{ "id": 8552898, "name": "J. C. SILVERTHORNE, B. McADOO WHORTON, THEODORE R. SLADE, J. C. SILVERTHORNE, ADMINISTRATOR OF THE ESTATE OF MICHAEL W. SILVERTHORNE, and wife, JO SILVERTHORNE, AND BRANDENBURG LAND COMPANY, A CORPORATION, Plaintiffs and ZACHARY TAYLOR, GUARDIAN AD LITEM FOR BRIAN Z. TAYLOR and JOHN WEBB TAYLOR, Intervenor Plaintiffs v. COASTAL LAND COMPANY, a corporation, JOSEPH G. BLOW AND WIFE, ELIZABETH P. BLOW, RALPH T. MORRIS AND WIFE, ELSIE S. MORRIS, VERNON J. SILVERTHORNE AND WIFE, MILDRED C. SILVERTHORNE, MINNIE S. BARNHILL AND HUSBAND, FRANK C. BARNHILL, KATHLEEN S. SLADE, HELEN S. ADKINS AND HUSBAND, BERNARD ADKINS, ANNIE S. COOK AND HUSBAND, PHILLIP E. COOK, EFFIE S. HADDER AND HUSBAND, MINOR L. HADDER, J. G. SILVERTHORNE AND WIFE, BESSIE SILVERTHORNE, AND JOHN T. TAYLOR, JR. AND WIFE, DORA W. TAYLOR, Defendants", "name_abbreviation": "Silverthorne v. Coastal Land Co.", "decision_date": "1979-07-03", "docket_number": "No. 783SC844", "first_page": "134", "last_page": "140", "citations": [ { "type": "official", "cite": "42 N.C. App. 134" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "233 S.E. 2d 646", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "32 N.C. App. 688", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553217 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/32/0688-01" ] }, { "cite": "204 S.E. 2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563189, 8563227, 8563133, 8563166, 8563103 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0233-04", "/nc/285/0233-05", "/nc/285/0233-02", "/nc/285/0233-03", "/nc/285/0233-01" ] }, { "cite": "202 S.E. 2d 307", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "309" } ], "opinion_index": 0 }, { "cite": "20 N.C. App. 623", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554692 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/20/0623-01" ] } ], "analysis": { "cardinality": 591, "char_count": 15758, "ocr_confidence": 0.799, "pagerank": { "raw": 3.825041292984146e-07, "percentile": 0.8985147396624282 }, "sha256": "05ccb7b0b8c2333a5f7cdb1ee9688a5381b2b434d797797d8144a07a14a97829", "simhash": "1:b0348d600d06d959", "word_count": 2596 }, "last_updated": "2023-07-14T15:00:09.609845+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN (Robert M.) and ERWIN concur." ], "parties": [ "J. C. SILVERTHORNE, B. McADOO WHORTON, THEODORE R. SLADE, J. C. SILVERTHORNE, ADMINISTRATOR OF THE ESTATE OF MICHAEL W. SILVERTHORNE, and wife, JO SILVERTHORNE, AND BRANDENBURG LAND COMPANY, A CORPORATION, Plaintiffs and ZACHARY TAYLOR, GUARDIAN AD LITEM FOR BRIAN Z. TAYLOR and JOHN WEBB TAYLOR, Intervenor Plaintiffs v. COASTAL LAND COMPANY, a corporation, JOSEPH G. BLOW AND WIFE, ELIZABETH P. BLOW, RALPH T. MORRIS AND WIFE, ELSIE S. MORRIS, VERNON J. SILVERTHORNE AND WIFE, MILDRED C. SILVERTHORNE, MINNIE S. BARNHILL AND HUSBAND, FRANK C. BARNHILL, KATHLEEN S. SLADE, HELEN S. ADKINS AND HUSBAND, BERNARD ADKINS, ANNIE S. COOK AND HUSBAND, PHILLIP E. COOK, EFFIE S. HADDER AND HUSBAND, MINOR L. HADDER, J. G. SILVERTHORNE AND WIFE, BESSIE SILVERTHORNE, AND JOHN T. TAYLOR, JR. AND WIFE, DORA W. TAYLOR, Defendants" ], "opinions": [ { "text": "ARNOLD, Judge.\nOriginal Plaintiffs \u2019 Appeal\nIn his order dismissing the plaintiffs\u2019 action, the trial court concluded that the plaintiffs\u2019 failure to file answers to interrogatories within 60 days of 5 April 1976, as they had been ordered by the court to do, was \u201cwholly without justification or excuse.\u201d Plaintiffs argue that there is no evidence to support this conclusion. \u2022\nPlaintiffs\u2019 view is that defendants were required to show that plaintiffs\u2019 failure to comply with the court order was without justification, but this is not the case. G.S. 1A-1, Rule 37(b)(2) sets out possible consequences of a party\u2019s failure \u201cwithout good cause\u201d to comply with the court\u2019s order to answer interrogatories. If a noncomplying party wishes to avoid court-imposed sanctions for his failure, the burden is upon him to show that there is justification for his noncompliance. Plaintiffs attempt to excuse their failure upon the grounds that between November 1975 and April 1978 they were not represented by an attorney, and that the long history of the case with its many extensions of time shows that the parties were willing to accommodate each other \u201cin extensions ad infinitum.