Hilliard v. Gilliam

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance with

the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-802

Filed 1 October 2025

Moore County, No. 22CVS001522-620

RICHARD HILLIARD, DANIELLA MARIA PETTINARI, GILLIAM McCONNELL

AIRFIELD, LLC, and RAPTOR LLC, Plaintiffs,

v.

ROLAND GILLIAM and NANCY J. GILLIAM, Defendants.

Appeal by Plaintiffs from orders entered 5 June 2024 and 24 June 2024 by

Judge W. Taylor Browne in Moore County Superior Court. Heard in the Court of

Appeals 8 April 2025.

RHD Legal, by Robert S. Shields, Jr., and Mark L. Hayes, for Plaintiffs-

Appellants.

Van Camp, Meacham & Newman, PLLC, by Thomas M. Van Camp, for

Defendants-Appellees.

GRIFFIN, Judge.

Plaintiffs Gilliam McConnell Airfield, LLC, Richard Hilliard, and Daniella

Maria Pettinari appeal from the trial court’s order granting Defendants Roland

Gilliam and Nancy J. Gilliam’s motion to dismiss Plaintiffs’ claim for breach of

contract. Plaintiffs also appeal the trial court’s order granting Defendants’ motion to

HILLIARD V. GILLIAM

Opinion of the Court

compel discovery against them. Plaintiffs argue the trial court erred by overruling a

prior decision of another trial court judge. Alternatively, Plaintiffs contend their

claims were sufficient to survive dismissal under Rule 12(b)(6) of the North Carolina

Rules of Civil Procedure. Plaintiffs also contend the trial court abused its discretion

by awarding costs associated with obtaining untimely discovery under Rule 37. We

affirm the trial court’s orders.

I. Factual and Procedural Background

Plaintiffs and Defendants met in 2018 at the Gilliam McConnell Airfield (the

“Airfield”) in Carthage, North Carolina. Between 2018 and 2020, Plaintiffs and

Defendants resolved multiple real estate transactions conveying property at the

Airfield. This appeal concerns an alleged agreement in which Defendants were to

purchase the entire remaining Airfield from Plaintiffs.

At some time during 2019 and 2020, Plaintiffs and Defendants began to discuss

the sale of the Airfield from Defendants to a company owned by Plaintiff Hilliard.

The parties determined the purchase price of the Airfield would be $2,515,000—

wholly financed by Defendants with no down payment from Plaintiffs. The purchase

price depended, though, on Defendants’ pending decision whether to exclude a hangar

from the sale; if Defendants kept the hangar, the price would reduce by $200,000.

The parties scheduled a closing date of 17 February 2022 for the sale of the

Airfield. On 15 February 2022, Buck Adams, Plaintiffs’ attorney, sent a packet of

proposed closing documents to Hurley Thompson, Defendants’ attorney. The

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Opinion of the Court

documents included, inter alia, a general warranty deed for the transfer of the

Airfield. Thompson approved the documents based upon his understanding of the

terms of the sale at that time. On the morning of 16 February 2022, Defendants

signed the deed in Thompson’s office. At 5:00 p.m. on February 16, Thompson sent

the deed to Adams for Adams to review in preparation for closing the following day.

However, on the morning of 17 February 2022, Defendants told Thompson that

the parties could not reach an agreement on material disputes regarding: (1) which

party would pay excise taxes at closing; (2) the amount of rent Defendants would pay

Plaintiffs to continue operating a restaurant located on the Airfield after the sale; (3)

whether Defendants would have to pay to store items at the Airfield after the sale;

and (4) whether Defendants would retain ownership of the hangar to reduce the

purchase price by $200,000. Specifically, though Plaintiffs and Defendants had

previously discussed who would pay the excise taxes at closing, Plaintiffs insisted on

February 17 that they would only pay the excise taxes if Defendants increased the

amount of rent owed to operate the restaurant and also paid rent to store items at

the Airfield after the sale closed. Defendants did not agree with Plaintiffs’ newly

proposed terms.

Thompson relayed Defendants’ concerns to Adams and requested the deed be

returned. Adams returned the deed to Thompson, which he then destroyed; neither

the draft deed nor any other document relating to the transfer of the Airfield was ever

signed by Plaintiffs or recorded.

