                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                      January 8, 2004 Session

            TODD HUTCHESON v. IRVING MATERIALS, INC., d/b/a IMI

                      Appeal from the Circuit Court for Cheatham County
                              No. 5256 Robert E. Burch, Judge


                      No. M2002-03064-COA-R3-CV - Filed March 8, 2004


Plaintiff filed suit for breach of contract and negligence alleging that concrete provided by Defendant
did not meet specifications. Defendant filed counterclaim for Plaintiff’s unpaid bill. Plaintiff failed
to timely respond to requests for admissions. Defendant filed motion to have requests deemed
admitted, which the trial court granted. Plaintiff took no remedial action until seven months later,
after Defendant filed its motion for summary judgment that was primarily based on the now disputed
admissions. Plaintiff then filed Tenn. R. Civ. P. 36.02 motion for relief from the admissions. Trial
court denied Plaintiff’s motion for relief, granted Defendant’s summary judgment, awarding
damages against Plaintiff, and dismissed Plaintiff’s cause of action against Defendant. This is an
appeal from the trial court’s denial of Plaintiff’s motion for relief pursuant to Tenn. R. Civ. P. 36.02,
and the trial court’s granting of Defendant’s motion for summary judgment, rendering judgment in
favor of Defendant. We affirm the trial court.

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

FRANK G. CLEMENT , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.

Mark R. Olson, Clarksville, Tennessee, for the appellant, Todd Hutcheson.

Martin C. Giner, Nashville, Tennessee, for the appellee, Irving Materials, Inc., d/b/a IMI.

                                               OPINION

        Plaintiff/Appellant Todd Hutcheson (Plaintiff) filed suit on January 16, 2001 claiming
concrete delivered by Defendant/Appellee Irving Materials, Inc. d/b/a IMI (Defendant) did not meet
the specifications set forth by Plaintiff.1 The complaint stated that Defendant provided Plaintiff with
four truck loads of concrete for a sixty by forty foot garage pad and that while loads one, two and


        1
          The complaint named Ramie Colson, the concrete “finisher,” and Irving Materials, Inc. d/b/a IMI as
Defendants. Plaintiff’s action against Colson was dismissed with prejudice on May 1, 2001.
four conformed with the required specifications, load three did not. Specifically, the complaint
alleged that the third load was a different type of concrete which caused the finishes to be “difficult,”
constituting a breach of the agreement between the parties. The complaint asserted that the concrete
needed to be removed and re-poured and requested damages of $20,000.00.2

         Defendant filed an answer and counterclaim, denying the allegations and setting forth a claim
seeking $3,178.76 for the concrete delivered to Plaintiff, plus pre-judgment interest.3 Plaintiff did
not file an answer to the counterclaim.

        On October 16, 2001, Plaintiff received Defendant’s first set of interrogatories, requests for
admissions, and requests for production of documents. Plaintiff provided an informal and evasive
response to the discovery by letter dated October 26, 2001 to Defendant’s counsel, stating little more
than it would be difficult to obtain the discovery sought and that the information requested was in
Defendant’s possession. On January 22, 2002, Defendant filed a motion to have its requests for
admissions deemed admitted pursuant to Tenn. R. Civ. P. 36.01 due to Plaintiff’s failure to admit
or deny said requests. The motion was set for hearing on February 4, 2002. Plaintiff did not file a
formal response until the day of the hearing. Even then, Plaintiff’s response was evasive for Plaintiff
merely attached his October 26, 2001 letter to Defendant’s counsel which suggested that it would
be difficult to obtain the discovery sought and that the information requested was in Defendant’s
possession.

       The trial court granted Defendant’s motion to have the requests for admissions deemed
admitted pursuant to Tenn. R. Civ. P. 36.01. The requests deemed admitted are as follows:

         1. Admit that the calibration on the concrete dispensing equipment that IMI used to
         dispense the concrete that is the subject matter of this lawsuit was accurate and
         worked properly.
         2. Admit that the delivery tickets that are attached hereto as Exhibit “A” are
         admissible into evidence at any hearing in this cause.
         3. Admit that the quantities of materials set forth in Exhibit “A” were actually
         dispensed by IMI’s machinery and incorporated into the concrete slab that is the
         subject of this lawsuit.
         4. Admit that Exhibit “A” is the only written agreement between IMI and Todd
         Hutcheson.
         5. Admit that Todd Hutcheson is indebted to IMI in the amount of Three Thousand
         One Hundred Seventy-Eight Dollars and 76/10 [sic] ($3,178.76) plus interest from
         November 15, 2000, until paid in full at the rate of 18% per annum.

