                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    August 9, 2001 Session

         WALTER W. CARLEN, SR., ET AL. v. RONALD E. JACKSON


                      Appeal from the Circuit Court for Putnam County
                          No. 99J0411    John A. Turnbull, Judge



                  No. M2000-02564-COA-R3-CV - Filed September 19, 2001


The defendant asserted a comparative fault defense to a tort claim against him arising from his
operation of a truck. He attributed fault to General Motors Corporation and Carlen Motors Inc. the
manufacturer and prospective seller, respectively, of the truck. The defendant did not respond timely
to a request for admission and summary judgment was entered that the defendant could not assert
the affirmative defense attributing fault to General Motors and Carlen Motors Inc.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

WILLIAM H. INMAN, SR. J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, J.J., joined.

Ellis A. Sharp and Jon M. Cope, Knoxville, Tennessee, for the appellant, Ronald E. Jackson.

J. Ford Little and Luis C. Bustamante, Knoxville, Tennessee, for the appellees, Walter W. Carlen,
Sr. and Linda Carlen.

                                            OPINION

                                                 I.

        Plaintiff Walter Carlen was a passenger in a Chevrolet pickup truck driven by a prospective
purchaser, Ronald E. Jackson, when the right front wheel left the pavement, apparently causing the
driver to oversteer after the truck came back on the pavement and looped before striking a tree. Both
the passenger and driver were seriously injured. Passenger sued the driver, whose answer, upon
information and belief, attributed fault to General Motors Corporation [GMC], the manufacturer of
the truck, and to Carlen Motors, Inc., the local dealer.

       The plaintiffs resolved to determine the basis for the affirmative defense of a defective
product and served defendant with interrogatories and requests for admissions seeking the disclosure
of the information upon which the affirmative defense was based, since they were aware of no facts
which would provide them a reasonable basis for asserting claims against GMC and Carlen Motors,
Inc. The plaintiffs were allowed ninety (90) days to amend their complaint to assert such claims.1

        On February 23, 2000, the defendant was served with plaintiffs’ First Set of Interrogatories
and Request for Production of Documents. One of the Interrogatories required the defendant to
“state the facts upon which you rely for each affirmative defense in your answer.” Another
Interrogatory, number 11, was akin, since it required the defendant to reveal the facts or evidence
upon which any liability claim against any entity might be asserted. A copy of any documents upon
which the affirmative defense was based was required.

       On the same day, February 23, 2000, the defendant was served with the plaintiffs’ Second
Set of Interrogatories and Request for Production of Documents. The plaintiffs also served 3
Requests for Admissions: (1) Admit that Carlen Motors is not at fault for the accident, (2) Admit that
GMC is not at fault, (3) Admit that the defendant has no evidence of any defect in the truck.

       Responses were due by April 25, 2000, after an agreed extension.

         The defendant did not respond, and the plaintiffs filed their motion on June 6, 2000, for a
partial summary judgment respecting the affirmative defense that had been asserted on information
and belief. The motion was filed forty days after the responses were due. We reproduce part of the
Order entered by the trial judge, as pertinent here:

       Plaintiffs’ Motion for Partial Summary Judgment is hereby granted as to the
       Defendant’s affirmative defense claim regarding comparative fault of General Motors
       and Carlen Motors. Therefore, the Defendant cannot assert as an affirmative defense
       claim, comparative fault on General Motors, the manufacturer of the automobile
       which is the subject matter of this litigation and Carlen Motors, the car dealer.
       Accordingly, the Court finds that there is no genuine issue as to any material fact
       regarding this affirmative defense claim pursuant to Rule 56 of the Tennessee Rules
       of Civil Procedure.

        The defendant appeals, and presents for review the propriety of this judgment. Our review
is de novo on the record, with no presumption of correctness since this issue is one of law. Foley
v. St. Thomas Hospital, 906 S.W.2d 448 (Tenn. Ct. App. 1995).

                                                 II.

       The defendant filed a response to the Requests for Admission on May 12, 2000, which
generally denied the requests. He responded to the request for production by stating “[t]his


       1
           See, T.C.A. § 20-1-119.

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defendant will answer this Interrogatory after the inspection of the vehicle which is set for June 5,
2000.”2 The trial judge aptly observed that a comparative fault defense required thoughtful
consideration, since a plaintiff has a statutory window of ninety (90) days after revelation to “bring
that party in.” The trial judge further observed:

         The fact that as of the end of that ninety (90) days you have not come up with any
         evidence and not even responded to the request for admissions, it puts them in a
         completely untenable position. They are in a position right now that they could not
         bring General Motors into this lawsuit.

Counsel for the defendant responded that the plaintiffs could have amended the complaint and
brought General Motors into the case by alleging a defect “whether there was or was not a defect,”
and thereby would have eliminated the looming prejudice.

