ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
ANDREW J. BALDWIN ROBERT G. BOGIGIAN
Eggers & Baldwin Dickmann Reason & Bogigian
Franklin, Indiana Greenfield, Indiana
VICTORIA KERKHOF, ) ) Appellant-Respondent, ) ) vs. ) No. 30A01-9712-CV-406 ) JAMES L. KERKHOF, ) ) Appellee-Petitioner. )
SHARPNACK, Chief Judge
admission is obtained, there is no need to prove the established fact at trial. Id.; see also
Indiana Civil Rights Comm'n v. Wellington Village Apartments, 594 N.E.2d 518, 527 (Ind.
Ct. App. 1992), trans. denied; F.W. Means & Co. v. Carstens, 428 N.E.2d 251, 257 (Ind. Ct.
App. 1981). The trial court is not permitted to disregard the admission. Corby, 670 N.E.2d
Here, it appears the trial court initially concluded, despite the conclusiveness of the admissions, that the admitted facts were nevertheless inadmissible under evidentiary principles. Further, at the close of the hearing and in its subsequent order, the trial court appeared to classify statement number one as a declaration against interest which is treated as evidence of the admitted fact and weighed against other evidence. See Dipert v. State, 259
Ind. 260, 263, 286 N.E.2d 405, 407 (1972) (holding that the weight to be given a statement
against interest is to be determined by the jury); see also Moore v. Funk, 155 Ind.App. 534,
555, 293 N.E.2d 534, 539 (1973).
We have held that the conclusiveness of a fact deemed admitted under T.R. 36 does not mean that the fact is automatically admitted into evidence. . . . [A]n admission may be offered into evidence at the hearing where the facts established in that admission are not subject to dispute, but the admissibility of the facts may be challenged. Wellington Village, 594 N.E.2d at 528; see also Walsh v. McCain Foods Ltd., 81 F.3d 722, 726 (7th Cir. 1996) (holding that despite being conclusively established under T.R. 36, the established facts are still subject to the limitation on hearsay evidence), reh'g denied. Therefore, the issue before us is not whether the trial court was required to treat the facts stated in the request for admissions as conclusively established, clearly it was so required, but whether the trial court's evidentiary grounds for rejecting the stated facts were erroneous. We will address each of the two statements in the request for admissions in turn.
competent evidence and [is] inadmissible. Record, p. 42. Indiana Evidence Rule 408
governs this issue and states:
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise a claim, which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. Compromise negotiations encompass alternative dispute resolution.
At the hearing, Husband objected to the admission of statement number two on the grounds that the alleged statement would have only been made during settlement negotiations. However, Wife responds by asserting that Husband offered no proof that the admission was related to settlement negotiations. However, during direct examination of Wife at the hearing, she testified that a figure of $157,000 that she had calculated to be her half of the marital estate was based on a conversation between her and Husband. At this point in the hearing, Husband's counsel objected and was allowed by the trial court to ask preliminary questions which established that this conversation occurred while the divorce was pending. This testimony by wife provides sufficient corroboration of Husband's assertion that the statement was made during settlement negotiations. As a result, even if conclusively established, the trial court was within its discretion in determining that the statement is not competent evidence under Evid. R. 408.
inadmissible for lack or relevance, such is not the case with this particular admission. The
statement is a positive statement as to the value of at least a portion of the marital estate.
Therefore, we conclude that the trial court abused its discretion in rejecting the admitted fact
in favor of other more persuasive evidence.
Despite this conclusion, our analysis does not end here. Even where a party has admitted a fact under the operation of T.R. 36, the admitting party may move to withdraw such an admission. Trial Rule 36(B) provides as follows:
(B) Effect of admission. Any 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 him in maintaining his action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.
Although Husband's counsel did not specifically move to have the admission withdrawn under T.R. 36(B), he did request that the trial court grant a continuance for the purposes of allowing Husband to enter a response to the request. We have held that "Trial Rule 36(B) does not require a motion for relief under it to be denominated in any particular manner. Merely by challenging deemed admissions and asking for an extension of time to respond, a party satisfies the requirement of T.R. 36(B) that a party move to withdraw or amend deemed admissions." Hanchar Industrial Waste Management, Inc. v. Wayne
Reclamation & Recycling, Inc., 418 N.E.2d 268, 271 n.2 (Ind. Ct. App. 1981) (Staton, J.,
concurring in part, dissenting in part); see also Gary Mun. Airport Authority Dist. v. Peters,
550 N.E.2d 828, 831 (Ind. Ct. App. 1990). Therefore, Husband's objections to the request
for admissions and his request for an extended time within which to respond should have
been treated as a request to withdraw the admission under T.R. 36(B).
