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IN THE SUPREME COURT OF NORTH CAROLINA
Filed:  9 April  1999
No.  279A98
JULIENE McCLELLAN GOINS
v.
JOEL G. PULEO, M.D., ELLEN A. PULEO, M.D., and PINEHURST WOMEN’S
CLINIC, P.A.
Appeal of right by defendants pursuant to N.C.G.S.
§  7A-30(2) from the decision of a divided panel of the Court of
Appeals,  130 N.C. App.  28,  502 S.E.2d  621  (1998), reversing one
order and affirming another order, both of which were entered  29
January  1997 by Burke, J., in Superior Court, Moore County.
Heard in the Supreme Court  11 January  1999.
Gill & Dow, by Douglas R. Gill, for plaintiff-appellee.
Walker Barwick Clark & Allen, L.L.P., by Robert D.
Walker, Jr. and Jeffrey T. Ammons, for defendant-
appellants.
MITCHELL, Chief Justice.
The sole question presented for review before this
Court is whether the Court of Appeals erred by affirming the
trial court’s order denying defendants’ motion for summary
judgment based on their contention that plaintiff had failed to
timely respond to their request for admissions as required by
N.C.G.S.  §  1A-1, Rule  36.    For the reasons that follow, we
conclude that plaintiff did not comply with Rule  36 of the North
Carolina Rules of Civil Procedure and that the trial court erred
by entering the order denying summary judgment in favor of




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defendants on that basis.    Accordingly, we reverse that part of
the decision of the Court of Appeals which affirmed this order.
This appeal arises from plaintiff’s claim of medical
negligence against defendant health-care providers.    Plaintiff
alleged that she was treated for menorrhagia at the Pinehurst
Women’s Clinic from  1988 until late August  1990 by defendant Dr.
Joel Puleo, an obstetrician and gynecologist.    In August  1990,
plaintiff began to experience significant menorrhagia and blurred
vision.    Plaintiff alleged that as a result of medical negligence
on the part of defendants, she developed diabetic ketoacidosis,
pancreatitis, and an extremely elevated glucose level that
ultimately left her in a diabetic coma for several days.
Based upon the foregoing allegations, plaintiff
originally filed an action, with the benefit of counsel, against
defendants Joel and Ellen Puleo, Pinehurst Women’s Clinic, and
Moore Regional Hospital on  23 August  1993.    On  11 September  1995,
plaintiff, acting pro se, voluntarily dismissed that action
without prejudice.    On  10 September  1996, plaintiff, again acting
pro se, brought this action against the Puleos and Pinehurst
Women’s Clinic, making essentially the same allegations as in her
first action.
Defendants served plaintiff with their answer and a
request for admissions by certified mail.    One request asked
plaintiff to admit that all health care provided by all
defendants was in conformity with the applicable standards of
medical care.    Plaintiff did not respond to defendants’ request
for admissions.




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At a pretrial hearing, defendants contended that they
were entitled to judgment in their favor on two grounds.    The
first was that the action was barred by the applicable statute of
limitations.    The second was that plaintiff had failed to respond
to their request for admissions and therefore, by operation of
law, had admitted that defendants had complied with the
applicable standard of care.    Plaintiff, appearing pro se at the
hearing, denied receiving the request for admissions.    In
response, defendants presented an affidavit and return receipt
tending to show that the request for admissions was sent to
plaintiff’s home and was received and signed for by plaintiff’s
husband on  7 October  1996.    Plaintiff made no motion and did not
otherwise request that the trial court allow her to withdraw or
amend her admissions.    She relied instead upon the mere
allegations of negligence contained in her complaint.
Nevertheless, the trial court stated that summary judgment was an
“extreme measure” and entered an order denying defendants’ motion
that summary judgment be granted in their favor because of
plaintiff’s failure to respond to the request for admissions.
However, the trial court entered a separate order concluding that
plaintiff’s claim was barred by the statute of limitations and
dismissing the action on that basis.    Plaintiff appealed.
The Court of Appeals unanimously reversed the trial
court’s order dismissing plaintiff’s action for failure to comply
with the statute of limitations, concluding that the continuing-
course-of-treatment doctrine tolled the running of the statute.
Defendants have not sought to have us review that holding by the




