An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                          -2-
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.
                                                -3-
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
                                          -4-
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:
                              -5-
         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
                                   -6-
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
                                  -7-
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
                                         -8-
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).
                                           -9-
      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
                                -10-
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
                                    -11-
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
                                           -12-
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
                                      -13-
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).
