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GOSS v. BATTLE

No. 9221SC900.

432 S.E.2d 156 (1993)

111 N.C. App. 173

John GOSS, Plaintiff-Appellant, and TM Enterprises, Inc., Plaintiff and Nominal Counterclaim Defendant, v. Edward G. BATTLE, Kathy Battle, Charles Duckett, Marketing Incorporated, and Battle and Associates, Inc., Defendant-Appellees.

Court of Appeals of North Carolina.

July 20, 1993.

Attorney(s) appearing for the Case

Hendrick, Zotian, Bennett, Cocklereece, & Blancato by Richard V. Bennett and Sherry R. Dawson, Winston-Salem, for plaintiff-appellant.

Robinson, Maready, Lawing, & Comerford by Norwood Robinson and Michael

Robinson, Winston-Salem, for defendant-appellees.

EAGLES, Judge.

The sole issue presented by this appeal is whether a trial court must consider less severe sanctions before dismissing a plaintiff's complaint under Rule 37(d) of the North Carolina Rules of Civil Procedure. Appellants argue the rule enunciated in Foy v. Hunter, 106 N.C. App. 614, 418 S.E.2d 299 (1992) and Rivenbark v. Southmark Corp., 93 N.C. App. 414,

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