Iverson v. Xpert Tune, Inc.
Decision Date | 08 September 1989 |
Citation | 553 So.2d 82 |
Parties | Walter IVERSON v. XPERT TUNE, INC. 88-474. |
Court | Alabama Supreme Court |
George B. Azar and Richard C. Dean, Jr., of Azar & Azar, Montgomery, for appellant.
Harry Cole and Terry A. Sides of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
This is an appeal from the trial court's dismissal for refusal to provide discovery, pursuant to Rule 37, A.R.Civ.P. We affirm.
Walter Iverson sued Xpert Tune, Inc. ("Xpert"), alleging breach of contract, fraud, and misrepresentation. The substance of these claims was that Xpert had diagnosed Iverson's automobile as having a defective fuel pump and had subsequently replaced the pump, when, in fact, he alleges, the fuel pump was "in good working order."
Xpert filed with the trial court, and served upon Iverson's counsel, a request for production and/or inspection of documents, specifically requesting to inspect "[t]he fuel pump which [Xpert] removed from [Iverson's] vehicle on or about July 17, 1987." Iverson and Xpert agreed to schedule the inspection of the fuel pump on or prior to September 7, 1988, at the time set for Iverson to depose Xpert's expert witness. The day preceding the scheduled deposition of Xpert's expert witness, Iverson informed Xpert that the fuel pump was unavailable for inspection as requested.
On September 8, 1988, Xpert filed a motion to dismiss pursuant to Rule 37, A.R.Civ.P., offering the following statement as grounds in support thereof:
Subsequently, the trial court held a hearing on Xpert's motion to dismiss for the purpose of determining the circumstances surrounding the discarding of the fuel pump, which was critical to this case. At this hearing, the trial court heard Iverson's testimony and also considered the testimony of Xpert's expert witness submitted by affidavit, filed with the trial court's permission. The trial court granted Xpert's motion to dismiss and entered a default judgment against Iverson pursuant to Rule 37(b)(2)(c), A.R.Civ.P., based on Iverson's willful failure to permit discovery. This appeal followed.
In its memorandum opinion, the trial court made the following findings of fact:
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Table of Authorities
...930 F. Supp. 36 (D. Conn. 1996)...................................................................... 415 Iverson v. Xpert Tune, Inc., 553 So. 2d 82 (Ala. 1989).................................................................................... 338 Jackson v. Jackson, 236 Va. 199, 372 S.E.2......