Rather than determine if withdrawal of admission number one was warranted under T.R. 36(B), the trial court decided that it would admit the statement but would not consider it in the face of more persuasive evidence. When faced with a trial court's failure to apply the appropriate standard to a request to withdraw an admission, we have held that the appropriate appellate relief is a remand for application of the correct standard. Hanchar, 418 N.E.2d at 270 (holding that remand for application of T.R. 36(B) standard is appropriate where trial court erroneously granted withdrawal of admissions for inadvertence and excusable neglect under T.R. 6(B)); see also Gary, 550 N.E.2d at 834 (holding that remand is required where a trial court has employed an erroneous standard in granting or denying a motion to withdraw or amend admissions). In line with these holdings, we remand this case to the trial court to determine whether withdrawal of admission number one would further the presentation of the merits of the case and whether such a withdrawal would result in prejudice to Wife. See T.R. 36(B).
Our review of the case law applying T.R. 36(B) reveals several factors that may be relevant to the trial court's determination in this case. First, Wife asserts that she did not present further evidence at the hearing because she relied upon the admission, and, as a
result, would be prejudiced by the trial court's failure to give the admission conclusive effect
on the issue of the value of the estate. Such a reliance could qualify as prejudice that would
preclude withdrawal of the admissions. Gary, 550 N.E.2d at 831. However, the trial court
may consider whether such reliance was reasonable. In Gary, we held that it
must be shown that reliance on the admissions was reasonable. One consideration in determining whether the reliance was reasonable is the nature of the admissions made. In many cases, admissions are made which are so central to a case as to render reliance on them unreasonable.
determine whether statement number one in the request for admissions may be withdrawn
by Husband under the standard set forth in T.R. 36(B) and applicable case law.
For the foregoing reasons we affirm in part and remand with instructions.
Affirmed in part and remanded with instructions.
Hoffman, J. concurs
Sullivan, J. concurs in part and dissents in part with separate opinion
COURT OF APPEALS OF INDIANA
VICTORIA KERKHOF, )
vs. ) No. 30A01-9712-CV-406
JAMES L. KERKHOF, )
SULLIVAN, Judge, concurring in part and dissenting in part
I concur as to Part I but respectfully dissent as to Part II which remands the cause
with respect to statement number one and contemplates withdrawal of that admission by
In the case before us there has been a full trial during which statement number one was admitted into evidence as an admission but which was disregarded by the trial court in reaching its judgment. As the majority notes, "[t]he trial court is not permitted to disregard the admission." Slip op. at 5. Yet, the trial court, in effect, did precisely that by rejecting the admission in favor of other "more persuasive" evidence as to the value of the assets. Record at 42-44. The court did so, apparently viewing the admission as merely a declaration against
interest, which is to be weighed by the trier of fact in light of the other evidence and which
may either be accepted or rejected. The court erred in so ruling. Declarations against interest
are not vested with the conclusiveness of an admission.See footnote
Such ruling denies the admission
its conclusive effect.
The admission, having been admitted, is either conclusive or it is not. The majority correctly states that the trial court was "clearly . . . required" to "treat the facts stated in the request for admissions as conclusively established." Slip op. at 6. Accordingly, it was conclusively established that "one-half (½) of [Wife's] interest in the marital property at the time of separation, after debts, is equal to at least $150,000." Record at 35.
Here, the total assets appeared to be $98,308 less debt of $10,000 (not including student loans) for net assets of $88,308. I am of the view that by reason of the conclusive admission, Wife is entitled to all of the assets.
The case before us differs from the situation presented in Corby v. Swank (1996) Ind.App., 670 N.E.2d 1322. There, the trial court sustained Swank's objection to the admission of Corby's request for admissions. The trial proceeded, resulting in a jury verdict for Swank and against Corby. Because the subject matter of the excluded admission was crucial to the matter of liability, our holding, that the exclusion was erroneous, permitted no remedy other than a new trial. Clearly in that posture, Swank would be permitted to move to withdraw his admission. Such is not the case here.
evidence is inconsistent with her reliance on an admission as to the value of the marital
estate. However, the request for admission states that Wife's share is at least $150,000.
Record, p. 35. Such an admission does not establish the Wife's entire share but only a
minimum portion of it. As such, collection and presentation of valuation evidence would still
be necessary to establish any amounts above $150,000 to which Wife might be entitled.
Therefore, we are not persuaded by Husband's waiver argument.
Along the same line, Wife's use of the request for admissions at the hearing was, at minimum, inconsistent with the underlying purpose of T.R. 36. Properly used, requests for admissions simplify pre-trial investigation and discovery, facilitate elimination of unnecessary evidence at trial, and reduce the time and expense demands upon the parties, their counsel and the courts. General Motors Corp., Chevrolet Motor Div. v. Aetna Cas. & Sur. Co., 573 N.E.2d 885, 888 (Ind. 1991), reh'g denied. Wife correctly asserts in her brief that once a request for admissions is transformed into a conclusively established fact, there is no need to move to have the matter deemed admitted as the matter is automatically established as a matter of law. Corby v. Swank, 670 N.E.2d 1322, 1324 (Ind. Ct. App. 1996). However, given that the central issue in this dissolution proceeding was the valuation and division of marital assets, Wife could have better effectuated the purpose of the T.R. 36 by presenting the alleged admission prior to or earlier in the hearing for the purposes of limiting the presentation of evidence and more narrowly defining the issues before the trial court.
(A) 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  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.
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