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Dixon v. Hill11/1/2005
ate of service and return receipt indicating service upon the Church, the burden lay with the Church to establish that service was inadequate because the address was not the Church's last known address. Goins v. Puleo, 350 N.C. 277, 281, 512 S.E.2d 748, 450-51 (1999) (holding that because the plaintiff made noattempt to rebut the presumption of receipt arising from a certificate of service and signed return receipt, the plaintiff was presumed to have been properly served with a request for admissions). The Church offered no evidence and has made no argument that the address on the certificate of service was incorrect.
We note further that once the Church's attorney was allowed to withdraw, the Church had an obligation to keep the Court and plaintiffs advised of a current address for the service of papers. See Freed v. Plastic Packaging Materials, Inc., 66 F.R.D. 550, 552 (E.D. Pa. 1975) ("All parties have an obligation to keep the Court advised of a current address for the service of papers, either to counsel or the party directly."). A party who does not comply with this obligation "should not thereby be able to foreclose an opposing party from taking full advantage of the procedures which our Rules [of Civil Procedure] allow." Id. (granting summary judgment to a plaintiff based on the defendant's failure to respond to a request for admissions after its attorney had withdrawn). Compare Barnett, 134 N.C. App. at 351, 517 S.E.2d at 400 (holding that the pro se defendant was not properly served with a request for admissions when he had provided the plaintiff with a mailing address for subsequent service of pleadings, but the plaintiff had not used that address).
Because the Church failed to demonstrate that it was not served with the Second Request for Admissions, the Church is deemed to have admitted each of those requests. Excel Staffing, __ N.C.at __, 616 S.E.2d at 352 ("In order to avoid having the requests deemed admitted, a party must respond within the specified time period."). By not responding, the Church admitted that Barber was acting as its agent. The Church does not present any further argument in its brief regarding whether the undisputed facts set out by the trial court are sufficient to establish liability under plaintiffs' causes of action. We, therefore, affirm the trial court's order granting summary judgment to plaintiffs with respect to their claims against the Church.
Conclusion
We dismiss defendants' appeal to the extent they seek reversal of the trial court's order of substitution. We reverse the trial court's entry of summary judgment as to Hill, who was substituted as administrator for the estate of Barber, on the grounds that he did not receive proper notice of the motion for summary judgment. The trial court's order granting summary judgment to plaintiffs and against the Church is, however, affirmed.
Dismissed in part, affirmed in part, reversed and remanded in part.
Chief Judge MARTIN and Judge CALABRIA concur.
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