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Watkins v. Hellings12/2/1986
s requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit.
While the rule itself does not require the trial court to make negative findings with respect to the four exceptions set out in the rule, one recognized authority has stated that it is the better practice to do so. See Shuford, N.C. Civ. Prac. and Pro. (2nd ed.), § 37-13. Another recognized authority suggests that the denial of a Rule 37(c) motion for sanctions should be accompanied by findings "pursuant to the rule." See 1A-Pt 2 Moore's Federal Practice § 37.04. Because of the risk to litigants of substantial monetary awards against them in the application of the Rule, as reflected by the trial court's order in this case, we adopt the Shuford "better practice" approach as a requirement in such cases, and accordingly order that on retrial, the trial court make such findings in disposing of defendant's motion for expenses. Accordingly, we vacate the trial court's order and remand defendant's motion for further consideration.
Vacated and remanded in part;
New trial.
Disposition
Vacated and remanded in part; New trial.
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