\u201d Neither of these arguments avails.\nInterrogatories were served upon the plaintiffs in September 1974. Fourteen months later, plaintiffs\u2019 counsel sought to withdraw from the case, giving as one reason the fact that a number of the interrogatories could only be answered by plaintiff Brandenburg Land Company, and counsel had been unable to find through diligent effort who owned that company. Some five months later, nineteen months after the interrogatories had been served, the court entered its order giving the plaintiffs 60 days to answer the interrogatories. Thus, during 14 of the 21 months given to the plaintiffs to answer the interrogatories, plaintiffs were represented by counsel, and plaintiffs have made no attempt to show that their lack of representation through the remainder of the period was other than by choice. The withdrawal of plaintiffs\u2019 counsel because of plaintiffs\u2019 non-cooperation, and their subsequent lack of counsel by their own choice is no excuse. As for the parties\u2019 apparent willingness to accommodate each other in unlimited extensions of time, the situation was no longer merely between the parties after the court intervened and ordered plaintiffs to answer. The record amply supports the court\u2019s conclusion that plaintiffs\u2019 failure to comply was without justification.\nPlaintiffs then argue that even a finding that their failure to comply with the order to answer interrogatories was without justification does not entitle the court to impose the sanction of a dismissal of their action with prejudice. G.S. 1A-1, Rule 37(b)(2) provides that upon a party\u2019s failure to comply with the court\u2019s order, \u201cthe judge may make such orders in respect to the failure to answer as are just.\u201d The choice of sanctions to be imposed having been left by the rule in the court\u2019s discretion, we may not overturn the court\u2019s decision unless an abuse of that discretion is shown. Rule 37(b)(2) provides further that \u201c[t]he relief granted may include ... c. An order . . . dismissing the action.\u201d Dismissal of a plaintiff\u2019s action for failure to answer interrogatories was upheld in Hammer v. Allison, 20 N.C. App. 623, 202 S.E. 2d 307, cert. den. 285 N.C. 233, 204 S.E. 2d 23 (1974), and this Court noted there that, as here, \u201cplaintiff did not serve on defendant . . . any objections to any of the interrogatories as was her right under the rule, nor did she ever ask for an extension of time.\u201d Id. at 626, 202 S.E. 2d at 309. Considering the facts of this case, and the fact that the sanction imposed is clearly allowed by the rule, we find no abuse of discretion. There was no error in the dismissal of the original plaintiffs\u2019 action.\nSubstituted Plaintiffs\u2019 Appeal\nSubsequent to the death of original plaintiff Michael Silver-thorne, the court substituted for him as plaintiffs his heirs J. C. and Jo Silverthorne individually and J. C. Silverthorne as administrator of his estate. The substitution order, entered on 21 January 1976, stated that it would \u201cconstitute notice to such substituted parties that this action as to them may be abated unless it is continued by them within the provisions of Rule 25(c) of said Rules of Civil Procedure.