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Court of Appeals, and no issue concerning it is before us.
The majority in the Court of Appeals, with Judge John
C. Martin dissenting, affirmed the trial court’s separate order
denying defendants’ motion seeking summary judgment in their
favor because of plaintiff’s failure to respond to their request
for admissions.    Defendants now appeal to this Court, based upon
Judge Martin’s dissent below, and contend that the Court of
Appeals erred in affirming this order denying summary judgment.
In support of their single assignment of error,
defendants again contend that because plaintiff never responded
to their request for admissions, she admitted all facts as
requested.    Defendants further contend that since plaintiff
failed to move that the trial court permit her to withdraw or
amend the admissions, the admissions have become conclusively
established facts in the case and constitute a valid basis for
summary judgment.    We agree.
Rule  36(a) of the North Carolina Rules of Civil
Procedure provides in pertinent part that when a written request
for admissions is properly served upon a party to a lawsuit,
[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.G.S.  §  1A-1, Rule  36(a)  (1990)  (emphasis added).    Moreover,
“[a]ny matter admitted under this rule is conclusively
established unless the court on motion permits withdrawal or
amendment of the admission.”    N.C.G.S.  §  1A-1, Rule  36(b)  (1990)




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(emphasis added).    Facts that are admitted under Rule  36(b) are
sufficient to support a grant of summary judgment.    Rhoads v.
Bryant,  56 N.C. App.  635,  289 S.E.2d  637, disc. rev. denied,  306
N.C.  386,  294 S.E.2d  211  (1982).
In reaching its decision, the majority in the Court of
Appeals relied upon Balson v. Dodds,  62 Ohio St.  2d  287,  405
N.E.2d  293  (1980).    In Balson, the Supreme Court of Ohio
considered the language of Ohio’s Rule  36(b) and concluded that a
trial court has discretion to decide whether a party has made a
motion to withdraw or amend admissions in the absence of a formal
written motion.    Because the language of our Rule  36(b) is
identical to the language of the Ohio rule, the majority of the
Court of Appeals similarly concluded that the issue of whether a
party has made a motion for withdrawal or amendment of admissions
is a matter to be decided by the trial court in its discretion
and that the trial court could have reasonably concluded here
that plaintiff moved the court to withdraw or amend the
admissions.    We disagree.    Without addressing or deciding the
question of whether a trial court has the discretion to determine
whether a party has made a  “motion,” we conclude that the trial
court could not have reasonably concluded that plaintiff made any
motion in this case to withdraw or amend her admissions.
Further, it is clear from the record on appeal that the trial
court concluded that plaintiff had not made any such motion in
this case.
In the instant case, defendants presented the trial
court with a copy of the return receipt signed by plaintiff’s




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husband and an affidavit of service, thereby raising a
presumption that plaintiff received the request for admissions.
N.C.G.S.  §  1A-1, Rules  4(j2)(2) and  5(b)  (1997).    Even though
plaintiff denied receiving the request for admissions, she
acknowledged that defendants had mailed the document to the
correct address, and she made no attempt to rebut the presumption
of receipt when questioned by the trial court.    Therefore, we
must presume that plaintiff was properly served with defendants’
request for admissions.    Id.
In the request for admissions, defendants requested
that plaintiff admit:                                                  (1) all health care provided by defendants
was in conformity with the applicable standards of medical care;
(2) as of the date plaintiff instituted this action, neither she
nor any attorney on her behalf had consulted with a medical
expert who expressed an opinion that the care provided by
defendants failed to conform to the applicable medical standards;
and  (3) as of the date plaintiff instituted this action, no
expert witness had evaluated any medical records relating to the
medical attention given plaintiff by defendants.    The record
reveals that plaintiff did not respond to the request.    Moreover,
plaintiff did not move the court, expressly or impliedly, to
withdraw or amend her admissions.    Rather, plaintiff merely
denied receiving defendants’ request for admissions; she never
contested the substance of the request.    The record further shows
that the trial court did not in any manner undertake to allow
plaintiff to withdraw or amend the admissions.    Therefore, the
facts are deemed admitted by plaintiff pursuant to Rule  36(a).




