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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.
FREDDIE LEE DIXON, SR., and MABEL DIXON, Plaintiffs, v. THOMAS L.
HILL, Administrator of the ESTATE OF JOHN BARBER, and PALMETTO BORN
AGAIN CHURCH OF CHRIST (APOSTOLIC), INC., a/k/a PALMETTO
DELIVERANCE CHURCH, Defendants
Filed: 1 November 2005
1. Appeal and Error--preservation of issues--substitution order_notice of appeal_failure
The appellate court had no jurisdiction to review defendants' contentions regarding an order
substituting the administrator of a deceased party's estate as a party defendant because defendants
did not specifically reference the order of substitution in the notice of appeal from a summary
judgment order and the record contains no indication that defendants objected to the order of
2. Civil Procedure--substitution of administrator_notice of summary judgment motion
The trial court erred by granting summary judgment in favor of plaintiffs as to the
administrator of a deceased defendant's estate who was substituted as a party for the deceased
defendant because that he did not receive proper notice of the motion for summary judgment
where(1) the order of substitution on 15 September 2003 making the administrator a party to this
action was entered on the same day that the court entered the summary judgment order, and
defendant administrator was denied the notice required by N.C.G.S. § 1A-1, Rule 56, and (2) a 14
February 2000 order directing the substitution of a nonexistent personal representative or collector
did not comply with N.C.G.S. § 28A-18-1 or N.C.G.S. § 1A-1, Rule 25, and the substitution thus
did not occur until 15 September 2003.
3. Appeal and Error_preservation of issues_failure to raise in trial court
Defendant church's argument that it was not properly served with a summary judgment
motion was not preserved for appeal where the issue of proper notice was not raised in the trial court.
4. Civil Procedure_summary judgment_substitution order on same day_additional name
Defendant church was not deprived of proper notice of a summary judgment motion beca
the trial court granted a motion for substitution on the same day as the hearing on the summary
judgment motion where, with respect to the church, the substitution order only added an additional
name by which the church was known; the church was already a party to the action; and the church
was not prejudiced by the entry of substitution and summary judgment orders on the same day.
5. Civil Procedure_summary judgment_supporting affidavit_personal knowledge
Plaintiff wife's affidavit was not based upon mere information and belief and was competent
evidence to support the entry of summary judgment against defendant church in an action for breach
of contract, fraud, negligent misrepresentation, conversation, unfair trade practices, unjust enrichment
and punitive damages arising from the purchase of a home by the church's bishop using plaintiffs'
settlement funds where the affidavit stated that the wife has personal knowledge of the matters
stated herein, except where stated upon information and belief, but the facts stated in the affidavit
were all based upon the wife's personal knowledge.
6. Civil Procedure_summary judgment_unverified answer_unverified discovery responses
Plaintiffs' motion for summary judgment could not be defeated by defendant church's denials
of plaintiffs' allegations in its unverified answer or by defendant's unverified responses to plaintiffs'
request for admissions.
7. Discovery_request for admissions_failure to rebut proper service_failure to respond
Defendant church failed to demonstrate that it was not served with plaintiffs' request for an
admission that the church's bishop was acting as its agent when performing the acts and omissions
at issue where the trial court had allowed the church's attorney to withdraw, plaintiffs were required
by N.C.G.S. § 1A-1, Rule 5(b) to serve the church directly, and the church offered no evidence that
the address on the certificate of service was incorrect. Therefore, the church was deemed to have
admitted that the bishop was acting as its agent where the church failed to timely respond to the
request for admissions.
Appeal by defendants from order entered 15 September 2003 by
Judge Gary L. Locklear in Robeson County Superior Court. Heard in
the Court of Appeals 6 December 2004.
R. Clark Speaks for plaintiff-appellee Freddie Lee Dixon, Sr.
Scott T. Slusser for plaintiff-appellee Mabel Dixon.
William L. Davis, III for defendants-appellants.
