1 Confiscated stolen pro perty. – (a) Personal propert y confiscat

ed as stolen property

by a lawful

officer of the state, a county or a municipalit y of the st

ate to be held as evidence of a cri me shall be promptl

y appraised, cat

alogued and pho tographe d by the law en forcemen t agency retainin g custody o f the prope rty.

(b) The lawful off

icer of the s

tate,county or

municipa

lity , in orde

r to detai n the proper

ty fr om the lawful owner, for whatever re ason, mor e than thirty (30) days, shall show cause to the ju dge having jurisdiction o ver the pro perty by petition filed by the

distri ct att orney gene

ral upon five (5) days’ no tice to the pro perty owne r why the pro perty should (continued ...) 

### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON Assigned On Brief

October 23, 2000 JERRY MANESS, ET UX 

### . v. CHARLES WOODS, SHERIFF OF HENDERSON COUNTY, TENNESSEE, ET AL 

### . Direct Appeal from the Circuit Court for Henderson County

No. 96-006 Roger A. Page, Judge

No. W2000-01049-COA-R3-CV - Filed January 10, 2001

This is an appeal by Plaintiffs from a grant of summary judgment in favor of Defendants. Plaintiffs sued to recover prop

erty which

they claim

was wrongfully seized by employees o

f the Defendant

. Defendants

filed a request for admissions which included an admission that the property seized did notbelong to Plaintiffs. Plaintiffs failed to timely respond and thus the admission wa

s conclusively established. We af

firm. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Affirmed; and Remanded
D AVID R. F ARMER , J., delivered the opinion of the court, in w hich W. F RANK C RAWFORD , P.J., W.S. and H OLLY K. L ILLARD , J., joined. Lloyd R. Tatum, Henderson, Tennessee, for the a ppellants, Jerry Maness and Patty Maness.
James I. Pentecost and Andrew V. Sellers, Jackson, Tennessee, for the appellees, Charles Woods, Sheriff of Henderson County, Tennessee, and Henderson County , Tennessee.
OPINION
This is an appeal by Plaintiffs, Jerry Maness and wife, Patty Maness, from an order of the trial court granting summary judgment in favor of

the defendants. Plaintiffs filed a petition for return of property and damages pursuant to T.C.A. § 40-17-118 (1997). 1 Plaintiffs allege that in January1 (...continue d) be further detained. The court may grant or ref use the request

ed impounding order upon such t erms and conditions

as are adjudged to be proper.

(c) The state, county and/or municipal authorit y holding the property shall be responsible f or the return of the property to the lawful own er and shall b e liable in dam ages to the o wner of the p roperty in the e vent of da mage or destruction o ccasioned by the delay in the return of the pr operty. T.C.A. § 40-17-118 (199 7).

2 A copy of the request for a dmissions is atta ched as an append ix to the Appel lees’ brief bu

t Appella

nts do not d ispute that this o ccurred. In fact , Appella

nts’ br ief concedes that

they di d not ti mely res pond to the r

equest f or admissions. -2- of 1995 members of the Henderson County Sheriff’s Department unlawfully ente redthe Plaintiffs’ homewithout a

search or seizure warrant and, without the permission of the Plaintiffs, took various items of personal prop

erty which

were listed as an

exhibit t o the complaint. Plaintiffs sought an accounting by Defendants for the property listed, that i t be returned to them, and also sought damages for the destruction or loss of said items of property. The petition was filed on January 12, 1996. On August 6, 1998, De fendants filed a

motion to dismiss for f

ailure to prosecute stating that Plaintiffs had pursued no actionin this matter since the filing of the petition. The record before us does not indicate any action taken by the trial c ourt on Defendants’ motion. Onor about August 5, 1998, Defendants’ counsel served upon Plaintiffs’ counsel a request for admissions pursuan

t to Rule 36 of the Tennessee Rules of Civil Procedure. 2 The request for admissions are as

follows:
1. That I, Jerry Maness, voluntarily and knowingly signed a written consent authorizing deputies of the De catur County

Sheriff’s Offic

e to search my prem ise s at Rou te 1 , Box 369 , De cat urv ill e, D ecat ur C oun ty, Tennessee on January 13, 1995.
2. That

the document attached to this Request, identified “Exhi bit A to Defendants’ F irst Request for Admissions” and hereinafter referred to as “Exhibit A,” is a true and correct copy of the waiver form referred to above in Request for Admission No. 1.
3. That the signature “Jerry Maness” on Exhibit “A” is my sig nature.
4. That

