{ "id": 4180843, "name": "CLINT M. LOVENDAHL, Administrator of the Estate of NANCY LOVENDAHL WICKER, Plaintiff v. HOWARD BRADLEY WICKER, Defendant", "name_abbreviation": "Lovendahl v. Wicker", "decision_date": "2010-12-07", "docket_number": "No. COA09-954", "first_page": "193", "last_page": "211", "citations": [ { "type": "official", "cite": "208 N.C. App. 193" } ], "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": "628 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635568, 12635569, 12635570 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/628/0382-01", "/se2d/628/0382-02", "/se2d/628/0382-03" ] }, { "cite": "618 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633891 ], "weight": 6, "year": 2005, "pin_cites": [ { "page": "828" }, { "page": "828" }, { "page": "826", "parenthetical": "\"The imposition of sanctions under Rule 37 is in the sound discretion of the trial judge and cannot be overturned absent a showing of abuse of that discretion.\" (internal quotation marks omitted)" }, { "page": "828" }, { "page": "829" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0819-01" ] }, { "cite": "631 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636162 ], "weight": 14, "year": 2006, "pin_cites": [ { "page": "46-47", "parenthetical": "holding that trial court erred in ordering defendant to answer discovery requests following assertion of Fifth Amendment rights" }, { "page": "46-47" }, { "page": "172" }, { "page": "46-47" }, { "page": "47" }, { "page": "173" }, { "page": "47" }, { "page": "173-74" }, { "page": "47", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0041-01" ] }, { "cite": "476 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "442-43", "parenthetical": "holding that trial court's denial of motion to stay state proceedings pending outcome of related federal proceedings was interlocutory order that could not be immediately appealed absent showing that substantial right would be affected" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 199", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889085 ], "year": 1996, "pin_cites": [ { "page": "201", "parenthetical": "holding that trial court's denial of motion to stay state proceedings pending outcome of related federal proceedings was interlocutory order that could not be immediately appealed absent showing that substantial right would be affected" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0199-01" ] }, { "cite": "432 S.E.2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529089, 2531429, 2529931, 2532669, 2530045 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0166-03", "/nc/334/0166-05", "/nc/334/0166-04", "/nc/334/0166-02", "/nc/334/0166-01" ] }, { "cite": "428 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "468" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 636", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526100 ], "year": 1993, "pin_cites": [ { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0636-01" ] }, { "cite": "464 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "507" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 175", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916211 ], "year": 1995, "pin_cites": [ { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0175-01" ] }, { "cite": "598 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "235", "parenthetical": "\"The trial court is not required to impose lesser sanctions, but only to consider lesser sanctions.\"" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 229", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8996492 ], "year": 2004, "pin_cites": [ { "page": "233", "parenthetical": "\"The trial court is not required to impose lesser sanctions, but only to consider lesser sanctions.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0229-01" ] }, { "cite": "854 F. Supp. 896", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7404127 ], "year": 1993, "pin_cites": [ { "page": "898-99" } ], "opinion_index": 0, "case_paths": [ "/f-supp/854/0896-01" ] }, { "cite": "934 F.2d 1304", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 6512022 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "1306" }, { "page": "1308" } ], "opinion_index": 0, "case_paths": [ "/br/127/1304-01" ] }, { "cite": "462 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 652", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793189, 793064, 793103, 793108, 793183 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0652-05", "/nc/341/0652-02", "/nc/341/0652-03", "/nc/341/0652-04", "/nc/341/0652-01" ] }, { "cite": "458 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "33" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913984 ], "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0162-01" ] }, { "cite": "392 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "389-90", "parenthetical": "recognizing that party is unfairly prejudiced when denied opportunity to depose a witness prior to trial because of inability to prepare for cross-examination" } ], "opinion_index": 0 }, { "cite": "326 N.C. 787", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306589 ], "year": 1990, "pin_cites": [ { "page": "789-90", "parenthetical": "recognizing that party is unfairly prejudiced when denied opportunity to depose a witness prior to trial because of inability to prepare for cross-examination" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0787-01" ] }, { "cite": "539 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 826", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131980, 132053, 132155, 131964, 131933 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0826-05", "/nc/350/0826-04", "/nc/350/0826-03", "/nc/350/0826-02", "/nc/350/0826-01" ] }, { "cite": "136 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "35" } ], "opinion_index": 0 }, { "cite": "261 N.C. 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575261 ], "year": 1964, "pin_cites": [ { "page": "686-87" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0684-01" ] }, { "cite": "515 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "59" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 147", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11217355 ], "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0147-01" ] }, { "cite": "360 N.C. 290", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796224, 3794728, 3789546, 3790060, 3791954, 3795378, 3787092, 3792987 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0290-01", "/nc/360/0290-03", "/nc/360/0290-04", "/nc/360/0290-02", "/nc/360/0290-06", "/nc/360/0290-05", "/nc/360/0290-07", "/nc/360/0290-08" ] }, { "cite": "173 N.C. App. 237", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353302 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "246" }, { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0237-01" ] }, { "cite": "281 Minn. 507", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 298903 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "517" }, { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/minn/281/0507-01" ] }, { "cite": "436 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "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": 3, "year": 1993, "pin_cites": [ { "page": "130" }, { "page": "131" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 395", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525575 ], "year": 1993, "pin_cites": [ { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0395-01" ] }, { "cite": "532 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 2000, "pin_cites": [ { "page": "845-46", "parenthetical": "\"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's decision to invoke the privilege may be done without consequence.