         In the last analysis, the defendant had no competent evidence of a defect. He was attempting
to show that the vehicle had been the subject of a recall, but the evidence revealed that the recall
involved an entirely different vehicle. The defendant adduced statements from a witness about the
handling characteristics of the vehicle, who later conceded that he was mistaken and found nothing
wrong with the truck. This witness, David Dyer, offered nothing of value to the defendant. It was
apparently through a misunderstanding of a casual remark made by Mr. Dyer that prompted counsel
to state to the court that “quite frankly we heard some rumors that someone had tested [sic] driven
this vehicle a day or two days before and had serious problems with the driving mechanism.” It
developed that Mr. Dyer found nothing wrong with the driving mechanism.

        The defendant attempted to establish a genuine issue of a material fact by the assertion of a
claim for spoilation of evidence through the affidavit testimony of Tyler Kress. Suffice to say that
Mr. Kress does not identify any defect in the vehicle, and the steering problems and the recall which
he references, do not relate to the subject vehicle. There is no evidence in the record that Carlen
Motors conducted any destructive testing of the vehicle. The trial judge found “ I don’t see anything
right now that would create the grounds that would allow me to hold that spoilation has taken place.”

         Rule 56.04 of the Tennessee Rules of Civil Procedure provides:

                   Subject to the moving party’s compliance with Rule 56.03, the
                   judgment sought shall be rendered forthwith if the pleadings,
                   depositions, answers to interrogatories, and admissions on file,
                   together with the affidavits, if any, show that there is no genuine issue
                   as to any material fact and that the moving party is entitled to a
                   judgment as a matter of law.


         2
             Soon after the accident, Carlen Motors m ade the truck av ailable on two oc casions at the defend ant’s request
for inspec tion by h is expert. Th e acciden t occurred in Decem ber 199 8. The tru ck was a 1999 m odel.

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Summary judgment is appropriate where: (1) there is no genuine issue with regard to the material
facts relevant to the claim or defense contained in the motion. Byrd v. Hall, 847 S.W.2d 208, 210
(Tenn. 1993); see also, Anderson v. Standard Register Company, 857 S.W.2d 555, 559 (Tenn.
1993). Once the movant has properly supported its summary judgment motion, “the burden of
production of evidence shifts to the non-moving party to produce evidence which would establish
a genuine factual dispute.” Brown v. J. C. Penney Life Ins. Co., 861 S.W.2d 834 (Tenn. Ct. App.
1992). The Court in Byrd further explained the rule by stating:

               When the party seeking summary judgment makes a properly
               supported motion, the burden then shifts to the nonmoving party to
               set forth specific facts, not legal conclusions, by using affidavits or
               the discovery materials listed in Rule 56.03, establishing that there
               are indeed disputed, material facts creating a genuine issue that needs
               to be resolved by the trier of fact and that a trial is therefore
               necessary. The nonmoving party may not rely upon the allegations
               or denials of his pleadings in carrying out this burden as mandated by
               Rule 56.05.

        The record reveals that the defendant had no basis for asserting fault against General Motors
and Carlen Motors, Inc., and therefore had no basis for the affirmative defense. Consequently, the
plaintiffs did not have a proper factual or legal basis for amending their Complaint to assert a claim
against non-parties General Motors and Carlen Motors, Inc.

       Rule 36.01 of the Tennessee Rules of Civil Procedure requires that:

               Each matter of which an admission is requested shall be separately set
               forth. 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, signed by the party or by the party’s attorney. . .

The effect of an admission is provided for in Rule 36.02: “[a]ny matter admitted under this rule is
conclusively established unless the court on motion permits withdrawal or amendment of the
admission.”

      In Tennessee Dep’t of Human Services v. Barbee, 714 S.W.2d 266 (Tenn. 1986), the
Supreme Court opined:

               Rule 36 is a useful tool in the preparation of a lawsuit, for it provides
               a procedure by which a party may request another party to admit the
               truth of any matters within the scope of Rule 26.02, T.R.C.P. . . .
               Unanswered requests for admission are deemed admitted and the

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               matter requested is conclusively established for the purpose of the
               pending case. The admission is comparable to an admission in
               pleadings or a stipulation drafted by counsel for use at trial.

       In Neely v. Velsicol Chemical Corp., 906 S.W.2d 915 (Tenn. Ct. App. 1995), the court
granted summary judgment to defendant arising from plaintiff’s failure to respond to requests for
admission which the court recognized resulted in plaintiff admitting facts sufficient to establish that
the manufacturer was not liable. In reaching its decision, the court stated that

               [A]n admission under Rule 36, unlike an evidentiary admission,
               ‘concludes the matter and avoids any need for proof’ . . . Thus, no
               proof is necessary to establish a fact admitted, nor should evidence be
               allowed to refute the admission.

        Likewise, in Porter v. Melton, 1992 WL 29821 (Tenn. Ct. App. 1992) we ruled that the “trial
court erred by refusing to grant [plaintiff’s] Motion to Rely Upon Requests for Admissions,” after
defendant failed to respond to the set of requests in accordance with Rule 36.

        Finally, we think that the belated responses to the requests for admission essentially reveal
that the defendant had no basis for asserting the affirmative defense.

       The judgment is affirmed at the costs of the appellant, Ronald E. Jackson.




                                                       ___________________________________
                                                       WILLIAM H. INMAN, SENIOR JUDGE




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