\u201d On 25 June 1976 defendants moved for an order requiring the substituted plaintiffs to take affirmative action to prosecute whatever claim they might have before 21 July 1976, six months from the date of their substitution. No such order was entered. On 15 November 1977 defendants moved for an order abating the action as to any claim of the substituted parties. They relied upon the \u201cnotice\u201d provision in the court\u2019s substitution order, arguing that \u201cthe effect of said provision was to permit the substituted parties to prosecute the subject action within twelve months of January 21, 1976, which they have not done.\u201d By order of 8 May 1978, the court found that the substituted plaintiffs \u201cmade no effort whatsoever to prosecute the subject action within twelve (12) months of January 21, 1976, the date on which order was entered substituting them as parties, and that same was wholly without justification or excuse,\u201d and ordered that the claim of the substituted plaintiffs \u201cis hereby abated.\u201d\nThese plaintiffs argue that no evidence was presented that their failure to actively prosecute this lawsuit was without excuse, but as we have held above with reference to the dismissal of the original plaintiffs\u2019 action, there is no burden upon the defendants to make such a showing. Nor is the lack of counsel, apparently by choice, an excuse. As the substituted plaintiffs have presented no evidence to justify their non-action,, we find no error in the court\u2019s conclusion.\nPlaintiffs then argue that the trial court\u2019s order abating their action was premature, as he had not fixed a time after which their action would abate as required by G.S. lA-1, Rule 25(c). That rule provides: \u201cAt any time after the death ... of a party, the court . . . , upon, notice to such person as it directs and upon motion of any party aggrieved, may order that the action be abated, unless it is continued by the proper parties, within a time to be fixed by the court, not less than six months nor more than 12 months from the granting of the order.\u201d Plaintiffs argue that a prerequisite to abatement was the trial court\u2019s fixing of a time after which the action would abate. Defendants argue that an action abates in twelve months at the very latest, and that since the trial court can do nothing but shorten this period to as little as six months, it was not necessary for the court to fix a time for abatement.\nWe find it unnecessary to decide this issue, since we conclude that the substituted plaintiffs were never properly made parties to this lawsuit. G.S. 1A-1, Rule 25(a) provides that upon a party\u2019s death an action does not abate, as it did at common law, 1 Am. Jur. 2d, Abatement, Survival and Revival \u00a7 47. The court may substitute a party to continue the action in place of the deceased. However, this substitution must be (1) on motion within one year of the party\u2019s death or (2) afterwards on a supplemental complaint. No substitution motion appears in the record, and at any rate it affirmatively appears that the substitution was made just less than three years after the death of plaintiff Michael Silverthorne. Nor does a supplemental complaint appear. Accordingly, no substitution was made under Rule 25(a). Deutsch v. Fisher, 32 N.C. App. 688, 233 S.E. 2d 646 (1977).\nFurthermore, had the parties been properly substituted under Rule 25(a), the time limitation in Rule 25(c) would not apply. Rule 25(c) does not provide for substitution, but provides a method by which a party may place a time limitation on the right to substitution. W. Shuford, North Carolina Civil Practice and Procedure, \u00a7 25-6 at 219 (1975). There is no indication that defendants ever availed themselves of this method. Rule 25(c) provides for an order of conditional abatement \u201cupon motion of any party aggrieved,\" (emphasis added) and no such motion appears. Further, Rule 25(c) shows that the order it provides for is intended to be used prior to any substitution of parties, since it provides for notice to \u201csuch person as [the court] directs,\u201d which we think has been correctly viewed as requiring notice to those who \u201cwould reasonably be expected to represent most closely the interest of the deceased.