\"" }, { "page": "846" }, { "page": "845" }, { "page": "846" }, { "page": "846" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 160", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496106 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "164", "parenthetical": "\"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's decision to invoke the privilege may be done without consequence.\"" }, { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0160-01" ] }, { "cite": "178 N.C. App. 165", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8376532 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "172", "parenthetical": "holding that trial court erred in ordering defendant to answer discovery requests following assertion of Fifth Amendment rights" }, { "page": "172-74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0165-01" ] }, { "cite": "593 S.E.2d 763", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "358 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985479 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0214-01" ] }, { "cite": "581 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2003, "pin_cites": [ { "page": "470" }, { "page": "471" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 509", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188302 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "510" }, { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0509-01" ] }, { "cite": "438 S.E.2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "217" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522359 ], "year": 1994, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0375-01" ] } ], "analysis": { "cardinality": 1366, "char_count": 44392, "ocr_confidence": 0.731, "pagerank": { "raw": 4.565170110192638e-08, "percentile": 0.28620220715570677 }, "sha256": "6e75bdced32ca1516200f533613edec47d1bf81c8bc3ba680f7301e1c007ec5d", "simhash": "1:86e9d6ac2f478cf9", "word_count": 7136 }, "last_updated": "2023-07-14T21:19:36.775795+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and STEPHENS concur." ], "parties": [ "CLINT M. LOVENDAHL, Administrator of the Estate of NANCY LOVENDAHL WICKER, Plaintiff v. HOWARD BRADLEY WICKER, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nThis appeal concerns litigation arising from a single-vehicle accident in which Nancy Lovendahl Wicker, a passenger in the vehicle, was killed. Plaintiff Clint M. Lovendahl, Ms. Wicker\u2019s son and the administrator of her estate, brought a negligence action against Ms. Wicker\u2019s husband, defendant Howard Bradley Wicker, who was operating the vehicle at the time of the accident. Defendant faces criminal charges stemming from the accident and refused to answer deposition questions on Fifth Amendment grounds. The trial court had previously entered an order requiring defendant to submit to a deposition, acknowledging defendant\u2019s right to assert his Fifth Amendment rights, but providing that he could not do so without consequences in this civil action. Defendant appeals from a subsequent order striking his affirmative defenses \u2014 contributory negligence and gross contributory negligence \u2014 for failing to comply with the discovery order. We affirm because the trial court properly found that defendant\u2019s invocation of his Fifth Amendment privilege deprived plaintiff of the information he needed to respond to defendant\u2019s contributory negligence and gross contributory negligence defenses.\nFacts\nMs. Wicker died after the vehicle in which she was riding ran off the road and overturned in Randolph County, North Carolina on 27 April 2008. Defendant, who was driving the vehicle, was not seriously injured in the wreck. He was ultimately charged with a number of criminal offenses, including second degree murder. Plaintiff, after being appointed executor of Ms. Wicker\u2019s estate, filed a wrongful death action against defendant on 19 August 2008, alleging that defendant\u2019s reckless, wanton, and grossly negligent operation of the vehicle caused Ms. Wicker\u2019s death.\nPlaintiff alleged that when the accident occurred, defendant was speeding and operating the vehicle in a reckless manner without regard for the safety of others. He lost control of the vehicle, causing it to \u201cleave the paved portion of the road, hit an embankment, run over a sign, cross the road, crash violently, and land upside down off the shoulder of the opposite-travelling [sic] lane.\u201d\nOn 17 October 2008, defendant filed an answer in which he asserted the defenses of contributory negligence and gross contributory negligence, alleging that he and Ms. Wicker had been drinking alcohol together for several hours before the accident. Defendant further alleged that, on the night of the accident, Ms. Wicker chose to ride as a passenger in his vehicle \u201cafter she had been in his presence for the past eight or ten hours and knew [or], by exercising reasonable care, should have known, of his intoxication or impairment level, the amount of alcohol or other impairing substance which he had consumed\u201d and that it was unsafe to ride with him.\nDefendant\u2019s deposition was scheduled by agreement of counsel for 22 October 2008. On the morning of 22 October 2008, defendant filed a motion to stay proceedings, objection to deposition, motion for protective order and motion to stay discovery, and notice of hearing and request to calendar the motions for 4 December 2008. The trial court made the following unchallenged findings about what occurred at the 22 October 2008 deposition:\n10. The record of the deposition of defendant was opened at 10:57 a.m. Defendant, together with his counsel, Kenneth B. Rotenstreich, Esq. of the Guilford County Bar and R. David Wicker, Jr., Esq. of the Granville County Bar was [sic] present. On the record, defendant\u2019s counsel Rotenstreich marked as Exhibit No. 1 the Objection to Deposition, Motion for Protective Order, and Motion to Stay Discovery. Rotenstreich further stated on the record, \u201cAnd to proceed forward with this deposition without staying the proceedings, under the case of Peterson versus Peterson, which is a North Carolina Court of Appeals case, I think is inappropriate.