Diversified Financial Services, LLC v. F & F Excavating & Paving, Inc. (Lawyers Weekly No. 11-16-1125, 13 pp.) (Cressie H. Thigpen Jr., J.) Appealed from Macon County Superior Court. (Mark E. Powell, J.) N.C. App. Unpub. Click here for the full-text opinion.
Holding: Defendants timely filed a N.C. R. Civ. P. 59 motion for relief from summary judgment, but the only ground stated in support of the Rule 59 motion was a request for a change in N.C. law. Since this is not one of the grounds set out in Rule 59, defendants’ Rule 59 motion did not toll the time for appealing the summary judgment order.
Defendants’ appeal of the summary judgment order is dismissed. As to defendants’ appeal of the denial of their Rule 59 motion, we affirm.
Defendants failed to respond to plaintiff’s request for admissions. Defendants prayed that the trial court, and now this court, apply federal law and the law of other states to reach the conclusion that plaintiff’s request for admissions was improper because the request pertained to “central facts in dispute….”
This argument is contrary to the plain language of N.C. R. Civ. P. 36, which states, “A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why he cannot admit or deny it.” The trial court did not err by declining to apply federal law and the law of other states to interpret Rule 36.