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Stilley v. Automobile Enterprises of High Point Inc.

Filed: December 1, 1981.

CYNTHIA LYNN STILLEY
v.
AUTOMOBILE ENTERPRISES OF HIGH POINT, INC.; JAMES D. STILLEY V. AUTOMOBILE ENTERPRISES OF HIGH POINT, INC.



Appeal by plaintiffs from Davis, Judge. Judgments entered 26 August 1980 in Superior Court, Davidson County. Heard in the Court of Appeals 3 September 1981.

Whichard, Judge. Judges Hedrick and Hill concur.

Whichard

Defendant's Appeal

Defendant presents two questions: (1) whether the court erred in declining to dismiss plaintiffs' complaint for failure to comply with an order to answer interrogatories by a certain date; and (2) whether the court erred in denying its motion for summary judgment. We answer both questions in the negative.

I. Motion To Dismiss For Noncompliance

With Discovery Order

Defendant submitted interrogatories to plaintiffs which asked them to list their expert witnesses and those witnesses who would testify concerning any alleged defect or unsafe condition of the automobile. When defendant did not receive answers to these interrogatories within the time permitted by statute, it moved for an order compelling plaintiffs to answer. The court ordered plaintiffs to answer on or before 25 July 1979 or have their actions dismissed. Plaintiffs signed and verified the answers on 23 July 1979. The answers were not filed, however, until November 1979. The record contains affidavits of plaintiffs' attorney and his secretary averring that on 23 July 1979 the answers were signed and mailed to defendant's attorney at his old address in Greensboro rather than at his new Winston-Salem address. The certificate of service was dated 23 July 1979.

Defendant moved that the court dismiss plaintiffs' actions for failure to comply with the discovery order. The court found the answers were signed and served on defendant on 23 July 1979 by copies being deposited with the United States Post Office Department

addressed to defendant's counsel, and that defendant's counsel later received the copies. The court therefore declined to impose sanctions on plaintiffs.

The court's order was supported by the affidavits submitted by plaintiffs in response to the motion. We find no abuse of discretion in the court's decision not to dismiss plaintiffs' actions. See generally Telegraph Co. v. Griffin, 39 N.C. App. 721, 251 S.E.2d 885 disc. review denied 297 N.C. 304, 254 S.E.2d 921 (1979).

II. Motions For Summary Judgment

Defendant filed motions for summary judgment which asserted that no genuine issues of material fact existed in plaintiffs' actions. Defendant filed no supporting affidavits. Plaintiffs countered the motions with affidavits of Claude ...


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