{ "id": 9496106, "name": "JAMES LLOYD SUGG, JR., v. MARTHA SUGG FIELD, WILLIAM STEPHENSON, and KATHERINE BROWN", "name_abbreviation": "Sugg v. Field", "decision_date": "2000-07-18", "docket_number": "No. COA99-888", "first_page": "160", "last_page": "165", "citations": [ { "type": "official", "cite": "139 N.C. App. 160" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "463 A.2d 151", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7961521 ], "year": 1983, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/a2d/463/0151-01" ] }, { "cite": "436 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532016 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0235-01" ] }, { "cite": "427 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "109 N.C. App. 395", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525575 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/109/0395-01" ] }, { "cite": "471 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "436" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918600 ], "year": 1996, "pin_cites": [ { "page": "558" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0553-01" ] }, { "cite": "103 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "248 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622366 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/nc/248/0294-01" ] }, { "cite": "11 L.Ed.2d 974", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1964, "opinion_index": 0 }, { "cite": "376 U.S. 956", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 379328, 379623, 379598, 379822, 379344, 379543, 379710, 379615 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/us/376/0956-06", "/us/376/0956-05", "/us/376/0956-01", "/us/376/0956-03", "/us/376/0956-07", "/us/376/0956-08", "/us/376/0956-02", "/us/376/0956-04" ] }, { "cite": "132 S.E.2d 891", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574801 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0359-01" ] }, { "cite": "274 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564415 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0201-01" ] } ], "analysis": { "cardinality": 638, "char_count": 13904, "ocr_confidence": 0.753, "pagerank": { "raw": 1.1496745251904088e-07, "percentile": 0.5810829125559057 }, "sha256": "deba592351d98071fa83ef4a4b2b6c37dcf64489d4f550431b0bf2d1e4cad3cb", "simhash": "1:00c34ca7a5481815", "word_count": 2184 }, "last_updated": "2023-07-14T19:40:43.899160+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and WALKER concur." ], "parties": [ "JAMES LLOYD SUGG, JR., v. MARTHA SUGG FIELD, WILLIAM STEPHENSON, and KATHERINE BROWN" ], "opinions": [ { "text": "MARTIN, Judge.\nPlaintiff filed this action on 8 July 1998, asserting claims for trespass upon his property and chattels, conversion, invasion of privacy by intrusion upon seclusion, intentional and/or negligent infliction of emotional distress, and civil conspiracy. Specifically, plaintiff alleged that on two occasions in February 1997 and on another unspecified date, defendants went upon real property which was in his possession and used as his residence, searched the residence, and removed a number of videotapes belonging to plaintiff. He alleged defendants copied the tapes and published them to others, resulting in extreme embarrassment and emotional distress to plaintiff. He sought compensatory and punitive damages, as well as return of the videotapes, and attorneys\u2019 fees.\nAll defendants filed answers responding to the specific allegations of the complaint and asserting affirmative defenses. In her answer, defendant Field, who is plaintiffs sister, admitted that in February 1997, she had gone into a barn on property owned by her father and uncle, and had removed several pornographic videotapes which were being stored on the property. She also admitted that she had shown the videotapes to members of her family, and asserted that she returned the videotapes to the place where she had found them shortly thereafter.\nAt the same time this action was pending, there was also pending in the Superior Court of Wake County a caveat proceeding, In the matter of the Will of JAMES LLOYD SUGG, SR., Deceased (98 SP 0020), filed by defendant Field, in which she challenged a paper writing dated 26 February 1997 purporting to be the will of plaintiff\u2019s and defendant Field\u2019s father. Plaintiff was the sole beneficiary under the will. Superior Court Judge Wade Barber presided over all of the discovery proceedings in both the caveat proceeding and this action.\nBeginning in April 1998, in the caveat proceeding, defendant Field sought to discover information from plaintiff about the videotapes and a person depicted therein; on 12 August 1998, the trial court entered an order compelling plaintiff to provide the information requested by Field\u2019s discovery and to produce the videotapes on or before 19 August 1998. Plaintiff did not produce the tapes as ordered and claimed they had been stolen from him within the preceding sixty days.\nDefendant Field also sought discovery with respect to the videotapes in the present action. On 7 October 1998, plaintiff refused, at his deposition, to answer any questions with regard to the content of the videotapes other than to say that he had produced them, that they depicted sexually explicit activity, and included other persons named \u201cHolly\u201d and \u201cStephanie,\u201d as well as plaintiff. He testified that most of the videotapes taken in February 1997 had been returned to him in June 1997, and that he had thereafter put them in his barn and had not seen them since June 1998. He testified that he had discovered them missing about 20 August 1998, that he had neither removed the videotapes from the bam nor destroyed them, and that he did not know what had happened to them.