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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
LAWRENCE AND KATHLEEN BROWN, Plaintiffs, v. FOREMOST AFFILIATED
INSURANCE SERVICES, INC. a/k/a FOREMOST SIGNATURE INSURANCE
COMPANY, a foreign corporation doing business in the State of
North Carolina, Defendant
Filed: 1 July 2003
1. Discovery_admissions_not timely answered_deemed admitted_summary judgment
Defendant's requested admissions were deemed admitted where plaintiffs' attorney did not
prepare responses or forward the requests to plaintiffs within the time required to avoid admission
under N.C.G.S. § 1A-1, Rule 36(a). The trial judge correctly granted defendant's motion for
summary judgment because the admissions established that defendant had fulfilled its obligations
under the insurance contract and that plaintiffs' claims for bad faith and unfair and deceptive trade
practices were frivolous.
2. Civil Procedure_Rule 60 motion for relief_findings not requested_attorney's
negligence not excusable
The trial court's failure to find facts when denying plaintiffs' Rule 60(b) motion for relief
was not an abuse of discretion where plaintiffs did not request findings. Moreover, there was no
basis for granting the motion because it was predicated on the errors of their attorney; an
attorney's negligence cannot amount to excusable neglect for a Rule 60(b) motion.
Appeal by plaintiffs from judgment entered 1 October 2001 by
Judge James L. Baker, Jr. in Henderson County Superior Court. Heard
in the Court of Appeals 20 February 2003.
James Michael Lloyd, P.A., by James Michael Lloyd, for
Golding, Holden, Pope & Baker, L.L.P., by Lisa F. Schwanz, for
Plaintiffs Larry and Kathleen Brown (Browns) sued to recover
from defendant Foremost Affiliated Insurance Services, Inc.
(Foremost) for damages to their mobile home under their homeowners
insurance policy. The Browns also alleged claims for bad faith and
unfair and deceptive trade practices. Foremost filed an answer andthen served requests for admissions upon the Browns. The Browns
failed to respond, and the facts contained in the requests were
deemed admitted. Foremost then moved for summary judgment, which
the superior court granted. For the reasons set forth below, we
affirm the superior court.
The Browns owned a 1,532 square foot manufactured home,
appraised in July 1998 at $48,250.00, that was located on rental
property. In 1998, they purchased a parcel of real property to
which they planned to move their home. The Browns alleged that they
purchased, in July 1998, a mobile home owners insurance policy
from Foremost and that, in December 1998, they purchased a change
in coverage that insured the home for $44,862.00. The policy also
included a rider for trip coverage for the period during which they
planned to move their home.
The Browns moved their home in December 1998. They contended
that their home was damaged during the move and filed a claim with
Foremost. The parties reached a partial settlement in April 2000,
pursuant to which the Browns received $16,869.05. Moreover, the
Browns reserved their right to additional payments for hidden
damages and for damages to the structure unknown at that time.
After repeated inspections and attempts to correct structural damage
to the home, Foremost acknowledged that the home was beyond repair
but disputed its value. Foremost did not enter into a final
settlement with the Browns and refused to pay the balance of the
value of the home that they demanded. The Browns filed suit.
In their complaint, the Browns alleged that Foremost had failedand refused to pay them as provided under their policy. They also
alleged that Foremost had acted in bad faith and had engaged in
unfair and deceptive trade practices. In February 2001, counsel for
Foremost served the Browns' attorney at the time with Defendant's
First Set of Requests for Admissions to the Plaintiffs. The Browns'
attorney, John MacLeod Tutterow, did not forward the requests to the
Browns nor did he himself prepare any responses. Mr. Tutterow also
failed to obtain an extension of time to respond to the requests.
(Mr. Tutterow no longer represents the Browns.) Thus, the requests
for admissions were deemed admitted by 1 April 2001, pursuant to
Rule 36 of the North Carolina Rules of Civil Procedure.
In May 2001, Mr. Tutterow forwarded to the Browns a copy of
Foremost's requests for admissions but did not mention that the
responses were already past due and were deemed admitted. The
Browns returned their responses to Mr. Tutterow within thirty days,
although the record indicates that he failed to file or serve the
responses at that time.
Foremost filed a motion for summary judgment in August 2001,
contending that the Browns' admissions had become conclusively
established facts in the case and therefore constituted a valid
basis for summary judgment. Also in August 2001, Mr. Tutterow
prepared responses to Foremost's request for admissions. On 10
September 2001, Mr. Tutterow had Mrs. Brown verify the responses to
the admissions. There is no indication, however, that he filed
these responses with the trial court prior to the summary judgment
The court heard Foremost's motion for summary judgment on 17September 2001. At that time, Mr. Tutterow filed no affidavits or
other documents on the Browns' behalf, nor did he move to have the
admissions withdrawn or amended prior to the hearing. On 20
September 2001, the court granted summary judgment, and the order
was filed and entered on 1 October 2001.
On 19 October 2001, the Browns filed a motion pursuant to North
Carolina Rule of Civil Procedure 60(b) for relief from final
judgment together with an affidavit in which Mr. Tutterow described
his difficulties in communicating with his clients. At the hearing
on 7 February 2002, the Browns learned for the first time that Mr.
Tutterow had not obtained any enlargements of time to respond to
Foremost's requests for admissions, contrary to what Mr. Tutterow
had led them to believe. Although Mr. Brown asked the court to
allow him to testify, the court refused the request. On 11 March
2002, the court denied the Browns' motion.
The Browns now appeal.
 The Browns concede that the trial court properly considered
their deemed admissions resulting from their failure to respond to
Foremost's requests. They argue, however, that the admissions
failed to establish the lack of any genuine issue of material fact.