\u201d Rotenstreich further stated for the record that \u201cI will add that my client, after consultation with me, is intending to take his Fifth Amendment right against self-incrimination, based on the criminal charges pending. And that is the reason why I\u2019m willing for the deposition to go forward, because the answers to the questions would be the same today than [sic] they would be next week or next month, because the criminal action is not set to be heard until sometime around December . . . [.]\u201d Rotenstreich further stated for the record, \u201cAnd we can go to the courthouse now and be heard on our motion to stay, based on the case law of Peterson versus Peterson and all of the cases that follow.\u201d Rotenstreich further stated for the record, \u201cWell, we\u2019re not going to participate unless the hearing\u2019s had. You\u2019re welcome to stay on the record. We\u2019re going to walk out. I will go call the judge\u2019s champers [sic] and see if there are any judges available to hear our motion as \u2014 would you join me counsel?\u201d Rotenstreich further stated on the record, \u201cAnd again, I reiterate \u2014 and I don\u2019t need to, because these \u2014 we\u2019ve already talked about it- \u2014 that the answer that you\u2019re going to get, because of the criminal proceedings pending, will be the same today as they will be until the criminal proceedings are complete. So to us it makes no difference; the answers are the same.\u201d Rotenstreich further stated for the record, \u201cCounsel for the witness is telling Counsel for the plaintiff as \u2014 that Exhibit 1 exists, it\u2019s been filed, and Exhibit 2 to this deposition is a statement that the defendant intends to read in response to the questions, based on advice of counsel.\u201d\nThe deposition was then adjourned.\nOn 13 November 2008, plaintiff filed a motion to strike defendant\u2019s answer and affirmative defenses and for entry of default as a sanction for defendant\u2019s failure to answer deposition questions. On 4 December 2008, the following motions were heard by the Honorable Catherine C. Eagles, Senior Resident Superior Court Judge: defendant\u2019s objection to deposition, defendant\u2019s motion for a protective order, defendant\u2019s motion to stay discovery, and plaintiff\u2019s motion to strike.\nOn 19 December 2008, Judge Eagles entered an order denying defendant\u2019s motion for a protective order and denying his motion for a stay. Judge Eagles ordered that \u201c[djefendant shall submit to deposition within forty-five days of the date of this Order, and may elect to claim his privileges under the Fifth Amendment of the United States Constitution; however, in the event defendant should elect to claim his privileges under the Fifth Amendment, he may not do so without consequence in the present civil action.\u201d She denied plaintiff\u2019s motion to strike without prejudice \u201cshould defendant elect to claim his privileges under the Fifth Amendment in his deposition.\u201d\nOn 22 January 2009, defendant\u2019s deposition was reconvened. The trial court made the following unchallenged findings about those deposition proceedings:\n18. On January 22, 2009, the deposition of defendant was re-convened. At the deposition, defendant was present, together with Jeremy Kosin, Esq. of the Guilford County bar and R. David Wicker, Jr., Esq. of the Granville County Bar. On the record, defendant\u2019s counsel, R. David Wicker, Jr., stated: \u201cI represent Howard Bradley Wicker in the criminal matter that\u2019s currently pending in Randolph County. For the record, that matter is 08-CR-6792. There are \u2014 that is second-degree murder. There are a series of related misdemeanors and also a felony death under another case caption. That matter is currently set for March the 24th on an administrative calendar.\u201d Wicker, Esq. further stated for the record: \u201cAnd with that, it will be my instruction that Mr. Wicker can identify himself for the record. He can state what his current address is, but beyond that he will assert his Fifth Amendment right against self-incrimination to each and every question posed by the plaintiff in this matter. And that Fifth Amendment assertion and defense has been provided both to the plaintiff and to the court reporter. He will either read that into the record every time a question is asked or we will stipulate that that will be his answer to each and every question that you would ask, such that you don\u2019t have to ask each of your questions and he doesn\u2019t have to read that, and that will abbreviate what we have to do here today.\u201d The defendant was then sworn, and gave his name and current residence address. Other than this information, defendant, though [sic] counsel, affirmed that Exhibit 3 to the deposition would be and is interposed as a response to each and every question that the plaintiff may have asked. []\n' On 5 February 2009, plaintiff filed a motion for sanctions, a motion to strike defendant\u2019s answer, a motion to strike his affirmative defenses, and a motion for entry of default. At the hearing on the motions before the Honorable Richard W. Stone, Superior Court Judge Presiding, defendant orally moved to continue the trial in this matter. On 19 March 2009, defendant filed a written motion for a continuance of the trial. Judge Eagles denied defendant\u2019s written motion for a continuance on 23 March 2009.\nOn 28 April 2009, Judge Stone entered an order imposing sanctions on defendant pursuant to Rule 37(b) of the Rules of Civil Procedure. In that order, Judge Stone first denied defendant\u2019s oral motion to continue the trial. He then found:\n3. Defendant was presented with two opportunities to answer questions concerning his knowledge of the facts concerning the present civil action: the first opportunity on October 22, 2008, and the second three months later on January 22, 2009. In the interim, defendant was admonished by Order of the court that if defendant elected to claim his privilege against self-incrimination at the second convening of his deposition, consequences would ensue. Defendant was represented by civil and criminal counsel, including at least three attorneys in two law firms, in determining what course of action to take.\n4. Defendant elected on January 22, 2009 to provide no information other than his name and residence address. As to all other questions which plaintiff might pose, defendant expressed clearly his intention to claim his privilege against self-incrimination provided by the Fifth and Fourteenth Amendments to the United States Constitution.\n5.This cause is set for trial at the May 4, 2009 Civil Jury Session of Guilford County Superior Court.