How to access the above link?
Return to nccourts.org
Return to the Opinions Page
1. Process and Service--guardian of person--failure to appoint guardian ad litem
The trial court erred in a negligence, ultra-hazardous activity, and loss of consortium case
arising out of an injury while gem mining on the incompetent defendant's real property by
concluding that defendant was properly sued and served through her guardian of the person,
because: (1) the legislature's decision to confer power to maintain an action on a general
guardian but not a guardian of the person implies that the latter lacks such power; (2) N.C.G.S. §
1A-1, Rule 17(b)(2) requires appointment of a guardian ad litem where no general or
testamentary guardian has been appointment; and (3) defendant was neither properly sued nor
served in the absence of a guardian ad litem or general guardian.
2. Discovery_failure to appear at deposition--sanctions--failure to consider lesser
sanctions before striking defenses--abuse of discretion
The trial court abused its discretion in a negligence, ultra-hazardous activity, and loss of
consortium case arising out of an injury while gem mining on defendant's real property by
granting plaintiffs' motion for sanctions against defendants for failure to appear at a deposition
by barring defendants from denying liability and limiting the trial to damages because the trial
court did not consider any lesser sanctions before striking defendants' defenses on the issue of
liability.
Melrose, Seago & Lay, P.A., by Randal Seago, for plaintiffs-
appellees.
Collins & Hensley, P.A., by Robert E. Hensley, for defendants-
appellants.
MARTIN, Chief Judge.
Defendants appeal from a judgment entered upon a jury verdict
in favor of the plaintiffs totaling $187,500. For the reasonsbelow, we vacate the trial court's judgment and remand for further
proceedings after appointment of a proper guardian for defendant
Mason.
The evidence before the trial tended to show that defendant
Mason was, on the date this action was filed, approximately 90
years old and resided in a nursing facility for the elderly in
Macon County. On 11 July 2002, the Clerk of Superior Court for
Macon County determined that she lacked sufficient capacity to
manage her own affairs or make important decisions concerning her
person, family or property, and adjudicated her incompetent. Her
daughter and co-defendant, Cora Lee Campbell, was appointed
guardian of her person on 1 August 2002.
Plaintiff Cornelius Clawser was injured on 12 September 2002
while gem mining on real property owned by defendant Mason. On 5
June 2003, plaintiffs filed suit against defendant Campbell,
alleging negligence, ultra-hazardous activity and loss of
consortium. Defendant Campbell filed an Answer on 17 August 2003
through James R. Anderson, her attorney. Plaintiffs filed an
amended complaint to add defendant Mason on 21 November 2003. The
Amended Complaint was served by mail addressed to “John R. Anderson
. . . For Defendant Cora Lee Campbell.” On 13 March 2004, Mr.
Anderson filed an answer purportedly on behalf of both Ms. Mason
and Ms. Campbell denying negligence but conceding personal
jurisdiction over both defendants. Mr. Anderson was subsequently
allowed to withdraw as counsel due to his relocation toFayetteville. In the interim, plaintiffs had sought and obtained
an entry of default on 21 January 2004.
Defendant Campbell subsequently sought to retain the services
of another local attorney, Andrew Patterson. On the first day of
trial, prior to jury selection, Mr. Patterson advised the court
that he had not agreed to represent defendant Campbell, and did not
represent her. At the same time, the trial court addressed the
plaintiffs' motion for sanctions against defendants for defendant
Campbell's failure to appear at a deposition. Defendant Campbell
told the court that Mr. Patterson had advised her not to go to the
deposition since he would not be able to appear. The trial court
allowed plaintiffs' motion to strike defendants' answer with
respect to liability, and to proceed to trial solely on damages.
During the course of the trial, the trial court became aware that
Mr. Patterson had not returned the defendants' case file to Ms.