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Opinion of the Court

On 8 December 2022, Plaintiffs filed a complaint in Moore County Superior

Court initiating the present action against Defendants. As of December 2023,

following multiple filings to amend the parties named and claims alleged, Plaintiffs’

complaint alleged claims for breach of contract and unjust enrichment against

Defendants. On 18 December 2023, Defendants filed a motion for summary judgment

against Plaintiffs’ claims.

On 21 February 2024, Defendants also filed a motion to dismiss Plaintiffs’

claims under Rule 12(b)(6) of the North Carolina General Statutes (the “First 12(b)(6)

Motion”). In response, on 22 February 2024, Defendants filed a motion to amend

their complaint to conform to the evidence and attached a copy of the proposed

amended complaint to the motion.

On 4 March 2024, Judge Craig Croom held a hearing on Plaintiffs’ motion to

amend complaint, Defendants’ motion for summary judgment, and Defendants’ First

12(b)(6) Motion. On 8 March 2024, Judge Croom announced in open court he intended

to grant Plaintiffs’ motion to amend complaint. The record shows Judge Croom also

declared he would withhold ruling on Defendants’ First 12(b)(6) Motion because he

would permit Plaintiffs to amend their complaint. On 15 March 2024, after the

hearing on the matter but before Judge Croom entered a written order, Plaintiffs filed

their amended complaint (the “Second Amended Complaint”).

After this filing, on 20 March 2024, Judge Croom entered an order (“the Croom

Order”) granting Plaintiffs’ motion to amend complaint and denying Defendants’

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Opinion of the Court

motion for summary judgment. The Croom Order was silent as to Defendants’ First

12(b)(6) Motion.

On 19 April 2024, after Judge Croom entered the Croom Order, Defendants

filed an answer to the Second Amended Complaint. On 26 April 2024, Defendants

filed a motion under Rules 12(b)(6) and 12(c) of the North Carolina General Statutes

(the “Second 12(b)(6) Motion”) requesting the court dismiss Plaintiffs’ breach of

contract claim in their Second Amended Complaint.1 On 20 May 2024, Defendants

filed a Rule 37 motion to compel discovery against Plaintiffs for failure to wholly and

timely respond to discovery requests.

On 31 May 2024, Judge W. Taylor Browne held a hearing on Defendants’

Second 12(b)(6) Motion and motion to compel discovery. On 5 June 2024, Judge

Browne entered a written order (“the Browne Order”) dismissing Plaintiffs’ Second

Amended Complaint pursuant to Rule 12(b)(6). On 24 June 2024, Judge Browne

entered a written order instructing Plaintiffs to comply with Defendants’ discovery

requests and requiring Plaintiffs to pay Defendants $10,047.50 in recompense for

expenses incurred (the “Discovery Order”).

1 On 22 April 2024, Defendants filed a motion for partial summary judgment against

Plaintiffs’ claim for breach of contract under Rule 56. It appears from the record, though, that Judge

Browne never issued a ruling on this motion, opting instead to dismiss the matter through

Defendants’ subsequent Second 12(b)(6) Motion.

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Opinion of the Court

Plaintiffs timely appeal from the trial court’s Browne Order and its Discovery

Order.2

II. Analysis

Plaintiffs contend the trial court erred by dismissing their claims because the

Browne Order overruled the prior decision of another superior court judge entered in

the Croom Order. Alternatively, Plaintiffs contend the trial court improperly granted

Defendants’ Second 12(b)(6) Motion because their Second Amended Complaint

sufficiently pled their claim. Plaintiffs also contend the trial court abused its

discretion entering the Discovery Order by awarding Defendants costs for Plaintiffs’

failure to timely deliver discovery. We address each argument in turn.

A. Overruling Another Superior Court Judge

Plaintiffs first assert the trial court erred because the “[Browne Order]

granting Defendants’ [Second 12(b)(6) Motion] overruled [the Croom Order] denying

[Defendants’] motion for summary judgment.” In so doing, Plaintiffs contend, the

Browne Order overruled a prior decision by another superior court judge on the same

issues. We disagree.

“It is well established that one superior court judge may not ordinarily modify,

overrule, or change the judgment or order of another superior court judge previously

2 When Plaintiffs filed their notice of appeal, their claim for unjust enrichment against

Defendants was still pending in the trial court. However, on 8 January 2025, Plaintiffs voluntarily

dismissed their unjust enrichment claim, leaving no matters left to be decided by the trial court in

this case.