\nThe court continued:\n6. The Court has considered the respective interests of the parties, and the function of the courts of justice to ascertain the truth.\n7. Defendant has pled affirmative defenses in this cause, and should not have it within his power to silence his own adverse testimony when such testimony is relevant to the cause of action or the defense.\n8. Defendant\u2019s continued assertion of his privilege against self-incrimination, while lawful, is prejudicial to the due process rights of plaintiff and plaintiff\u2019s ability to investigate defendant\u2019s affirmative defenses.\n9. Defendant\u2019s assertion of his privilege against self-incrimination has served to impede plaintiff\u2019s ability to obtain accurate discovery about the nature of defendant\u2019s affirmative defenses.\n10. The Court has carefully considered defendant\u2019s conduct, as well as its cumulative effect, and has also considered the available sanctions for such conduct, including, without limitation treating defendant as in contempt, staying proceedings until defendant elects to testify, prohibiting defendant from presenting evidence, and other lesser sanctions. After thorough consideration and balancing the interests of the parties, the Court has determined that sanctions less severe than striking defendant\u2019s affirmative defenses would not be adequate.\nThe trial court then ordered defendant\u2019s affirmative defenses struck \u201cas a sanction for failing to comply with discovery in the Court\u2019s discretion.\u201d Defendant filed notice of appeal on 29 April 2009.\nI\nDefendant first contends that the trial court lacked authority to impose sanctions under Rule 37 at this stage of the litigation. The trial court ordered defendant\u2019s affirmative defenses stricken under Rule 37(b)(2) of the Rules of Civil Procedure, which provides that \u201c[i]f a party . . . fails to obey an order to provide or permit discovery ... a judge of the court in which the action is pending may make such orders in regard to the failure as are just. ...\u201d In general, \u201csanctions under Rule 37 are imposed only for the failure to comply with a court order.\u201d Pugh v. Pugh, 113 N.C. App. 375, 379, 438 S.E.2d 214, 217 (1994).\nDefendant first contends that the trial court could not impose sanctions under Rule 37(b) because plaintiff never filed a motion to compel discovery pursuant to Rule 37(a). Defendant, however, moved pursuant to Rule 26(c) for an order protecting him from discovery until the criminal charges pending against him were resolved. Rule 26(c), which authorizes entry of a protective order upon motion and good cause shown, also provides that \u201c[i]f the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery.\u201d A motion for a protective order under Rule 26(c) that is denied, therefore, may end in the same result as a motion to compel discovery under Rule 37(a): an order compelling discovery. We hold that violation of an order compelling discovery that results from a motion for a protective order may be the basis for sanctions under Rule 37(b).\nDefendant next argues, citing Bd. of Drainage Comm\u2019rs of Pitt County Drainage Dist. No. 3 v. Dixon, 158 N.C. App. 509, 510, 581 S.E.2d 469, 470 (2003), aff\u2019d per curiam and disc. review improvidently allowed per curiam, 358 N.C. 214, 593 S.E.2d 763 (2004), that he could only be sanctioned under Rule 37 if he failed to physically appear at the deposition. In Dixon, like this case, the party was sanctioned after he appeared at his deposition and refused to answer questions on Fifth Amendment grounds.\nWhat distinguishes this case from Dixon, however, is that the trial court in Dixon imposed sanctions under Rule 37(d) and not, as in this case, under Rule 37(b). Rule 37(d) provides that if a party fails \u201cto appear before the person who is to take his deposition, after being served with a proper notice,... the court in which the action is pending on motion may make such orders in regard to the failure as are just . . . .\u201d The Court, in Dixon, was construing what the word \u201cappear\u201d means for purposes of sanctions under Rule 37(d). 158 N.C. App. at 512, 581 S.E.2d at 471. The Court concluded that when a deposition has been noticed of a party, who is a natural person, and that \u201cparty physically appears at a deposition, the imposition of Rule 37(d) sanctions for failure to appear is not appropriate. The better course of action would have been for [the deponent] to apply for a protective order pursuant to Rule 26(c). Then the trial court could define the scope of the examination in light of defendant\u2019s assertion of his Fifth Amendment privilege.\u201d Id.\nIn this case, the parties proceeded in accordance with \u201c[t]he better course of action\u201d recommended by Dixon. Id. Defendant filed a motion for a protective order, and Judge Eagles entered an order on 19 December 2008 denying that motion and ordering defendant to \u201csubmit\u201d to the deposition. The issue here is not whether defendant failed to appear, within the meaning of Rule 37(d), but whether defendant violated Judge Eagles\u2019 order, thereby subjecting defendant to sanctions under Rule 37(b).\nDefendant next argues that he did not, in fact, violate Judge Eagles\u2019 19 December 2008 discovery order. Defendant claims that the order, by directing him to \u201csubmit to deposition within forty-five days of the date of this Order,\u201d only ordered that he physically appear at the deposition and did not require him to answer any questions. Defendant reasons that since he did appear for the deposition, he complied with the 19 December 2008 order.\nIf we were to accept defendant\u2019s reading of the 19 December 2008 discovery order, then we would have to conclude that Judge Eagles did nothing more than direct defendant to do exactly what he did in October 2008 at the first convening of the deposition \u2014 appear at the deposition and do nothing more. This construction of the order would render meaningless the warning in Judge Eagles\u2019 order that \u201cin the event defendant should elect to claim his privileges under the Fifth Amendment, he may not do so without consequence in the present civil action.\u201d (Emphasis added.)\nWe instead construe the order as directing defendant to appear at the deposition and to either answer the questions posed to him or assert the Fifth Amendment privilege. The order further placed him on notice that if he chose not to answer the questions based on his Fifth Amendment privilege, there would be consequences in this civil action. Indeed, this is all Judge Eagles could legally do in denying defendant\u2019s motion for a protective order and ordering that defendant provide discovery. See Roadway Express, Inc. v. Hayes, 178 N.C. App. 165, 172, 631 S.E.2d 41, 46-47 (2006) (holding that trial court erred in ordering defendant to answer discovery requests following assertion of Fifth Amendment rights); Sugg v. Field, 139 N.C. App. 160, 164, 532 S.E.2d 843, 845-46 (2000) (\u201cThough 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.