge, dissenting:

In her first assignment of error, defendant contends the trial court erred in requiring her to represent herself. Significantly, we note that the trial court did not require defendant to represent herself. The record indicates that prior to the case being calendared for trial, defendant had consulted a number of attorneys. One of those attorneys was allowed to withdraw because defendant refused to compensate her. Other attorneys consulted by defendant were never employed. When the case was called for trial, defendant was given every opportunity by the trial court to obtain counsel, but defendant failed to do so. When informed by the trial court that the case was properly calendared, that defendant had due notice of those circumstances, that plaintiffs were ready for trial, and that the case would, therefore, proceed to trial, defendant failed to either object or to request a continuance. Defendant's first assignment of error preserved no question for our review, and it is, therefore, overruled. See Rule 10(b)(1) of the Rules of Appellate Procedure.

In her second assignment of error, defendant apparently contends that the jury award of damages to plaintiffs included a sum for attorneys' fees; again, this assignment of error is not related to any exception preserved at trial, and it is not considered. Appellate Rule 10(b)(1).

In her third assignment of error, defendant contends that use of plaintiff St. Clair's deposition at trial violated G.S. § 1A-1, Rule 32(a). Rule 32(a) permits a deposition to be used against a party "who was present or represented at the taking of the deposition or who had reasonable notice thereof...." Defendant was not present or represented at the taking of plaintiff St. Clair's deposition and claims she did not receive notice of the taking of the deposition.

At trial, defendant did not object to the use of plaintiff St. Clair's deposition, but merely commented to the court on the circumstances surrounding the taking of the deposition. No question has been preserved under this assignment, and it is also not before us. Appellate Rule 10.

In her fourth assignment of error, defendant contends the trial court erred in allowing certain evidence to which defendant did not object at trial. This assignment likewise fails to preserve any question for our review. Appellate Rule 10(b)(1).

Plaintiffs contend the trial court committed several errors prejudicial to them. However, plaintiffs have not appealed from the judgment or brought their own petition for writ of certiorari to review the judgment. Instead, they have brought forward cross-assignments of error. The purpose of cross-assignments of error is to allow review to actions or omissions by the trial court "which deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination *233 from which appeal was taken." Appellate Rule 10(d). The Drafting Committee Note that accompanies Appellate Rule 10(d) indicates that cross-assignments of error are in effect conditional assignments of error by which an appellee may demonstrate alternative grounds for supporting the judgment in the event that prejudicial error is found in the original basis for judgment. Cross-assignments of error are not the correct procedural means for attacking all or part of a judgment, as plaintiffs have attempted to do here. Stevenson v. N.C. Dept. of Insurance, 45 N.C.App. 53, 262 S.E.2d 378 (1980).

I find no error.