Tymar, LLC v. Two Men & A Truck

• Decision Date: 10 November 2011
• Docket Number: No. S–10–861.,S–10–861.
• Citation: 805 N.W.2d 648,282 Neb. 692
• Parties: TYMAR, LLC, doing business as Second to None Moving, a Nebraska limited liability company, appellant and cross-appellee, v. TWO MEN AND A TRUCK et al., appellees, and Nebraska Public Service Commission, appellee and cross-appellant.
• Court: Nebraska Supreme Court

282 Neb. 692

805 N.W.2d 648

TYMAR, LLC, doing business as Second to None Moving, a Nebraska limited liability company, appellant and cross-appellee,

v.TWO MEN AND A TRUCK et al., appellees, and Nebraska Public Service Commission, appellee and cross-appellant.

No. S–10–861.

Supreme Court of Nebraska.

Nov. 10, 2011.

Syllabus by the Court

1. Administrative Law: Judgments: Appeal and Error. In an appeal under the Administrative Procedure Act, an appellate court may reverse, vacate, or modify the judgment of the district court for errors appearing on the record.

2. Judgments: Appeal and Error. An appellate court reviews questions of law independently of the lower court's conclusion.

3. Pretrial Procedure: Evidence. A party's failure to make a timely and appropriate response to a request for admission constitutes an admission of the subject matter of the request, which matter is conclusively established unless, on motion, the court permits withdrawal of the admission.

4. Rules of the Supreme Court: Pretrial Procedure. Neb. Ct. R. Disc. § 6–336 is self-enforcing, without the necessity of judicial action to effect an admission which results from a party's failure to answer or object to a request for admission.

5. Rules of the Supreme Court: Pretrial Procedure: Evidence: Proof. Neb. Ct. R. Disc. § 6–336 is not self-executing. Thus, a party that seeks to claim another party's admission, as a result of that party's failure to respond properly to a request for admission, must prove service of the request for admission and the served party's failure to answer or object to the request and must also offer the request for admission as evidence.

6. Rules of the Supreme Court: Pretrial Procedure. If the necessary foundational requirements are met and no motion is sustained to withdraw an admission, a trial court is obligated to give effect to the provisions of Neb. Ct. R. Disc. § 6–336 which require that the matter be deemed admitted.

7. Pretrial Procedure: Courts: Appeal and Error. Appellate courts look to other courts for guidance in applying Nebraska's rules of civil procedure which are based on the federal rules.

8. Rules of the Supreme Court: Pretrial Procedure. The language of Neb. Ct. R. Disc. § 6–336 contemplates that, if a request for admission seeks information that is permissible under Neb. Ct. R. Disc. § 6–326, the request can ask a party to admit facts in dispute, the ultimate facts in a case, or facts as they relate to the law applicable to the case.

9. Pretrial Procedure: Rebuttal Evidence: Evidence. An admission that is not withdrawn or amended cannot be rebutted by contrary testimony or ignored by the district court simply because it finds the evidence presented by the party against whom the admission operates more credible. This conclusive effect applies equally to those admissions made affirmatively and those established by default, even if the matters admitted relate to material facts that defeat a party's claim.

10. Motor Carriers. The issue of public convenience and necessity is ordinarily one of fact.

David J. Skalka, of Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger, L.L.C., Omaha, for appellant.

Jon Bruning, Attorney General, and L. Jay Bartel for appellee Nebraska Public Service Commission.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

MILLER–LERMAN, J.

NATURE OF THE CASE

Appellant, Tymar, LLC, doing business as Second to None Moving (Tymar), filed an application with the Nebraska Public Service Commission (Commission) seeking authority to operate as a common carrier of household goods in intrastate commerce in service points in Cass, Sarpy, Douglas, and Washington Counties. Other common carriers in the area, including Two Men and a Truck; Jim's Moving & Delivery Co., Inc.; Vaughn Moving; I–Go Van & Storage; Earl D. vonRentzell; vonRentzell Van & Storage, Inc.; and Chieftain Van Lines, Inc. (Chieftain), filed protests to Tymar's application. The Commission conducted a hearing and determined that Tymar had failed to establish its prima facie case that it met the standards for approval of its application under the regulatory scheme imposed by Neb.Rev.Stat. § 75–301 et seq. (Reissue 2009). The Commission denied the application.

