North Carolina Business Litigation Report

Her v. Davis, April 16, 2008 (Diaz)(unpublished)

A party cannot use its own response to an opposing party's Requests for Admission in order to defeat a Motion for Summary Judgment. 

The Court held that "while admissions of a party-opponent are not hearsay, 'a party may not utilize his own admissions at trial.'"  Since evidence that would not be admissible at trial may not be considered on a Motion for Summary Judgment, there was no competent evidence contradicting Defendant's properly supported factual position.  The Court also refused to rely on letters presented by Plaintiff's counsel containing unsworn facts.

As the Court put it, "the bottom line is that neither Plaintiff nor any member of the firm representing Plaintiff have submitted Affidavits refuting the facts set forth" in the Affidavit submitted by Defendant.  On the record before it, the Court granted Defendant's Motion for Summary Judgment.

Full Opinion

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Mack Sperling
Brooks Pierce, LLP
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230 North Elm Street
Greensboro, NC 27401

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