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Opinion of the Court

entered in the same case.” In re Royster, 361 N.C. 560, 563, 648 S.E.2d 837, 840

(2007) (citation omitted).

However, the Browne Order ruled upon a motion made in response to

Plaintiffs’ Second Amended Complaint, while the Croom Order ruled upon an earlier

version of Plaintiffs’ complaint. Our Courts have long recognized that an amended

complaint supersedes prior iterations of the complaint at the time it is filed. Burrell

v. Dickson Transfer Co., 244 N.C. 662, 665, 94 S.E.2d 829, 832 (1956) (holding, upon

the case’s review by a second judge, “[t]he original complaint had been superseded by

the amended complaint”); accord Sarno v. Sarno, 255 N.C. App. 543, 555, 804 S.E.2d

819, 828 (2017); Hyder v. Dergance, 76 N.C. App. 317, 319, 332 S.E.2d 713, 714 (1985);

Hughes v. Anchor Enters., Inc., 245 N.C. 131, 135, 95 S.E.2d 577, 581 (1956). Any

pending motions as to a prior complaint are rendered moot once the trial court grants

a plaintiff’s motion to amend. See Burrell, 244 N.C. at 665, 94 S.E.2d at 832.; see also

Woodcock v. Cumberland Cnty. Hosp. Sys., 384 N.C. 171, 174, 884 S.E.2d 633, 636

(2023) (acknowledging the lower court “granted [the plaintiff’s] motion [to amend]

. . . , deemed the Second Amended Complaint filed as of that date, and denied the

pending Motion to Dismiss as Moot”).

This Court addressed an issue similar to this case in Woody v. Vickrey, 276

N.C. App. 427, 857 S.E.2d 734 (2021). In Woody, the defendants filed a motion for

summary judgment, which was denied by the superior court judge. Id. at 427, 431,

857 S.E.2d at 738. The plaintiff then obtained “leave of the [c]ourt and [] filed an

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amended and restated complaint six days prior” to the entry of the order denying

summary judgment. Id. at 440, 857 S.E.2d at 743. Thereafter, a second superior

court judge addressed and ruled upon a motion for summary judgment the defendants

filed against the plaintiff’s amended complaint. Id.

This Court addressed the issue of whether the second judge had jurisdiction to

hear and rule on the second motion for summary judgment. Id. at 440, 857 S.E.2d at

743. This Court held the second judge had jurisdiction to address the second motion

for summary judgment because the plaintiff filed an amended complaint prior to the

first judge’s entry of its order. Id. We reasoned that the first judge no longer had

jurisdiction to address the defendants’ motion for summary judgment against the

original complaint once the plaintiff filed its amended complaint because “the filing

of the amended . . . complaint rendered any arguments regarding the original

complaint moot[.]” Id. at 440, 857 S.E.2d at 743–44 (citation omitted).

The precise procedural posture of Woody differs from the present case, but its

application of our Court’s precedent is applicable here. In Woody, the plaintiff

obtained leave to amend and filed his amended complaint prior to the first superior

court judge’s ruling on the defendants’ motion for summary judgment against the

original complaint; the summary judgment ruling was rendered moot. Id. Here,

Plaintiff obtained oral approval from Judge Croom to file an amended complaint, and

then filed the Second Amended Complaint before obtaining formal, written leave to

do so. The court then entered the Croom Order, the terms of which both granted

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Opinion of the Court

Plaintiff leave to amend and denied Defendants’ motion for summary judgment

against Plaintiff’s prior complaint. Even though the court had access to the Second

Amended Complaint before entering the Croom Order, the Croom Order responded

solely to the motion for summary judgment against Plaintiff’s prior complaint, and

simultaneously granted Plaintiff leave to file the Second Amended Complaint. The

procedural timelines may differ between Woody and this case, but the material facts

are the same: Plaintiff’s filing of an amended complaint mooted any decisions by the

court regarding his prior complaints.

The Croom Order’s grant of leave to amend Plaintiff’s complaint, and the filing

of the Second Amended Complaint, rendered any decisions regarding the prior

complaint moot—including the concurrent ruling against Defendants’ motion for

summary judgment in the Croom Order. Therefore, Judge Browne had jurisdiction

to hear and to rule upon any motions regarding Plaintiff’s Second Amended

Complaint notwithstanding any earlier decisions on superseded prior complaints.