On 1 April 1999, plaintiffs Freddie Lee Dixon, Sr. and Mabel
Dixon filed suit against John Barber and defendant Palmetto Born
Again Church of Christ (Apostolic), Inc. ("the Church"). On 15
September 2003, the Robeson County Superior Court entered two
orders: (1) an order substituting as defendant Thomas L. Hill,
administrator of the estate of John Barber, for the deceased
defendant Barber and modifying the name of the Church to indicate
that it was also known as Palmetto Deliverance Church; and (2) an
order entering summary judgment in favor of plaintiffs. DefendantsHill and the Church contend on appeal that they did not receive
proper notice of the motion to substitute and the motion for
summary judgment, that the motion to substitute was improperly
allowed, and that genuine issues of material fact exist precluding
We hold that defendants failed to properly appeal from the
order of substitution and, accordingly, dismiss that portion of
defendants' appeal. Because Hill was substituted as a party on the
same day as the court entered summary judgment, we hold that Hill
was not provided with notice of the motion for summary judgment as
mandated by N.C.R. Civ. P. 56. We, therefore, reverse the grant of
summary judgment as to Hill. With respect to the Church, however,
we hold that it had proper notice of the motion for summary
judgment and that none of the arguments advanced by the Church on
appeal warrant reversal of the summary judgment order as to the
On 20 June 1993, plaintiffs' son, Freddie Lee Dixon, Jr., died
in an accident when a tractor-trailer collided with the van in
which he was riding. Plaintiffs filed a wrongful death action
against the company that owned the truck and eventually settled
their claim for $111,192.99.
John Barber was bishop of the defendant Church. During the
settlement negotiations in the wrongful death action, Barber acted
as a spokesperson for plaintiffs and, according to plaintiffs, toldthem not to talk to their attorneys. Defendants, in their answer,
(See footnote 1)
admitted that on 14 June 1994, the same day that plaintiffs
received the settlement, plaintiffs gave the $111,192.99 settlement
check to Barber. Barber in turn gave them a receipt reciting that
the $111,192.99 was "for down payment on stock and on house
Plaintiff Mabel Dixon stated in her affidavit that
Barber promised plaintiffs that he "would purchase $75,000.00 worth
of orange juice stock which would yield a 10% return per year" and
that "he would buy a house for [plaintiffs] with $35,000.00 down
payment and $600.00/month for eight (8) years." Defendants' answer
"admitted that the Defendant, Bishop John Barber, agreed to arrange
for the Plaintiffs to purchase the house located at 3524 Pine Log
Road, Lumberton, North Carolina for the sum of $89,000.00 with a
down payment of $35,000.00," while defendants' responses to
plaintiffs' First Request for Admissions "admitted that John Barber
told Plaintiffs that their $75,000.00 would earn 10% interest per
Ms. Dixon states in her affidavit that Barber told plaintiffs
that he had bought the house, but put it in the name of the Church.
According to defendants' answer, the house was "to be held in the
name of the church since the Plaintiffs were unable to qualify for
financing . . . ." Ms. Dixon explained that plaintiffs moved into
the house and began paying the
$600.00 per month directly to
Barber never gave plaintiffs a real estate contract forthe home and defendants have
"admitted that legal title is not
owned by Plaintiffs."
Ms. Dixon's affidavit states that after a year, plaintiffs
asked Barber about the interest being earned on the orange juice
stock. According to Ms. Dixon, Barber answered "that he waited too
long to get the interest and that it rolled over into the principal
amount for next year." The following year, plaintiffs again asked
about the annual return, and Barber gave them a similar response.
Defendants have admitted that Barber did not invest the settlement
funds in any "orange juice stock" and that none of plaintiffs'
money has ever been returned to them.
With respect to the Pine Log Road residence, Ms. Dixon stated
that after the plaintiffs had lived in the house for approximately
the home _ which the Church stated in their answer was
"to be held in the name of the Church" _ was deeded to Benny and
According to Ms. Dixon's affidavit, the Abrahams'
lender foreclosed on the house, and plaintiffs were evicted from
On 1 April 1999, plaintiffs brought suit against Barber and
the Church, asserting causes of action for (1) breach of contract,
(2) fraud and/or constructive fraud, (3) negligent
misrepresentation, (4) conversion, (5) unfair and deceptive trade
practices, (6) restitution and/or unjust enrichment, and (7)
punitive damages. Defendants filed a joint answer to the complaint
on 4 June 1999, admitting some of plaintiffs' allegations and
On 12 January 2000, Barber died.
His will named Fred L.
