Pat Murtha v. Larry Schmidt and Teena Schmidt

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

PAT MURTHA

APPELLANT

V.

LARRY SCHMIDT AND TEENA SCHMIDT

APPELLEE

CA 03-849

March 31, 2004

APPEAL FROM THE CIRCUIT COURT OF LONOKE COUNTY

[NO. CV02-478]

HONORABLE LANCE L. HANSHAW,

JUDGE

AFFIRMED

Terry Crabtree, Judge

This is an appeal from an order of summary judgment awarding appellees judgment on their complaint against appellant in the principal amount of $7,228. Appellant argues on appeal that the trial court erred in granting summary judgment on both the issues of liability and damages. We affirm.

This case began in the Cabot District Court where appellees obtained a default judgment against appellant. Appellant took an appeal to circuit court. Appellees filed a response to the appeal and also amended their complaint. In the amended complaint, appellees alleged that the parties had entered into an agreement for the appellant, as the contractor, to supervise the construction of a new home for appellees. Appellees further alleged that the home had been constructed in a negligent and unworkmanlike manner.

Specifically, appellees alleged that the siding appellant had placed on the house was defective; that the windows that had been placed on the house were damaged; and that the roof and garage were defective because they leaked. Appellees detailed the cost of repairing these items and contended that they were entitled to judgment in the total amount of $7,228in damages for the cost of repairs.

On December 16, 2002, appellees propounded ten requests for admission. Appellant failed to respond to these requests, and on January 29, 2003, appellees filed a motion asking for the requests to be deemed admitted. The trial court granted this motion on February 10, 2003. Thereafter, appellees filed a motion for summary judgment arguing that, by virtue of the deemed-admitted answers to the requests for admission, appellant had admitted that he had failed to perform the work required under the contract; that the work done by him was done in a negligent and non-workmanlike manner; and that appellees were entitled to judgment in the amount of $7,228. Appellees claimed that they were entitled to judgment in that amount as a matter of law based on these admissions. Appellees attached the requests for admission and the affidavit of appellee Larry Schmidt in support of the motion. Appellant responded to the motion for summary judgment and submitted a brief, but offered no countervailing evidence.

The trial court granted the motion for summary judgment based on the admitted answers to the requests for admission and because appellant had failed to offer any proof showing that there remained any material question of fact in dispute. This appeal followed.

The rules pertinent to motions for summary judgment are as follows:

[W]e need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to judgment as a mater of law.

Once a moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must demonstrate a genuine issue of material fact by meeting proof with proof. Furthermore, the moving party may present pleadings, depositions, answers to interrogatories, admission on file, and affidavits, if any, to support the burden of showing entitlement to summary judgment as a matter of law.

Palmer v. Council on Economic Education, 344 Ark. 461, 468, 40 S.W.3d 784, 787-88 (2001).

Appellant argues on appeal that the trial court erred in granting summary judgment without reference to the contract, and he contends that the trial court erred in relying on the affidavit and requests for admission because they were conclusory, instead of factual. He further contends that there was no allegation in the complaint that established him as a surety for the subcontractors. We find no merit in appellant's argument.

Rule 36 of the Arkansas Rules of Civil Procedure governs requests for admission and provides in part:

(a) Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action, 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 the application of law to fact, including the genuineness of any documents described in the request . . . .

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, 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.

In interpreting Rule 36, the supreme court has consistently held that when a party fails to timely answer requests for admission, or otherwise fails to object to them, the requested matters are deemed admitted. Norrell v. Giles, 343 Ark. 504, 36 S.W.3d 342 (2001).

We discussed requests for admission in the case In the Matter of Dailey, 30 Ark. App.8, 784 S.W.2d 782 (1989). We wrote:

Although Arkansas Rules of Civil Procedure allow for a request for an admission which concerns the application of law to fact, Ark. R. Civ. P. 36(a), admissions designed to directly discover what legal conclusions the opposing attorney intends to draw from those facts are improper. An element of the burden of proof, or even the ultimate issue in the case may be addressed in a request for admission under Rule 36, and the admission of these matters may not be avoided because the request calls for application of the facts to the law, the truth of the ultimate issue, or opinion or conclusion so long as the opinion called for is not on an abstract proposition of law. It is the concession of the issues, otherwise determinable by the trier of fact, which comes into evidence, not the assumptions of the party who makes the admission. A request for admission of a pure matter of law is improper.

Id. at 10-11, 784 S.W.2d at 783 (citations omitted). In Dailey, we disapproved of the trial court's reliance on answers to requests for admission which were "bare conclusions of law" that were not based on any underlying facts.

This case is entirely different. The parties' contract obligated appellant to supervise "the erection and finishing of house to the specifications approved by the owners." In their complaint, appellees alleged that appellant had been negligent in this undertaking with the result that some of the work was defective. Appellees specified the defects and outlined the costs associated with repairing the defective items. Appellee Larry Schmidt attested to the truth of these factual assertions in his affidavit. By failing to respond to the requests for admission, appellant admitted that the parties had entered into a contract; admitted that he had failed to perform the required work under the contract; admitted that the work was performed in a negligent and non-workmanlike manner; and admitted that appellees were entitled to judgment in the amount of $7,228 plus interest. Appellees' complaint was grounded in negligence, and appellant admitted facts which support that claim and the amount of damages for the cost of repairs. Therefore, we cannot agree with appellant that the court failed to consider the contract or that the decision to grant summary judgment was based on conclusions and not fact.

Affirmed.

Stroud, C.J., and Baker, J., agree.