DeCesare v. Island Games, LLC ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-670
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
TAMMY DECESARE,
Plaintiff,
v. Rowan County
No. 12-CVS-609
ISLAND GAMES, LLC and, SHAUN
WESTRAAD,
Defendants.
Appeal by defendants from judgment entered 25 March 2013 by
Judge W. Erwin Spainhour in Rowan County Superior Court. Heard
in the Court of Appeals 6 November 2013.
Huffman Law Firm, P.A., by Richard L. Huffman, for
plaintiff-appellee.
Ferguson, Scarbrough, Hayes, Hawkins & DeMay, P.A., by
James R. DeMay, for defendants-appellants.
HUNTER, Robert C., Judge.
Island Games, LLC and Shaun Westraad (individually “Island
Games” and “Westraad,” collectively “defendants”) appeal from
summary judgment entered 25 March 2013 by Judge W. Erwin
Spainhour in Rowan County Superior Court. On appeal, defendants
contend that: (1) the trial court abused its discretion by
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denying defendants’ motion to withdraw admissions; (2) the trial
court erred by granting plaintiff’s motion for summary judgment;
and (3) summary judgment should be vacated because defendants
were not provided adequate notice of the summary judgment
hearing.
After careful review, we affirm the trial court’s judgment.
Background
On 9 March 2012, Tammy DeCesare (“plaintiff”) filed suit
for breach of contract and accounting against both Westraad and
Island Games in Rowan County Superior Court.1 In the complaint,
plaintiff alleged that: (1) Island Games was under the complete
dominion and control of Westraad; (2) plaintiff and defendants
entered into a business agreement whereby plaintiff purchased a
fifty percent stake in Island Games for $23,500.00, Island Games
was to purchase 8 sweepstakes consoles, and profits earned from
the consoles would be split equally between plaintiff and
Westraad; (3) plaintiff and defendants agreed to part ways, with
defendants agreeing to repay plaintiff the $23,500.00 which she
invested in the company; and (4) plaintiff made demand for
payment but no payment was made to her. Defendants filed an
1
The parties stipulated that plaintiff’s claim for accounting is
moot and that the summary judgment order resolved the sole issue
remaining in the complaint – breach of contract.
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unverified answer 9 April 2012, generally denying the
allegations in the complaint.
On 30 November 2012, plaintiff served a request for
admissions on defendants by depositing copies addressed to
Westraad and Island Games in the United States Mail. On 3
December 2012, Westraad left for Philadelphia, Pennsylvania to
visit family, where he stayed until 6 January 2013 – the day
that he first saw the request for admissions. Defendants’ time
to respond to the request for admissions had expired on 2
January 2013, and defendants did not respond until 13 January
2013, 11 days after the deadline had passed. Plaintiff
requested defendants admit, among other things, that: (1) a
contract existed between plaintiff and defendants which granted
plaintiff a fifty percent share of Island Games in exchange for
$23,500.00 paid by plaintiff to fund the sweepstakes operation;
(2) plaintiff paid defendants $23,500.00; (3) plaintiff and
defendants agreed to part ways; (4) defendants agreed to repay
$23,500.00 to plaintiff in exchange for her share of Island
Games; (5) defendants have not paid plaintiff $23,500.00; (6)
defendants owe plaintiff $23,500.00; and (7) “[plaintiff] should
receive whatever she prayed for in her Complaint.”
Based on the admissions, plaintiff moved for summary
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judgment on 13 March 2013. Defendants were represented by
counsel at the hearing held on 25 March 2013, and they filed a
notice of appearance, a motion to withdraw admissions, and an
affidavit of Westraad. Westraad’s affidavit contradicted the
admissions in several material aspects. He averred that: (1)
the business run by plaintiff and Westraad opened under the name
“Island Games” but was not affiliated with Island Games, LLC, of
which Westraad was a member and manager; (2) plaintiff only paid
Westraad $23,100.00 over the course of their business
relationship; and (3) there was no agreement that Westraad would
repay plaintiff’s investment in the business.
The trial court granted plaintiff’s motion for summary
judgment, holding defendants jointly and severally liable for
the sum of $23,500.00 plus the costs of the action. Defendants
filed timely notice of appeal.
Discussion
I. Motion to Withdraw Admissions
Defendants first contend that the trial court abused its
discretion by denying their motion to withdraw admissions.
After reviewing the record, we find that this issue is not
properly before us. Rule 10(a)(1) of the North Carolina Rules
of Appellate Procedure states:
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In order to preserve an issue 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. It is also necessary for
the complaining party to obtain a ruling
upon the party’s request, objection, or
motion.
N.C. R. App. P. 10(a)(1) (2013) (emphasis added). The record
reveals no ruling on defendants’ motion to withdraw admissions.