Musselwhite as the executor of his estate.
formally renounced his duties as executor on 20 January 2000. Four
days after Musselwhite's renunciation, plaintiffs filed a motion
"to substitute the Estate of John Barber and John Barber's personal
representative or collector for the Defendant John Barber. Said
substitution is made necessary by the death of Defendant John
Barber on or about January 12, 2000."
The trial court allowed
plaintiffs' motion on 14 February 2000. At this time, no person
had yet been appointed to replace Musselwhite in the capacity of
Almost two years later, on 7 February 2003, Bishop Thomas L.
Hill was appointed as administrator of Barber's estate.
August 2003, plaintiffs filed a motion to substitute Hill, as
administrator of the estate of John Barber, as a defendant. In
addition, the motion indicated that plaintiffs had learned that the
Church also conducted business under the name of Palmetto
Deliverance Church. Plaintiffs' motion, therefore, asked to change
the identification of the Church from "Palmetto Born Again Church
of Christ (Apostolic), Inc." to "Palmetto Born Again Church of
Christ (Apostolic), Inc., a/k/a Palmetto Deliverance Church." On
the same day, plaintiffs filed a motion for summary judgment,
attaching an affidavit of plaintiff Mabel Dixon and plaintiffs'Second Request for Admissions to which the Church had not
(See footnote 2)
Following a hearing on 15 September 2003, the trial court
entered an order on the same date allowing the motion to
substitute, including the substitution of Hill as administrator of
Barber's estate. Also on 15 September 2003, the trial court
entered summary judgment in favor of plaintiffs on all seven causes
of action asserted in the complaint. The court determined that
plaintiffs' damages equaled $127,992.00: the original sum of
$111,192.99 given by plaintiffs to Barber plus 28 monthly house
payments of $600.00 each (a total of $16,800.00). After concluding
that defendants' acts constituted unfair and deceptive trade
practices, the court trebled the damages and entered judgment in
the amount of $383,976.00. Defendants have appealed.
The Order of Substitution
 Defendants contend that they were not properly served with
the motion for substitution. We first note that the notice of
appeal states only: "The Defendants hereby gives [sic] Notice of
Appeal to the North Carolina Court of Appeals from a final judgment
entered on September 15, 2003 by the Honorable Gary Locklear
granting Summary Judgment in favor of Plaintiff[s]." The notice of
appeal thus does not specifically appeal the order allowing
substitution. Proper notice of appeal requires that the appealing party
"designate the judgment or order from which appeal is taken and the
court to which appeal is taken . . . ." N.C.R. App. P. 3(d).
"Without proper notice of appeal, this Court acquires no
jurisdiction." Brooks v. Gooden, 69 N.C. App. 701, 707, 318 S.E.2d
348, 352 (1984). N.C. Gen. Stat. § 1-278 (2003), however, provides
a means by which an appellate court may obtain jurisdiction to
review an order not included in a notice on appeal. It states:
"Upon an appeal from a judgment, the court may review any
intermediate order involving the merits and necessarily affecting
the judgment." Id.
This Court has held that appellate review pursuant to N.C.
Gen. Stat. § 1-278 is proper under the following circumstances:
(1) the appellant must have timely objected to the order; (2) the
order must be interlocutory and not immediately appealable; and (3)
the order must have involved the merits and necessarily affected
the judgment. Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637,
641, 535 S.E.2d 55, 59 (2000), appeal dismissed and disc. review
denied, 353 N.C. 370, 547 S.E.2d 1-2 (2001)
. All three conditions
must be met.
Id. at 642, 535 S.E.2d at 59.
In this case, defendants have failed to meet the first
requirement. Nothing in the record establishes that either
defendant timely objected to the order of substitution. Rule 46(b)
of the Rules of Civil Procedure provides, as to interlocutory
orders not directed to the admissibility of evidence, that "formal
objections and exceptions are unnecessary." Instead, [i]n order to preserve an exception to any
such ruling or order or to the court's failure
to make any such ruling or order, it shall be
sufficient if a party, at the time the ruling
or order is made or sought, makes known to the
court the party's objection to the action of
the court or makes known the action that the
party desires the court to take and the
party's grounds for its position.
Id. The opposition must specify "what action [the non-movant]
wanted the trial court to take and the grounds for that action."
Inman v. Inman, 136 N.C. App. 707, 712, 525 S.E.2d 820, 823, cert.
denied, 351 N.C. 641, 543 S.E.2d 870 (2000).
