Hudson v. Hudson ( 1977 )

237 S.E.2d 479 (1977) 34 N.C. App. 144

Meriwether W. HUDSON
v.
Fitzgerald S. HUDSON.

No. 7614DC982.

Court of Appeals of North Carolina.

September 21, 1977. Certiorari Denied November 11, 1977.

Jordan, Wright, Nichols, Caffrey & Hill by William W. Jordan, Greensboro, for plaintiff-appellant.

Smith, Moore, Smith, Schell & Hunter by Robert A. Wicker, Greensboro, for defendant-appellee.

Powe, Porter, Alphine & Whichard by E. K. Powe, Durham, for Collier Cobb & Associates, Inc., appellee.

Certiorari Denied by Supreme Court November 11, 1977.

HEDRICK, Judge.

It is a general rule that orders regarding matters of discovery are within the discretion of the trial court and will not be upset on appeal absent a showing of abuse of discretion. Stanback v. Stanback, 287 N.C. 448, 215 S.E.2d 30 (1975); Harrington Mfg. Co., Inc. v. Powell Mfg. Co., 26 N.C. App. 414, 216 S.E.2d 379, cert. denied, 288 N.C. 242, 217 S.E.2d 679 (1975); Firemen's Mut. Ins. Co. v. High Point Sprinkler Co., 266 N.C. 134, 146 S.E.2d 53 (1966). Justice Lake, speaking for the Supreme Court in Tennessee-Carolina Transportation, Inc. v. Strick Corp., 291 N.C. 618, 626-7, 231 S.E.2d 597, 602 (1977) on rehearing from 289 N.C. 587, 223 S.E.2d 346 (1976), wrote:

"The authority of the trial judge to issue ... [a] protective order [under Rule 26(c)] is not unqualified. The statute provides that such order may be issued only `for good cause shown' and that it may be issued only `to protect a party or person from unreasonable annoyance, embarrassment, oppression or undue burden or expense.'"

In the present case Judge Gantt recited that "... good cause has been shown and the interest of justice require that protection be afforded Collier Cobb & Associates, Inc. ...." Unlike Tennessee-Carolina Transportation, Inc., where Justice Lake found that there was "[n]o ... basis [of good cause] for the order prohibiting ... [discovery] shown in the record," the record before us demonstrates an adequate basis for the judge's order limiting discovery. Furthermore, we agree with the trial court's conclusion that the judgment of voluntary dismissal with prejudice of the prior action in Moore County involving the same parties "... foreclosed and estopped [the parties] from litigating all issuable matters contained in the pleadings of the Moore County action ...." Young v. Young, 21 N.C.App. 424, 204 S.E.2d 711 (1974). The plaintiff has failed to show any abuse of discretion in the order dated 17 September 1976.

Affirmed.

VAUGHN and CLARK, JJ., concur.