ATTORNEYS FOR PETITIONER:                          ATTORNEYS FOR RESPONDENT:
NATHAN J. HAGERMAN                                 GREGORY F. ZOELLER
JEFFREY D. STEMERICK                               INDIANA ATTORNEY GENERAL
TAFT STETTINIUS & HOLLISTER LLP                    EVAN W. BARTEL
Indianapolis, IN                                   WINSTON LIN
                                                   DEPUTY ATTORNEYS GENERAL
                                                   Indianapolis, IN
                                                                       FILED
                                                                  Sep 23 2016, 4:27 pm

                                IN THE                                 CLERK
                                                                   Indiana Supreme Court

                          INDIANA TAX COURT                           Court of Appeals
                                                                        and Tax Court




THOR INDUSTRIES, INC.                          )
AND SUBSIDIARIES,                              )
                                               )
      Petitioners,                             )
                                               )
                     v.                        )     Cause No. 49T10-1508-TA-00027
                                               )
INDIANA DEPARTMENT OF STATE                    )
REVENUE,                                       )
                                               )
      Respondent.                              )


          ORDER ON PETITIONERS’ MOTION TO WITHDRAW ADMISSIONS

                                FOR PUBLICATION
                                September 23, 2016

WENTWORTH, J.

      Thor Industries, Inc. and Subsidiaries (collectively “Thor”) has moved to withdraw

twenty-nine separately numbered requests for admissions that were conclusively

admitted by operation of law when Thor failed to timely respond to the Indiana

Department of State Revenue’s First Request for Admissions. The Court grants Thor’s

motion.
                        FACTS AND PROCEDURAL HISTORY

      On August 6, 2015, Thor initiated an original tax appeal challenging the

Department’s Proposed Assessments of additional adjusted gross income tax, interest,

and penalties for the tax periods ending on July 31, 2008, July 31, 2009, and July 31,

2010. On June 9, 2016, about a week before settlement negotiations commenced, the

Department served Thor with its First Request for Admissions that asked Thor in effect

to repudiate the allegations in its petition within 30 days. On July 18, 2016, after the

time for responding lapsed, the Department contacted Thor to inquire about the status

of its response. Four days later, the Department moved for summary judgment and

designated as evidence, among other things, its First Request for Admissions. On July

27, 2016, Thor filed a Motion to Withdraw Admissions and Request for Oral Argument.

On August 26, 2016, the Court held an attorney’s conference to discuss matters

associated with the pending motions. That same day, the Court denied Thor’s request

for oral argument. Additional facts will be supplied as necessary.

                                 LAW AND ANALYSIS

      Indiana Trial Rule 36(B) governs requests to withdraw admissions. See Ind. Trial

Rule 36(B). Specifically, Trial Rule 36(B) provides that “the court may permit withdrawal

or amendment [of admissions] 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.” T.R. 36(B). “The party seeking withdrawal has the burden of demonstrating

that the presentation of the merits will be subserved by withdrawal, and the party who

has obtained the admissions has the burden of demonstrating that it will be prejudiced if



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the [] court permits withdrawal.” Cross v. Cross, 891 N.E.2d 635, 640 (Ind. Ct. App.

2008) (citation omitted). Even if both of these conditions are satisfied, however, the

Rule does not compel the Court to grant withdrawal or amendment.             See General

Motors Corp., Chevrolet Motor Div. v. Aetna Cas. & Sur. Co., 573 N.E.2d 885, 889 (Ind.

1991).

             I. Would Withdrawal Subserve the Presentation of the Merits

         Thor claims that the presentation of the merits will be subserved by the

withdrawal of its admissions because it would prevent the litigation from ending without

addressing matters that are the basis of the Department’s Proposed Assessments.

(See Pet’rs’ Br. Supp. Their Mot. Withdraw Admis. (“Pet’rs’ Br.”) at 7-9.) Indeed, a

comparison of Thor’s petition with Thor’s deemed admissions supports this claim.

(Compare Pet’rs’ Br., Ex. A ¶¶ 8-27 with Pet’rs’ Br., Ex. F at 5-13.) The Department,

however, asserts that Thor cannot meet its burden by 1) simply claiming that the

admissions go to the core issues or 2) making a blanket request for withdrawal. (See

Resp’t Mem. Opp’n Pet’rs’ Mot. Withdraw Admis. (“Resp’t Mem.”) at 8-9.)