B. Proper Ruling on the Merits

Plaintiffs next contend “even if one considers the merits of [the Browne Order],

. . . the Order still is erroneous when it dismissed the [Second Amended Complaint]

as an insufficient pleading.”

Though the procedural history in this case includes multiple pre-trial motions

under Rules 12(b)(6), 12(c), and 56 of the North Carolina Rules of Civil Procedure,

the current posture of this matter is Plaintiffs’ appeal from the Browne Order, which

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Opinion of the Court

granted Defendants’ Second 12(b)(6) Motion. Plaintiffs contend it was improper for

the trial court to consider a document other than Plaintiffs’ Second Amended

Complaint—the general warranty deed for the sale of the Airfield—when making its

ruling. We disagree.

Ordinarily, a court’s determination on a Rule 12(b)(6) motion to dismiss is

limited to the contents of the complaint alleged to be insufficient, and if “a trial court

considers matters outside the pleading, then it must convert the motion to a motion

for summary judgment.” Blue v. Bhiro, 381 N.C. 1, 2, 871 S.E.2d 691, 692 (2022).

However, “matters outside the pleading” do not include “a document that is the

subject of a plaintiff's action that he or she specifically refers to in the complaint[,]”

as these “may be attached as an exhibit by the defendant and properly considered by

the trial court without converting a Rule 12(b)(6) motion into one of summary

judgment.” Holton v. Holton, 258 N.C. App. 408, 419, 813 S.E.2d 649, 657 (2018).

Whether a conversion is required is a question of law and reviewed de novo. Blue,

381 N.C. at 5, 871 S.E.2d at 694.

Here, Plaintiffs’ Second Amended Complaint referred to the general warranty

deed as the only writing supporting their claim for breach of contract. Specifically,

the Second Amended Complaint alleged the language within the deed “[met] all the

requirements of a valid contract to convey real property thus entitling [Plaintiff] to

specific performance of the contract.” Defendants attached a copy of the general

warranty deed to their First 12(b)(6) Motion, in response to Plaintiffs’ superseded

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Opinion of the Court

prior complaint. The record does not show that the general warranty deed was again

submitted by either party for consideration alongside Plaintiffs’ Second Amended

Complaint. Nonetheless, the deed was lengthily discussed by the court and the

parties throughout the subsequent proceedings. In the event the general warranty

deed was meaningfully considered by the court in reaching the Browne Order’s ruling,

it was proper for the court to consider the sole document Plaintiffs held out as the

subject of its claim in determining the sufficiency of Plaintiffs’ Second Amended

Complaint pursuant to Rule 12(b)(6). We now turn to the merits of the trial court’s

Rule 12(b)(6) ruling in the Browne Order.

This Court reviews a trial court’s decision to grant a Rule 12(b)(6) motion to

dismiss de novo. Taylor v. Bank of Am., N.A, 382 N.C. 677, 678, 878 S.E.2d 798, 800

(2022). A motion under Rule 12(b)(6) of the North Carolina General Statutes is

properly granted “(1) when the complaint on its face reveals that no law supports

[the] plaintiff's claim; (2) when the complaint on its face reveals the absence of fact

sufficient to make a good claim; [or] (3) when some fact disclosed in the complaint

necessarily defeats [the] plaintiff's claim.” Jackson v. Bumgardner, 318 N.C. 172,

175, 347 S.E.2d 743, 745 (1986). “Factual inferences should be viewed ‘in the light

most favorable to the nonmoving party.’” Cato Corp. v. Zurich Am. Ins. Co., 386 N.C.

667, 672, 909 S.E.2d 144, 148 (2024) (citation omitted).

For a breach of contract claim to survive a Rule 12(b)(6) motion for failure to

state a claim, a plaintiff must allege (1) the existence of a valid contract and (2) a

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breach of the contract’s terms. Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843

(2000). North Carolina law provides that a valid contract for the sale of land must be

in writing to satisfy the statute of frauds. N.C. Gen. Stat. § 22-2 (2023).

