dissenting.
I respectfully dissent and would affirm the decision of the trial court to grant summary judgment.
In Stewart v. Stewart (1987), Ind.App., 506 N.E.2d 1132, this court stated that:
[We will reverse the trial court's denial of the motion to withdraw an admission only if the trial court abused its discretion in deciding either of the following two questions: (1) whether the presentation of the merits would be subserved by withdrawal of the admission, or (2) whether the party who obtained the admission will be prejudiced in maintaining his action or defense on the merits. Because TR. 86(B) links the two part test with the conjunctive "and," the rule requires that both parts of the test be satisfied before withdrawal is proper.
506 N.E.2d at 1184.
In its motion to withdraw and/or amend the admissions which had been deemed admitted by operation of law, GMAAD alleged:
1. That the plaintiffs Request for Admissions were [sic] extremely voluminous numbering 83, in addition to having over 125 pages of exhibits.
2. That the scheduling of defense counsel's cases and other duties and responsibilities of his office have required an inordinate amount of counsel's time and energies for the last six months.
3. That the delay in responding to plaintiffs Request for Admissions will not prejudice the plaintiff in that there has been no change in the evidence since the due date of response to plaintiffs Request for Admissions.
4. That the denial of this motion will cause an undue prejudice to the defendants in that the case will not be decided on its merits.
None of those allegations demonstrated that the presentation of the merits of the action would be subserved by withdrawal of the admissions. Such a showing was required of GMAAD by Ind. Trial Rule 86(B).
In the first two paragraphs of its motion to withdraw and/or amend the admissions, GMAAD asserted that its failure to respond to the plaintiffs' request for admissions was excusable. Excusable neglect is not a basis for permitting a party to withdraw or amend the admissions it made by operation of law. Pathman Constr. Co. v. Drum-Co. Eng'g (1980), Ind.App., 402 N.E.2d 1, 7. The proper consideration is whether the presentation of the merits will be furthered if the movant is permitted to withdraw or amend the admissions. Id.
GMAAD also complained that the case would not be decided on its merits unless GMAAD were permitted to withdraw the admissions. A similar contention was rejected by this court in Stewart, supra.
In Stewart, a negligence action, the plaintiff admitted that he was a licensee on the property of the defendant at the time he sustained injuries. Based upon that admission, the defendant filed a motion for summary judgment. The plaintiff then moved to withdraw the admission. The plaintiff stressed that if he was not permitted to withdraw the admission, he would be deprived of the opportunity to present his case on the merits. This court responded:
Perhaps [the plaintiff] fails to recognize that a summary decision that his case has no merit is a decision on the merits. Too, he fails to persuade us that withdrawal of his admission will subserve the presentation of the merits. Therefore, the first element of the test set forth in T.R. 836(B) has not been satisfied, and the trial court did not abuse its discretion in denying [the plaintiff's] motion to with*838draw the admission that he was a licensee.
Id. at 1184 (Emphasis in original).
GMAAD's protest that the case would not be decided on the merits did not place before the trial court the question whether the merits of the action would be subserved if the admissions were withdrawn or amended. - Furthermore, GMAAD - has failed to provide the trial court with any suggestion that it had a meritorious defense. The mere suggestion to the trial court that a denial of its motion would cause undue prejudice to GMAAD in that the case would not be decided on its merits is insufficient Id. - Because GMAAD failed to make the requisite showing of T.R. 36(B), the lower court properly denied the motion to withdraw and/or amend the admissions.
Moreover, an examination of the attempted response to the request for admissions tendered by GMAAD discloses that the trial court's entry of summary judgment was in fact appropriate.
One of the requirements under the settlement agreement was that GMAAD have federal funds available and that it do nothing to violate its eligibility to receive such funds. However, GMAAD admitted in its response that it did not remain eligible and qualify for federal funding due to its failure to maintain adequate accounting records and to correct such deficiencies. There is nothing in the settlement agreement to indicate the parties intended to recognize a temporary suspension of benefits as an exception to a breach of the agreement. Although GMAAD's failure to obtain proper funding may have ultimately been a temporary situation, this does not render that failure any less of a breach of the agreement. Thus, GMAAD admitted in its attempted response to the request for admissions all the allegations necessary to establish a breach of the parties' settlement agreement. Even if the responses were allowed, the admissions are conclusive of the facts necessary to support the court's granting of summary judgment. The result reached by the trial court is not against the logic and effect of the cireum-stances and does not, therefore, amount to an abuse of discretion.
Although it must be acknowledged that the trial court may have, in its findings, utilized an inappropriate test, we are required to sustain the trial court even if its judgment is based upon an incorrect theory. Howard v. H.J. Ricks Construction Co. (1987), Ind.App., 509 N.E.2d 201; Celina Mutual Insurance Co. v. Forister (1982), Ind.App., 438 N.E.2d 1007, 1012. Since a summary judgment will be affirmed if sustainable on any theory or basis found in the record, it appears that even if GMAAD's attempted response to the request for admissions had been considered by the trial court, they would have established that there was no material issue of fact in dispute.
Thus, I see no need to remand to the trial court for application of the Stewart tests outlined in the majority opinion above for the reason that if we consider the attempted response to the requests for admissions, one can clearly see that the grant of summary judgment was appropriate.