An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-257-2


Filed: 20 September 2005


v .                         Wilson County
                            No. 02 CVS 1224

    Appeal by plaintiff from judgment entered 25 August 2003 by Judge William C. Griffin, Jr. In Superior Court, Wilson County. This matter was originally heard in the Court of Appeals on 3 November 2004, and an unpublished opinion was filed by this Court on 21 December 2004 finding no error in the trial court's judgment. Plaintiff filed a petition for rehearing on 10 January 2005. An order granting the petition to rehear the issue of whether the trial court erred in denying plaintiff's request to introduce into evidence defendant's deposition was entered 8 February 2005. The following opinion supersedes and replaces the opinion filed 21 December 2004.

    Thomas and Farris, P.A., by Albert S. Thomas, Jr. and Kurt D. Schmidt, for plaintiff-appellant.

    Battle, Winslow, Scott & Wiley, P.A., by W. Dudley Whitley, III, for defendant-appellant.

    McGEE, Judge.

    A review of the facts in this case is set forth in the prior opinion of this Court. Plaintiff argues defendant's deposition testimony was admissible under N.C. Gen. Stat. § 1A-1, Rule 32,which states:
    (a) Use of depositions. -- At the trial . . . any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

        . . . .

    (3) The deposition of a party . . . may be used by an adverse party for any purpose, whether or not the deponent testifies at the trial or hearing.

    . . . .

    (5) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which is relevant to the part introduced, and any party may introduce any other parts.

    . . . .

N.C. Gen. Stat. § 1A-1, Rule 32 (2003) (second and third emphases added). Our Court has previously held that N.C.G.S. § 1A-1, 32(a)(3) "makes useable without restriction" the deposition of a party that is "otherwise admissible under the rules of evidence." Stilwell v. Walden, 70 N.C. App. 543, 547-48, 320 S.E.2d 329, 332 (1984). In Stilwell, we held the trial court erred in refusing to allow the plaintiff to introduce the defendant's deposition when the trial court's reason for the refusal was that the defendant "was present in court and could therefore testify from the stand if [the] plaintiff saw fit to use [the defendant]." This was not aproper "basis for excluding the deposition of a party, which Rule 32(a)(3) of the N.C. Rules of Civil Procedure makes useable without restriction[.]" Id. at 547, 320 S.E.2d at 332.
     In Lenins v. K-Mart Corp., 98 N.C. App. 590, 598, 391 S.E.2d 843, 848 (1990), the plaintiffs argued the trial court erred "in allowing in evidence selected portions of . . . the plaintiff[s'] depositions and in overruling [the] plaintiffs' motions that the entire depositions be admitted." Our Court found the trial court did not err and we further stated that once a portion of a party's deposition has been entered into evidence, Rule 32(a)(5) "allows the admission of 'any other part which is relevant to the part introduced.'" Id.
    In the case before us, plaintiff moved to read portions of defendant's deposition into evidence. Defendant objected to the motion "unless [plaintiff] want[ed] to read [all the deposition] into the record." The trial court responded that plaintiff could read portions of plaintiff's choosing and that defendant could then "read the other portions." In response to the trial court's statement, defendant requested a bench conference. After the bench conference, arguments were held outside the presence of the jury.     During these arguments, defendant objected to plaintiff's motion to enter into evidence certain portions of defendant's deposition based on Rule 32(a)(2) of the North Carolina Rules of Civil Procedure. In response, plaintiff argued that Rule 803 of the North Carolina Rules of Evidence allowed for party admissions to be admitted into evidence. The trial court stated that Rule 803was not applicable, to which plaintiff asked whether or not he could use defendant's deposition. The trial court responded, stating that plaintiff could use the deposition "as the rule permits" and that the "whole deposition" could be entered into evidence. The trial court further stated that a deposition could be used to impeach a witness who testified differently from the witness's deposition testimony. Following this statement, the trial court sustained defendant's objection. Plaintiff excepted to the trial court's ruling.
    Following the lunch recess, plaintiff renewed his request to read a portion of defendant's deposition into evidence, citing Rule 32(a)(3) of the N.C. Rules of Civil Procedure. Defendant responded by citing Rule 32(a)(5) of the N.C. Rules of Civil Procedure, stating that defendant intended to "make [plaintiff] put the whole [deposition] in[.]"
    The trial court directed plaintiff to read Rule 32(a)(4) of the N.C. Rules of Civil Procedure. The trial court stated that Rule 32(a)(4) "limits [use of a deposition] to certain circumstances." Plaintiff contended that Rule 32(a)(4) governed "the deposition of a witness." The trial court agreed that defendant was not a witness, but a party.
    When plaintiff read aloud Rule 32(a)(3) relating to the deposition of a party, the trial court issued its ruling, stating:
I believe the Court in its discretion to manage the trial in the best interest of the parties is going to decline to permit you to put in a portion of [defendant's deposition]. You can call him as a witness, call him as an adverse witness, cross-examine him if you want to. There's case law to suggest that oral testimony is -- is the more desirable procedure and that you can use a deposition if the person is not available.

    This final determination of the trial court restricted plaintiff's right to use defendant's deposition in violation of N.C.G.S. § 1A-1, Rule 32(a)(3), and this Court's holding in Stilwell. See N.C.G.S. § 1A-1, Rule 32(a)(3); Stilwell, 70 N.C. App. at 547-48, 320 S.E.2d at 332. The trial court erred in not allowing plaintiff to read into evidence portions of defendant's deposition. Under N.C.G.S. § 1A-1, Rule 32(a)(5), defendant could then have requested introduction of "any other part which [was] relevant to the part introduced[.]" See Lenins, 98 N.C. App. At 598, 391 S.E.2d at 848.
    New trial.
    Judges BRYANT and JACKSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***