Wibbels v. Unick

• Decision Date: 15 July 1988
• Docket Number: No. 86-741,86-741
• Parties: Bryan WIBBELS, Appellee, v. Kenneth Fred UNICK, Conservator for the Estate of Fred Unick, Appellant, Town & Country Coop, Scotia, Nebraska, Intervenor-Appellee.
• Court: Nebraska Supreme Court

Page 244

426 N.W.2d 244

229 Neb. 184

Bryan WIBBELS, Appellee, v. Kenneth Fred UNICK, Conservator for the Estate of Fred Unick, Appellant Town & Country Coop, Scotia, Nebraska, Intervenor-Appellee.

No. 86-741.

Supreme Court of Nebraska.

July 15, 1988.

Syllabus by the Court

1. Summary Judgment. A summary judgment is properly granted when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue concerning any material fact or the ultimate inferences deducible from such fact or facts and that the moving party is entitled to judgment as a matter of law.

2. Pretrial Procedure: Summary Judgment. Matters admitted pursuant to Neb.Disc.R. 36 (rev. 1986) are a proper predicate for a summary judgment.

3. Pretrial Procedure. Neb.Disc.R. 36 (rev. 1986) is intended to expedite the trial and to relieve the parties of the cost of proving facts that will not be disputed at trial, the truth of which is known to the parties or can be ascertained by reasonable inquiry.

4. Pretrial Procedure. Neb.Disc.R. 36 (rev. 1986) promotes an objective of discovery, the reduction of trial time, by (1) facilitating proof concerning issues that cannot be eliminated from the case and (2) narrowing issues and eliminating the necessity of proof on undisputed matters.

5. 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.

6. Pretrial Procedure: Proof: Evidence. Neb.Disc.R. 36 (rev. 1986) is not self-executing, but requires that a party, claiming another party's admission by 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 subsequently offer the request for admission as evidence.

7. Pretrial Procedure. While not self-executing, Neb.Disc.R. 36 (rev. 1986) 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.

8. Pretrial Procedure: Time. By order within a court's discretion, a party may obtain an enlargement or extension of time beyond 30 days to respond to a request for admission.

9. Pretrial Procedure: Time. If a party does not seek an extension of time to respond outside the 30-day period specified by Neb.Disc.R. 36(a) (rev. 1986), and the subject matter of the request for admission is, therefore, deemed admitted, a party may request to withdraw such admission under Rule 36(b).

Patrick J. Nelson and Terri S. Harder of Jacobsen, Orr, Nelson & Wright, P.C., Kearney, for appellant.

Gregory G. Jensen, Ord, for intervenor-appellee.

HASTINGS, C.J., SHANAHAN, and FAHRNBRUCH, JJ., and RILEY and OTTE, District Judges.

SHANAHAN, Justice.

Kenneth Fred Unick, conservator for the estate of Fred Unick, appeals from the judgment for Town & County Coop, Scotia Nebraska (Coop), on Unick's counterclaim. Unick's appeal presents a question concerning consequences of a party's failure to respond timely to a request for admission, pursuant to Neb.Disc.R. 36 (rev. 1986).

Bryan Wibbels commenced an action against Fred Unick and claimed that Unick, as lessor, failed to pay Wibbels, as lessee, an amount due under their farmland lease. Coop filed its petition of intervention in Wibbels' suit on September 24, 1985, and alleged that, relying on Unick's tendered check for $25,200 payable to the Coop and Wibbels, the Coop supplied petroleum products, labor, and fertilizer which were valued at $25,774. When the bank refused to honor Unick's check, Coop intervened in the Wibbels-Unick litigation, requesting that any amount recovered by Wibbels be awarded to Coop. Responding to Coop's petition of intervention, Unick filed his demurrer and a motion to strike or dismiss Coop's petition. Shortly thereafter, without disposition of the demurrer or motion, Unick filed his answer to Coop's intervention petition, denied liability to Coop, counterclaimed that Coop owed Unick $25,200 for fertilizer which Coop had agreed to deliver but failed to apply on the leased land, and requested judgment accordingly. On October 25, Unick served "Requests for Admission" on Coop, which included requested admissions that Unick's check for $25,200 was delivered to Coop pursuant to its promise to apply fertilizer to the leased land, Coop did not apply the fertilizer, and Coop owed Unick $25,200. On January 22, 1986, Coop filed its answer and generally denied Unick's counterclaim.

In support of his motion for summary judgment, filed on March 6, 1986, or some 4 1/2 months after service of the request for admissions, Kenneth Unick, as conservator for Fred Unick, asserted that Coop had failed to respond to the request, notwithstanding service pursuant to Rule 36. On March 26, Coop transmitted answers to Unick's request for admissions, denied the agreement with Unick for application of fertilizer on the leased land, and, correspondingly, denied failure to apply fertilizer on the leased land and consequent liability for such failure. At the hearing on Unick's motion for summary judgment, held on April 8, Unick proved that his request for admissions had been served on Coop, which had failed to answer or object within 30 days after service of the request, and offered the request for admissions to which Coop had made no response. Before and at the hearing for summary judgment, Coop did not offer an explanation for its failure to answer or object to the requested admissions and never asked the court to enlarge or extend time for answering or objecting to Unick's request for admissions. Rather, at the summary judgment hearing, after Unick's request for admissions was received as evidence for the purpose of the summary judgment, Coop introduced its answers to Unick's request for admissions. The court denied Unick's motion for summary judgment. Somewhere along the line, Wibbels and Unick settled their differences, leaving Unick's counterclaim as the only actionable matter before the court. Later, after a trial on the merits, the court entered judgment for Coop on Unick's counterclaim.

Unick complains that, as the result of Rule 36, all elements necessary to prevail on his counterclaim were conclusively established by Coop's admissions through its failure to respond timely to Unick's request, thereby entitling Unick to judgment as a matter of law on his counterclaim and precluding a trial on the counterclaim. Coop contends that its tardy response to Unick's request for admissions should not obviate a trial on the merits regarding Unick's counterclaim and the judgment favorable to Coop.

Rule 36, "Requests for Admission," in pertinent part provides:

(a) Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth in the request 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.... The request may, without leave of court be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons upon that party.

... 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, signed by the party or by his or her attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of forty-five days after service of the summons upon him or her. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter....

....

(b) Effect of Admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. The 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 him or her in maintaining his or her action or defense on the merits.

A summary judgment is properly granted when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue concerning any material fact or the ultimate inferences deducible from such fact or facts and that the moving party is entitled to judgment as a matter of law. Union Pacific RR. Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160, 425 N.W.2d 872 (1988); Lowry v. State Farm Mut. Auto. Ins. Co., 228 Neb. 171, 421 N.W.2d 775 (1988).

Matters admitted pursuant to Rule 36 are a proper predicate for a summary judgment. U.S. v. Kasuboski, 834 F.2d 1345 (7th Cir.1987); Luick v. Garybar Electric Company, Inc., 473 F.2d 1360 (8th Cir.1973); All-States Leasing v. Top Hat Lounge, 198 Mont. 1, 649 P.2d 1250 (1982); Wagner v. Carex Investigations & Sec., 93 Nev. 627, 572 P.2d 921 (1977). Cf. Sargent Feed & Grain v. Anderson, 216 Neb. 421, 344 N.W.2d 59 (1984) (appellate reinstatement of summary judgment based on a request for admission, when the trial court vacated the judgment after a motion for new trial).

As we stated in McKinstry v. County of Cass, 228 Neb. 733, 734-35, 424 N.W.2d 322, 324 (1988):

In a bench trial of a law action, a trial court's factual findings have the effect of a verdict and will not be set...