We also cannot determine whether the motion was ruled on in open
court, because no testimony was given at the hearing and no
transcript was prepared. The judgment from which defendants
appeal states only that:
This cause was heard before the undersigned
Judge on motion of the Plaintiff for Summary
Judgment. It is appears [sic] to the
[c]ourt that there is no genuine issue as to
any material fact and that Plaintiff is
entitled to Judgment as a matter of law.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that Summary Judgment is granted in
favor of Plaintiff against Defendants and
that the Plaintiff have and recover from the
Defendants, jointly and severally, the sum
of $23,500.00 together with the costs of
this action.
Defendants argue that the trial court necessarily denied
their motion to withdraw admissions because it entered summary
judgment in favor of plaintiff despite there being no verified
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pleadings or affidavits in support of summary judgment before
it. We disagree. Another plausible explanation is that the
trial court declined to rule on defendants’ motion because it
was filed on the same day that the matters were to be heard, in
violation of North Carolina Rule of Civil Procedure 6(d). See
N.C. Gen. Stat. § 1A-1, Rule 6(d) (2013) (“A written motion . .
. and notice of the hearing thereof shall be served not later
than five days before the time specified for the hearing[.]”);
see also City of Winston-Salem v. Slate, 185 N.C. App. 33, 37,
647 S.E.2d 643, 647 (2007) (holding that the trial court did not
err by declining to hear a motion not filed in a timely fashion
under Rule 6(d)). Defendants ask us to speculate as to why the
trial court did not rule on their motion to withdraw admissions,
which we decline to do. See Drouillard v. Keister Williams
Newspaper Servs., 108 N.C. App. 169, 173, 423 S.E.2d 324, 327
(1992) (“Our review is limited to that which appears in the
verbatim transcript or record on appeal.”). Absent a ruling on
defendants’ motion to withdraw admissions in the record, this
issue is not properly before this Court. See Bio-Med.
Applications of N. Carolina, Inc. v. N. Carolina Dep’t of Health
& Human Servs., Div. of Facility Servs., 179 N.C. App. 483, 487,
634 S.E.2d 572, 576 (2006) (declining to review a motion to
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dismiss on appeal where the trial court did not rule on the
motion). Accordingly, defendants’ argument is overruled.
II. Motion for Summary Judgment
Defendants next contend that the trial court erred by
granting plaintiff’s motion for summary judgment. We disagree.
“Our standard of review of an appeal from summary judgment
is de novo; such judgment is appropriate only when the record
shows 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.”
In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576
(2008) (citation and quotation marks omitted).
Rule 36(a) of the North Carolina Rules of Civil Procedure
provides that when a written request for admissions is properly
served upon an opposing party,
[t]he matter 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
addressed to the matter, signed by the party
or by his attorney[.]
N.C. Gen. Stat. § 1A–1, Rule 36(a) (2013). “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) (2013). Our Supreme Court has
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held that “[f]acts 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
and quotation marks omitted). Furthermore, matters admitted
under Rule 36 are judicial admissions. J.M. Parker & Sons, Inc.
v. William Barber, Inc., 208 N.C. App. 682, 690, 704 S.E.2d 64,
69 (2010).
A judicial admission is made for the purpose
of removing a fact or facts from the realm
of dispute between litigants. Such an
admission is binding in every sense, absent
a showing of fraud, misrepresentation, undue
influence or mutual mistake. Evidence
offered in denial of the admitted fact
should undoubtedly be rejected. This Court
has repeatedly held that a party seeking to
avoid summary judgment cannot create a
genuine issue of material fact by offering
evidence which contradicts prior judicial
admissions.
Patrick v. Ronald Williams, Prof’l Ass’n, 102 N.C. App. 355,
362, 402 S.E.2d 452, 456 (1991) (citation and quotation marks
omitted). The sole claim between plaintiff and defendants, and
thus the only matter for which admissions were sought, is breach
of contract. “The elements of a claim for breach of contract
are (1) existence of a valid contract and (2) breach of the
terms of that contract.” Poor v. Hill, 138 N.C. App. 19, 26,
530 S.E.2d 838, 843 (2000).
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Here, defendants concede that they failed to timely respond
to plaintiff’s properly served request for admissions. Thus,
because the trial court declined to permit withdrawal or
amendment of the admissions, the matters became “conclusively
established,” N.C. Gen. Stat. § 1A-1, Rule 36(b), and removed
the admitted facts from the “realm of dispute between the
litigants,” Patrick, 102 N.C. App. at 362, 402 S.E.2d at 456.