\u201d). Based on the terms of this order, when defendant chose not to answer the questions, Judge Stone was then authorized to determine what the consequences of that choice would be in this case.\nII\nDefendant further contends that the trial court\u2019s imposition of sanctions for his failure to answer questions at his deposition violated his Fifth Amendment rights. In Cantwell v. Cantwell, 109 N.C. App. 395, 397, 427 S.E.2d 129, 130, disc. review improvidently allowed per curiam, 335 N.C. 235, 436 S.E.2d 588 (1993), this Court recognized that a party may properly invoke his or her Fifth Amendment rights in a deposition in a civil proceeding. The Court stressed, however, that \u201c[t]he privilege against self-incrimination is intended to be a shield and not a sword.\u201d Id. It reasoned that \u201c \u2018if a plaintiff seeks affirmative relief or a defendant pleads an affirmative defense[,] he should not have it within his power to silence his own adverse testimony when such testimony is relevant to the cause of action or the defense.\u2019 \u201d Id. (quoting Christenson v. Christenson, 281 Minn. 507, 517, 162 N.W.2d 194, 200 (1968)).\nThe Court consequently held that \u201ca party has a right to seek affirmative relief in the courts, but if in the course of her action she is faced with the prospect of answering questions which might tend to incriminate her, she must either answer those questions or abandon her claim.\u201d Id. at 398, 427 S.E.2d at 131. The Court explained that in giving the party invoking the Fifth Amendment the choice to either (1) shield himself from criminal charges by refusing to answer questions and abandon his affirmative claim or (2) waive the privilege and pursue the claim, \u201can equitable balance\u201d is created between the party\u2019s right to assert his or her privilege and the opposing party\u2019s right to defend him or herself against claims. Id.\nIn Sugg, 139 N.C. App. at 165, 532 S.E.2d at 846, this Court affirmed the trial court\u2019s dismissal of the plaintiff\u2019s complaint alleging that defendants had trespassed on his property, taken embarrassing videotapes belonging to plaintiff, and shown the videotapes to others. After the plaintiff refused to answer questions in his deposition about the whereabouts of the videotapes once the defendants had returned them, the defendants sought an order compelling disclosure. Id. at 162, 532 S.E.2d at 845. At the reconvened deposition, the plaintiff refused to answer questions based on his Fifth Amendment rights. Id.\nOn appeal from the trial court\u2019s order dismissing the action, this Court affirmed, stating that prior decisions had made it \u201cclear 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.\u201d Id. at 164, 532 S.E.2d at 846. The Court acknowledged that \u201c[d]ismissal is not automatic,\u201d but rather a trial court must employ a balancing test \u201cweighing a party\u2019s privilege against self-incrimination against the other party\u2019s rights to due process and a fair trial.\u201d Id.\nThe Court concluded that the information the plaintiff refused to disclose \u201cwas essential to defendants\u2019 ability to defend against actual and punitive damages\u201d because the plaintiff's testimony might have \u201csignificantly mitigated\u201d the damages. Id. at 165, 532 S.E.2d at 846. The plaintiff\u2019s refusal to answer on Fifth Amendment grounds \u201cseverely limited defendants\u2019 ability to present a defense to plaintiff\u2019s claim for damages.\u201d Id. This Court concluded that the trial court had \u201ccarefully 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.\u201d Id. The Court, therefore, affirmed the order of dismissal. Id.\nIn In re Pedestrian Walkway Failure, 173 N.C. App. 237, 618 S.E.2d 819 (2005), disc. review denied, 360 N.C. 290, 628 S.E.2d 382 (2006), this Court applied the Sugg analysis. The only disputed issue in the pending action was the amount of the plaintiff\u2019s damages, and an important factor in calculating those damages was the amount of profit the plaintiff had received from a house. The trial court dismissed the action under Rule 37 and Rule 41 of the Rules of Civil Procedure based, in part, on the plaintiff\u2019s assertion of his Fifth Amendment privilege in response to questions by defense counsel related to the house sale. Id. at 250, 618 S.E.2d at 828.\nThis Court held that the trial court properly applied the Sugg balancing test. On the one hand, the plaintiff\u2019s \u201cdecision to assert the Fifth Amendment\u201d rather than answer the deposition questions \u201cserved to impede [the defendant\u2019s] ability to obtain accurate discovery\u201d on an issue that the trial court found was of importance to the case. On the other hand, the trial court \u201cproperly indicate [d] that the value of asserting the Fifth Amendment was minimal in light of\u2019 conduct to which the defendant had already testified. Id. at 250-51, 618 S.E.2d at 828.\nIn Roadway Express, 178 N.C. App. at 172-74, 631 S.E.2d at 46-47, this Court held that this analysis also applies to a defendant\u2019s assertion of his Fifth Amendment rights. In Roadway, the defendant refused to respond based on the Fifth Amendment to the plaintiff\u2019s requests for information relating to any prescription drugs that defendant may have been under the influence of at the time of the accident. After concluding that the trial court erred in ordering the defendant to respond, id. at 172, 631 S.E.2d at 46-47, the Court observed that the defendant\u2019s refusal to respond to the discovery requests \u201cmay preclude him from asserting certain affirmative defenses.\u201d Id., 631 S.E.2d at 47.\nIn Roadway Express, the defendant had raised the affirmative defenses of sudden emergency and contributory negligence. Id. at 173 & n.2, 631 S.E.2d at 47 & n.2. Although the Court concluded that the contributory negligence defense did \u201cnot appear to be affected by Defendant\u2019s invocation of his Fifth Amendment rights,\u201d id. at 173 n.2, 631 S.E.2d at 47 n.2, the Court determined that the \u201c [defendant's state of mind, including whether he was under the influence of prescription drugs, at the time of the accident must be evaluated to determine whether Defendant had the ability to act as an ordinarily prudent person would have acted at the time of the accident.