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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1178


Filed: 17 July 2007



v .                         Guilford County
                            No. 05 CVS 6435


    Appeal by plaintiff from order entered 3 April 2006 by Judge Timothy S. Kincaid in Guilford County Superior Court. Heard in the Court of Appeals 28 March 2007.

    Joel G. Bowden, for plaintiff-appellant.

    Teague Campbell Dennis & Gorham, LLP, by Edward S. Schenk, III, for defendant-appellee.

    ELMORE, Judge.

    On 12 May 2005, Katrina Whitt (plaintiff) filed a complaint against Target Stores, Inc. (defendant), alleging negligence in a slip and fall case. Defendant filed its answer on 25 July 2005, denying all liability. On 7 November 2005, defendant filed its first request for admissions. Defendant received no response, and on 13 January 2006 filed a motion for summary judgment. On 3 April 2006, plaintiff filed a response to defendant's motion, accompanied by a supporting affidavit. The trial court granted the motion for summary judgment in an order entered 20 April 2006. It is from this order that plaintiff now appeals.    Plaintiff makes two arguments on appeal: (1) that because plaintiff claimed that she never received defendant's first request for admissions, the trial court should have set aside the admissions she made by failing to respond to the request, and (2) that the trial court erred in granting summary judgment because there was a genuine issue of material fact. Though plaintiff conflates the two arguments in her brief, they are separate issues and we will deal with them accordingly.    
    Plaintiff first contends that the trial court erred in not considering evidence that she presented to show that she did not receive the first request for admissions. This argument is without merit.
    A matter for which admission is requested “is admitted unless, within 30 days after service of the request . . . the party to whom the request is directed serves upon the party requesting the admission a written answer or objection . . . .” N.C. Gen. Stat. § 1A-1, Rule 36(a) (2005). “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) (2005). “Rule 36 means exactly what it says. In order to avoid having the requests deemed admitted, a party must respond within the specified time period.” Excel Staffing Serv., Inc. v. HP Reidsville, Inc., 172 N.C. App. 281, 285, 616 S.E.2d 349, 352 (2005) (citation omitted). “The standard of review of a trial court's ruling on a motion to amend or withdraw a party's admissionis abuse of discretion.” Id. at 285, 616 S.E.2d at 353 (citation omitted).
    In this case, defendant filed its first request for admissions on 7 November 2005. At that time, defendant also filed its certificate of service, in which defendant's attorney certified that he deposited a copy of the request, postage paid, in the United States mail, addressed to plaintiff's counsel at what is acknowledged to be the proper address. In doing so, defendant complied with the service requirements of this State:
        [S]ervice upon the attorney or upon a party may . . . be made by . . . mailing it to the party at the party's last known address . . . .

        Service by mail shall be complete upon deposit of the pleading or paper enclosed in a post-paid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service.
N.C. Gen. Stat. § 1A-1, Rule 5 (2005).
    On 13 January 2006, after the passage of sixty-seven days, over twice the time allowed for response under Rule 36(a), defendant moved for summary judgment. At that time, plaintiff claimed never to have received the request for admissions, despite defendant's signed certificate of service. Given the lengthy period of time at issue, and the fact that defendant complied with the requirements for service, we hold that the trial court did not abuse its discretion in refusing to allow plaintiff to withdraw her admissions. See Shwe v. Jaber, 147 N.C. App. 148, 152, 555 S.E.2d 300, 303 (2001) (holding that a trial court did not abuse itsdiscretion in denying a motion to withdraw admissions when, considering the party's claims that he never received the request, the trial court found the claims not to be credible). Accordingly, plaintiff's first contention on appeal fails.
    Plaintiff also claims that summary judgment was inappropriate because there were genuine issues of material fact. “The standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law.” Papdopoulos v. State Capital Ins. Co., ___ N.C. App. ___, ___, 644 S.E.2d 256, ___ (2007) (quotations and citation omitted). “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) (citation omitted). Having held that the trial court properly exercised its discretion in denying plaintiff's request to withdraw the admissions, we can discern no genuine issue of material fact in this case. Plaintiff's admissions bar any recovery, and the trial court's grant of summary judgment was therefore appropriate. Accordingly, we affirm.
    Judges MCCULLOUGH and STROUD concur.
    Report per 30(e).

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