                                   A. The Core Issues

         The Department first claims that Thor cannot demonstrate that the merits of the

case will be subserved solely by showing that the admitted matters concern the core

issues in the case. (See Resp’t Mem. at 8 (citing Bryant v. County Council of Lake

County, 720 N.E.2d 1, 6 (Ind. Ct. App. 1999), trans. denied).) More recently, however,

the Court of Appeals has clarified that a litigant may meet its burden of establishing that

withdrawal will subserve the presentation of the merits in this manner. See generally

Costello v. Zavodnik, 55 N.E.3d 348 (Ind. Ct. App. 2016). Nonetheless, even if the



                                            3
proposition in Bryant on which the Department relies were not suspect, it is well settled

that Court of Appeals’ decisions are persuasive, but not controlling, authority by which

the Court is bound. See, e.g., LeSea Broad. Corp. v. State Bd. of Tax Comm’rs, 512

N.E.2d 506, 509 (Ind. Tax Ct. 1987), adopted by 511 N.E.2d 1009 (Ind. 1987)

(demonstrating, among other things, that decisions of the Indiana Court of Appeals are

persuasive, not controlling authority in the Tax Court). Accordingly, the Department’s

argument that Thor has not shown that withdrawal will subserve the presentation of the

merits on this basis is not persuasive.

                       B. The Blanket Request for Withdrawal

       The Department has also asserted that Thor cannot meet its burden to establish

that the presentation of the merits of its case will be subserved by the withdrawal of its

admissions because blanket requests for the withdrawal of deemed admissions are

prohibited by Trial Rule 36(A). (See Resp’t Mem. at 8-9 (citing T.R. 36(A); General

Motors, 573 N.E.2d at 886-89; Larson v. Karagan, 979 N.E.2d 655 (Ind. Ct. App. 2012);

Mullins v. Parkview Hosp., Inc., 830 N.E.2d 45 (Ind. Ct. App. 2005), aff’d in part and

vacated in part by 865 N.E.2d 608 (Ind. 2007)).) Neither the language of Trial Rule

36(A) nor the holdings in the cases analyzing the Rule prohibit, however, blanket

requests to withdrawal deemed admissions. Specifically, Trial Rule 36(A) sets forth

only the procedures for propounding and responding to requests for admissions, not the

procedures for filing motions to withdraw admissions. See T.R. 36(A).       Furthermore,

while the cited cases concern the withdrawal of some, but not all, of the litigants’

admissions, none suggests that the specificity was due to a prohibition against raising

blanket requests for withdrawal or a requirement that litigants “must separately identify



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why withdrawal is appropriate for each admission[,]” as the Department urges.

(Compare Resp’t Mem. at 8 with General Motors, 573 N.E.2d at 886 (indicating that

appeal involved the withdrawal of three admissions only); Larson, 979 N.E.2d at 659-60

(indicating that appeal involved the grant of summary judgment, not the withdrawal of

admissions); Mullins, 830 N.E.2d at 60 (linking the number of admissions at issue to the

appellant’s arguments and the propriety of summary judgment).) Finally, when a litigant

advances the same rationale for the withdrawal of all of its admissions, like here, the

Court neither requires nor expects a continuous repetition of this rationale for the

withdrawal of each of the litigant’s admissions. Accordingly, the Court finds that Thor

established that the withdrawal of its admissions subserves the presentation of the

merits in this case.

                   II. Would Withdrawal Prejudice the Department

       Trial Rule 36(B) provides a defense against the withdrawal of deemed

admissions: a showing of prejudice against the opponent of the withdrawal. See T.R.

36(B). “‘[P]rejudice’ does not mean that the party who has obtained the admission will

lose the benefit of the admissions; rather, it means that the party has suffered a

detriment in the preparation of his case.” City of Muncie v. Peters, 709 N.E.2d 50, 55

(Ind. Ct. App. 1999) (citation omitted), trans. denied. In other words, the prejudice

contemplated under Trial Rule 36(B) relates to the difficulty a party may face in proving

its case because it suddenly needs to obtain evidence to prove a matter that had been

deemed admitted. See id. For example, prejudice may be shown in instances “where

the party obtaining the admission is unable to produce key witnesses or present

important evidence.” Id. (citations omitted).



                                                5
       Here, the Department claims that it will be prejudiced by the withdrawal of Thor’s

admissions because it places the viability of its motion for summary judgment at issue

“by triggering a sudden need for witnesses and evidence to support matters that the

Department thought were firmly established” in less than a two-month period. (Resp’t

Mem. at 9-10.) The Department also claims that if Thor’s Motion were granted, it would

be deprived of the opportunity to fairly and to fully conduct discovery given the

deadlines under the current case management plan (the “CMP”). (See Resp’t Mem. at

11.)

       The facts of this case, however, belie the Department’s claims. Indeed, when the

July 12, 2016, deadline for responding to the Department’s First Request for

Admissions arrived, the parties were in the middle of settlement negotiations. (See,

e.g., Resp’t Mem. at 4-5.) Thor’s counsel admitted to the Court that he inadvertently

missed the deadline because he believed (albeit incorrectly) that counsel for the

Department agreed that all deadlines would be suspended together with the deadlines

for other discovery to facilitate settlement negotiations.1 (See Pet’rs’ Br., Ex. B ¶¶ 6-13.)