Campbell after deciding not to represent defendants. The trial
court expressed its concern over the situation, but continued the
trial with defendant Campbell representing herself and her mother
pro se. After deliberation, the jury awarded Cornelius Clawser
$185,000 for his injuries, and Marlene Clawser $2,500 for loss of
consortium.
On 19 August 2005, defendants filed a Motion Pursuant to Rule
60 and a Motion for Temporary and Preliminary Injunction. On 22
August 2005, the Macon County Superior Court entered an order
temporarily restraining and enjoining the Macon County Sheriff's
Department from taking any action to execute on the judgment. Theorder was periodically extended. Defendants' Rule 60 motion came
for a hearing before the Macon County Superior Court on 9 September
2005. On 19 October 2005, the court ruled that defendants had
failed to plead or prove any grounds for relief under Rule 60. The
motion was denied. This appeal follows.
[1] We first address the issue of whether defendant Mason was
properly sued and served through her Guardian of the Person.
Plaintiffs argue that she was properly served and defended, and
that furthermore, any objection to service has been waived by the
failure of defendants to raise it as a threshold defense.
Defendants contend that since defendant Mason was never served
appropriately and that her Guardian of the Person was not
authorized to undertake a defense on her behalf, any service and
consequent waiver was ineffective. Whether a Guardian of the
Person may sue or be sued on behalf of a ward appears to be an
issue of first impression in North Carolina. None of the authority
cited by the parties in their briefs speaks directly to the issue,
and our own research has failed to unearth any. However, our
Supreme Court has held that if a defendant is non compos mentis, he
must defend by “general or testamentary guardian if he has one
within the state, and, if he has none, by a guardian ad litem to be
appointed by the court.” Hood v. Holding, 205 N.C. 451, 453, 171
S.E. 633, 634 (1933). We note that defendant Mason had no general
or testamentary guardian, and no guardian ad litem was ever
appointed by the court. We further note that the Hood holding is supported by the
current statutory scheme. The statutes governing general guardians
specifically grant general guardians the power to undertake and
defend legal actions on behalf of their wards:
In the case of an incompetent ward, a general
guardian or guardian of the estate has the
power to perform in a reasonable and prudent
manner every act that a reasonable and prudent
person would perform incident to the
collection, preservation, management, and use
of the ward's estate to accomplish the desired
result of administering the ward's estate
legally and in the ward's best interest,
including but not limited to the following
specific powers:...
(3) To maintain any appropriate action or
proceeding to recover possession of any of the
ward's property, to determine the title
thereto, or to recover damages for any injury
done to any of the ward's property; also, to
compromise, adjust, arbitrate, sue on or
defend, abandon, or otherwise deal with and
settle any other claims in favor of or against
the ward.
N.C. Gen. Stat § 35A-1251 (2005). By contrast, the statute dealing
with Guardians of the Person confers no power to maintain action,
only stating that such a Guardian may confer such consent as
necessary to maintain a service:
§ 35A-1241. Powers and duties of guardian of
the person
(a) To the extent that it is not inconsistent
with the terms of any order of the clerk or
any other court of competent jurisdiction, a
guardian of the person has the following
powers and duties:....
(3) The guardian of the person may give any
consent or approval that may be necessary to
enable the ward to receive medical, legal,
psychological, or other professional care,
counsel, treatment, or service. The guardian
shall not, however, consent to the
sterilization of a mentally ill or mentally
retarded ward unless the guardian obtains anorder from the clerk in accordance with G.S.
35A-1245. The guardian of the person may give
any other consent or approval on the ward's
behalf that may be required or in the ward's
best interest. The guardian may petition the
clerk for the clerk's concurrence in the
consent or approval.