\u201d Id. at 173, 631 S.E.2d at 47. The Court, therefore, ruled that upon remand for trial\nour holding permits Defendant to assert his Fifth Amendment privilege to protect himself from self-incrimination in responding to Plaintiff\u2019s request for admissions and interrogatories relating to factual information on medications he may have been under the influence of at the time of the accident. However, at trial, if the trial court determines such responses are essential to evaluate the application of the sudden emergency doctrine, the trial court must hold that Defendant\u2019s choice to invoke his rights not to respond to the request for admissions and interrogatories precludes his assertion of the sudden emergency defense to Plaintiff\u2019s allegations.\nId. at 173-74, 631 S.E.2d at 47 (emphasis added).\nHere, while, in contrast to In re Pedestrian Walkway Failure, the value to defendant of asserting his Fifth Amendment rights may be substantial, the trial court found that this assertion of rights \u201cis prejudicial to the due process rights of plaintiff\u2019 because it \u201chas served to impede plaintiff\u2019s ability to obtain accurate discovery about the nature of defendant\u2019s affirmative defenses.\u201d The trial court, after balancing the interests of both parties and considering other lesser sanctions, \u201cdetermined that sanctions less severe than striking defendant\u2019s affirmative defenses would not be adequate.\u201d This conclusion was not manifestly unreasonable and, therefore, was not an abuse of discretion. See In re Pedestrian Walkway Failure, 173 N.C. App. at 246, 618 S.E.2d at 826 (\u201cThe imposition of sanctions under Rule 37 is in the sound discretion of the trial judge and cannot be overturned absent a showing of abuse of that discretion.\u201d (internal quotation marks omitted)).\nDefendant alleged in his answer:\nPrior to April 27, 2008, at 11:38 p.m., and specifically within the ten hours preceding that time and date, Howard Bradley Wicker, together with Nancy Lovendahl Wicker, had been together, in each others [sic] presence, and had been in a position to observe each other\u2019s behavior, including the participation in consuming alcoholic beverages and at the time of the accident, April 27, 2008, at 11:38 p.m., and for the thirty minutes to one hour before that time, Nancy Lovendahl Wicker, decedent, knew the condition of Defendant Howard Bradley Wicker, including but not limited to his level of intoxication or impairment and ability to drive an automobile.\nOn this occasion and all times herein relevant, Nancy Lovendahl Wicker elected to ride as a passenger in the 2005 Volvo automobile owned and operated by Howard Bradley Wicker after she had been in his presence for the past eight or ten hours and knew, [or] by exercising reasonable care, should have known, of his intoxication or impairment level, the amount of alcohol or other impairing substance which he had consumed and knew, and exercised [sic] a reasonable care should have known, that [it] was unsafe to ride as a passenger in the motor vehicle with Defendant Howard Bradley Wicker at that time.\nOn this occasion and all times herein relevant, Nancy Lovendahl Wicker was careless and negligent in that she:\na) Rode as a passenger in a motor vehicle with the Defendant when she knew, [or] exercising reasonable care, should have known that he had consumed some sort of impairing substance to the point that he had impaired both of his mental and physical facilities and it was unsafe to drive;\nb) Rode as a passenger in a motor vehicle with Defendant Howard Bradley Wicker after she knew, [or] exercising reasonable care, should have known that he was impaired by an impairing substance;\nc) Rode as a passenger in a motor vehicle with Defendant Howard Bradley Wicker after she had been in [his] presence for such a sufficient period [of] time to have observed his behavior and have been aware of his condition and ability to drive or not be able to drive an automobile;\nd) Rode as a passenger in a motor vehicle with Defendant Howard Bradley Wicker and failed to remonstrate;\ne) Failed to exercise that degree of care which a reasonable and prudent person would have exercised under the same or similar circumstances; and\nf) Was careless and negligent in other respects to be proven at trial].]\nTo prevail on the defense of contributory negligence, defendant must show Ms. Wicker voluntarily chose to get in the car with him when she knew or should have known he was too impaired to drive. See Coleman v. Hines, 133 N.C. App. 147, 149, 515 S.E.2d 57, 59 (explaining that \u201cwhere a passenger \u2018enters an automobile with knowledge that the driver is under the influence of an intoxicant and voluntarily rides with him, he is guilty of contributory negligence per se\u2019 \u201d (quoting Davis v. Rigsby, 261 N.C. 684, 686-87, 136 S.E.2d 33, 35 (1964))), disc. review denied, 350 N.C. 826, 539 S.E.2d 281 (1999). Defendant is the only person who was with Ms. Wicker prior to her becoming a passenger in defendant\u2019s car and while they were driving before the accident. Since Ms. Wicker is deceased, defendant has information that is essential to plaintiff\u2019s ability to respond to the contributory negligence defense contending that she negligently (or with gross negligence) drove with him knowing that he was intoxicated.\nDefendant urges that there are other sources by which it could be determined whether Ms. Wicker voluntarily got into the car with defendant prior to the accident. Plaintiff, in discovery, identified a neighbor who witnessed defendant carry Ms. Wicker out of the house and put her in the car that day. Plaintiff also stated in his deposition that in his opinion, his mother should not have been conscious based on the blood alcohol level she was found to have after the accident, a fact that defendant argues could be used to indicate Ms. Wicker did not voluntarily get into the car that evening.\nDefendant\u2019s argument, however, misses a critical point. Defendant could not assert contributory negligence as an affirmative defense in his answer unless the defense was \u201cwell grounded in fact and [was] warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law . . . .\u201d N.C.R. Civ. P. 11(a). Thus, defendant must have a factual basis for his allegations that Ms. Wicker \u201celected to ride as a passenger\u201d in a car operated by defendant, that she \u201cfailed to remonstrate\u201d while defendant was driving, and she \u201c[flailed to exercise that degree of care which a reasonable and prudent person would have exercised under the same or similar circumstances.\u201d\nPlaintiff cannot learn that factual basis for the affirmative defenses and prepare to defend against it without obtaining discovery from defendant. Indeed, defendant, in arguing that plaintiff did not need to take his deposition, claims that in plaintiff\u2019s deposition, \u201c[h]e also agreed that he had no basis to dispute the allegations contained in paragraph III of the affirmative defense that the Defendant and his wife had been together for 8-10 hours preceding the accident and had the opportunity to observe each other during that time and that Mrs. Wicker knew the level of the Defendant\u2019s intoxication or impairment.