{ "id": 11357458, "name": "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", "name_abbreviation": "Patterson v. Sweatt", "decision_date": "2001-10-02", "docket_number": "No. COA00-746", "first_page": "351", "last_page": "360", "citations": [ { "type": "official", "cite": "146 N.C. App. 351" } ], "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": "360 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "780" }, { "page": "776" } ], "opinion_index": 0 }, { "cite": "320 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730978 ], "year": 1987, "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0669-01" ] }, { "cite": "344 S.E.2d 847", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "parenthetical": "in determining whether to dismiss a case for violation of motion in limine, trial court must determine the effectiveness of alternative sanctions" }, { "parenthetical": "reversing the Court of Appeals' decision to vacate the portion of the trial court order dismissing plaintiffs action" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 600", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524611 ], "weight": 2, "year": 1986, "pin_cites": [ { "parenthetical": "in determining whether to dismiss a case for violation of motion in limine, trial court must determine the effectiveness of alternative sanctions" }, { "parenthetical": "reversing the Court of Appeals' decision to vacate the portion of the trial court order dismissing plaintiffs action" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0600-01" ] }, { "cite": "351 S.E.2d 845", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "847" }, { "page": "847" }, { "page": "847" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 135", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12167790 ], "year": 1987, "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0135-01" ] }, { "cite": "447 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 271", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523442 ], "year": 1994, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0271-01" ] }, { "cite": "251 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "888", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 721", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554617 ], "year": 1979, "pin_cites": [ { "page": "727", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0721-01" ] }, { "cite": "240 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 146", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571110 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0146-01" ] }, { "cite": "234 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "53" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547611 ], "year": 1977, "pin_cites": [ { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0001-01" ] }, { "cite": "218 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "519" }, { "page": "519" } ], "opinion_index": 0 }, { "cite": "27 N.C. App. 205", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551940 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "206" }, { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/nc-app/27/0205-01" ] }, { "cite": "319 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "922" } ], "opinion_index": 1 }, { "cite": "311 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685798 ], "year": 1984, "pin_cites": [ { "page": "551" } ], "opinion_index": 1, "case_paths": [ "/nc/311/0536-01" ] }, { "cite": "432 S.E.2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "159" } ], "opinion_index": 1 }, { "cite": "111 N.C. App. 173", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520964 ], "year": 1993, "pin_cites": [ { "page": "177" } ], "opinion_index": 1, "case_paths": [ "/nc-app/111/0173-01" ] } ], "analysis": { "cardinality": 810, "char_count": 21800, "ocr_confidence": 0.769, "pagerank": { "raw": 2.1540046093849542e-07, "percentile": 0.7688288004435779 }, "sha256": "0d9a986a6395afd9dec368c993cbb982d11c14cdb57ac5bb0e1574a3b543e27d", "simhash": "1:036a93a67f2a00ff", "word_count": 3519 }, "last_updated": "2023-07-14T17:14:58.205856+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TIMMONS-GOODSON concurs.", "Judge GREENE dissents in part with a separate opinion." ], "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" ], "opinions": [ { "text": "BRYANT, Judge.\nOn 10 August 1998, Richmond County deputies (defendants) searched the plaintiffs\u2019 (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 pled 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.