                      IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON
                                  Assigned On Brief October 23, 2000

             JERRY MANESS, ET UX. v. CHARLES WOODS, SHERIFF OF
                   HENDERSON COUNTY, TENNESSEE, ET AL.

                     Direct Appeal from the Circuit Court for Henderson County
                                No. 96-006    Roger A. Page, Judge



                        No. W2000-01049-COA-R3-CV - Filed January 10, 2001


This is an appeal by Plaintiffs from a grant of summary judgment in favor of Defendants. Plaintiffs
sued to recover property which they claim was wrongfully seized by employees of the Defendant.
Defendants filed a request for admissions which included an admission that the property seized did
not belong to Plaintiffs. Plaintiffs failed to timely respond and thus the admission was conclusively
established. We affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.
and HOLLY K. LILLARD, J., joined.

Lloyd R. Tatum, Henderson, Tennessee, for the appellants, Jerry Maness and Patty Maness.

James I. Pentecost and Andrew V. Sellers, Jackson, Tennessee, for the appellees, Charles Woods,
Sheriff of Henderson County, Tennessee, and Henderson County, Tennessee.

                                                        OPINION

         This is an appeal by Plaintiffs, Jerry Maness and wife, Patty Maness, from an order of the
trial court granting summary judgment in favor of the defendants. Plaintiffs filed a petition for return
of property and damages pursuant to T.C.A. § 40-17-118 (1997).1 Plaintiffs allege that in January

         1
           Confiscated stolen pro perty. – (a) Personal property confiscated as stolen property by a lawful officer of the
state, a county or a municipality of the state to be held as evidence of a crime shall be promptly appraised, catalogued
and pho tographe d by the law en forcemen t agency retainin g custody o f the prope rty.
          (b) The lawful officer of the state, county or municipality, in order to detain the property from the lawful owner,
for whatever re ason, mor e than thirty (30) days, shall show cause to the ju dge having jurisdiction o ver the pro perty by
petition filed by the district attorney general upon five (5) days’ no tice to the pro perty owne r why the pro perty should
                                                                                                                (continued ...)
of 1995 members of the Henderson County Sheriff’s Department unlawfully entered the Plaintiffs’
home without a search or seizure warrant and, without the permission of the Plaintiffs, took various
items of personal property which were listed as an exhibit to the complaint. Plaintiffs sought an
accounting by Defendants for the property listed, that it be returned to them, and also sought
damages for the destruction or loss of said items of property. The petition was filed on January 12,
1996. On August 6, 1998, Defendants filed a motion to dismiss for failure to prosecute stating that
Plaintiffs had pursued no action in this matter since the filing of the petition. The record before us
does not indicate any action taken by the trial court on Defendants’ motion. On or about August 5,
1998, Defendants’ counsel served upon Plaintiffs’ counsel a request for admissions pursuant to Rule
36 of the Tennessee Rules of Civil Procedure.2 The request for admissions are as follows:

         1.       That I, Jerry Maness, voluntarily and knowingly signed a written consent
                  authorizing deputies of the Decatur County Sheriff’s Office to search my
                  premises at Route 1, Box 369, Decaturville, Decatur County, Tennessee on
                  January 13, 1995.

         2.       That the document attached to this Request, identified “Exhibit A to
                  Defendants’ First Request for Admissions” and hereinafter referred to as
                  “Exhibit A,” is a true and correct copy of the waiver form referred to above
                  in Request for Admission No. 1.

         3.       That the signature “Jerry Maness” on Exhibit “A” is my signature.

         4.       That Decatur County Sheriff’s Office deputies searched my premises and
                  seized property subsequent to my voluntarily and knowingly granting
                  permission for this search by signing a written consent on January 13, 1995.

         5.       That the document attached to this Request, identified as “Exhibit B to
                  Defendant’s First Request for Admissions” and hereinafter as Exhibit “B,”
                  is a copy of a valid Search Warrant, issued to Decatur County Sheriff’s Office
                  Deputies for the premises of Jerry Maness on January 12, 1995, by the Circuit
                  Court of Decatur County.

