2013 UT App 87
_________________________________________________________
THE UTAH COURT OF APPEALS
DISCOVER BANK,
Plaintiff and Appellee,
v.
KEVIN E. KENDALL,
Defendant and Appellant.
Memorandum Decision
No. 20120498‐CA
Filed April 11, 2013
Second District, Farmington Department
The Honorable John R. Morris
No. 110707987
L. Miles LeBaron, Attorney for Appellant
Brent G. Messel, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES JAMES Z. DAVIS and
J. FREDERIC VOROS JR. concurred.
CHRISTIANSEN, Judge:
¶1 Kevin E. Kendall appeals from the district court’s grant of
Discover Bank’s motion for summary judgment. We reverse and
remand for further proceedings consistent with this decision.
¶2 Discover Bank initiated this collection action against Kendall
in November 2011. On December 6, 2011, Kendall served
interrogatories, requests for admissions, and a request for
production of documents on Discover Bank. Of Kendall’s requests
Discover Bank v. Kendall
for four admissions, the following addresses the heart of Discover
Bank’s case: “Admit that Kevin E. Kendall has paid off the account
that you allege [he] owe[s] money on, and that he has fulfilled all
of his contractual obligations to you.” Discover Bank failed to
respond within the twenty‐eight‐day time limit set forth in rule 36
of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 36(a).1
Subsequently, Kendall served Discover Bank with a motion to
compel discovery and a rule 37(a) letter, attempting in good faith
to confer with and obtain a response from Discover Bank. After
Discover Bank still failed to respond, on February 22, 2012, Kendall
served Discover Bank with a motion for summary judgment on the
ground that all of the facts contained in the requests for admissions
were deemed admitted because Discover Bank failed to respond
within twenty‐eight days.
¶3 On March 13, 2012, Discover Bank served Kendall with its
discovery responses. On the same date, in its response to Kendall’s
motion for summary judgment, Discover Bank stated simply,
“[Kendall]’s Motion is moot. [Discover Bank] has sent its discovery
responses to counsel for [Kendall] on this date. Therefore, there is
no relief for the Court to grant and the Motion should be
dismissed.” Discover Bank filed its own motion for summary
judgment, presenting additional evidence disputing the veracity of
Kendall’s requests for admissions that he paid the amount due.
Discover Bank subsequently filed a request to submit its motion for
summary judgment for decision. On May 8, the district court
granted summary judgment in favor of Discover Bank without
stating the grounds for its decision and entered judgment for
Discover Bank in the amount of $20,602 plus interest. On June 5,
Kendall filed a request to submit his motion for summary
1
Because the complaint was filed November 28, 2011,
newly‐amended rule 36 of the Utah Rules of Civil Procedure
applies to this case. See Utah R. Civ. P. 1 advisory committee
note (stating that the amended rule is effective only as to cases
filed on or after November 1, 2011).
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Discover Bank v. Kendall
judgment for decision, and on June 7, he filed his notice of appeal
on the court’s grant of Discover Bank’s motion for summary
judgment. Due to Kendall’s notice of appeal, the district court’s
denial of Kendall’s motion for summary judgment is not in the
record. Nevertheless, the court docket indicates that on June 21, the
district court denied Kendall’s motion as procedurally improper
and moot because Kendall failed to submit it for decision prior to
the court’s entry of the ruling granting Discover Bank’s motion for
summary judgment. See Utah R. Civ. P. 7(d) (“[I]f no party files a
request, the motion will not be submitted for decision.”).
¶4 Kendall appeals the court’s grant of Discover Bank’s motion
for summary judgment, contending that his requests for
admissions should have been deemed admitted because Discover
Bank did not respond to the requests within twenty‐eight days and
that the matters deemed admitted were conclusively established as
true because Discover Bank never moved to amend or withdraw
the admissions.2 We agree.
¶5 Rule 36(b)(1) states, “The [truth of any discoverable] matter
is admitted unless, within 28 days after service of the requests, the
responding party serves upon the requesting party a written
response.” Utah R. Civ. P. 36(b)(1). Utah courts have repeatedly
held that facts contained within requests for admissions are
deemed admitted when they are not answered within the time
prescribed in rule 36(a). See, e.g., Langeland v. Monarch Motors, Inc.,
952 P.2d 1058, 1061 (Utah 1998); Jensen v. Pioneer Dodge Ctr., 702
P.2d 98, 100 (Utah 1985); Kotter v. Kotter, 2009 UT App 60, ¶¶ 16–17,
2
As to his own motion for summary judgment, Kendall
acknowledges that he failed to file a request to submit prior to
the court’s ruling granting Discover Bank’s summary judgment
motion and that he filed his notice of appeal before the district
court entered its ruling on his motion. On appeal, Kendall sug‐
gests that this court instruct the district court to grant his motion
on remand. We follow Kendall’s suggestion. See infra ¶¶ 15–16.
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Discover Bank v. Kendall
206 P.3d 633; Barnes v. Clarkson, 2008 UT App 44, ¶ 11, 178 P.3d 930;
In re E.R., 2000 UT App 143, ¶ 13, 2 P.3d 948. “The rule does not say
the court may admit the matter—it says ‘[t]he matter is admitted.’