Under the doctrine inclusio unius est exclusio alterius (“The
inclusion of one is the exclusion of another.” Black's Law
Dictionary 763 (6th ed. 1990)), the legislature's decision to
confer the power to maintain an action on a general guardian, but
not a guardian of the person, implies that the latter lacks such
power. This is also an implied requirement of our Rules of Civil
Procedure which impose the requirement of appointment of a guardian
ad litem where no general or testamentary guardian has been
appointed. See N.C. Gen. Stat. § 1A-1, Rule 17(b)(2)(2005)(“In
actions or special proceedings when any of the defendants are
infants or incompetent persons, . . . they must defend by general
or testamentary guardian, if they have any within this State or by
guardian ad litem appointed as hereinafter provided.”) Therefore,
we must conclude that defendant Mason was neither properly sued nor
served in the absence of a guardian ad litem or general guardian,
and set aside the verdict against her on that basis.
[2] Turning to defendant Campbell, defendants argue that the
trial court erred in granting the plaintiffs' motion for sanctions
against defendants by barring defendants from denying liability,
and limiting the trial to damages. We agree.
Plaintiffs argue that the entry of default against the
defendants was based on their failure to file a responsive pleadingto the Amended Complaint. However, the transcript clearly reveals
that the issue of liability was decided based on defendant
Campbell's failure to attend her scheduled discovery deposition.
At the time in question, plaintiffs' counsel told the trial court:
Plaintiff Counsel: We would ask the court to
enter a judgment against her [defendant] as to
liability and proceed only on damages. That
would be our request for - an appropriate
response for not participating in her
deposition. . . .
Trial Court: The Court will allow the motion
of the plaintiff as to liability and will try
this matter on the question of damages, and
finds that the plaintiff [sic] received notice
of the deposition and for whatever reason
chose not to appear at the deposition and made
no appearance at the deposition following due
and proper notice of the deposition. So we'll
try the matter only on the question of
damages. . . . Ma'am, I don't know if you
understand what's going on or not, but
liability is no longer an issue, the Court
having decided that that is a proper
determination for the Court to make as
sanctions for your failure to appear for the
deposition.
(Emphasis added). The above exchange makes clear that defendants'
denial of liability was stricken based solely for defendant
Campbell's discovery violations, and not by reason of the earlier
entry of default. Having asserted only that ground in their
arguments to the trial court, plaintiffs are estopped from raising
an alternative argument before this Court. “Our Supreme Court has
long held that where a theory argued on appeal was not raised
before the trial court, the law does not permit parties to swap
horses between courts in order to get a better mount in theappellate courts.” State v. Holliman, 155 N.C. App. 120, 123, 573
S.E.2d 682, 685 (2002) (citation omitted).
Therefore, we review the propriety of striking the defendants'
defenses as a sanction for the discovery violation. This Court has
recently reaffirmed “that trial courts are not without the power to
sanction parties for failure to comply with discovery orders.”
Harrison v. Harrison, 180 N.C. App. 452, 456, 637 S.E.2d 284, 288
(2006). Striking of defenses or counterclaims is an appropriate
remedy, and is within the province of the trial court. Jones v.
GMRI, Inc., 144 N.C. App. 558, 565, 551 S.E.2d 867, 872 (2001).
This Court will not disturb a dismissal absent a showing of abuse
of discretion by the trial judge. Benton v. Hillcrest Foods, Inc.,
136 N.C. App. 42, 524 S.E.2d 53 (1999). However, if the trial
court chooses to exercise the option of striking a party's defenses
or counterclaims, it must do so after considering lesser sanctions.
See In re Pedestrian Walkway Failure, 173 N.C. App. 237, 251, 618
S.E.2d 819 (2005); Goss v. Battle, 111 N.C. App. 173, 176, 432
S.E.2d 156, 159 (1993).
An examination of the transcript reveals that the trial court
did not consider any lesser sanctions before striking the
defendants' defenses on the issue of liability. The trial then
proceeded on the sole issue of damages. Therefore, we are
compelled to set aside the trial court's order striking defendants'
defenses. The judgment is thus vacated, and the case remanded to
the trial court for proceedings consistent with this opinion.
Judgment vacated; Remanded. Judges WYNN and GEER concur.
*** Converted from WordPerfect ***