Brunetti v. Mascaro
| Decision Date | 07 May 1993 |
| Docket Number | No. 920009-CA,920009-CA |
| Parties | Joseph R. BRUNETTI, Plaintiff and Appellant, v. Joe MASCARO, Defendant and Appellee. |
| Court | Utah Court of Appeals |
Brian W. Steffensen (argued), Brian W. Steffensen, P.C., Salt Lake City, for plaintiff and Appellant.
Joseph C. Rust (argued), Kesler & Rust, Salt Lake City, for defendant and Appellee.
Before BILLINGS, GREENWOOD and RUSSON, JJ.
Joseph R. Brunetti appeals the trial court's denial of his motion for summary judgment, claiming that because Joe Mascaro did not timely respond to his request for admissions, the said admissions should have been deemed admitted. We affirm.
On September 27, 1989, Brunetti filed a summons and complaint against Mascaro. Attached to the complaint were interrogatories, a request for production of documents, and a request for admissions. Mascaro filed an answer to the complaint on October 23, 1989, but did not respond to the discovery requests at that time.
On May 18, 1990, Brunetti filed a motion for summary judgment, asserting that because Mascaro had not responded to his request for admissions, the court should deem them admitted and grant summary judgment in favor of Brunetti. Mascaro responded, stating that (1) since the discovery requests came stapled to the complaint with no differentiation between the documents, there was no valid service of the discovery; (2) the failure to respond to the request for admissions was due to a reasonable oversight; and (3) his counsel's records indicated that the response to the request for admissions was mailed to the court on November 22, 1989. Attached to Mascaro's response to the summary judgment motion was his response to the request for admissions, along with its mailing certificate. In addition, Mascaro's counsel filed an affidavit asserting that to his knowledge, Mascaro's response to the request for admissions had been duly mailed. Brunetti subsequently filed a document entitled "Verified Reply to Response to Motion for Summary Judgment," in which he further clarified his position that the said admissions should be admitted and not allowed to be withdrawn. Following a hearing on Brunetti's motion for summary judgment and the subsequent documents, the trial court denied Brunetti's motion.
On January 2, 1991, the case was tried to the bench. The court entered judgment in favor of Brunetti in the amount of $826 plus pre-judgment interest, post-judgment interest and costs. On January 10, 1991, Mascaro filed an objection to the judgment, contesting the award of pre-judgment interest. The court entered an amended judgment on November 27, 1991, eliminating the same. Brunetti filed his notice of appeal on December 27, 1991.
As an initial matter, Mascaro claims that since judgment was originally entered on January 2, 1991, under the applicable rules, Brunetti had thirty days from that date to file his notice of appeal. Thus, he argues, Brunetti's notice of appeal filed December 27, 1991, was not timely. Brunetti responds that because the trial court, on Mascaro's objection, entered an amended judgment in this matter on November 27, 1991, he had thirty days from that date to file his notice of appeal, and that, therefore, his notice of appeal was timely filed.
Utah Rule of Appellate Procedure 4(a) provides that a notice of appeal must be filed within thirty days after the date of entry of the judgment on the order appealed from. However, if a timely motion is filed under Rule 52(b) or Rule 59 to alter or amend the judgment, the time for appeal shall run from the entry of the order disposing of that motion. Utah R.App.P. 4(b).
We have previously stated that "[r]egardless of how it is captioned, a motion filed within ten days of the entry of judgment that questions the correctness of the court's findings and conclusions is properly treated as a post-judgment motion under either Rules 52(b) or 59(e)." DeBry v. Fidelity Nat'l Title Ins. Co., 828 P.2d 520, 522-23 (Utah App.1992) (citing Vreeken v. Davis, 718 F.2d 343, 345 (10th Cir.1983); Gallardo v. Bolinder, 800 P.2d 816, 817 (Utah 1990) (per curiam); Armstrong Rubber Co. v. Bastian, 657 P.2d 1346, 1347-48 (Utah 1983)) (footnote omitted).
In this case, Mascaro filed a motion within ten days of the entry of the judgment, objecting to the trial court's award of pre-judgment interest to Brunetti. Thus, under DeBry, Mascaro's motion must be construed as a Rule 59(e) motion to alter or amend the judgment. See DeBry, 828 P.2d at 522-23. Since Brunetti filed his notice of appeal within thirty days of the order disposing of that motion, his notice of appeal was timely filed.
On appeal, Brunetti claims that the trial court should have granted his motion for summary judgment due to Mascaro's failure to respond to his request for admissions within the time allowed by Utah Rule of Civil Procedure 36(a). Brunetti argues that since neither he nor the trial court received Mascaro's response until after he filed his motion for summary judgment in May 1990, the court should have deemed the requested admissions admitted and entered judgment for Brunetti based on those admissions. Mascaro responds that since he mailed his response to Brunetti's request to the trial court on November 22, 1989, the trial court properly refused to deem the said admissions admitted.
Rule 36(a) provides, in pertinent part:
A party may serve upon any other party a written request for the admission, for purpose of the pending action only, of the truth of any matters ... that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request....
Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty 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 ... but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon him.
In the case at bar, Brunetti served Mascaro with his request for admissions along with the summons and complaint on October 2, 1989. Thus, according to the plain language of Rule 36(a), Mascaro had until November 16 to respond to Brunetti's request for admissions. Therefore, even accepting as true Mascaro's assertion that he responded to Brunetti's request for admissions on November 22, such date was not within the time prescribed by Rule 36(a). Accordingly, we conclude that Mascaro's response was not properly filed pursuant to Rule 36(a).
However, this does not end our analysis. Subsection (b) of Rule 36 provides that a trial court may permit withdrawal of admissions if the merits of the underlying action will be advanced by such withdrawal and if the party requesting the admissions fails to convince the court that it will be prejudiced by such withdrawal. See Utah R.Civ.P. 36(b).
In the present case, this analysis involves two steps: (1) whether the trial court properly construed the documents before it as a motion to withdraw; and (2) if it did, whether the trial court abused its discretion in allowing withdrawal under the facts of this case.
As to the first point, Mascaro argues that since all of the documents before the trial court on Brunetti's motion for summary judgment concerned Brunetti's earlier request for admissions, the trial court's denial of that motion should be construed as a ruling by the court that the admissions should be allowed to be withdrawn. Brunetti responds that since the trial court did not have an express motion to withdraw before it, the court's actions cannot be so construed. We disagree.
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