At that point, the deadlines under the CMP allowed for just over one month for written

discovery, just over three months for depositions, just over six months for filing

dispositive motions, and no trial date had been set. See generally Order, filed Dec. 1,

2015 (approving the parties’ joint motion for a case management plan); Joint Notice Am.

Deadlines, filed Feb. 26, 2016; Joint Notice Am. Deadlines, filed Apr. 29, 2016. Rather


1
  The Department’s claim that Thor’s counsel intentionally failed to respond to its First Request
for Admissions is unpersuasive. (See Resp’t Mem. Opp’n Pet’rs’ Br. at 12-13.) While the Court
does not condone such inadvertent actions, “‘it does not further the interests of justice to
automatically determine all the issues in a lawsuit and enter summary judgment against a party
because a deadline was missed.’” Gary Mun. Airport Authority Dist. v. Peters, 550 N.E.2d 828,
831 (Ind. Ct. App. 1990) (citation omitted).
                                               6
than utilize that time to conduct additional discovery, the Department quickly moved for

summary judgment just ten days later on July 22, 2016, having secured admissions on

the “heart” of the case, i.e., the propriety of the Department’s Proposed Assessments.

(Compare, e.g., Pet’rs’ Br., Ex. A at ¶¶ 17-27 (challenging the conclusions of the

Department’s Letter of Findings that upheld the Proposed Assessments) with Pet’rs’ Br.,

Ex. F at 9 (admitting that “[t]he Proposed Assessments were properly issued”).)

Moreover, the Department’s decision to move for summary judgment automatically

vacated all deadlines under the CMP. See Order ¶ 5, filed Dec. 1, 2015 (providing that

the filing of a dispositive motion “shall automatically vacate this case management plan

unless otherwise ordered by the Court”).

      The Department’s hasty motion for summary judgment suggests that its reliance

on the deemed admissions was unreasonable. See Kerkhof v. Kerkhof, 703 N.E.2d

1108, 1113 (Ind. Ct. App. 1998) (explaining that while a litigant’s reasonable reliance on

admitted matters could qualify as prejudice, such reliance is often unreasonable when

the deemed admissions concern the central issues in a case).           The Department’s

reliance was unreasonable because both parties knew that the subject matter of each

deemed admission was intended for litigation. See Gary Mun. Airport Authority Dist. v.

Peters, 550 N.E.2d 828, 831-32 (Ind. Ct. App. 1990) (providing that a litigant’s reliance

on admissions is unreasonable when the parties know the admitted matters are

intended for litigation). Less than a week after the Department filed its Motion, Thor

promptly confirmed that the Department’s reliance on its deemed admissions was

unreasonable by seeking the withdrawal of, and thereby contesting, all the deemed

admissions. Because the facts before the Court demonstrate that the Department’s



                                            7
reliance on Thor’s deemed admissions was unreasonable, that the Department, not

Thor, placed the viability of its summary judgment motion at issue, that the case had not

been set for trial, and that the CMP deadlines have all been vacated, the Department

has not established that it will prejudiced by the withdrawal of Thor’s admissions. See,

e.g., Costello, 55 N.E.3d at 353 (finding no prejudice when the matter had not yet been

set for trial, the appellee still had time to prepare his case, and there was no evidence

that the appellee’s reliance on the admissions impaired his ability to prepare his case).

                                        CONCLUSION

       In instances like these, where a litigant’s use of Trial Rule 36(B) contravenes the

Rule’s important purpose of more quickly and efficiently reaching a resolution based on

the actual facts, the Court may withdraw the admissions when the presentation of the

merits will be subserved and the party benefitting from them is not prejudiced. See,

e.g., id. at 353-54. Indeed, Trial Rule 36(B) “‘is not intended to provide a windfall to

litigants[,]’” nor is it to be used as a “‘gotcha’ device” or “‘as a trap to prevent the

presentation of the truth in a full hearing[;]’” instead, it is to be used “‘as a tool for the fair

disposition of litigation with a minimum of delay.’” See id. at 354 (citations omitted).

Accordingly, and in keeping with this Court’s long-standing policy of deciding cases on

their merits, the Court GRANTS Thor’s Motion. Consistent with the Court’s Order of

August 26, 2016, the Department shall file a Notice regarding its intent to maintain or

withdraw its Motion for Summary Judgment on or before September 30, 2016.




                                                8
Thereafter, the Court will direct the parties regarding all remaining matters by separate

cover.

         SO ORDERED this 23th day of September 2016.



                                               Martha Blood Wentworth
                                               Judge, Indiana Tax Court



Distribution: Nathan J. Hagerman, Jeffrey D. Stemerick, Evan W. Bartel, Winston Lin




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