JAMES THOMAS GODWIN,
Plaintiff-Appellant,
v
.
Wilson County
No. 02 CVS 1224
CHARLES G. BARNES,
Defendant-Appellee.
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).
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