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Whether to grant summary judgment was not a decision
resting in the discretion of the trial court.    Summary judgment
is properly entered in favor of the moving party if the movant
establishes that an essential element of the opposing party’s
claim is nonexistent.    Rorrer v. Cooke,  313 N.C.  338,  329 S.E.2d
355  (1985).    One of the essential elements of a claim for medical
negligence is that the defendant breached the applicable standard
of medical care owed to the plaintiff.    Because plaintiff’s
admission that defendants did not breach the applicable standard
of medical care was before the trial court in the present case,
the trial court was required to grant defendants’ motion and
enter an order of summary judgment in their favor.
The entry of summary judgment in favor of defendants in
this case may appear to lead to a harsh result.    Nevertheless,
the Rules of Civil Procedure promote the orderly and uniform
administration of justice, and all litigants are entitled to rely
on them.    Therefore, the rules must be applied equally to all
parties to a lawsuit, without regard to whether they are
represented by counsel.
For the foregoing reasons, we conclude that the trial
court erred by entering the order denying summary judgment for
defendants based upon plaintiff’s admissions.    Therefore, the
decision of the Court of Appeals affirming that order, over Judge
Martin’s dissent, is reversed, and this case is remanded to the
Court of Appeals for further remand to the Superior Court, Moore
County, for entry of summary judgment for defendants.
REVERSED IN PART AND REMANDED.




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No.  279A98  - Goins v. Puleo
Justice FRYE dissenting.
The law is clear that the trial court would not have
erred by relying on plaintiff’s default admissions and granting
defendants’ motion for summary judgment in this case.    See, e.g.,
Rahim v. Truck Air of the Carolinas, Inc.,  123 N.C. App.  609,  473
S.E.2d  688  (1996); Overnite Transp. Co. v. Styer,  57 N.C. App.
146,  291 S.E.2d  179  (1982); Rhoads v. Bryant,  56 N.C. App.  635,
289 S.E.2d  637, disc. rev. denied,  306 N.C.  386,  294 S.E.2d  211
(1982).    However, that is not the question this Court must
decide.    The sole question presented to this Court, by virtue of
a division on the Court of Appeals’ panel, is whether the trial
court abused its discretion by denying defendants’ motion for
summary judgment based on plaintiff’s failure to respond to the
request for admissions.    I would hold that the trial court did
not abuse its discretion.
Rule  36(a), as the majority here correctly notes,
provides that if a party fails to respond to a request for
admission within thirty days after service of the request, or
within such time as the court may allow, then the matter is
deemed admitted.    N.C.G.S.  §  1A-1, Rule  36(a)  (1990).    The rule
goes on to provide:
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




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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.
N.C.G.S.  §  1A-1, Rule  36(b)  (emphasis added).    The majority
focuses on the first part of this section, which provides that
any matter admitted is conclusively established unless the court
“on motion” permits a withdrawal or amendment of the admission.
However, the latter part of the rule, which concerns preservation
of the merits of the action, must also be considered.
In this case, the first of defendants’ three requests
went to the central issue of whether defendants had violated the
standard of care; this issue was obviously in dispute since it
was the essence of plaintiff’s lawsuit.    I believe the trial
court acted within its discretion in denying defendants’ motion
for summary judgment, in effect allowing plaintiff to withdraw
her default admissions in order to  “subserve” the merits of the
case.    Defendants do not argue that they would be prejudiced in
maintaining their defense on the merits if the admissions were
withdrawn.    Defendants contend only that plaintiff did not make a
“motion” to withdraw or amend her admissions, and therefore, the
trial court had no choice but to rule against her on a motion for
summary judgment.
“The North Carolina Rules of Civil Procedure are
modeled after the federal rules.    In most instances they are
verbatim copies with the same enumerations.”    Sutton v. Duke,  277
N.C.  94,  99,  176 S.E.2d  161,  164  (1970)  (citation omitted).    This
is certainly true of N.C. R. Civ. P.  36, which is virtually