         1
          (...continued)
be further detained. The court may grant or refuse the requested impounding order upon such terms and conditions as
are adjudged to be proper.
         (c) The state, county and/or municipal authority holding the property shall be responsible for the return of the
property to the lawful own er and shall b e liable in dam ages to the o wner of the p roperty in the event of damage or
destruction o ccasioned by the delay in the return of the pr operty.

T.C.A. § 40-17-118 (199 7).

         2
          A copy of the request for a dmissions is atta ched as an append ix to the Appellees’ brief but Appellants do not
dispute that this occurred. In fact, Appellants’ brief concedes that they did not timely respond to the request for
admissions.

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6.    That the law enforcement officials seizing the property in question from my
      premises as a consequence of the search on January 13, 1995, properly and
      promptly appraised, catalogued, and photographed and [sic] the property after
      they removed it from my premises.

7.    That the property seized by the officials (hereinafter “property”) rightfully
      belongs to neither me, my wife, (Patty Maness), nor any other member of my
      family or household.

8.    That neither I nor my wife nor any other member of my household or family
      are serving in any capacity in any bailment relationship with any rightful
      owner of any of the property.

9.    That I assert rightful ownership of the following seized property:

10.   That I can prove my rightful ownership of the property listed in Admission
      No. 9 in the following manner(s):

11.   That the seizing officers did comply with and satisfy the requirements of
      Tenn. Code Ann. §40-17-118.

12.   That I assisted law enforcement officials in criminal investigation efforts in
      Decatur and Henderson County in exchange for consideration given against
      any prosecution pursued against me as a consequence of the search conducted
      of my premises by Decatur County Sheriff’s Office deputies on January 13,
      1995 and/or a search conducted on my premises in November, 1994.

13.   That while participating as a confidential informant with law enforcement
      agencies as described in Admission No. 4, the District Attorney General
      office for Decatur County, Tennessee, did not pursue charges against me for
      any charges arising from the search of my premises and subsequent seizure
      of property on January 13, 1995.

14.   That as of the date of my answering this Request, I have not been charged
      with violation of any criminal law of the State of Tennessee as a consequence
      of the search conducted on my premises on January 13, 1995.

15.   That on July 25, 1996, I entered a guilty plea to the federal charge of felon in
      possession of firearm.

16.   That my original report date to the Bureau of Prisons for the conviction in the
      federal charges was postponed due to my activities as an undercover operator
      in Decatur and Henderson Counties.


                                        -3-
       Defendants filed a motion for summary judgment on August 23, 1999, accompanied by a
memorandum in support of the motion and, pursuant to Rule 56.03 Tenn. R. Civ. P., facts not in
dispute in support of said motion.

        On November 30, 1999, Plaintiffs filed the affidavit of Jerry Maness which states in part that
“I did not steal the property taken from me. I and my wife lawfully own the property listed in the
complaint.” On February 3, 2000, Defendants filed a Second Motion To Deem Facts Admitted
And/Or In The Alternative, Motion For Sanctions. The motion recites that, on or about August 23,
1999, the Defendants filed a motion for summary judgment. On the same date, Defendants also filed
their Certification to Deem Request for Admissions Admitted. The motion further recites that the
request for admissions had originally been propounded upon the Plaintiffs on April 5, 1998, and, at
the time the Defendants filed their motion for summary judgment, Plaintiffs had not responded to
the request for admissions and therefore they were deemed admitted pursuant to Rule 36. Plaintiffs
did not timely answer the request for admissions nor did they file an objection with the court.

        The motion further states that on December 3, 1999, Plaintiffs’ counsel stated before the trial
court that the request for admissions had not been answered due to the fact that Plaintiff Jerry
Maness was in prison when the request for admissions were received, but did not explain why
Plaintiff Patty Maness did not respond to the request for admissions. The motion further recites that
on January 18, 2000, the trial court instructed the Plaintiffs to formally respond to the request for
admissions by filing a motion to permit withdrawal or amendment of the admissions, pursuant to
Rule 36.02, with attached written responses to the request for admissions by February 1, 2000. On
January 27, 2000, Defendants’ counsel received the Plaintiffs’ responses to the request for
admissions. These responses were not attached to a motion to permit withdrawal or amendment of
the admissions, and, to the Defendants’ knowledge, no such motion has been filed with the trial
court.3 The affidavit of one of Defendants’ attorneys was filed with said motion.