\u201d Since it appears that defendant is the only witness to those eight to 10 hours, plaintiff can have no basis for challenging that allegation without taking defendant\u2019s deposition.\nWe could speculate about the different options for addressing the potential factual bases for the contributory negligence defense. One of those options would certainly be by presenting evidence that Ms. Wicker was not conscious when she was carried to the car, but plaintiff has no way of knowing, without discovery, whether defendant has a negligence theory that a lack of consciousness fails to rebut. Even as to the question of Ms. Wicker\u2019s consciousness, plaintiff needs to know what defendant would likely say at trial on that issue. Cf. Prince v. Duke Univ., 326 N.C. 787, 789-90, 392 S.E.2d 388, 389-90 (1990) (recognizing that party is unfairly prejudiced when denied opportunity to depose a witness prior to trial because of inability to prepare for cross-examination).\nMoreover, without deposing defendant, plaintiff would not be able to prepare to meet defendant\u2019s claim of contributory negligence with evidence that defendant acted willfully and wantonly negligent. See Sloan v. Miller Bldg. Corp., 119 N.C. App. 162, 167, 458 S.E.2d 30, 33 (holding proof of willful and wanton negligence can overcome claim of contributory negligence), disc. review denied, 341 N.C. 652, 462 S.E.2d 517 (1995). Plaintiff also needs to know the evidentiary basis for defendant\u2019s contention \u2014 anticipating a willful and wanton argument \u2014 that Ms. Wicker was grossly contributorily negligent.\nAlthough defendant argues that plaintiff can anticipate what defendant\u2019s testimony will be by looking at defendant\u2019s answer, the answer does not provide the detail necessary to prepare to respond to the defense or to cross-examine defendant. Moreover, defendant\u2019s answer is unverified, and there is no guarantee that he will testify at trial in line with what he has alleged in his pleadings. Indeed, the purpose of a pre-trial deposition is to test the allegations made in the pleadings under penalty of perjury and to obtain additional details that may undermine those allegations. It would be fundamentally unfair to require plaintiff to proceed to trial totally unprepared for what position defendant is going to take with regard to the contributory negligence defense.\nIn In re Edmond, 934 F.2d 1304, 1306 (4th Cir. 1991), the defendant in a civil case had asserted his Fifth Amendment rights. Then, immediately before trial, he moved for summary judgment, attaching an unverified affidavit. On appeal from the trial court\u2019s denial of his motion for summary judgment, the Court affirmed, explaining:\nBy selectively asserting his Fifth Amendment privilege, Edmond attempted to insure that his unquestioned, unverified affidavit would be the only version. But the Fifth Amendment privilege cannot be invoked as a shield to oppose depositions while discarding it for the limited purpose of making statements to support a summary judgment motion.\nId. at 1308. The Court then held that because the trial court had properly declined to consider the affidavit, the defendant had failed to meet his burden of showing that no genuine issue of material fact existed. Id.\nSimilarly, here, defendant is attempting to ensure that by virtue of his invocation of the Fifth Amendment privilege, his unverified pleading is the only version of the facts plaintiff has before him to prepare for trial. See also SEC v. Zimmerman, 854 F. Supp. 896, 898-99 (N.D. Ga. 1993) (holding defendant could not withhold evidence in discovery on Fifth Amendment grounds and then waive privilege at trial and surprise plaintiff with evidence, explaining that \u201c[t]he Fifth Amendment privilege cannot be invoked to oppose discovery and then tossed aside to support a party\u2019s assertions\u201d).\nGiven these circumstances, we hold that the trial court properly balanced the interests of the parties. The court did not abuse its discretion in determining that since defendant chose to assert his Fifth Amendment rights, his affirmative defenses should be struck.\nIll\nDefendant, however, further argues that the trial court erred by not adequately considering alternative sanctions before striking his affirmative defenses. Although a trial court is required to consider less severe sanctions before dismissing a party\u2019s claim with prejudice under Rule 37, it retains the discretion to impose a dismissal after doing so. Global Furn., Inc. v. Proctor, 165 N.C. App. 229, 233, 598 S.E.2d 232, 235 (2004) (\u201cThe trial court is not required to impose lesser sanctions, but only to consider lesser sanctions.\u201d). \u201c[T]his Court will affirm an order for sanctions where \u2018it may be inferred from the record that the trial court considered all available sanctions\u2019 and \u2018the sanctions imposed were appropriate in light of [the party\u2019s] actions in th[e] case.\u2019 \u201d In re Pedestrian Walkway Failure, 173 N.C. App. at 251, 618 S.E.2d at 828 (quoting Hursey v. Homes by Design, Inc., 121 N.C. App. 175, 179, 464 S.E.2d 504, 507 (1995)).\nWe have already concluded that the sanctions imposed were appropriate, but we must still consider whether the trial court considered less severe sanctions. In In re Pedestrian Walkway Failure, this Court held that a trial court had indicated that it fulfilled its duty to consider lesser sanctions when it stated in the order that it had considered the available sanctions and determined that sanctions less severe than dismissal would not be adequate. Id., 618 S.E.2d at 829.\nIn this case, the trial court stated:\n10. The Court has carefully considered defendant\u2019s conduct, as well as its cumulative effect, and has also considered the available sanctions for such conduct, including, without limitation treating defendant as in contempt, staying proceedings until defendant elects to testify, prohibiting defendant from presenting evidence, and other lesser sanctions. After thorough consideration and balancing the interests of the parties, the Court has determined that sanctions less severe than striking defendant\u2019s affirmative defenses would not be adequate.\nThis conclusion is even more specific than that found sufficient in In re Pedestrian Walkway Failure and, therefore, is adequate to demonstrate that the trial court considered lesser sanctions.\nDefendant nonetheless contends that the trial court erred in failing to consider two alternative ways to resolve the parties\u2019 competing interests. First, defendant points out that he offered to answer certain questions at the deposition. The trial court found, however, that counsel for defendant stated on the record at the second deposition: \u201c \u2018[Defendant] can state what his current address is, but beyond that he will assert his Fifth Amendment right against self-incrimination to each and every question posed by the plaintiff in this matter.