\nPlaintiffs 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\u2019 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\u2019 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\u2019 motion for a voluntary dismissal.\nIn August 1999, plaintiffs re-filed their complaint, (originally Patterson II now Patterson III). Plaintiffs\u2019 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.\nOn 29 September 1999, Cameval, an associate at Drake\u2019s firm, Drake & Pleasant, mailed defendants\u2019 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. Cameval refused.\nOn 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.\nOn 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\u2019 motion, Drake, without obtaining a judge\u2019s order or filing a request for permission to do so, withdrew plaintiffs\u2019 Response to Request for Statement of Monetary Relief. Drake filed a response to defendants\u2019 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 Sweatt. 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\u2019 motions could be heard. On 7 February 2000, the trial court heard the motions and ordered a dismissal of plaintiffs\u2019 case on several grounds: 1) the filing of Plaintiffs\u2019 Response to Request for Monetary Relief and its removal without a judge\u2019s permission; 2) plaintiffs\u2019 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 defendants\u2019 Motion for a Protective Order and Sanctions and the 7 February 2000 Order dismissing plaintiffs\u2019 case. For the reasons which follow we affirm the trial court\u2019s rulings.\nI.\nPlaintiffs argue that the trial court erred by conducting a hearing and entering a protective order while one of plaintiffs\u2019 attorneys was on an approved vacation pursuant to North Carolina Superior Court Rule 26. We disagree.\nRule 26 of the General Rules of Practice for the Superior and District Court states in pertinent part:\nSECURE LEAVE PERIOD FOR ATTORNEYS\n(C) Designation, Effect .... the secure leave period so designated shall be deemed allowed without further action of the court and the attorney shall not be required to appear at any trial, hearing, in-court or out-of-court deposition, or other proceeding in the Superior or District Courts during that secure leave period.\n(H) Procedure When Deposition Scheduled Despite Designation. If. . . any deposition is noticed for a time during the secure leave period, the attorney may serve on the party that noticed the deposition a copy of the designation . . . and that party shall reschedule the deposition for a time that is not within the attorney\u2019s secure leave period.\nGen. R. Pract. Super. and Dist. Ct. 9, 2000 Ann. R. N.C. 7.\nWe note initially that Rule 26 was adopted in May 1999, but it was not effective until January 1, 2000. Plaintiffs\u2019 lead attorney, Drake, was on leave in September and October of 1999, several months before Rule 26\u2019s enactment. Thus, Drake was technically not on approved vacation under Rule 26.\nAssuming, however, that Rule 26 applies to plaintiffs\u2019 counsel\u2019s leave, we are nevertheless unpersuaded by plaintiffs\u2019 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\u2019s 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\u2019s defense before the trial court of his own notices of depositions. Second, although Drake acted as lead counsel for plaintiffs, it is evident from the record that Carneval and other attorneys at Drake\u2019s firm actively participated in plaintiffs\u2019 case. For example, Carneval not only signed and filed the notices of deposition, he also refused the request of defendants\u2019 attorney Thompson to postpone the depositions until she returned from maternity leave. Furthermore, Carneval and another partner at Drake\u2019s firm appeared, without Drake, on plaintiffs\u2019 behalf at the hearing on the motion for protective order. In light of this procedural history, we disagree with plaintiffs\u2019 assertions that Drake was the only attorney with the actual authority to represent plaintiffs at the hearing.\nIn 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\u2019s law firm. In affirming the trial court\u2019s denial of the continuance, we noted that \u201c [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.\u201d 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\u2019 assignment of error.\nII.\nPlaintiffs next argue that the trial court erred in the 11 October 1999 protective order which awarded a sanction of attorneys\u2019 fees in favor of counsel for defendant-surety, citing plaintiffs\u2019 failure to properly notice depositions pursuant to Rule 30 of the North Carolina Rules of Civil Procedure. We disagree. Rule 30(a) states:\nLeave 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.