No. 05 CVS 6435
TARGET STORES, INC.,
Joel G. Bowden, for plaintiff-appellant.
Teague Campbell Dennis & Gorham, LLP, by Edward S. Schenk, III, for defendant-appellee.
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 . . . .
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