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In re Pedestrian Walkway Failure9/20/2005
ing its motion to exclude Dr. Bederka's testimony. However, it also appears from the record that defendants did not schedule a deposition for Dr. Bederka and did not otherwise proceed with discovery concerning the testimony he would offer if called as a witness. Thus, assuming arguendo that a waiver analysis is appropriate, we are unpersuaded that the facts of the instant case compelled a finding of waiver.
3.
Mrs. Hepler also contends that Judge Spainhour was compelled to find that defendants were equitably estopped from seeking sanctions for the late identification of Dr. Bederka. Our review of the record reveals that Mrs. Hepler did not make an equitable estoppel argument before Judge Spainhour. Therefore, she has waived appellate review of this issue. See N.C. R. App. P. 10(b)(1) (2005) ("In order to preserve a question 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 . . . ."); Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjust., 354 N.C. 298, 309, 554 S.E.2d 634, 641 (2001) (" ssues and theories of a case not raised below will not be considered on appeal[.]").
B.
We next address Mrs. Hepler's argument that Judge Spainhour erred by deeming defense RFAs Nos. 2-5 admitted and precluding her from presenting contradictory evidence. This argument lacks merit.
N.C. Gen. Stat. § 1A-1, Rule 36 (2003) provides as follows:
(a) Request for admission. -- A party may serve upon any other party a written request for the admission . . . of the truth of any matters within the scope of [N.C. Gen. Stat. § 1A-1] Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact . . . .
The 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 . . . . The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny.
. . . The party who has requested the admissions may move to determine the sufficiency of the answers or objections. . . . If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served.
(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.
(Emphasis added.)
In the instant case, Mrs. Hepler declined to admit or deny the subject matter of RFAs Nos. 2-5 on the ground that she lacked the necessary expertise. Furthermore, although supplementation of these responses was required, she continued to assert that she could not admit or deny the subject matter of the RFAs long after she was required to report the subject matter o
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