\nN.C.G.S. \u00a7 1A-1, Rule 30(a) (1999) [emphasis added]. A Rule 26(c) protective order \u201cis discretionary and is reviewable only for abuse of that discretion.\u201d Booker v. Everhart, 33 N.C. App. 1, 9, 234 S.E.2d 46, 53 (1977), rev\u2019d on other grounds, 294 N.C. 146, 240 S.E.2d 360 (1978).\nThe only authority plaintiffs cite in support of their argument is that \u201cdiscovery rules \u2018should be construed liberally\u2019 so as to substantially accomplish their purposes.\u201d AT&T Co. v. Griffin, 39 N.C. App. 721, 727, 251 S.E.2d 885, 888 (1979) (citations omitted). Plaintiffs contend that they did not violate Rule 30(a) because they noticed defendant-deputies on 29 September 1999 for depositions to be taken on 15 October 1999, which was outside of the thirty (30) day limitation. However, plaintiffs did violate Rule 30(a) with respect to defendant-surety, who was not served with the summons and complaint in Patterson III until 27 September 1999. Defendant-surety was noticed of the 15 October 1999 depositions on the same day as defendant-deputies.\nUnder Rule 30(a), the thirty day limitation must be met with respect to every defendant, not just the ones being deposed. 1 G. Gray Wilson, North Carolina Civil Procedure \u00a7 30-2, at 520 (1995). Plaintiffs attempt to circumvent the rule with respect to defendant-surety by arguing that its counsel had actual as well as constructive notice of the lawsuit and was therefore properly served with notice of the taking of the depositions. It does not matter if counsel for defendant-surety had actual or constructive notice of the lawsuit when he was noticed of the deposition, because this not a requirement of the Rules of Civil Procedure, Rule 30(a) in particular.\nBased on the foregoing facts, we find that plaintiffs failed to seek \u201cleave of court\u201d for a deposition that was scheduled \u201cprior to the expiration of 30 days after service of the summons and complaint,\u201d in violation of Rule 30(a) and it was within the trial court\u2019s power to grant a protective order and impose a sanction of attorneys\u2019 fees. Additionally, the court had available to it the history of the plaintiffs\u2019 complaints and the knowledge that a protective order was previously granted in Patterson II for similar actions. Moreover, North Carolina Rule of Civil Procedure 37(a)(4) states that the court may award the \u201cmoving party the reasonable expenses incurred in obtaining the order, including attorney\u2019s fees.\u201d N.C.G.S. \u00a7 1A-1, Rule 37(a)(4) (2000). Thus, it does not appear that the trial court abused its discretion by imposing sanctions on plaintiffs. Accordingly, we affirm the trial court\u2019s sanction of attorneys\u2019 fees.\nIII.\nThe plaintiffs next argue that the trial court erred in finding that plaintiffs violated N.C.G.S. \u00a7 1A-1, Rule 8(a)(2) and awarding sanctions in the form of a dismissal of the action with attorneys\u2019 fees. We disagree.\nRule 8(a)(2) of the N.C. Rules of Civil Procedure provides in part:\n[A]t any time after service of the claim for [monetary] relief, any party may request of the claimant a written statement of the monetary relief sought, and the claimant shall, within 30 days after such service, provide such statement, which shall not be filed with the clerk until the action has been called for trial or entry of default entered.\nN.C.G.S. \u00a7 1A-1, Rule 37(a)(4) (2000). Rule 8(a)(2) does not identify a particular sanction that may be imposed for filing a response to a request for monetary relief before the \u201caction has been called for trial or entry of default entered.\u201d However, we reason that the trial court has the same authority to punish such a violation as it would if a complaint demanding a specific sum above ten thousand dollars were filed in violation of Rule 8(a)(2). See 1 G. Gray Wilson, North Carolina Civil Procedure \u00a7 8-3, at 136 (1995). A dismissal of the action pursuant to N.C.G.S. \u00a7 1A-1, Rule 41(b) is one of the permissible sanctions for violating the provision of Rule 8(a)(2) regarding pleading of damages in excess of ten thousand dollars. McLean v. Mechanic, 116 N.C. App. 271, 275, 447 S.E.2d 459, 461 (1994). However, \u201cit is not the only available sanction and should be imposed only where the trial court determines that less drastic sanctions are insufficient.\u201d Id.