\nDefendant Field moved for sanctions in the caveat proceedings for plaintiff Sugg\u2019s failure to produce the videotapes as ordered. Judge Barber continued the hearing until 5 November 1998; at that time plaintiff continued to deny the videotapes were in his possession or subject to his control. The hearing was further continued to 10 November 1998. On 9 November, an attorney appeared in Judge Barber\u2019s court ex parte and delivered a box containing the videotapes. The attorney declined to identify his client. The following day, plaintiff Sugg authenticated the tapes as being those to which the court\u2019s order was directed, but Sugg\u2019s attorney declined to disclose to the court as to whether he knew from where the tapes had come.\nDefendant Field also moved for an order compelling discovery in the present action. On 8 December 1998, Judge Barber entered an order in this case in which he ordered plaintiff Sugg to reconvene his deposition, to answer questions concerning the tapes, and, as to any videotapes which are the subject of the present action, to answer questions related to the possession, custody and control of such tapes. On 16 December, the deposition was reconvened. When asked if he had possession, custody or control of any of the tapes at the time of his earlier deposition, Sugg invoked his Fifth Amendment privilege against self-incrimination. He continued to assert the privilege when asked if the tapes had been in his possession, custody or control at any time between the 7 October deposition and the time when they were delivered to Judge Barber\u2019s courtroom on 9 November, as well as to questions relating to possession of the tapes since June 1998 and the identity of persons to whom he had spoken about the tapes between June and November 1998.\nDefendants moved to dismiss the action based on plaintiffs refusal to disclose information relevant and material to his case against defendants. The motion was heard by Judge Barber, who entered an order containing detailed findings of fact with respect to plaintiff Sugg\u2019s responses to discovery in both the caveat proceeding and this proceeding. Judge Barber found that plaintiff Sugg\u2019s testimony with respect to his inability to produce the videotapes due to their theft was \u201cincredulous and not truthful,\u201d that information relating to the possession, custody and control of the videotapes was \u201ccritical, essential, and material evidence\u201d to the present case, and that plaintiff Sugg\u2019s continued assertion of his privilege against self-incrimination, while lawful, was prejudicial to the rights of defendants and their ability to defend the present action. He entered an order striking plaintiff Sugg\u2019s pleadings and dismissing this action. Plaintiff appeals.\nThe record on appeal contains thirty-seven separate assignments of error; plaintiff presents two arguments in support of seven of them. All remaining assignments of error are deemed abandoned. N.C.R. App. P. 28(a), 28(b)(5).\nInitially, we consider plaintiff\u2019s contention that the trial court erred by \u201ceffectively consolidating this civil action with the caveat action for purposes of discovery and dismissal.\u201d He bases his argument upon the trial court\u2019s statement, in its order dismissing this action, that \u201c[t]he proceedings in this matter must be considered in conjunction with relevant and related proceedings in the Caveat,\u201d and its findings with respect to plaintiff\u2019s conduct in the discovery proceedings in this action as well as the caveat proceeding. Plaintiff argues the two actions were insufficiently similar to justify consolidation.\nPlaintiff\u2019s argument must fail. There was no consolidation of the two actions; Judge Barber, who presided over the discovery proceedings in both actions, simply took notice of relevant proceedings in the caveat action as they related to similar proceedings in this action, and plaintiff\u2019s conduct and representations with respect to each. It is well established that a court of this State may take judicial notice of its own records in an interrelated proceeding involving the same parties. See West v. G.D. Reddick, Inc., 302 N.C. 201, 274 S.E.2d 221 (1981); State v. Patton, 260 N.C. 359, 132 S.E.2d 891 (1963), cert. denied, 376 U.S. 956, 11 L.Ed.2d 974 (1964); Bizzell v. Insurance Co., 248 N.C. 294, 103 S.E.2d 348 (1958); N.C. Gen. Stat. \u00a7 8C-1, Rule 201. The present case and the caveat proceeding both involve plaintiff and defendant Field, plaintiff referred to the caveat action in his First Set of Interrogatories to defendant Field in this case, and discovery of evidence with respect to the possession and content of the videotapes is relevant to both proceedings. Therefore, it was proper for the trial court to consider the discovery orders from the caveat proceeding in its consideration of sanctions for failure to comply with discovery in the present case. These assignments of error are overruled.\nThe principal argument advanced by plaintiff is directed to the dismissal of his claims against defendants due to his lawful exercise of his privilege against self-incrimination. We affirm the trial court\u2019s order. Though it is true that a court cannot compel an individual to disclose information which may later be used against him in a criminal proceeding, this does not mean that an individual\u2019s decision to invoke the privilege may be done without consequence. The Fifth Amendment is \u201cintended to be a shield and not a sword.