\u2019 \u201d In any event, defendant has not shown that he ever committed to answering the questions relevant to plaintiff\u2019s response to his contributory negligence defense or that he committed to a specific time frame for answering them.\nDefendant also points out that the trial court could have waited to proceed with the civil case until after the criminal proceedings had been resolved, at which point he would have answered any and all questions. The trial court expressly considered the option of staying proceedings and found it inadequate. Defendant has not cited any North Carolina case requiring the trial court to put off a civil case indefinitely \u2014 requiring a plaintiff to wait to prosecute his claims\u2014 until a criminal case is resolved, presumably including any appeal.\nMoreover, Judge Eagles declined to stay discovery in her order entered 19 December 2008 and denied defendant\u2019s motion to continue the trial in an order entered 23 March 2009. The case was then set for trial on 4 May 2009. Defendant did not appeal either order refusing to postpone the case until after the criminal proceedings were resolved. His notice of appeal reads: \u201cDefendant Howard Bradley Wicker[] hereby gives notice of appeal to the Court of Appeals of North Carolina from the Order dated April 28, 2009 in the Superior Court of Guilford Countfy] in which the Honorable Richard W. Stone struck the Defendant\u2019s Affirmative Defenses.\u201d The Defendant has not explained in what way Judge Stone\u2019s order was an abuse of discretion in light of Judge Eagles\u2019 denial of the motion for a continuance, requiring plaintiff and defendant both to proceed to trial on 4 May 2009.\nWe note that defendant asks in the conclusion of both his main brief and his reply brief that this Court, in addition to reversing the order striking defendant\u2019s affirmative defenses, also remand this case with instructions directing the trial court to stay the proceedings until the criminal action against defendant has been resolved. Because defendant did not appeal Judge Eagles\u2019 orders, the issue of a stay or the denial of a continuance is not before us. Since, however, the trial court stayed this case pending appeal, defendant has effectively received a substantial stay of the proceedings.\nIn sum, we hold that Judge Stone did not abuse his discretion in entering the order striking defendant\u2019s affirmative defenses. The order is, therefore, affirmed.\nAffirmed.\nJudges CALABRIA and STEPHENS concur.\n. Although the merits of the underlying lawsuit have not yet been resolved, we have jurisdiction to hear this appeal because \u201can order imposing sanctions under Rule 37(b) is appealable as a final judgment.\u201d Smitheman v. Nat'l Presto Indus., Inc., 109 N.C. App. 636, 640, 428 S.E.2d 465, 468, disc. review denied, 334 N.C. 166, 432 S.E.2d 366 (1993).\n. Defendant asserted only two affirmative defenses: contributory negligence and gross contributory negligence.\n. We note that defendant\u2019s reliance on his answer as a substitute for his testimony undermines his assertion of his Fifth Amendment rights. If defendant is representing to the Court that his testimony will be the same as the information in his answer, then this case may be similar to In re Pedestrian Walkway Failure, in which the plaintiffs admissions in his deposition rendered his assertion of his Fifth Amendment rights of \u201cminimal\u2019\u2019 value.\n. We express no opinion whether such an appeal would be a permissible interlocutory appeal. See Howerton v. Grace Hosp., Inc., 124 N.C. App. 199, 201, 476 S.E.2d 440, 442-43 (1996) (holding that trial court\u2019s denial of motion to stay state proceedings pending outcome of related federal proceedings was interlocutory order that could not be immediately appealed absent showing that substantial right would be affected).", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Hicks McDonald Noecker LLP, by David W. McDonald; and Rightsell & Eggleston, LLP, by Donald P Eggleston, for plaintiff-appellee.", "Teague, Rotenstreich, Stanaland, Fox & Holt, PLLC, by Paul A. Daniels, for defendant-appellant." ], "corrections": "", "head_matter": "CLINT M. LOVENDAHL, Administrator of the Estate of NANCY LOVENDAHL WICKER, Plaintiff v. HOWARD BRADLEY WICKER, Defendant\nNo. COA09-954\n(Filed 7 December 2010)\n1. Discovery\u2014 violations \u2014 asserting Fifth Amendment privileges in civil case \u2014 Rule 37 sanctions\nThe trial court did not err in a wrongful death case by imposing sanctions under N.C.G.S. \u00a7 1A-1, Rule 37 including striking defendant\u2019s affirmative defenses for failure to comply with discovery. Violation of an order compelling discovery that results from a motion for a protective order may be the basis for sanctions under Rule 37(b). Further, the trial court previously warned that there would be consequences if defendant elected to claim his privileges under the Fifth Amendment in this civil action.\n2. Constitutional Law\u2014 right to remain silent \u2014 deposition\u2014 sanctions in civil case\nThe trial court did not violate defendant\u2019s Fifth Amendment rights in a wrongful death case by imposing sanctions based on defendant\u2019s failure to answer questions at his deposition. Defendant\u2019s assertion of rights was prejudicial to the due process rights of plaintiff because it served to impede plaintiff\u2019s ability to obtain accurate discovery about the nature of defendant\u2019s affirmative defenses.\n3. Pleadings\u2014 striking affirmative defenses \u2014 consideration of alternative sanctions\nThe trial court did not abuse its discretion in a wrongful death case by allegedly failing to consider alternative sanctions before striking defendant\u2019s affirmative defenses. Although defendant contended that he offered to answer certain questions at the deposition, he failed to show that he ever committed to answering the questions relevant to plaintiff\u2019s response to his contributory negligence defense or that he committed to a specific time frame for answering them. Further, the trial court expressly considered staying the proceedings and found it to be an inadequate option.\nAppeal by defendant from order entered 28 April 2009 by Judge Richard W. Stone in Guilford County Superior Court. Heard in the Court of Appeals 28 January 2010.\nHicks McDonald Noecker LLP, by David W. McDonald; and Rightsell & Eggleston, LLP, by Donald P Eggleston, for plaintiff-appellee.\nTeague, Rotenstreich, Stanaland, Fox & Holt, PLLC, by Paul A. Daniels, for defendant-appellant." }, "file_name": "0193-01", "first_page_order": 217, "last_page_order": 235 }