Plaintiffs argue the statute of frauds does not apply to the real estate

transaction in this case because the general warranty deed was an executed,

consummated contract, as opposed to an executory, pending contract. Plaintiffs cite

our Supreme Court’s decision in Dobias v. White, 240 N.C. 680, 83 S.E.2d 785 (1954),

in support of this principle. In Dobias, the plaintiff and the defendants were both

represented by the same attorney. Id. at 685, 83 S.E.2d at 788. Through their mutual

attorney, the plaintiff and the defendants negotiated a deal whereby the plaintiff

would accept a deed of property from the defendants as full satisfaction for a mortgage

debt owed on that property to the plaintiff by the defendants. Id. at 685, 83 S.E.2d

at 789. The mutual attorney prepared the deed, the defendants signed the deed, and

the deed was deposited with the attorney for the plaintiff to sign. Id. The plaintiff

later backed out of the negotiated terms, and the defendants sued to enforce the

agreement. Id.

A significant question before the Court in Dobias was whether, at the time the

deed was deposited with the attorney, the contract for satisfaction of the defendants’

debt should “be classified as an executed or as an executory agreement.” Id. at 680,

686, 83 S.E.2d at 789. Recognizing that the contract at issue concerned the transfer

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Opinion of the Court

of real property, the Court explained the statute of frauds does not apply to executed

contracts, but may bar enforcement of noncompliant executory contracts:

The Statute of Frauds . . . has no application to a fully

executed or consummated contract. . . .

It may be invoked only to prevent the enforcement of

executory contracts. . . .

There can be no breach of an executed contract. . . .

[I]f the deed was merely deposited with [an attorney] for

delivery to and acceptance by [a] plaintiff, the contract is

still executory in nature, and [the] plaintiffs’ plea of the

Statute of Frauds constitutes a valid and complete defense

against its enforcement.

Id. at 687, 83 S.E.2d at 790 (citations omitted). The Court ultimately remanded to

the trial court for rehearing because the court’s findings of fact—each supported by

distinct, competent evidence—supported disparate conclusions on this issue. Id. at

689, 83 S.E.2d at 792.

Plaintiffs correctly posit that Dobias is applicable to this case; however,

Plaintiffs misconstrue Dobias’s application to the current factual circumstances.

Unlike Dobias, the factual evidence pleaded in Plaintiffs’ Second Amended Complaint

can support only one conclusion: that any contract for the sale of the Airfield between

Plaintiffs and Defendants was executory. Defendants signed the general warranty

deed and then delivered it to Adams for Plaintiffs to sign, but retained—and, in fact,

invoked—the right to withdraw the deed if the parties could not reach an agreement

on the terms of the contract. Though the Second Amended Complaint alleged

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Opinion of the Court

“Defendants delivered the deed to [Plaintiffs],” the facts alleged in the Complaint

reveal the deed was delivered to Plaintiffs’ attorney, but never to Plaintiffs. To the

extent Plaintiffs’ argument contends delivery of the general warranty deed to Adams

in preparation for Plaintiffs’ signing amounted to full execution of the contract,

Plaintiffs cite no law in direct support and our research is likewise bereft. See Lerner

Shops of N.C. v. Rosenthal, 225 N.C. 316, 320, 34 S.E.2d 206, 209 (1945) (“A delivery

upon condition that the instrument should never become effective according to its

terms is, in principle, as much a conditional delivery as one made upon condition that

the deed should become effective only upon the happening of a specific event.”).

Therefore, the contract alleged in Plaintiffs’ Second Amended Complaint was an

executory contract for the sale of land to which the statute of frauds applies.

To satisfy the statute of frauds, “[t]he contract must be in writing and signed

by the party to be charged.” River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 123,

388 S.E.2d 538, 551 (1990). “Although the writing must contain all essential

elements of a contract to convey land, memoranda of land sales may be informal, and

all provisions of the contract need not be in a single instrument.” Id. (citations

omitted). “The essential elements of a contract for conveyance of land are the names

of the grantor and grantee, the price or consideration, and a description of the

property to be sold.” Id. (citing Hurdle v. White, 34 N.C. App. 644, 648, 239 S.E.2d

589, 592 (1977)).

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Opinion of the Court

Plaintiffs’ Second Amended Complaint pleaded the existence of the general

warranty deed as the sole written document evidencing the contract for the sale of

the Airfield. However, the Complaint concedes, and the parties agree, that the

general warranty deed does not exist because Defendants invoked their right to have

the deed returned to them when the parties could not agree on material terms and

Thompson destroyed the deed. Even assuming the court considered the alleged terms

of the general warranty deed in reaching its conclusion, the record shows that, at the

time Plaintiffs filed their Second Amended Complaint, no document existed which

included Defendants’ names, as the grantor and grantee; Defendants’ signatures, as

the party charged; a complete description of all property sold, as the parties had not

determined whether the additional hangar would be included in the transaction; and

the price or consideration of the sale, as those terms were still being negotiated when

Defendants signed the deed. The general warranty deed could not satisfy the statute

of frauds.

