Hanchar Industrial Waste Management, Inc. v. Wayne Reclamation & Recycling, Inc. , 1981 Ind. App. LEXIS 1322 ( 1981 )

HOFFMAN, Presiding Judge.

Hanchar Industrial Waste Management, Inc. requested certification for appeal of an interlocutory order of the trial court and petitioned the Court of Appeals to accept jurisdiction pursuant to Ind.Rules of Procedure, Appellate Rule 4(B)(5). The petition was granted. The dispositive issue in this case is whether the trial court erred in permitting Wayne Reclamation & Recycling, Inc. to file answers to Hanchar’s requests for admissions after the time specified in the requests had expired.

On September 27, 1979, Hanchar brought an action against Wayne Reclamation on account for goods and services. A set of requests for admission to which Wayne Reclamation was requested to respond within thirty days accompanied the complaint. After Wayne Reclamation was granted an extension of time to answer the complaint, it filed its answer and a counterclaim on November 15, 1979. Hanchar filed a motion for summary judgment on January 9, 1980, based on facts which Wayne Reclamation admitted due to its failure to respond to Hanchar’s requests for admission within the thirty day time limitation. A second set of requests for admission, also containing the thirty day limitation, was filed on the same day. On February 27, 1980, Wayne Reclamation petitioned the trial court for a continuance of the summary judgment hearing and for an extension of time to respond to Hanchar’s requests for admission. Wayne Reclamation based its petition for extension of time on the grounds of inadvertence and excusable neglect under Ind.Rules of Procedure, Trial Rule 6(B)(2).¹ The trial court granted Wayne Reclamation’s petition for an extension of time and accepted its answers to the requests for admission. The trial court also denied Hanchar’s motion for summary judgment. It is these rulings from which this appeal arises.

It is well established that once the time limit specified in a request for admission has passed, a party who has failed to timely respond is deemed to have admitted everything requested. This is done by operation of law. Ind.Rules of Procedure, Trial Rule 36(A);² Pathman Const. Co., etc. v. Drum-Co Engin. (1980), Ind.App., 402 N.E.2d 1. An extension of time granted by a court after the time specified in the request has passed is in reality an opportunity for the party to withdraw or amend the admissions made by operation of law.

Indiana Rules of Procedure, Trial Rule 36(B) specifically establishes the standard to be utilized by a trial court in determining whether a party should be allowed to withdraw or amend its admissions. The rule provides in part:

“. .. 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 him in maintaining his action or defense on the merits.... ”

The above standard makes no reference to Trial Rule 6(B) nor to excusable neglect. Excusable neglect therefore has no bearing on whether Wayne Reclamation should be permitted to withdraw or amend the admissions it made by operation of law. See also, Pathman Const. Co., etc. v. Drum-Co Engin., supra.

Wayne Reclamation’s petition for extension of time was based solely on the excusable neglect standard of Trial Rule 6(B)(2). In granting the extension on this ground the trial court employed an erroneous standard. This matter must therefore be remanded for a determination of whether the presentation of the merits will be subserved by withdrawal or amendment of the admissions. A determination must also be made whether such withdrawal or amendment will prejudice Hanchar in maintaining its action on the merits.

For the above reasons this case is remanded to the trial court for proceedings consistent with this opinion.

Remanded.

GARRARD, J., concurs. STATON, J., concurs in part and dissents in part with opinion.

1 . Ind.Rules of Procedure, Trial Rule 6(B) provides:

“Enlargement. When an act is required or allowed to be done at or within a specified time by these rules, the court may at any time for cause shown

(1) order the period enlarged, with or without motion or notice, if request therefor is made before the expiration of the period originally prescribed or extended by a previous order; or

(2) upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect; but, the court may not extend the time for taking any action for judgment on the evidence under Rule 50(A), amendment of findings and judgment under Rule 52(B), to correct errors under Rule 59(C), or to obtain relief from final judgment under Rule 60(B), except to the extent and under the provisions stated in those rules.”

2 . Ind.Rules of Procedure, Trial Rule 36(A) provides:

“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, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. 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 and complaint upon that party. “Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within a period designated in the request, not less than thirty [30] days after service thereof 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 attorney. 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. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny or that the inquiry would be unreasonably burdensome. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to the provisions of Rule 37(B), deny the matter or set forth reasons why he cannot admit or deny it.

“The party who has requested the admissions may move for an order with respect to the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial.”