Pursuant to Rule 36(a) of the North Carolina Rules of Civil
Procedure, when a written request for admissions is properly served
upon a party to a lawsuit:
[t]he matter is admitted unless, within 30 days
after service of the request, or within such shorteror longer time as the court may allow, the party to
whom the request is directed serves upon the party
requesting the admission a written answer or
objection addressed to the matter, signed by the
party or by his attorney.
N.C.G.S. § 1A-1, Rule 36(a) (1990). Any matter admitted under this
rule is conclusively established unless the court on motion permits
withdrawal or amendment of the admission. N.C. Gen. Stat. § 1A-1,
Rule 36(b). Facts that are admitted under Rule 36(b) are sufficient
to support a grant of summary judgment. Goins v. Puleo, 350 N.C.
277, 280, 512 S.E.2d 748, 750 (1999).
Here, the contract of insurance between the parties provided
If settlement can't be agreed to, then both [the
Browns] and [Foremost] have the right to select a
competent and disinterested appraiser within 20 days
from the date of disagreement. The appraisers will
select an umpire. The appraisers will determine the
amount of the loss. If they don't agree, then each
appraiser will submit his amount of loss to the
umpire. The agreement of any two will determine the
amount of the loss. [The Browns] pay [their]
appraiser and [Foremost] pays [its] appraiser.
In the request for admissions, Foremost requested that the
Browns admit (1) that the parties submitted the controversy to
appraisers; (2) that the appraisers agreed, on or about 4 November
1999, to an award of $16,969 to the Browns; (3) that the Browns were
issued a check in January 2000 and a replacement check in April 2000
for $16,869; (4) that the Browns retained the check; (5) that the
Browns previously had been paid the maximum limit of liability for
additional living expenses under the policy; and (6) that the Browns
had previously received checks from Foremost in the aggregate sum
of $4774.78, plus an additional check for $219. We conclude thatthese admissions establish that Foremost fulfilled its obligations
under the terms of the contract of insurance.
Further, Foremost requested that the Browns admit that their
claims for bad faith and for unfair and deceptive trade practices
were frivolous and groundless upon information known to them at the
time of the filing of the complaint. Because these statements also
are deemed admitted, we see no genuine issue of material fact with
regard to these claims.
Summary judgment is properly entered in favor of the moving
party if the movant establishes that an essential element of the
opposing party's claim is nonexistent. Goins, 350 N.C. at 281, 512
S.E.2d at 751. One of the essential elements of a claim for breach
of contract is that the defendant breached the terms of that
contract. Because the Browns were deemed to have admitted that
Foremost did not breach the contract, the court was required to
grant Foremost's motion and enter an order of summary judgment in
its favor. The same analysis applies to the claims involving bad
faith and unfair and deceptive trade practices.
We acknowledge that the entry of summary judgment in favor of
Foremost may appear to lead to a harsh result. Goins, 350 N.C. at
281, 512 S.E.2d at 751. Nevertheless, the Rules of Civil Procedure
promote the orderly and uniform administration of justice, and all
litigants are entitled to rely on them. Id. Therefore, the rules
must be applied equally to all parties to a lawsuit. Id.
 The Browns also contend that the trial court erred when it
failed to make findings of fact in its order denying the Rule 60(b)motion. Again we disagree.
On appeal, a trial court's ruling on a Rule 60(b) motion is
reviewable only for an abuse of discretion. Coppley v. Coppley, 128
N.C. App. 658, 663, 496 S.E.2d 611, 616, disc. review denied, 348
N.C. 281, 502 S.E.2d 846 (1998). Abuse of discretion is shown when
the court's decision is manifestly unsupported by reason or is so
arbitrary that it could not have been the result of a reasoned
decision. State v. McDonald, 130 N.C. App. 263, 267, 502 S.E.2d
409, 413 (1998) (citation and quotation marks omitted).
Here, the Browns failed to specify why the court's ruling
constituted an abuse of discretion. Rather, they argue that the
trial court should be reversed for failing to make findings of fact
in its order. A trial court, however, is not required to make
findings of fact absent a party's request. Gibson v. Mena, 144 N.C.
App. 125, 128, 548 S.E.2d 745, 747 (2001); N.C. Gen. Stat. § 1A-1,
Rule 52(a)(2). Our Supreme Court consistently has held that when
a trial court is not required to find facts, and does not do so, it
is presumed that the court on proper evidence implicitly found facts
to supports its judgment. Watkins v. Hellings, 321 N.C. 78, 82, 361
S.E.2d 568, 571 (1987). We leave it to the discretion of the trial
judge whether to make a finding of fact if a party does not choose
to compel a finding through the simple mechanism of so requesting.
Here, the Browns failed to request that the trial court find
facts in its order denying the Rule 60(b) motion. Accordingly,
based on Watkins, we presume as a matter of law that the trial court
discerned the necessary facts, on proper evidence, and that itcorrectly denied the Rule 60(b) motion.
In addition, we see no basis for granting the Browns' motion.
The motion was predicated on the errors of the Browns' former
counsel. Our courts consistently have held that an attorney's
negligence cannot amount to excusable neglect for the purposes of
a Rule 60(b) motion. Briley v. Farabow, 348 N.C. 537, 546, 501
S.E.2d 649, 655 (1998) ([C]learly, an attorney's negligence in
handling a case constitutes inexcusable neglect and should not be
grounds for relief under the 'excusable neglect' provision of Rule
60(b)(1).). Allowing an attorney's negligence to be a basis for
providing relief from orders would encourage such negligence and
present a temptation for litigants to use the negligence as an
excuse to avoid court-imposed rules and deadlines. Id.
In sum, the trial court did not err in refusing to grant the
Browns' motion for relief pursuant to Rule 60(b).
For the reasons set forth above, we affirm the decision of the
Judges McGEE AND STEELMAN concur.
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