In this case, the record contains no written opposition to the
motion to substitute. In addition, as defendants did not file with
this Court a transcript of the 15 September 2003 hearing, there is
no indication that defendants made any oral objections to the
motion to substitute. Accordingly, because defendants did not
specifically reference the order of substitution in the notice of
appeal and because the record contains no indication that
defendants objected to the entry of that order, we do not have
jurisdiction to review defendants' contentions regarding the order
Appeal of the Summary Judgment Order by Hill
 We agree, however, with defendant Hill that he did not
receive proper notice of the motion for summary judgment. The
order of substitution making Hill a party to this action in his
capacity as administrator of Barber's estate was entered on 15
September 2003, the same day that the court entered summary
judgment against defendant Hill. In other words, Barber's estatebecame liable to plaintiffs on the very same day that it became a
party to the lawsuit.
N.C.R. Civ. P. 56(a), governing summary judgment proceedings,
provides: "A party seeking to recover upon a claim . . . may, at
any time after the expiration of 30 days from the commencement of
. . . move with or without supporting affidavits for a
summary judgment in his favor . . . ." (Emphasis added.) Rule
56(c) further provides that any motion for summary judgment must be
served on the opposing party at least 10 days before any scheduled
hearing on the matter. This Court has held that notice of a
hearing on a summary judgment motion must also be given at least 10
days prior to the hearing. Barnett v. King
, 134 N.C. App. 348,
350, 517 S.E.2d 397, 399 (1999). Here, the action did not commence
against the Barber estate until 15 September 2003, the day Hill was
joined as a party. Defendant Hill was, therefore, denied the
notice required by Rule 56.
Plaintiffs argue, however, that the estate was actually made
a party when the trial court on 14 February 2000 ordered "that the
Estate of John Barber and John Barber's personal representative or
collector be substituted for Defendant John Barber." We disagree.
It is undisputed that as of that date, no personal representative
or collector existed. Thus, the order did not effectively
As this Court explained with respect to a lawsuit mistakenly
brought against a deceased person named John Daniel Johnson rather
than against his estate:John Daniel Johnson, a legal entity, is
transformed, after death, into the estate of
John Daniel Johnson, a legal entity. . . .
[T]he life and estate of John Daniel Johnson
are inextricably dependent: Death of the
person is a point at which a legal
transformation to an estate can occur. Once
death occurs, the legal entity known as the
life of John Daniel Johnson can never again
have legal standing.
Pierce v. Johnson, 154 N.C. App. 34, 40, 571 S.E.2d 661, 665
(2002). In recognition of this principle, N.C. Gen. Stat. § 28A-
18-1(a) provides that upon the death of any person, all right to
defend any action existing against the deceased "shall survive . .
. against the personal representative or collector of his estate."
As a result, when Barber died, this action did not abate, but
it could not be continued against Barber or his estate generally.
The action survived only against the personal representative or
collector of Barber's estate. Shaw v. Mintz, 151 N.C. App. 82, 86,
564 S.E.2d 593, 596 (Greene, J., dissenting) ("An injured party's
right to proceed with a claim against a person she claims to have
negligently caused her injuries is not abated by the death of the
party alleged to have been negligent, as the action survives
against the personal representative or collector of the decedent's
estate."), adopted per curiam, 356 N.C. 603, 572 S.E.2d 782 (2002).
The personal representative must then be substituted under N.C.R.
Civ. P. 25(a). In re Estate of Etheridge, 33 N.C. App. 585, 587,
235 S.E.2d 924, 926 (1977) ("If, as in the case at bar, there is a
death of a party to an action, then G.S. 1A-1, Rule 25(a) . . .
requires the substitution of either a personal representative or a
successor in interest."). The 14 February 2000 order directing the substitution of the
non-existent "personal representative or collector" does not comply
with N.C. Gen. Stat. § 28A-18-1 or Rule 25. As our Supreme Court
has stated, "our statutory scheme for handling claims against
decedents' estates presumes the appointment of a personal
representative or collector to receive those claims." Ragan v.
