Manning v. Anagnost

739 S.E.2d 859, 225 N.C. App. 576, 2013 WL 599784, 2013 N.C. App. LEXIS 181
CourtCourt of Appeals of North Carolina
DecidedFebruary 19, 2013
DocketNo. COA12-1030
StatusPublished
Cited by6 cases

This text of 739 S.E.2d 859 (Manning v. Anagnost) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Manning v. Anagnost, 739 S.E.2d 859, 225 N.C. App. 576, 2013 WL 599784, 2013 N.C. App. LEXIS 181 (N.C. Ct. App. 2013).

Opinion

STEELMAN, Judge.

Where plaintiff challenged the credibility of defendant at trial, the trial court did not err in admitting character evidence of defendant’s truthfulness. The trial court did not err in allowing defendant to present the deposition of a witness at trial in the interest of justice. Defendant was not required to tender a treating physician as an expert witness. The trial court did not abuse its discretion in holding that defendant had denied certain allegations contained in plaintiff’s complaint in good faith.

I. Factual and Procedural History

Harold Manning (plaintiff) was married to Evangeline Regina Manning (decedent). On 19 September 2007, Dr. John William Anagnost (defendant) saw decedent in his medical office, at which time he instructed her to go immediately to the hospital. Decedent elected to go to choir practice that evening, and went to the hospital the next day, 20 September .2007. At the time that she was admitted to the hospital, decedent was taking Coumadin, which prevents blood clotting.

At 4:15 p.m., plaintiff left decedent’s room. When he returned at 5:15 p.m., decedent was not in the room, and someone was mopping blood from the floor. Plaintiff was informed that decedent had fallen, struck her head, and been moved to a room across the hall. Decedent had been found after her fall by Nurse Karen Sullivan, who discovered decedent with injuries and facial swelling. Decedent complained of headaches.

[578]*578On 21 September 2007, plaintiff received a telephone call from the hospital that his wife was in grave condition, and that he should come to the hospital immediately. Upon arrival, plaintiff was informed that decedent had suffered permanent brain damage from a subdural hematoma, and that her chances of recovery were slight. Decedent was given palliative care until her death on 27 September 2007.

On 24 September 2009, plaintiff filed this action seeking monetary damages for the wrongful death of his wife based upon the negligence of defendant and others. Claims against all of the other defendants were voluntarily dismissed by plaintiff after jury selection. The jury found that the death of plaintiffs decedent was not caused by defendant’s negligence. On 15 March 2012, the trial court entered judgment, dismissing plaintiff’s claim with prejudice.

Plaintiff appeals.

II. Character Testimony

In his first argument, plaintiff contends that the trial court erred by permitting defendant to introduce the testimony of three witnesses who testified to defendant’s character for truthfulness. We disagree.

A. Standard of Review

“[W]hether a lay witness may testify as to an opinion is reviewed for abuse of discretion.” State v. Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000), disc. review denied, 353 N.C. 396, 547 S.E.2d 427-28 (2001).

B. Analysis

Our Supreme Court has held that “[w]here a party testifies and the credibility of his testimony is challenged, testimony that his general character is good is competent and proper evidence for consideration upon the truthfulness of his testimony.” Holiday v. Cutchin, 311 N.C. 277, 280, 316 S.E.2d 55, 57-58 (1984) (citations omitted). A witness’ credibility may be attacked or supported by evidence of reputation or opinion. N.C. R. Evid. 608(a). Evidence of truthful character is admissible once a witness’ character for truthfulness has been attacked by opinion or reputation. Id.

At trial, plaintiff repeatedly attacked defendant’s testimony that he had personally examined decedent on 20 September 2007, following her fall. The trial court conducted a hearing outside of the presence of the jury prior to admitting the testimony of the three [579]*579character witnesses. During that hearing, counsel for plaintiff acknowledged that he had accused defendant of not personally performing an examination of decedent on 20 September 2007.

By calling into question the credibility of defendant, plaintiff opened the door for defendant to present the three witnesses who testified as to his character for truthfulness.

Plaintiff further contends that the lay witnesses were not disclosed in defendant’s discovery scheduling order. However, because plaintiff did not raise this objection at trial, it is not properly preserved on appeal. See N.C. R. App. P. 10(a)(1).

This argument is without merit.

III. Admission of Deposition Testimony

In his second argument, plaintiff contends that the trial court erred in permitting defendant to introduce the transcript of the deposition of Dr. George Alsina. We disagree.

“On appeal, the standard of review of a trial court’s decision to exclude or admit evidence is that of an abuse of discretion. An abuse of discretion will be found only when the trial court’s decision was so arbitrary that it could not have been the result of a reasoned decision.” Brown v. City of Winston-Salem, 176 N.C. App. 497, 505, 626 S.E.2d 747, 753 (2006) (internal quotations and citations omitted).

The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . . that the witness is at a greater distance than 100 miles from the place of trial or hearing, ... or that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting testimony of witnesses orally in open court, to allow the deposition to be used. . .

N.C. R. Civ. P. 32 (a)(4).

The trial court allowed defendant to introduce Dr. Alsina’s deposition transcript into evidence after finding that Dr. Alsina was [580]*580unavailable to testify at trial. Plaintiff contends that this was improper under Rule 32 of the North Carolina Rules of Civil Procedure.

Rule 32 provides that a deposition may be used at trial against any party who was present at the taking of the deposition if the witness is at a greater distance than 100 miles from the place of trial, if the party offering the deposition has been unable to procure the attendance of the witness by subpoena, or when circumstances exist to make it desirable, in the interest of justice, to admit the deposition. N.C. R. Civ. P. 32.

In the instant case, Dr. Alsina’s office was located in New Hanover County, the county where the case was being tried. Plaintiff contends that, because Dr. Alsina was located within 100 miles, Rule 32 prohibited the use of his deposition at trial. However, we have previously held that a deposition is admissible so long as one of the foundational requirements of Rule 32 has been satisfied. Suarez v. Wotring, 155 N.C. App. 20, 28, 573 S.E.2d 746, 751 (2002). It is not necessary that Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
739 S.E.2d 859, 225 N.C. App. 576, 2013 WL 599784, 2013 N.C. App. LEXIS 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manning-v-anagnost-ncctapp-2013.