\u201d Qurneh v. Colie, 122 N.C. App. 553, 558, 471 S.E.2d 433, 436 (1996). In Qumeh and Cantwell v. Cantwell, 109 N.C. App. 395, 427 S.E.2d 129, review improv. allowed, 335 N.C. 235, 436 S.E.2d 588 (1993), this Court has made it clear that where the privileged information sought from a plaintiff in discovery is material and essential to the defendant\u2019s defense, plaintiff must decide whether to come forward with the privileged information or whether to assert the privilege and forego the claim in which such information is necessary. Dismissal is not automatic; before dismissing a claim based upon plaintiff\u2019s refusal to testify in reliance upon the privilege against self-incrimination, the court must employ the balancing test recognized in Qumeh and Cantwell. This test involves weighing a party\u2019s privilege against self-incrimination against the other party\u2019s rights to due process and a fair trial. See Cantwell at 397, 427 S.E.2d at 130 (citing Pulawski v. Pulawski, 463 A.2d 151, 157 (R.I. 1983)).\nIn the present case, plaintiff seeks, for each of the seven claims in the complaint, compensatory damages in excess of $10,000, as well as punitive damages. The damages are sought as compensation for intangible injuries such as injury to feelings and damage to reputation. Testimony concerning the location of the tapes during the pen-dency of this action, the identity of persons with whom plaintiff may have discussed the tapes or to whom he may have even given the tapes, and the extent to which he may have disseminated them himself, was essential to defendants\u2019 ability to defend against actual and punitive damages for their own actions flowing from the limited time the tapes were wrongfully in their possession. Plaintiffs refusal to answer such relevant questions severely limited defendants\u2019 ability to present a defense to plaintiff\u2019s claim for damages.\nNevertheless, plaintiff claims that because defendant Field admitted going into the storage bam and taking the tapes, the issue of who possessed the videotapes during the period for which he asserted the privilege was not relevant to his claim for invasion of privacy and, therefore, it was error to dismiss that claim. We disagree. If plaintiff himself was in possession, or had custody or control, of the videotapes for all or some parts of a several-month period during which he alleged defendants wrongfully possessed them, his damages would be significantly mitigated.\nFrom the order, it appears that Judge Barber carefully considered and balanced plaintiff\u2019s right to assert his privilege against self-incrimination as opposed to defendants\u2019 due process rights to defend against his allegations and determined that, without access to the information which plaintiff refused to divulge, defendants\u2019 rights were unduly prejudiced. In light of plaintiff\u2019s election to shield himself from possible criminal liability for perjury, rather than waive the privilege and pursue his claims by providing information essential to defendants\u2019 ability to present a defense, the trial court properly ruled that plaintiff had abandoned his claims and dismissed the action.\nFor the foregoing reasons, the Order Striking Pleadings and Dismissing All Claims is affirmed.\nAffirmed.\nJudges LEWIS and WALKER concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Howard, Stallings, From & Hutson, P.A., by E. Gader Howard and Christopher K. Behm, for plaintiff-appellant.", "Stam, Fordham & Danchi, P.A., by Henry C. Fordham, Jr., and Theodore S. Danchi, for defendant-appellee Field.", "Akins, Hunt & Fearon, P.L.L.C., by Donald G. Hunt, Jr., for defendant-appellee Stephenson.", "Massengill & Brido, P.L.L.C., by Francisco J. Brido, for defendant-appellee Brown." ], "corrections": "", "head_matter": "JAMES LLOYD SUGG, JR., v. MARTHA SUGG FIELD, WILLIAM STEPHENSON, and KATHERINE BROWN\nNo. COA99-888\n(Filed 18 July 2000)\n1. Civil Procedure\u2014 consolidation of actions \u2014 discovery\u2014 judicial notice of similar proceedings\nAlthough plaintiff contends the trial court erred by effectively consolidating this civil action for trespass and invasion of privacy with the caveat action involving the same parties for purposes of discovery and dismissal, there was no consolidation of the two actions since: (1) the trial judge simply took notice of relevant proceedings in the caveat action as they related to similar proceedings in this action; and (2) a court may take judicial notice of its own records in an interrelated proceeding involving the same parties.\n2. Discovery\u2014 failure to comply \u2014 assertion of privilege against self-incrimination\nThe trial court did not err by striking the pleadings and dismissing all claims for trespass upon plaintiff\u2019s property and chattels, conversion, invasion of privacy by intrusion upon seclusion, intentional and/or negligent infliction of emotional distress, and civil conspiracy, because the trial court balanced plaintiffs right to assert his privilege against self-incrimination as opposed to defendants\u2019 due process rights to defend against his allegations and determined that defendants\u2019 rights were unduly prejudiced without access to the information concerning the location of certain tapes during the pendency of this action which plaintiff refused to divulge during discovery.\nAppeal by plaintiff from order entered 27 January 1999 by Judge Wade Barber, Jr., in Wake County Superior Court. Heard in the Court of Appeals 19 April 2000.\nHoward, Stallings, From & Hutson, P.A., by E. Gader Howard and Christopher K. Behm, for plaintiff-appellant.\nStam, Fordham & Danchi, P.A., by Henry C. Fordham, Jr., and Theodore S. Danchi, for defendant-appellee Field.\nAkins, Hunt & Fearon, P.L.L.C., by Donald G. Hunt, Jr., for defendant-appellee Stephenson.\nMassengill & Brido, P.L.L.C., by Francisco J. Brido, for defendant-appellee Brown." }, "file_name": "0160-01", "first_page_order": 192, "last_page_order": 197 }