By simple operation of Rule 36(a), parties who ignore requests for
admissions do so at their peril.” In re E.R., 2000 UT App 143, ¶ 11,
(alteration in original) (quoting Utah R. Civ. P. 36(a)(2) (current
version id. R. 36(b)(1))).
¶6 Discover Bank does not deny that it was over two months
late in responding to Kendall’s requests for admissions. Discover
Bank also never requested an extension of time to serve its
responses, and it never objected to the form of Kendall’s requests
as was permitted under the rule. See Utah R. Civ. P. 36(b)(2)–(3).
Consequently, on January 4, 2012, twenty‐eight days after Kendall
served his requests, the matters in Kendall’s “admissions [were]
automatically established as true.” See Kotter, 2009 UT App 60, ¶ 16.
¶7 At that juncture, Discover Bank could have moved the court
to withdraw or amend the admissions. “Any matter admitted
under this rule is conclusively established unless the court on
motion permits withdrawal or amendment of the admission.” Utah
R. Civ. P. 36(c) (emphasis added). However, “the . . . court does not
have discretion to unilaterally disregard the admissions.” Jensen,
702 P.2d at 100. Assuming the party submitted a request to
withdraw or amend the admission, “the court may permit
withdrawal or amendment if the presentation of the merits of the
action will be promoted and withdrawal or amendment will not
prejudice the requesting party.” Utah R. Civ. P. 36(c); see also
Langeland, 952 P.2d at 1060–61 (explaining the two‐step process for
reviewing a district court’s grant of a motion to withdraw or
amend admissions).
¶8 However, at no time did Discover Bank move to withdraw
or amend the admissions. In several factually similar cases, Utah
courts have explicitly held that the matters admitted upon a party’s
failure to respond or object within the time permitted under the
rule are conclusively established as true when that party also fails
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Discover Bank v. Kendall
to move the court to withdraw or amend the admissions. See Jensen,
702 P.2d at 100 (holding that where the defendant failed to respond
or object to the requests for admissions within thirty days and
where the defendant failed to move to amend or withdraw the
admissions, the district court erred in not deeming those matters in
the plaintiff’s requests for admissions admitted and in denying
plaintiff’s motion for summary judgment based on rule 36(a));
Whitaker v. Nikols, 699 P.2d 685, 687 (Utah 1985) (same); W.W. &
W.B. Gardner, Inc. v. Park W. Vill., Inc., 568 P.2d 734, 736–37 (Utah
1977) (affirming the district court’s summary judgment based on
the matters deemed admitted by the defendant’s failure to timely
respond and failure to file a motion to withdraw or amend the
admissions, noting that the defendant’s affidavit in opposition to
the motion for summary judgment, in which it denied the matters
deemed admitted, did not constitute a motion to withdraw or
amend); Kotter, 2009 UT App 60, ¶¶ 4–5, 18–20 (holding that the
district court erred when it failed to consider matters deemed
admitted in its alimony calculation where the wife failed to
respond to husband’s requests for admissions and failed to move
to withdraw or amend them).
¶9 In Langeland v. Monarch Motors, Inc., 952 P.2d 1058 (Utah
1998), unlike the above cases, the defendant moved to withdraw
the admissions but did not do so until two weeks after the plaintiff
filed a motion for summary judgment. Id. at 1060. The district court
granted the motion to withdraw. Id. The supreme court reviewed
the district court’s grant of the defendant’s motion to withdraw or
amend the admissions under rule 36, ultimately holding that the
defendant had failed to demonstrate that withdrawing or
amending the admissions would preserve the presentation of the
case on the merits and that the plaintiff had succeeded in
demonstrating that withdrawing or amending the admissions
would prejudice him. Id. at 1063–64; see also Utah R. Civ. P. 36(b)
(current version id. R. 36(c)). But the court also cautioned that
it is by no means clear that the motion should have
been granted even if the requirements of rule 36(b)
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Discover Bank v. Kendall
had been met. Litigation must come to an end
sometime, and the rules of procedure are intended to
provide an orderly schedule for moving cases along
their track to conclusion—not to squander legal,
judicial, and financial resources by generating
lawsuits within lawsuits to determine whether the
rules must actually be followed. Consequently, the
court will not come to the rescue of a party who
flagrantly ignores these rules at the expense of a
party who attempts to conform with them.
Langeland, 952 P.2d at 1064. Similarly, in Mercado v. Hill, 2012 UT
App 44, 273 P.3d 385, the defendants served requests for
admissions to which the plaintiff failed to respond. See id. ¶¶ 3–4.
The defendants filed motions for summary judgment, and the
plaintiff moved to withdraw the admissions but only after the court
granted summary judgment. Id. This court concluded that the
district court did not abuse its discretion by denying the plaintiff’s
motion to withdraw due to the plaintiff’s “pattern of inaction,
delay, nonresponsiveness, and failure to notify the court and
opposing counsel of multiple address changes.” Id. ¶ 10.
