Can the failure to respond to Admissions be fixed? New Court of Appeals opinion says “Maybe.”

As a young lawyer, one of the worst tasks I was ever given was to cover a hearing on a motion to deem admissions admitted, where the other lawyer appeared to have simply overlooked the deadline to respond.

Requests for admission are, basically, what they sound like. One party in a lawsuit sends another party a written demand that they admit or deny a specific thing–generally a fact or that a document is authentic. Under Rule 36.01 of the Tennessee Rules of Procedure, if the other party doesn’t respond in 30 days, the fact is conclusively admitted for purposes of the lawsuit.

And, yes, a lawyer receiving these requests and ruin a client’s case if she is not good at calendaring or paperwork.

And many lawyers are not.

So, 20 years ago, as a brand new associate, I was sent down to Williamson County Chancery Court to argue a motion like this where the other lawyer–apparently–simply forgot to respond and, as a result, his client’s fate was at the mercy of a paperwork oversight.

And he was not happy to be arguing his side of the case.

For my side, it wasn’t a particularly hard argument. You tell the Judge the date of the Requests, add 30 days, tell the Judge that there was no response by that date, and cite Rule 36.01.

What made it hard is that the lawyer on the other side was a well-known, respected lawyer, and, generally, as a matter of courtesy, lawyers don’t play “gotcha” with each other on paperwork issues like this. And, even to me–a brand-new lawyer–it was a tough request.

Ultimately, Judge Easter stared at Rule 36.01 for a long time and decided to not hold the other lawyer to 30 days. He gave him more time. I was–frankly–happy to lose that day.

I was reminded of all that when I read the Court of Appeals opinion from yesterday, in Masterfit Medical Supply v. Samuel Bada, No. W2020-01709-COA-R3-CV (Tenn. Ct. Apps., Sept. 23, 2021). In that case, a party lost at the trial court level based on his failure to respond to admissions on unpaid invoices.

A critical component of the Court’s opinion, however, was that the complaining party never filed a motion under Rule 36.02 to have the admission withdrawn or amended.

Under Tenn. R. Civ. P. 36.02, “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Rule 16 governing amendment of a pre-trial order, 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 that party in maintaining the action or defense on the merits.”

Courts favor deciding cases on the merits and that’s why Rule 36.02 makes sense. As a matter of equity, all kinds of other sworn statements can be clarified, amended, and modified, so why should un-answered admissions be unassailable, where no particular prejudice results?

That day in Williamson County, the other lawyer didn’t argue this rule, but, based on Judge Easter’s clear desire to consider the merits (and not a technicality), it’s clear that the Judge would have welcomed such a request.

Author: David

I am a creditors rights and commercial litigation attorney in Nashville, Tennessee.

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