         2
         It also asked that the Court issue an order finding that Plaintiff’s stop-payment on two checks payable to
Defendant, totaling $3,575.09, was appropriate under the circumstances. This issue was not addressed by the trial court.

         3
          In its answer to the complaint, Defendant stated that New Albany Concrete Services, Inc. d/b/a Irving
Materials, Inc. is the proper party to this suit and should be substituted for Irving Materials, Inc. d/b/a IMI; however, New
Albany was never substituted for Irving Materials.

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        6. Admit that IMI did not breach any agreement with Todd Hutcheson regarding the
        subject matter of this lawsuit.
        7. Admit that Todd Hutcheson is currently utilizing the concrete that is the subject
        matter for its intended purpose as a floor of a garage.

         On August 21, 2002, six months after the trial court deemed the requests admitted, Defendant
filed a motion for summary judgment based primarily on the admissions. The motion was set for
hearing on November 1, 2002. On October 1, 2002, over seven months after the trial court deemed
the requests admitted and almost one year from the date Plaintiff first received Defendant’s requests
for admissions, Plaintiff filed his motion for relief from the order that deemed the requests admitted.
Plaintiff’s motion was based on Tenn. R. Civ. P. 36.02, which allows for withdrawal or amendment
of admissions under certain conditions. Following a hearing, the trial court denied Plaintiff’s motion
for relief from the admissions, granted Defendant’s motion for summary judgment, and dismissed
Plaintiff’s case. The order read:

        [A] judgment against Todd Hutcheson be entered in favor of New Albany concrete
        Services, Inc. d/b/a Irving Materials, Inc., and that New Albany Concrete Services,
        Inc. d/b/a Irving Materials, Inc., have and recover from Counter-Defendant Todd
        Hutcheson the sum of Three Thousand One Hundred Seventy-Eight Dollars and
        76/100 ($3,178.76) plus pre-judgment interest in the amount of One Thousand One
        Hundred Twenty-Six Dollars and 80/100($1,126.80) for a total of Four Thousand
        Three Hundred Five Dollars and 56/100 ($4,305.56).

       Plaintiff sets forth two issues. First, Plaintiff asserts that the trial court failed to apply the
“two prong” test pursuant to Tenn. R. Civ. P. 36.02. Second, Plaintiff contends that Defendant’s
motion for summary judgment, which was based upon the disputed requests for admissions, should
not have been granted because genuine issues of material fact were in dispute.

                          Analysis of “two prong” test under Rule 36.02

        Plaintiff’s claim that the trial court failed to apply the “two prong” test pursuant to Tenn. R.
Civ. P. 36.02 constitutes a challenge to a decision concerning a procedural matter. Trial courts are
granted broad discretion over procedural matters. Douglas v. Estate of Robinson, 876 S.W.2d 95,
97 (Tenn. 1994). Appellate courts review decisions regarding procedural matters using the
deferential "abuse of discretion" standard of review. “An appellate court will not reverse a
discretionary judgment of the trial court unless it affirmatively appears that such discretion has been
explicitly abused to great injustice and injury of the party complaining." Id. (citing Tenn. R. App.
P. 36(b); Bruce v. Bruce, 801 S.W.2d 102, 107 (Tenn. Ct. App. 1990)). For issues of law, the
standard of review is de novo, with no presumption of correctness. Lavin v. Jordon, 16 S.W.3d 362,
364 (Tenn. 2000).

        Our analysis begins with Tenn. R. Civ. P. 36, Requests for Admission. Rule 36.01 provides
that requests for admissions will be deemed admitted unless answered within thirty days of service.


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The answer or objection is to be served upon the party requesting the information and shall contain
sufficient detail and specificity. Tenn. R. Civ. P. 36.01. The purpose of admissions is to limit and
narrow the issues, thereby reducing trial time. Tennessee Dept. of Human Services v. Barbee, 714
S.W.2d 263, 266 (Tenn. 1986). No proof is needed to establish a fact that has been admitted, and
no evidence should be allowed to refute the admission. Id. at 267. “Unanswered requests for
admission are deemed admitted and the matter requested is conclusively established for the purposes
of the pending case. . . . [A] Rule 36 admission, unless it is allowed to be withdrawn or amended,
concludes the matter and avoids any need for proof at trial.” Id. at 266.