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identical to the Federal Rule  36.    Because the Federal Rules of
Civil Procedure are the source of the North Carolina Rules of
Civil Procedure, this Court has said that we will look to
decisions under the federal rules  “for enlightenment and guidance
as we develop  ‘the philosophy of the new rules.’”    Id. at  101,
176 S.E.2d at  165.
This Court should heed its own words and look to the
body of case law pertaining to Federal Rule  36 for guidance in
resolving the present issue.    In Kosta v. Connolly,  709 F. Supp.
592  (E.D. Pa.  1989), the court reasoned as follows:
Defendants argue that because plaintiffs
have not answered defendants’ request for
admissions, under F.R. Civ. P.  36(a) we
should consider the statements admitted.
.  .  .    Accepting these statements in the
requests for admission as conclusively proven
facts, defendants argue that plaintiffs have
admitted to violating  [the statute].
The purpose of F.R. Civ. P.  36(a) is to
expedite trial by eliminating the necessity
of proving undisputed and peripheral issues.
We should not employ the rule to establish
facts which are obviously in dispute or to
answer questions of law.
In the case at bar, the question whether
the plaintiffs violated the statute is
neither undisputed nor peripheral.  .  .
Moreover, the question of plaintiffs’ guilt
is central to this case.    If plaintiffs
admitted to violating the statute, they would
effectively resolve the disputed issues of
selective enforcement, malicious prosecution,
violation of constitutional rights, etc.
Clearly, that is not the plaintiffs’
position, and Rule  36 is not intended to make
it so.
Id. at  594  (emphasis added)  (citations omitted)  (footnote
omitted).




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Likewise, in Bergemann v. United States,  820 F.2d  1117
(10th Cir.  1987), the court upheld the district court judge’s
discretion to deny a motion for partial summary judgment and give
relief from an admission achieved by default.    The court stated:
Bergemann’s position in this court is
basically that because the United States
failed to answer the requests for admission
.  .  . the United States, under Fed. R. Civ.
P.  36(a), is deemed to have admitted that
there was a common law marriage between
Bergemann and Dunkle, and that such
admission, under the circumstances of this
case, is conclusive and continues to this
date.    We disagree.
.  .  . Bergemann’s rejoinder to Rule
36(b) is that any withdrawal or amendment of
an admission may only be  “on motion,” and
that the United States did not file any
motion.
We think Bergemann’s argument is overly
technical and does not recognize the reality
of the situation.  .  .
The district judge, after reflection and
careful analysis of the matter, denied the
motion for partial summary judgment, and, in
so doing, necessarily granted the United
States relief from any admission that there
was a common law marriage between Bergemann
and Dunkle.    In this latter regard, we find
no abuse of discretion as Rule  36(b) permits
withdrawal where it promotes a decision on
the merits while not prejudicing the party
who obtained the admission.    We find no
prejudice in this case.    Bergemann clearly
knew defendants challenged the existence of a
common law marriage.  .  .                                           .    The prejudice
contemplated by Rule  36(b) is not simply that
the party who obtained the admission now has
to convince the jury of its truth.    Something
more is required.
Id. at  1120-21  (citations omitted)  (emphasis added).
“The canon of interpretation of the Federal Rules is
one of liberality, and it has been held in numerous decisions




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that the general policy of the Rules is to disregard
technicalities and form and determine the rights of litigants on
the merits.”    Johnson v. Johnson,  14 N.C. App.  40,  42,  187 S.E.2d
420,  421  (1972).    We should not in this case elevate form over
substance in the interpretation of North Carolina’s rules,
thereby depriving the trial court of the discretion to preserve
the merits of a case, based on the lack of a  “motion” by the pro
se plaintiff where there is no evidence that the other party
would suffer any prejudice in the presentation of its defense.
For the foregoing reasons, I respectfully dissent.

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