Hill, 337 N.C. 667, 673, 447 S.E.2d 371, 375 (1994). In both Ragan
and Shaw, our courts acknowledged that a plaintiff is unable to
proceed with litigation against an estate until an administrator is
actually appointed. Ragan, 337 N.C. at 673, 447 S.E.2d at 375
("Once Hill was appointed administrator, plaintiffs were able to
proceed with this action against Hill in his role as administrator
pursuant to N.C.G.S. § 28A-18-1."); Shaw, 151 N.C. App. at 87, 564
S.E.2d at 596 (when the plaintiff filed a timely action against the
defendant, who then died, but did not proceed against the estate
prior to the running of the statute of limitations, the claim was
not necessarily barred because the record did not indicate that any
administrator had been appointed).
Thus, the 14 February 2000 order could not operate to
substitute Barber's personal representative. That substitution did
not occur until 15 September 2003. Because the estate's
administrator did not become a party until 15 September 2003, he
did not receive proper notice of the summary judgment motion and
that order must be reversed as to defendant Hill and remanded for
Appeal of the Summary Judgment Order by the Church
 The Church first argues that it was not properly served
with the motion for summary judgment. Plaintiffs respond that
"[t]he issue of proper notice was never raised at the trial court
level and no objection to the manner of service was ever raised
until this appeal."
N.C.R. App. P. 10(b)(1) states: "In order to preserve a
question for appellate review, a party must have presented to the
trial court a timely request, objection or motion, stating the
specific grounds for the ruling the party desired the court to make
if the specific grounds were not apparent from the context." The
record contains nothing indicating that the Church objected below
on the grounds of improper service. As the appellant, it was the
Church's responsibility to ensure that the record contains those
materials necessary to determine its appeal. Hill v. Hill
, 13 N.C.
App. 641, 642, 186 S.E.2d 665, 666 (1972) ("It is the duty of an
appellant to see that the record is properly made up and
transmitted.") Because the Church has failed to demonstrate that
it preserved this objection below, we overrule this assignment of
(See footnote 3)
 The Church argues alternatively that it, like the
administrator of Barber's estate, was deprived of proper notice of
the summary judgment motion because the trial court granted the
motion for substitution on the same day as the hearing on the
summary judgment motion. The Church, however, was already a party
to this action. With respect to the Church, the substitution order
only added an additional name by which the Church was known.
Neither the record on appeal nor the Church's appellate brief
suggests that the addition of "a/k/a Palmetto Deliverance Church"
altered the identity of the defendant. Since the Church was
already a party and the Church has not suggested any manner in
which it was prejudiced by the entry of the two orders on the same
day, the trial court did not err with respect to the Church in
considering the motion for summary judgment on the same day that it
heard the motion to substitute.
The Church next contends that issues of fact precluded entry
of summary judgment on plaintiffs' claims. The North Carolina
Rules of Civil Procedure provide that summary judgment shall be
granted "if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that any
party is entitled to a judgment as a matter of law." N.C.R. Civ.
P. 56(c). In deciding the motion, "'all inferences of fact . . .
must be drawn against the movant and in favor of the party opposing
the motion.'" Caldwell v. Deese
, 288 N.C. 375, 378, 218 S.E.2d379, 381 (1975) (quoting 6 James W. Moore et al., Moore's Federal
§ 56-15, at 2337 (2d ed. 1971)).
The party moving for summary judgment has the burden of
establishing the lack of any triable issue. Collingwood v. Gen.
Elec. Real Estate Equities, Inc.
, 324 N.C. 63, 66, 376 S.E.2d 425,
427 (1989). Once the moving party meets its burden, then the
non-moving party must "produce a forecast of evidence demonstrating
that the plaintiff will be able to make out at least a prima facie
case at trial." Id.
In opposing a motion for summary judgment,
the non-moving party "may not rest upon the mere allegations or
denials of his pleading, but his response, by affidavits or as
otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial." N.C.R. Civ. P.
The trial court concluded that the Church was jointly and
severally liable to plaintiffs for unfair and deceptive trade
practices, fraud/constructive fraud, breach of contract,
conversion, negligent misrepresentation, restitution/unjust
enrichment, and punitive damages. The court then found that
plaintiffs were entitled to compensatory damages in the amount of
$127,992.00, which it trebled based on its conclusion that
defendant had committed an unfair and deceptive trade practice.