       Tenn. R. Civ. P. 36.02, in pertinent part, provides:

       Any matter admitted under this rule is conclusively established unless the court on
       motion permits withdrawal or amendment of the admission. . . . [T]he court may
       permit withdrawal or amendment 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 that party in maintaining the
       action or defense on the merits. (emphasis added)

Thus, to be entitled to withdraw or amend the admissions at issue Plaintiff must establish that the
presentation of the merits of this action will be subserved by such withdrawal or amendment and that
Defendant failed to prove that doing so will prejudice Defendant. Accordingly, we will first analyze
whether Plaintiff has established that the presentation of the merits of this action will be subserved
by withdrawing or amending the admissions.

       Defendant propounded its requests for admissions on October 16, 2001. Plaintiff provided
an informal reply by letter on October 26, stating merely that the information requested was not
available to Plaintiff, that it would be difficult to obtain the discovery sought and it was within the
control of Defendant. On January 22, 2002, Defendant filed a motion to have its requests for
admissions deemed admitted pursuant to Tenn. R. Civ. P. 36.01 due to Plaintiff’s failure to admit
or deny. That motion was set for hearing on February 4, 2002. Plaintiff did not file a response to
the motion or submit a formal response to the discovery until the day the motion was heard.
Following a hearing, the trial court granted Defendant’s motion to have the requests for admissions
deemed admitted.

        Plaintiff’s responses to the requests for admissions suggested, in part, that it would be
difficult to obtain the discovery sought. That may or may not have been the case; however, in the
year following receipt of the discovery requests Plaintiff did not submit nor initiate discovery of any
type. Furthermore, Plaintiff did not conduct a test of the concrete in his driveway, which he could
have done without Defendant’s consent. Moreover, the part of the response that claimed the
information requested was within the control of Defendant was inadequate because it is immaterial
that one’s adversary may have the information that is the subject of the requests. One of the
purposes of such requests is to save the time, money and the inconvenience of having to prove that
which the parties should admit. Barbee at 266.


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        The deficiencies in Plaintiff’s argument are not limited to his inadequate and late responses
to discovery. Plaintiff did not file his Rule 36.02 motion for relief from the disputed admissions
until seven months after the trial court granted Defendant’s motion to have the requests deemed
admitted. Even more egregious, it was after Defendant filed its motion for summary judgment,
which was almost one year following Plaintiff’s receipt of the requests for admissions.

         From the foregoing, we find that Plaintiff failed to establish that the merits of the case would
be subserved or promoted by the withdrawal or modification of the request for admissions. The
“first prong” of the Rule 36.02 test requires that Plaintiff establish that the presentation of the merits
of the action would be subserved by the amendment or withdrawal of the admissions. Our reading
of Rule 36.02 leads us to conclude that both prongs must be established for Plaintiff to be entitled
to relief under the rule. Proving one prong without the other is insufficient. Having found that he
failed to satisfy the first requirement, it is immaterial whether Plaintiff could establish the “second
prong” of the Rule 36.02 test. Thus, we find that the trial court did not abuse its discretion when it
denied Plaintiff’s motion for relief from requests for admissions deemed admitted.

                                         Summary Judgment

        While summary judgments are appropriate in almost any civil case that can be resolved on
the basis of legal issues alone, Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Psillas v. Home
Depot, U.S.A., Inc., 66 S.W.3d 860, 863 (Tenn. Ct. App. 2001), they enjoy no presumption of
correctness on appeal. Scott v. Ashland Healthcare Ctr., Inc. 49 S.W.3d 281, 285 (Tenn. 2001).
Therefore, we must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have
been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50 (Tenn. 1997); Staples v. CBL & Associates,
Inc., 15 S.W.3d 83, 88 (Tenn. 2000). Summary judgments are not appropriate when genuine
disputes regarding material facts exist. Tenn. R. Civ. P. 56.04.

        Defendant’s motion for summary judgment was primarily based on the above referenced
admissions. Plaintiff failed to present other evidence to create a dispute as to the facts established
by the admissions. Accordingly, there are no material facts in dispute. Therefore, the trial court
acted appropriately when it granted Defendant’s motion for summary judgment.

         We find the trial court did not abuse its discretion by denying Plaintiff’s motion for relief
from requests for admissions deemed admitted. Furthermore, the trial court’s entry of summary
judgment for Defendant was also proper in that there were no material facts in dispute. The costs
of this appeal are taxed to Appellant, Todd Hutcheson.




                                                         ___________________________________
                                                         FRANK G. CLEMENT, JR., JUDGE



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