       On February 4, 2000, Plaintiffs filed a “Motion To Extend Filing Deadline And Response
To Defendants’ Second Motion To Deem Facts Admitted And/Or In The Alternative Motion For
Sanctions.”4

       On March 30, 2000, the trial court entered an order denying withdrawal or amendment of the
deemed admissions, stating that withdrawal or amendment of the deemed admissions would not
promote the presentation of the merits and would unfairly prejudice the Defendants and ordering that
Defendants’ request for admissions are hereby deemed admitted and the facts contained therein are
conclusively established. On that same day, the trial court entered an order of final judgment
granting Defendants’ motion for summary judgment and this appeal resulted. The sole issue on
appeal is whether the trial court erred in granting summary judgment.



       3
           The record before us does not co ntain a motion to permit withdraw al or amendmen t of the admissions.

       4
           The record before us contains only the first page of this motion.

                                                          -4-
        Pursuant to Rule 36.01 Tenn. R. Civ. P., a party may serve upon any other party a written
request for the admission of the truth of any matters within the scope of Rule 26.02 set forth in the
request that relate to statements or opinions of fact. 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. Any matter admitted under this rule is conclusively established unless the court on motion
permits withdrawal or amendment of the admission. Admissions pursuant to Rule 36 may be
brought to the trial court’s attention on motion for summary judgment. See Neely v. Velsicol Chem.
Corp., 906 S.W.2d 915, 917 (Tenn. Ct. App. 1995). Requests for admissions that are unanswered
are deemed admitted. Tennessee Dept. of Human Servs. v. Barbee, 714 S.W.2d 263, 266 (Tenn.
1986). Barbee held that an admission under Rule 36, unlike an evidentiary admission, “concludes
the matter and avoids any need for proof at trial.” Id. at 266. Thus, no proof is necessary to establish
a fact admitted, nor should evidence be allowed to refute the admission. See id. at 267.

        In summary, Defendants served a request for admissions on August 5, 1998. Plaintiffs did
not respond within 30 days as required by Rule 36.01, nor did they request additional time. Not until
over a year later, November 30, 1999, was the affidavit of Mr. Maness filed averring that he and his
wife are the lawful owners of the seized property. Notwithstanding the requirements of Rule 36.02,
Plaintiffs did not file a motion seeking permission of the court to withdraw or amend the admissions,
despite the fact the unanswered request for admissions were deemed admitted and the matter
requested conclusively established. See Barbee, 714 S.W.2d at 266. Not until February 4, 2000,
did Plaintiffs file a Motion To Extend Filing Deadline And Response To Defendants’ Second Motion
To Deem Facts Admitted And/Or In The Alternative, Motion For Sanctions. Rule 36.02 provides
that the trial court may permit withdrawal or amendment. The trial court’s order of March 30, 2000,
denying Plaintiffs’ motion states that “[f]rom all of which it appears to the Court that withdrawal or
amendment of the Deemed Admissions will not promote the presentation of the merits and would
unfairly prejudice the Defendants.”

        In reviewing this record, we do not find that the trial court abused its discretion in denying
Plaintiffs’ motion given the length of time that lapsed between the request for admissions and the
filing of the motion. Consequently, we do not find that the trial court erred in granting summary
judgment in favor of the Defendants as ownership of the property is dispositive of Plaintiffs’ lawsuit.
Plaintiffs concede in their brief that no document formally responding to the request for admissions
was filed prior to February 4, 2000. They argue in their brief before this court that the purpose for
summary judgment is not to abate the docket of the trial court, but to weed out cases for trial in
which there is no genuine issue of fact. We agree that the summary judgment procedure is not
designed to abate the docket of the trial court. As our supreme court said in Barbee, “[a]dmissions
were designed to reduce trial time by limiting and narrowing the issues.” Id. at 266. In this case,
some 18 months passed from the time that the Plaintiffs were served with the request for admissions
and their motion to extend the filing deadline. The record before us does not demonstrate just cause
for such undue delay.




                                                  -5-
       The judgment of the trial court granting summary judgment is affirmed. Costs of this appeal
are taxed to Jerry Maness and Patty Maness, and their surety, for which execution may issue if
necessary.



                                                     ___________________________________
                                                     DAVID R. FARMER, JUDGE




                                               -6-