The Second Amended Complaint requested specific performance for breach of

a real estate contract but failed to plead the existence of a written document

satisfying the statute of frauds. {R. pp. 1237-42}. Therefore, the Second Amended

Complaint reveals the absence of an existing valid contract, a fact necessary to its

claim. The trial court did not err by dismissing Plaintiffs’ claim for breach of contract

pursuant to Rule 12(b)(6).

C. Rule 37 Sanctions

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Lastly, Plaintiffs contend the trial court abused its discretion in awarding

Defendants the expenses incurred in obtaining the Discovery Order as a sanction

under Rule 37 of the North Carolina Rules of Civil Procedure. “A trial court’s choice

of sanctions under Rule 37 will not be reversed on appeal absent an abuse of

discretion.” Leder v. Leder, 166 N.C. App. 498, 501, 601 S.E.2d 882, 885 (2004) (citing

Brooks v. Giesey, 106 N.C. App. 586, 592, 418 S.E.2d 236, 239 (1992)). An “[a]buse of

discretion results where the court’s ruling is manifestly unsupported by reason or is

so arbitrary that it could not have been the result of a reasoned decision.” State v.

Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988) (citation omitted). When the

record contains “plenary evidence therein to support the trial court’s thorough

findings,” this Court will find no abuse of discretion on appeal. Hursey v. Homes by

Design, Inc., 121 N.C. App. 175, 179, 464 S.E.2d 504, 506 (1995) (citation modified).

Rule 37 permits a party to move to compel the nonmoving party to respond to

discovery where the nonmoving party has been dilatory, evasive, or noncompliant

with discovery requests. N.C. R. Civ. P. 37(a) (2023). Rule 37 then instructs the trial

court shall award expenses reasonably incurred in obtaining its ruling to the

prevailing party:

If the motion is granted, the court shall, after opportunity

for hearing, require the party or deponent whose conduct

necessitated the motion or the party advising such conduct

or both of them to pay to the moving party the reasonable

expenses incurred in obtaining the order, including

attorney's fees, unless the court finds that the opposition to

the motion was substantially justified or that other

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circumstances make an award of expenses unjust.

N.C. R. Civ. P. 37(a)(4). Because Rule 37 “requires the award of expenses to be

reasonable, the record must contain findings of fact to support the award of any

expenses, including attorney’s fees.” Benfield v. Benfield, 89 N.C. App. 415, 422, 366

S.E.2d 500, 504 (1988) (citation modified).

Plaintiffs argue they “did not engage in dilatory tactics” and the trial court

abused its discretion “in awarding sanctions of $10,047.50 for [their] failure to

respond to one interrogatory.” Though Plaintiffs initially frame their argument as a

challenge to the trial court’s award of expenses incurred, they never address the

sufficiency of Defendants’ evidence supporting the amount of expenses awarded.

Rather, the substance of their argument requests this Court reweigh the sufficiency

of the evidence supporting the trial court’s decision to grant Defendants’ motion to

compel discovery.

The Discovery Order includes findings of fact that Defendants’ discovery

requests were not unreasonable, and that Plaintiffs failed to answer or fully answer

four of Defendants’ interrogatory requests. These findings are supported by record

evidence that Plaintiffs did not answer the requests, but instead repeatedly

instructed Defendants to look at other record evidence, which would contain an

answer. The Discovery Order then concludes that Plaintiffs should be compelled to

properly answer Defendants’ interrogatories, and that the court must award

Defendants expenses incurred pursuant to Rule 37.

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Opinion of the Court

We hold the trial court did not abuse its discretion in awarding expenses to

Defendants under Rule 37 because it properly concluded that Plaintiffs should be

compelled to answer discovery and was therefore required to award Defendants their

expenses reasonably incurred.

III. Conclusion

For the foregoing reasons, we affirm the Browne Order and the Discovery

Order.

AFFIRMED.

Judges ZACHARY and FLOOD concur.

Report per Rule 30(e).

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