 The Church first contends that
plaintiffs failed to
present sufficient evidence to support summary judgment in their
favor, arguing that Ms. Dixon's affidavit is not competent evidence
because it was based upon information and belief. See CurrituckAssocs. Residential P'ship v. Hollowell
, 170 N.C. App. 399, 403-04,
612 S.E.2d 386, 389 (2005). That affidavit actually stated that
Ms. Dixon "has personal knowledge of the matters stated herein,
except where stated upon information and belief." When, however,
the facts were actually set out in the affidavit, none of them were
qualified as being "upon information and belief." Accordingly,
there is no indication in the record that Ms. Dixon lacked personal
knowledge with respect to the facts set forth in her affidavit.
 Second, although the Church acknowledges that it did not
submit any evidence in opposition to the Dixon affidavit, it
issues of fact still exist based on the Church's and
Barber's denial of the allegations in plaintiffs' complaint and
based on the denials contained in their response to plaintiffs'
First Request for Admissions. The Church's answer was not verified
and, therefore, the denials contained in that answer are not
sufficient to defeat summary judgment. Excel Staffing Serv., Inc.
v. HP Reidsville, Inc.
, 172 N.C. App. 281, 288-89, 616 S.E.2d 349,
354 (2005) (holding that the trial court properly granted the
plaintiff summary judgment when the defendant relied solely on the
denial in its unverified answer).
Likewise, the Church's denials in response to plaintiffs'
First Request for Admissions do not give rise to issues of fact for
purposes of a motion for summary judgment. Those responses were
not verified and, therefore, cannot be deemed to be an affidavit.
Nor do they fall within the category of
"depositions, answers to
interrogatories, and admissions on file" specified in Rule 56 asmaterial that may be considered. The Church was obligated to
present a forecast of evidence _ not mere allegations _
demonstrating the existence of genuine issues of material fact.
See Paramount Aviation Corp. v. Agusta
, 178 F.3d 132, 149 (3d Cir.)
("Although [plaintiff] denied knowledge or information about the
helicopter in its responses to requests for admission, its general
denial is insufficient to create a genuine issue of fact."), cert.
, 528 U.S. 878, 145 L. Ed. 2d 158, 120 S. Ct. 188 (1999); Am.
Communications Telecomms., Inc. v. Commerce North Bank
, 691 S.W.2d
44, 48 (Tex. App. 1985) ("When an answering party denies or refuses
to make an admission of fact [in response to a request for
admissions], such refusal is nothing more than a refusal to admit
a fact. It is not evidence of any fact except the fact of
 Finally, the Church argues that summary judgment is
improper as to the Church because plaintiffs have failed to present
evidence that Barber was acting as an agent of the Church.
Plaintiffs' Second Request for Admissions asked the Church to admit
that Barber was acting as an agent for the Church when performing
the acts and omissions alleged in the complaint.
36(a) of the
Rules of Civil Procedure provides that each request "is admitted
unless, within 30 days after service of the request, or within such
shorter or 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 . . . ." It is undisputed
that the Church neither responded nor objected to the SecondRequest for Admissions. Moreover, the record contains no
indication that the Church ever moved to withdraw the admissions
resulting from its failure to respond. See
N.C.R. Civ. P. 36(b)
("Any matter admitted under this rule is conclusively established
unless the court on motion permits withdrawal or amendment of the
The Church argues, however, that the Second Request for
Admissions was not properly served on the Church.
of service dated 22 May 2001 indicated service by mailing to
"Bishop Thomas L. Hill" and the "Palmetto Born Again Church of
Christ (Apostolic)" at a post office box in Lumberton, North
Carolina. The record also includes a return receipt attached to
the certificate of service evidencing receipt by Thomas L. Hill on
29 May 2001. The Church does not argue that the address was the
wrong address for the Church or that the Church failed to receive
the Second Request for Admissions. Instead, the Church contends
that proof of service was insufficient because plaintiffs failed to
offer proof that Mr. Hill was an officer, director, or agent of the
Church as set out in Rule 4(j)(6) and (8) of the Rules of Civil
Plaintiffs were obligated to serve the Second Request for
Admissions in accordance with Rule 5 of the Rules of Civil
Procedure. Rule 5(b) provides:
With respect to all pleadings subsequent to
the original complaint and other papers
required or permitted to be served, service
with due return may be made in the manner
provided for service and return of process in
Rule 4 and may be made upon either the partyor, unless service upon the party personally
is ordered by the court, upon the party's
attorney of record. With respect to such
other pleadings and papers, service upon the
attorney or upon a party may also be made by
delivering a copy to the party or by mailing
it to the party at the party's last known
or, if no address is known, by filing
it with the clerk of court.