\nOur court in Miller v. Ferree, 84 N.C. App. 135, 137, 351 S.E.2d 845, 847 (1987), held that sanctions may not be imposed mechanically. Rather, the circumstances of each case must be carefully weighed so that the sanction properly takes into account the severity of the party\u2019s disobedience. Id. at 137, 351 S.E.2d at 847. See also Daniels v. Montgomery Mut. Ins. Co., 81 N.C. App. 600, 344 S.E.2d 847 (1986) (in determining whether to dismiss a case for violation of motion in limine, trial court must determine the effectiveness of alternative sanctions). Once the trial court undertakes this analysis, its resulting order will be reversed on appeal only for an abus\u00e9 of discretion. Miller at 137, 351 S.E.2d at 847. Moreover, our Supreme Court allowed a dismissal to stand when \u201cit [was] clear that a lesser sanction . . . would not serve the best interests of justice.\u201d Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669, 681, 360 S.E.2d 772, 780 (1987), affirming in part and reversing in part Daniels v. Montgomery Mut. Ins. Co., 81 N.C. App. 600, 344 S.E.2d 847 (1986) (reversing the Court of Appeals\u2019 decision to vacate the portion of the trial court order dismissing plaintiffs action).\nIn addition, our Supreme Court held \u201cit to be within the inherent power of the trial court to order plaintiff to pay defendant\u2019s reasonable costs including attorney\u2019s fees for failure to comply with a court order.\u201d Daniels at 674, 360 S.E.2d at 776. If a party fails to obey a court order, the court has the authority to require that party to \u201cpay the reasonable expenses, including attorney\u2019s fees, caused by the failure.\u201d N.C.G.S. \u00a7 1A-1, Rule 37(b) (2000).\nIn the present case, the trial court, in its 9 February 2000 Order, set out the entire history of the three Patterson cases and cited counsel for plaintiffs\u2019 repeated violation of discovery rules including: 1) backdating certificates of service that accompanied notices of depositions to make it appear that those notices were mailed two weeks earlier; 2) noticing depositions without allowing sufficient notice beforehand; 3) the improper filing of a response to the Request for Monetary Relief and subsequent removal of that document without the permission of a judge; 4) continuing efforts to depose the defendant-deputies despite a protective order; 5) use of civil action discovery in an attempt to benefit from them in the criminal action and 6) filing complaints and seeking discovery when plaintiffs knew and admitted in a written statement, that the allegations were not legitimate. Also, in support of its decision to dismiss the case, the court noted that there were indications that the three lawsuits were filed for improper purposes, that there were multiple protective orders granted on behalf of defendants, and that the earlier impositions by the trial court of less drastic sanctions did not deter plaintiffs\u2019 wrongful conduct. For example, the court specifically noted \u201cplaintiff\u2019s failure to pay . . . sanctions awarded by the Protective Order dated October 14, 1999, by Judge Beale ... within a reasonable time\u201d as one of the many reasons why dismissal was appropriate.\nWith respect to the attorneys\u2019 fees, the trial court awarded defendants\u2019 attorneys fees for time spent in the \u201cdefense of this lawsuit, including the preparation, filing and prosecution of their respective and joint discovery-related motions ....\u201d The court examined the affidavits of counsel for all of the defendants and found that time expended and expenses incurred by the attorneys were reasonable under the circumstances. The trial court further found that $150.00 per hour was a reasonable attorneys\u2019 fee associated with the type of legal work in that region and commensurate with the experience and training of the attorneys involved.\nBased on the foregoing, we find that the trial court did not abuse its discretion in ordering the dismissal of plaintiffs\u2019 action with attorneys\u2019 fees. We hold that here, like in Daniels it was clear to the trial court as shown by the findings in the order, that a lesser sanction would not serve the best interests of justice. Therefore the trial court\u2019s failure to specifically state that other less drastic sanctions were considered was not error. Moreover, we hold that the grant of attorneys\u2019 fees in favor of the defendants pursuant to N.C.G.S. \u00a7 1A-1, Rule 37(b) was within the trial court\u2019s inherent authority. Accordingly, we affirm the trial court\u2019s decision to dismiss the plaintiffs\u2019 action.\nAFFIRMED.\nJudge TIMMONS-GOODSON concurs.