¶10 Here, as we stated, Discover Bank never filed a motion to
withdraw or amend the admissions pursuant to rule 36.
Accordingly, the matters in Kendall’s requests for admissions are
conclusively established as true. See Utah R. Civ. P. 36(c). We
reiterate this point because Discover Bank’s brief glosses over the
fact that it never filed such a motion and instead argues that the
district court did not abuse its discretion granting its summary
judgment based on the two‐step process set forth in Langeland. See
generally 952 P.2d at 1060–61 ; see also Utah R. Civ. P. 36(c). Discover
Bank alternatively argues that its “fully briefed motion for
summary judgment was, in substance, a motion to withdraw the
admission in issue because the motion ‘clearly outlined the parties’
respective positions.’” (Quoting Brunetti v. Mascaro, 854 P.2d 555,
558 (Utah Ct. App. 1993), abrogated on other grounds by Gillett v.
20120498‐CA 6 2013 UT App 87
Discover Bank v. Kendall
Price, 2006 UT 24, ¶ 8, 135 P.3d 861.) Discover Bank’s argument is
not persuasive.
¶11 In Brunetti, the defendant did not respond to the plaintiff’s
requests for admissions, and the plaintiff filed a motion for
summary judgment based on the defendant’s failure to respond. Id.
at 556. At that point, in his opposition to the motion for summary
judgment, the defendant argued that the admissions should not be
deemed admitted because the requests had not been validly served
and that his failure to respond was a “reasonable oversight.” Id.
The district court construed the defendant’s opposition as a motion
to withdraw or amend the admissions and denied the plaintiff’s
motion for summary judgment. Id.
¶12 This court affirmed, holding that the district court correctly
“look[ed] to the substance of [the] document[] and not merely to its
caption” and, “although the trial court did not have a per se motion
to withdraw before it, its denial of [the plaintiff’s] motion
constituted authorization for such withdrawal.” Id. at 558. The
court distinguished Whitaker v. Nikols, 699 P.2d 685 (Utah 1985) and
Jensen v. Pioneer Dodge Ctr., 702 P.2d 98 (Utah 1985). Id. In those
cases, “there was nothing in the record to indicate that the party
opposing the admissions had made any attempt to withdraw or
amend the said admissions,” whereas in Brunetti, “all of the
documents before the . . . court on [the plaintiff]’s motion for
summary judgment solely and specifically addressed the issue of
whether the requested admissions should be admitted or
withdrawn, and the . . . court denied [the plaintiff]’s motion
precisely on the basis of the arguments in those documents.” Id. at
559 (citing Jensen, 702 P.2d at 100; Whitaker, 699 P.2d at 687).
¶13 The facts of the case at hand are quite unlike those in
Brunetti. Here, Discover Bank never raised any argument below
even remotely supporting a reason to withdraw or amend the
admissions. In its opposition to Kendall’s motion for summary
judgment, Discover Bank responded with three curt sentences:
“[Kendall]’s Motion is moot. [Discover Bank] has sent its discovery
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Discover Bank v. Kendall
responses to counsel for [Kendall] on this date. Therefore, there is
no relief for the Court to grant and the Motion should be
dismissed.” And, in its own motion for summary judgment,
Discover Bank merely argued its own evidence. Discover Bank’s
first attempt to withdraw the admissions is now, in response to
Kendall’s appeal.
¶14 Thus, we determine that none of Discover Bank’s actions in
the proceedings below constituted a request for the withdrawal or
amendment of the admissions. “Requests for admission must be
taken seriously, and answers or objections must be served
promptly. The penalty for delay or abuse is intentionally harsh,
and parties who fail to comply with the procedural requirements
of rule 36 should not lightly escape the consequences of the rule.”
Langeland v. Monarch Motors, Inc., 952 P.2d 1058, 1061 (Utah 1998).
Because the matters in Kendall’s admissions were conclusively
established as true, the district court erred in granting summary
judgment in favor of Discover Bank.
¶15 We agree with the district court’s refusal to consider
Kendall’s motion for summary judgment at the time it considered
Discover Bank’s motion for summary judgment because Kendall’s
motion was not properly submitted for decision under rule 7(d).
And we agree that, at the time, Kendall’s notice of appeal mooted
his pending motion for summary judgment, though he ultimately
did submit his motion for decision prior to filing his notice of
appeal. As a result, Kendall has not preserved for appeal any
challenge to the district court’s ruling on his own motion for
summary judgment. See Capital One Bank, NA v. Wall, 2012 UT App
167, ¶ 3, 282 P.3d 1019 (per curiam). However, on remand,
Kendall’s motion for summary judgment is no longer moot based
on our conclusion that the district court erred in granting Discover
Bank’s motion for summary judgment. Accordingly, we remand
with specific instruction to the district court to grant Kendall’s
motion for summary judgment.
20120498‐CA 8 2013 UT App 87
Discover Bank v. Kendall
¶16 We reverse the district court’s grant of summary judgment
to Discover Bank and instruct the district court on remand to grant
Kendall’s motion for summary judgment in light of this
memorandum decision.
20120498‐CA 9 2013 UT App 87