Tymar appealed to the district court for Lancaster County under Neb.Rev.Stat. § 75–136 (Reissue 2009) and the Administrative Procedure Act, Neb.Rev.Stat. §§ 84–901 to 84–920 (Reissue 2008 & Supp.2009), and the district court affirmed the decision of the Commission. Tymar appeals, and the Commission cross-appeals. Because certain rulings surrounding the evidentiary significance of the unanswered requests for admissions tendered by Tymar amounted to errors of law, we reverse the order of the district court and remand the cause with directions to the district court to reverse the Commission's denial of the application and remand the action to the Commission with directions to reconsider Tymar's application consistent with this opinion.

STATEMENT OF FACTS

Tymar is owned and operated by Myron Tyrone Franklin. In 2008, Tymar filed an application with the Commission seeking authority to operate as a common carrier of household goods in intrastate commerce in service points in Cass, Sarpy, Douglas, and Washington Counties.

An application is subject to the rules and regulations of the Commission, as well as to statutory requirements. Under the Commission rules: “An application which is not protested may on applicant's motion, or on the Commission's own motion, be processed by use of affidavits and will be processed administratively. The affidavit will be signed by the applicant or counsel and sworn to before a notary.” 291 Neb. Admin. Code, ch. 1, § 018.03 (2001). The Commission rules contain an affidavit form requesting information in addition to that provided in the application. The affidavit seeks information such as the vehicles the applicant proposes to use, the maintenance schedule of the vehicles, and the applicant's agreement to abide by safety standards, tariffs, Nebraska statutes governing motor carriers, and the Commission's rules and regulations. We understand such affidavit is necessary to the grant of an unopposed application and may be requested under other circumstances. The record does not contain an affidavit filed by Tymar.

In response to the application, various protests were filed by existing carriers, including Two Men and a Truck, Jim's Moving & Delivery Co., Vaughn Moving, I–Go Van & Storage, Earl D. vonRentzell, vonRentzell Van & Storage, and Chieftain. As a general matter, where protests are filed, a hearing is necessary. On March 19, 2009, the Commission sent a letter to Tymar inquiring whether it wished to pursue its application. Notwithstanding the protests, Tymar responded that it did wish to pursue its application. There ensued correspondence regarding setting a hearing date.

In addition to the rules and regulations of the Commission, applications for common carrier authority are subject to § 75–311(1), which provides:

A certificate shall be issued to any qualified applicant authorizing the whole or any part of the operations covered by the application if it is found after notice and hearing that (a) the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of sections 75–301 to 75–322 and the requirements, rules, and regulations of the commission under such sections and (b) the proposed service, to the extent to be authorized by the certificate, whether regular or irregular, passenger or household goods, is or will be required by the present or future public convenience and necessity. Otherwise the application shall be denied.

We have stated that the issue of public convenience and necessity is ordinarily one of fact. In re Application of Petroleum Transport Service, Inc., 210 Neb. 411, 315 N.W.2d 245 (1982). We have further explained that

[i]n determining public convenience and necessity, the deciding factors are (1) whether the operation will serve a useful purpose responsive to a public demand or need, (2) whether this purpose can or will be served as well by existing carriers, and (3) whether it can be served by the applicant in a specified manner without endangering or impairing the operations of existing carriers contrary to the public interest.

In re Application of Nebraskaland Leasing & Assocs., 254 Neb. 583, 591, 578 N.W.2d 28, 34 (1998).

On June 15, 2009, Tymar served requests for admissions pursuant to Neb. Ct. R. Disc. § 6–336 (Rule 36) on the protestants. The requests for admissions requested, inter alia, that the protestants admit the following:

Request No. 4: Applicant is minority owned.

Request No. 5: Applicant is minority operated.

Request No. 6: The public interest will be benefited by authorizing a minority-owned entity to provide services in the geographical area set forth in the application.

Request No. 7: The public interest will be benefited by authorizing a minority-operated entity to provide services in the geographical area set forth in the application.

Request No. 8: Applicant is fit, willing, and able to provide services in the geographical area set forth in the application.

Request No. 9: The present public convenience and necessity require provision of services by a minority-owned entity in the geographical area set forth in the application.

Request No. 10: The future public convenience and necessity will require provision of services by a minority-owned entity in the geographical area set forth in the application.

Request No. 11: The present public convenience and necessity require provision of services by a minority-operated entity in the geographical area set forth in the application.

Request No. 12: The future public convenience and necessity will require provision of services by a minority-operated entity in the geographical area set forth in the application.

Request No. 13: Granting the...