\nJudge GREENE dissents in part with a separate opinion.", "type": "majority", "author": "BRYANT, Judge." }, { "text": "GREENE, Judge,\ndissenting in part.\nI disagree with the majority that the trial court\u2019s failure to consider less severe sanctions was not error. I, therefore, respectfully dissent from section III of the majority\u2019s opinion.\nBefore a trial court orders the dismissal of an action, it \u201cmust at least consider a less severe sanction,\u201d Goss v. Battle, 111 N.C. App. 173, 177, 432 S.E.2d 156, 159 (1993), and dismissal pursuant to Rule 41(b) should be allowed \u201conly when the trial court determines that less drastic sanctions will not suffice,\u201d Harris v. Maready, 311 N.C. 536, 551, 319 S.E.2d 912, 922 (1984). In this case, there is no evidence from the 9 February 2000 order that the trial court \u201cconsidered\u201d a less severe sanction before ordering a dismissal. Accordingly, I believe the order should be remanded to the trial court for entry of any sanctions deemed appropriate after consideration of less severe sanctions.", "type": "dissent", "author": "GREENE, Judge," } ], "attorneys": [ "Henry T. Drake for plaintiff s-appellants.", "Stott Hollowell Palmer & Windham, L.L.P., by Martha Raymond Thompson for defendants-appellees Sweatt, Rainwater, Sessoms and Furr.", "Kitchin Neal Webb Webb & Futrell, P.A., by Stephan R. Futrell for defendant-appellee Western Surety." ], "corrections": "", "head_matter": "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\nNo. COA00-746\n(Filed 2 October 2001)\n1. Attorneys\u2014 approved vacation \u2014 hearing conducted during attorney\u2019s absence \u2014 adequate representation\nThe trial court did not abuse its discretion by conducting a hearing and entering a protective order while one of plaintiffs\u2019 attorneys was on an approved vacation allegedly pursuant to North Carolina Superior Court Rule 26 in an action seeking the return of money and other property seized by defendant deputies from plaintiffs\u2019 home, because: (1) the attorney\u2019s leave was in September and October 1999, and Rule 26 was not effective until 1 January 2000; and (2) even if Rule 26 applied to plaintiff counsel\u2019s leave, plaintiffs did not lack adequate representation at the hearing before the trial court when other associates from the. same law firm participated in plaintiffs\u2019 case.\n2. Discovery\u2014 sanctions \u2014 attorney fees\nThe trial court did not abuse its discretion by awarding a sanction of attorney fees in favor of defendant surety\u2019s counsel in the 11 October 1999 protective order based on plaintiffs\u2019 failure to properly notice depositions under N.C.G.S. \u00a7 1A-1, Rule 30 in an action seeking the return of money and other property seized by defendant deputies from plaintiffs\u2019 home, because: (1) defendant surety was not properly served with notice of the taking of the depositions, and it did not matter whether defendant surety had actual or constructive notice of the lawsuit; and (2) plaintiffs failed to seek leave of court for a deposition that was scheduled prior to the expiration of the 30 days after service of the summons and complaint in violation of Rule 30(a).\n3. Discovery\u2014 sanctions \u2014 attorney fees \u2014 dismissal\nThe trial court did not abuse its discretion by finding that plaintiffs violated N.C.G.S. \u00a7 1A-1, Rule 8(a)(2) and by awarding sanctions in the form of a dismissal of the action with attorney fees under N.C.G.S. \u00a7 1A-1, Rule 37(b) in an action seeking the return of money and other property seized by defendant deputies from plaintiffs\u2019 home, because: (1) plaintiffs repeatedly violated discovery rules; (2) plaintiffs filed three lawsuits for improper purposes; (3) there were multiple protective orders granted on behalf of defendants; (4) earlier impositions of less drastic sanctions by the trial court did not deter plaintiffs\u2019 wrongful conduct; and (5) the grant of attorney fees under \u00a7 1A-1, Rule 37(b) was within the trial court\u2019s inherent authority.\nJudge Greene dissenting in part.\nAppeal by plaintiff from judgment entered 9 February 2000 by Judge W. Erwin Spainhour in Richmond County Superior Court. Heard in the Court of Appeals 5 June 2001.\nHenry T. Drake for plaintiff s-appellants.\nStott Hollowell Palmer & Windham, L.L.P., by Martha Raymond Thompson for defendants-appellees Sweatt, Rainwater, Sessoms and Furr.\nKitchin Neal Webb Webb & Futrell, P.A., by Stephan R. Futrell for defendant-appellee Western Surety." }, "file_name": "0351-01", "first_page_order": 383, "last_page_order": 392 }