(Emphasis added.) As the plain language of Rule 5(b) indicates _
contrary to the Church's contention _ a party is not required to
comply with Rule 4 in serving documents subsequent to the
complaint. Instead, Rule 5(b) specifically permits parties to
serve another party by mail or delivery to that party's attorney
or, if unrepresented, to that party.
Because the trial court had allowed the Church's attorney to
withdraw, plaintiffs were required to serve the Church directly.
(See footnote 4)
See 1 James W. Moore et al., Moore's Federal Practice § 5.04[b]
(3d ed. 1997) ("[I]f a party is no longer represented by an
attorney in a particular action, service must be made directly on
the party."). Rule 5(b) authorized plaintiffs to serve the Church
by mailing the Second Request for Admissions to the Church at the
Church's last known address
. Once plaintiffs submitted a
certificate of service and return receipt indicating service upon
the Church, the burden lay with the Church to establish that
service was inadequate because the address was not the Church's
last known address. Goins v. Puleo, 350 N.C. 277, 281, 512 S.E.2d748, 450-51 (1999) (holding that because the plaintiff made no
attempt to rebut the presumption of receipt arising from a
certificate of service and signed return receipt, the plaintiff was
presumed to have been properly served with a request for
admissions). The Church offered no evidence and has made no
argument that the address on the certificate of service was
We note further that once the Church's attorney was allowed to
withdraw, the Church had an obligation to keep the Court and
plaintiffs advised of a current address for the service of papers.
See Freed v. Plastic Packaging Materials, Inc., 66 F.R.D. 550, 552
(E.D. Pa. 1975) ("All parties have an obligation to keep the Court
advised of a current address for the service of papers, either to
counsel or the party directly."). A party who does not comply with
this obligation "should not thereby be able to foreclose an
opposing party from taking full advantage of the procedures which
our Rules [of Civil Procedure] allow." Id. (granting summary
judgment to a plaintiff based on the defendant's failure to respond
to a request for admissions after its attorney had withdrawn).
Compare Barnett, 134 N.C. App. at 351, 517 S.E.2d at 400 (holding
that the pro se defendant was not properly served with a request
for admissions when he had provided the plaintiff with a mailing
address for subsequent service of pleadings, but the plaintiff had
not used that address).
Because the Church failed to demonstrate that it was not
served with the Second Request for Admissions, the Church is deemedto have admitted each of those requests. Excel Staffing, __ N.C.
at __, 616 S.E.2d at 352 ("In order to avoid having the requests
deemed admitted, a party must respond within the specified time
period."). By not responding, the Church admitted that Barber was
acting as its agent. The Church does not present any further
argument in its brief regarding whether the undisputed facts set
out by the trial court are sufficient to establish liability under
plaintiffs' causes of action. We, therefore, affirm the trial
court's order granting summary judgment to plaintiffs with respect
to their claims against the Church.
We dismiss defendants' appeal to the extent they seek reversal
of the trial court's order of substitution. We reverse the trial
court's entry of summary judgment as to Hill, who was substituted
as administrator for the estate of Barber, on the grounds that he
did not receive proper notice of the motion for summary judgment.
The trial court's order granting summary judgment to plaintiffs and
against the Church is, however, affirmed.
Dismissed in part, affirmed in part, reversed and remanded in
Chief Judge MARTIN and Judge CALABRIA concur.
The Church and defendant Barber, before he passed away, filed
a joint answer and a joint response to plaintiffs' First Request
At the time the Second Request for Admissions were served,
defendant Barber had passed away and Hill had not yet been
appointed administrator of the estate.
Plaintiffs have included in the appendix to their brief
documentation to support their contention that the Church was
properly served. In making its argument, the Church similarly
relies upon a document that post-dates the trial court's summary
judgment order. Since this material was not presented to the trial
court in the first instance, it may not be considered by this
Court. That material has not, therefore, been considered in
connection with this appeal.
The trial court allowed defendants' counsel to withdraw on 23
April 2001, finding that "[d]efendants' counsel has given
reasonable notice of his intention to withdraw to Defendants."
Plaintiffs mailed their Second Request for Admissions a month later
on 22 May 2001.
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