Defendants judicially admitted that: (1) an agreement was signed
by plaintiff and Westraad, individually and on behalf of Island
Games, that gave plaintiff a fifty percent share in Island Games
in exchange for $23,500.00; (2) plaintiff paid defendants
$23,500.00 for a fifty percent share in Island Games; (3)
plaintiff and defendants decided to end their business venture;
(4) plaintiff and defendants entered into a new agreement
whereby defendants would repay plaintiff $23,500.00 in exchange
for her fifty percent share of Island Games; (5) $23,500.00 is
due to plaintiff but no money has been paid to her; (6)
defendants owe plaintiff $23,500.00; and (7) plaintiff should
receive “whatever she prayed for in her complaint.”
Defendants argue that the majority of these admissions were
denied in the answer, and therefore, defendants should not be
penalized for failing to respond timely to a “redundant” request
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for admissions. This Court has previously rejected defendants’
argument.
Defendants’ contention that an unverified
answer to a complaint is the same as a
response to a request for admissions that
contains matters ‘identical’ to the
allegations in the complaint, contravenes
the express purpose of Rule 36. Rule 36
means exactly what it says. In order to
avoid having 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 and quotation
marks omitted).
Defendants also contend that the “sweeping admissions” were
related only to the “ultimate issue in the case,” and because
they were not “relate[d] to statements or opinions of fact or of
the application of law to fact,” N.C. Gen. Stat. § 1A-1, Rule
36(a), they do not support entry of summary judgment. Rule
36(a) states that a party may request admission for “the truth
of any matters within the scope of Rule 26(b) set forth in the
request that relate to statements or opinions of fact or of the
application of law to fact.” N.C. Gen. Stat. § 1A-1, Rule
36(a). Defendants cite to no authority for the proposition that
“ultimate issues” in a case are not discoverable within the
scope of Rule 26(b) and do not relate to facts or application of
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law to facts. Therefore, this argument is deemed abandoned.
See Hien Nguyen v. Taylor, __ N.C. App. __, __, 723 S.E.2d 551,
558 (2012).
Defendants’ admissions were “binding in every sense” on the
trial court, Patrick, 102 N.C. App. at 362, 402 S.E.2d at 456,
and even though Westraad submitted a contradictory affidavit,
“[an] affidavit opposing summary judgment does not overcome the
conclusive effect of [] previous admissions, and, therefore, no
issue of fact is raised by [any assertions therein].” J.M.
Parker & Sons, 208 N.C. App. at 690, 704 S.E.2d at 69. Because
defendants judicially admitted that they entered into an
agreement to repay plaintiff $23,500.00 for her share of Island
Games, they breached that agreement by failing to pay her
$23,500.00, and they owe plaintiff $23,500.00, there were no
remaining issues of material fact to dispute, and plaintiff was
entitled to judgment on her claim of breach of contract as a
matter of law. See Poor, 138 N.C. App. at 26, 530 S.E.2d at
843. We therefore affirm the trial court’s entry of summary
judgment in plaintiff’s favor. See In re Will of Jones, 362
N.C. at 573, 669 S.E.2d at 576.
We acknowledge that the entry of summary judgment in favor
of plaintiff may appear to lead to a “harsh result.” Goins, 350
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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.
III. Notice of Summary Judgment Hearing
Defendants’ final argument is that they were not provided
with adequate notice of the hearing on plaintiff’s motion for
summary judgment, and thus summary judgment should be vacated.
We disagree.
Under Rule 56(c) of the North Carolina Rules of Civil
Procedure, “[t]he motion [for summary judgment] shall be served
at least 10 days before the time fixed for the hearing.” N.C.
Gen. Stat. § 1A-1, Rule 56(c) (2013). Although notice is
mandatory under Rule 56, it is procedural rather than
constitutional in nature, and thus can be waived. See Anderson
v. Anderson, 145 N.C. App. 453, 456, 550 S.E.2d 266, 268 (2001).
“A party waives notice of a motion by attending the hearing of
the motion and by participating in the hearing without objecting
to the improper notice or requesting a continuance for
additional time to produce evidence.” Id.
Here, defendants were represented by counsel at the hearing
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on plaintiff’s motion for summary judgment. They filed three
documents with the court on the day of the hearing, participated
in the hearing, and failed to object, except, or otherwise
contest lack of notice in any way. As such, defendants waived
the procedural notice required by Rule 56. See Anderson, 145
N.C. App. at 457, 550 S.E.2d at 268 (holding that where a party
attended a hearing on summary judgment and participated without
objecting to lack of notice, she waived the notice required by
Rule 56). Defendants’ argument is overruled.
Conclusion
After careful review, we affirm the trial court’s judgment.
Defendants’ failure to timely respond to plaintiff’ request for
admissions conclusively established facts sufficient to enter
judgment for plaintiff as a matter of law. Because defendants
fully participated in the hearing on plaintiff’s motion for
summary judgment and failed to object to lack of notice, they
have waived their ability to challenge such notice on appeal.
AFFIRMED.
Judges CALABRIA and HUNTER, JR., ROBERT N. concur.
Report per Rule 30(e).