\u201d W. Shuford, supra at 220. It is then up to the persons interested in the estate of the deceased to arrange for substitution of the appropriate party. See id.\nAccordingly, the court\u2019s substitution order of 21 January 1976 is neither a correct substitution under Rule 25(a) nor the order of conditional abatement contemplated by Rule 25(c). Had the parties been properly substituted, the appropriate move if defendant wished to terminate their action would have been a motion to dismiss for failure to prosecute under G.S. 1A-1, Rule 41(b). Since they were not properly substituted, they have no claim that could have been \u201cabated,\u201d and we need not consider their argument that their claim was abated prematurely. See Deutsch v. Fisher, supra.\nIntervenor-Plaintiffs \u2019 Appeal\nThe intervenor-plaintiffs, the Taylors, argue that they have met all the requirements that entitle them to intervene in this action as a matter of right. However, the order denying the Taylors\u2019 motion to intervene indicates that before it was entered, the court already had allowed defendants\u2019 motion to dismiss the action of the original plaintiffs and \u201cabate\u201d the claims of the substituted plaintiffs. No action remained in which the Taylors could intervene. We find no error in the denial of their motion.\nThe orders of the trial court are\nAffirmed.\nJudges MARTIN (Robert M.) and ERWIN concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Nelson W. Taylor III for plaintiff appellants.", "Henderson & Baxter, by B. Hunt Baxter, Jr., for intervenor plaintiff appellants.", "A. D. Ward & Barden, Stith, McCotter and Stith, by Laurence A. Stith, for defendant appellees." ], "corrections": "", "head_matter": "J. C. SILVERTHORNE, B. McADOO WHORTON, THEODORE R. SLADE, J. C. SILVERTHORNE, ADMINISTRATOR OF THE ESTATE OF MICHAEL W. SILVERTHORNE, and wife, JO SILVERTHORNE, AND BRANDENBURG LAND COMPANY, A CORPORATION, Plaintiffs and ZACHARY TAYLOR, GUARDIAN AD LITEM FOR BRIAN Z. TAYLOR and JOHN WEBB TAYLOR, Intervenor Plaintiffs v. COASTAL LAND COMPANY, a corporation, JOSEPH G. BLOW AND WIFE, ELIZABETH P. BLOW, RALPH T. MORRIS AND WIFE, ELSIE S. MORRIS, VERNON J. SILVERTHORNE AND WIFE, MILDRED C. SILVERTHORNE, MINNIE S. BARNHILL AND HUSBAND, FRANK C. BARNHILL, KATHLEEN S. SLADE, HELEN S. ADKINS AND HUSBAND, BERNARD ADKINS, ANNIE S. COOK AND HUSBAND, PHILLIP E. COOK, EFFIE S. HADDER AND HUSBAND, MINOR L. HADDER, J. G. SILVERTHORNE AND WIFE, BESSIE SILVERTHORNE, AND JOHN T. TAYLOR, JR. AND WIFE, DORA W. TAYLOR, Defendants\nNo. 783SC844\n(Filed 3 July 1979)\n1. Rides of Civil Procedure \u00a7 37\u2014 failure to comply with discovery order \u2014 justification \u2014 burden of proof on noncomplying party\nIf a party who fails to comply with a discovery order of the court wishes to avoid court imposed sanctions for his failure, the burden is upon him to show that there is justification for his noncompliance. Plaintiffs in this action could not excuse their failure by claiming that they were not represented by an attorney, since that situation arose by their own choice, or by claiming that the long history of the case with its many extensions of time showed that the parties were willing to accommodate each other with \u201cextensions ad infinitum,\u201d since the situation was no longer merely between the parties after the court intervened and ordered plaintiffs to answer interrogatories.\n2. Rules of Civil Procedure \u00a7 37\u2014 failure to answer interrogatories \u2014 dismissal proper\nThere was no merit to plaintiffs\u2019 contention that the court was not entitled to impose the sanction of a dismissal of their action with prejudice upon finding that plaintiffs\u2019 failure to comply with the court\u2019s order to answer interrogatories was without justification. G.S. 1A-1, Rule 37(b)(2).