93 N.C. App. 765 | N.C. Ct. App. | 1989
Defendants assign error to the trial court’s denial of their motion to amend or withdraw their admissions. Rule 36(b) of the North Carolina Rules of Civil Procedure provides:
*768 (b) Effect of admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Rule 16 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Any admission made by a party under this rule is for the purpose of pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.
N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 36(b) (1983).
Defendants contend that the trial court erred by not requiring plaintiff to present evidence that withdrawal or amendment would prejudice it in maintaining its action. Defendants attempt to distinguish prior cases holding that the decision whether to permit withdrawal or amendment of admissions is within the trial court’s discretion. In Whitley v. Coltrane, 65 N.C. App. 679, 309 S.E. 2d 712 (1983), for example, this Court held that the trial court did not abuse its discretion in denying the defendant’s motion to withdraw her admission where she had failed to respond to plaintiff’s request for admission. Defendants draw attention to the portion of that opinion which states that “defendant’s admission . . . was superfluous in considering plaintiff’s motion for summary judgment because plaintiff’s evidence on the . . . issue was unrefuted.” Id. Defendants contend that the basis for the court’s holding in Whitley was the fact that the defendant there could “show no prejudice by the trial court’s failure to grant her motion to withdraw her admission. . . .”
The portion of Whitley upon which defendants rely is dicta. This Court clearly based its decision in that case on the language of Rule 36(b) that provides that the trial court’s determination regarding whether to allow a party to withdraw or amend its admission is discretionary. “Rule 36(b) of the North Carolina Rules of Civil Procedure provides that ‘the court may permit withdrawal’ of the admission, making the ruling upon a motion to withdraw an admission discretionary with the trial court.” Id.
Defendants next argue that the trial court erred in entering summary judgment against them. Summary judgment shall be rendered “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. Gen. Stat. § 1A-1, N.C. R. Civ. P. 56(c) (1983).
In addressing this issue, we emphasize that by the failure of the individual defendants to respond to plaintiff’s Request For Admissions, it was conclusively established that S & S Enterprises, Inc. had no separate identity, was the Stokley’s alter ego, and that the Stokleys were themselves indebted to plaintiff for the amount sued for. We therefore hold that the trial court correctly entered summary judgment for plaintiff against the Stokleys.
In a cross-assignment of error, plaintiff contends that the trial court erred in failing to treble its damages and award it attorney’s fees and other expenses. As we have noted earlier, plaintiff did not appeal from the trial court’s judgment. Under Rule 10(d) of the North Carolina Rules of Appellate Procedure, cross-assignments of error are limited to presenting an alternative basis in law for supporting the judgment entered. Plaintiff has therefore failed to preserve the questions for our review. The judgment of the trial court is
Affirmed.
