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Mahmoud v. Koeck

August 6, 2010

ASHRAF A. MAHMOUD, PLAINTIFF-RESPONDENT,
v.
HELEN K. KOECK, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1079-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 12, 2010

Before Judges Rodríguez and Reisner.

Defendant Helen K. Koeck appeals from two orders: the first one dated July 29, 2008, awarding attorney's fees and costs to plaintiff Ashraf A. Mahmoud as a result of Koeck's counsel terminating a court-ordered deposition; the second one dated July 31, 2009, awarding an additional attorney's fee for failure to comply with the first order. We affirm.

On March 8, 2007, Mahmoud filed a complaint to recover damages for personal injury stemming from a motor vehicle accident. The accident was unusual. Koeck was driving her 1987 Cadillac when its transmission exploded. Mahmoud, a passerby, came to her aid. Both Mahmoud and Koeck were injured when the Cadillac's emergency brake was released by one of them. The Cadillac rolled backwards and both were injured.

Koeck filed an answer. During the discovery period, Mahmoud moved for a court-ordered deposition of Koeck. The judge granted the motion.

The deposition of Koeck took place on March 28, 2008. Koeck's counsel made numerous objections. Mahmoud's counsel asked Koeck's lawyer to refrain from "touching" Koeck. Further, defense counsel objected to Mahmoud's counsel requesting Koeck to read her answers to interrogatories without asking a question first. According to defense counsel, opposing counsel's examination of Koeck was abusive. At that point, his client, who was then eighty-one years old, told him that she did not feel well and wanted to go home. Defense counsel then terminated the deposition over the objections of his adversary because Koeck "wanted to go home."

Mahmoud moved to have Koeck's answer stricken and her defenses suppressed with prejudice due to her failure to comply with the court ordered deposition. Judge Thomas F. Brogan awarded Mahmoud reasonable attorney's fees due to defense counsel's improper termination of the deposition. The judge found that, although defense counsel had good intentions to protect his elderly client, he "overreacted." Further, the judge stated that, although defense counsel may not have been satisfied with Koeck's answers, he should have permitted the deposition to proceed. In particular, the judge noted that defense counsel repeatedly objected on relevancy grounds, which was improper. Finally, the judge found that the record of the deposition indicated that Mahmoud's counsel did not violate any rules when questioning Koeck.

Judge Brogan ordered that Koeck's answer be stricken and her defenses suppressed with prejudice for failure to comply with the court ordered deposition and awarded Mahmoud attorney's fees and costs. Koeck moved for reconsideration. Judge Brogan heard the parties' arguments, reinstated Koeck's answer and awarded Mahmoud $2,000 in attorney's fees and $464.25 in costs to be paid to Mahmoud's counsel within twenty days. This ruling was memorialized in the July 29, 2008 order.

Koeck moved to strike the award of attorney's fees and costs. Judge Brogan denied this motion noting that the actions of Koeck or her counsel in terminating the deposition necessitated that Koeck or defense counsel be responsible for the time wasted in the incomplete deposition.

Koeck moved for leave to appeal. We denied the motion. Mahmoud v. Koeck, No. AM-94-08T1 (App. Div. October 27, 2008).

Six months later, on the day set for trial, Mahmoud requested voluntary dismissal with prejudice because Mahmoud's wife, a necessary witness, was out of the country. Mahmoud's counsel requested, however, that the dismissal not affect the July 29, 2008 order awarding attorney's fees. Judge Anthony J. Graziano dismissed the case with prejudice but did not disturb the July 29, 2008 order. Mahmoud moved to enforce the July 29, 2008 order. Koeck cross-moved to impose sanctions, attorney's fees, costs and expenses related to Mahmoud's voluntary dismissal with prejudice. Judge Brogan held Koeck and her counsel in contempt for failure to comply with the July 29, 2008 order. The judge entered an order on July 31, 2009 providing that defense counsel and/or Koeck pay Mahmoud's counsel the amount set forth in the July 29, 2008 order and an additional $500 in attorney's fees within ten days and denied Koeck's cross-motion.

Koeck filed this appeal. Judge Brogan stayed the payment of attorney's fees to Mahmoud's ...


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