\n3. Rules of Civil Procedure \u00a7 25\u2014 parties not properly substituted\nThe substituted plaintiffs were never properly made parties to this lawsuit since no substitution motion was made; the \u201csubstitution\u201d was made just under three years after the death of one of the original plaintiffs; and no supplemental complaint was filed. Therefore, the substituted plaintiffs had no claim which could have been abated, and the court does not consider their argument that their claim was abated prematurely. G.S. 1A-1, Rule 25.\nAPPEAL by plaintiffs and intervenor plaintiffs from Cowper, Judge. Judgment entered 5 May 1978 in Superior Court, PAMLICO County. Heard in the Court of Appeals 30 May 1979.\nThe complaint in this action to try title was filed in September 1971. Answers were filed by all defendants except John T. Taylor, Jr. and Dora W. Taylor, (hereinafter the term \u201cdefendants\u201d will refer to all defendants except these two.) Defendant Coastal Land Company also counterclaimed to be adjudged the owner of the lands.\nBy nine consecutive consent orders, the time for completing discovery was extended through January 1975. Interrogatories were served upon the plaintiffs Silverthorne, Whorton and Slade on 17 September 1974 and upon the plaintiff Brandenburg Land Company on 24 September 1974. In November 1975 the petition of plaintiffs\u2019 counsel to withdraw from the action was allowed.\nOn 21 January 1976 an order was entered substituting for the deceased plaintiff Michael Silverthorne his heirs J. C. and Jo Silverthorne individually and J. C. Silverthorne as administrator of his estate. The order also stated that it would \u201cconstitute notice to such substituted parties that this action as to them may be abated unless it is continued by them within the provisions of Rule 25(c) of said Rules of Civil Procedure.\u201d\nOn 19 March 1976 defendants moved for an order compelling answers to interrogatories pursuant to Rule 37. This motion was granted on 5 April 1976 by an order giving plaintiffs 60 days to file answers to the interrogatories. On 25 June 1976 defendants moved for a dismissal with prejudice of plaintiffs\u2019 action, for a default judgment finding ownership of the land in defendant Coastal Land Company, and for an order requiring the substituted plaintiffs to take affirmative action to prosecute whatever claim they might have before 21 July 1976, six months from the entry of the order substituting them as parties. Hearing on this motion was continued until 10 April 1978 on the court\u2019s own motion.\nOn 19 July 1976, answers to interrogatories were sent to defendants\u2019 attorney by plaintiffs Silverthorne and Whorton, but were not filed with the court.\nOn 15 November 1977 defendants moved for an order abating the action as to any claim of the substituted parties plaintiff because they had failed to prosecute their action within 12 months of the date of their substitution. Hearing on this motion was also continued until 10 April 1978 on the court\u2019s own motion. On 10 April 1978, plaintiff Brandenburg Land Company filed answers to interrogatories.\nOn 7 April 1978, Zachary Taylor as guardian ad litem of minors Brian Z. and John Webb Taylor moved to intervene in this action, alleging that title to the lands which are the subject of this action rests in the minor plaintiffs by virtue of a deed from a collateral source dated 31 March 1978. This motion was denied.\nDefendants\u2019 motions to dismiss with prejudice the action of the original plaintiffs and abate the claims of the substituted plaintiffs were granted. Plaintiffs and intervenor plaintiffs appeal.\nNelson W. Taylor III for plaintiff appellants.\nHenderson & Baxter, by B. Hunt Baxter, Jr., for intervenor plaintiff appellants.\nA. D. Ward & Barden, Stith, McCotter and Stith, by Laurence A. Stith, for defendant appellees." }, "file_name": "0134-01", "first_page_order": 162, "last_page_order": 168 }