Decatur County Sheriff’s Office deputies searched my premises and seized property subsequent to my vol u ntarily and knowingly gr anting permission for this se arch by signing a written consent on January 13, 1995.
5. That

th e documen t attached to this Re quest, identified

as “Exhibit B to Defendant’s Fir st Reque st for Admissions” and hereinafter as Exhibit “B,” is a copy of a valid Search Warrant, issued to Decatur County Sheriff’s Office Deputies for the premises of Jerry Maness on January 12, 1995, by the C

ircuit Cou rt o f Dec atu r Co unt y.-3-

6. That

the law enforce

ment officials se

izing the propert

y in question frommy premises as a consequence of the search on January 13, 1995, properly and promptly appraised, catalogued, and photographed an d [sic] the propert

y after they remove

d it from my pr

emises.
7. That

the property

seized by the

officials (here

inafter “prope

rty”) rig htfully belongs to neither

me, my wife,

(Patty Mane

ss), nor any

other member of my family or household.
8. That

neither I nor

my wife nor a

ny other mem

ber of my hou

sehold or family are serving in any

capacity i

n any bailm

ent r elationship with any rightful own er of any o f th e pro pert y. 9. Tha t I as ser t ri ghtf ul o wne rsh ip o f th e fol low ing s eiz ed p rop ert y: 10. That

I can prove my rightful owner ship of the property listed in Admission No. 9 in the following manner(s):
11. That

the seizing officers did comply with and satisfy the r e qui rements of Tenn. Code Ann. §40-17-118.
12. That

I assisted law enforceme

nt officials in cr

iminal investigat

ion efforts in Decatur and Henderson County in exchange for consideration given against any prosecution pursued against me as a consequence of the search

conducted of my premises by Decatur County Sheriff’s Office deputies on January 13, 1995 and/or a search conducted on my premises in November, 1994.
13. That

while participating as a confidential informant with law enforcement agencies as described in Admission No. 4 , the District Attorney General office for Decatur County

, Tennessee, did

not pursue charges against me for any charges arising

from the search of my premises and subsequent seizure of property on January 13, 1995.
14. That

as of the date of my answering this Request, I have not bee n charged withviolation of any criminal law of the State of Tennessee as a consequence of the search conducted on my premises on January 13, 1995.
15. That

on July 25, 1996, I entered a guilty plea to the fe deral charge of

felon in possession of fire

arm. 16. That

my original report date to the Bureau of Prisons for the conviction in the federalcharges was postponed due to my activities as an undercover operator in Decatur and H

enderson Counties

.3 The record before us does not co ntain a motion to permit withdraw al or amendmen t of the admissions.
4 The record before us contains only the first page of t his motion. -4- Defendants

filed a motion for summary judgment on Aug ust 23, 199 9, a ccom pan ied by a me moran dumin support of the mot ion and, pursuant t

o Rule 56.03 Tenn. R.

Civ. P., facts not in dispute in support of said motion.
On November 30, 1999, Plaintiffs filed the affidavit of Jerry Maness which states in part that “I did not steal the property taken from me. I and my wife lawfully own the property listed in the complaint.” On February 3, 2000, Defenda

nts filed a Sec ond Motion To Deem Facts Admitted And/Or In The Alternative, Motion For Sanctions. The motion recites that, on or about August 23, 1999, the Defendants filed a motion for summary judgment. On the s

ame date, Defe

ndants also filed their Certificat

ion to Deem Request

for Admissions Admitted. The motion further recites that the request for admissions had originally been propounded upon the Plaintiffs on April 5, 1998, and, at the time the Defendants filed their motion for summary judgment, Plaintiffs had not responded to the request for admissions and therefore they were dee med admitted pursuant

to Rule 36. Plaintiffs did not timely answer the request for admissions nor did they file a n objection with the court.
The motion further

states that on December 3, 1999, Plaintiffs’ counsel stated before the trial court that the request f

or admissions had not been answered due to the fact that Plaintiff Jerry Maness was in prison whe n the reques t for admissions were received, but did not explain why Plaintiff Patty Maness

did not respond to the

request for admi

ssions. The motion further recites that on January 18, 2000, the trial court instructed the Plaintiffs to formally respond to the re quest for admissions by filing a

motion to permit withd

rawal or amendme

nt of the admissions,

p ursuant to Rule 36.02, with attach

ed written respon

ses to the request

for admissions by February 1, 2000. On January 27, 2000, Defendants’ counsel received the Plaintiffs’ respo nses to the request for admissions. These responses were not attached to a motion to permit withdrawal or amendment of the admissions, and, to the Defendants’ k nowledge , no such motion has been filed with the trial court. 3 The affidavit of one of Defendants’ attorneys was f iled with said motion.
On Febru ary

4, 2000, Plaintiffs f

iled a “Motion To Exte

nd Filing Deadli

ne And Response To Defendants’ Second Mo tion To Deem Facts Admitted And/Or In The Alternative Motion For Sanctions.” 4
On March 30, 2000, the trial court entered an order denying withdrawal or amendment of the deemed admissions, stating tha t withdr awal or amendment of the deemed admissions would not promote the presentation of t

he merits and would

unfairly prejudice the Defendants and ordering that Defendants’ request for

admissions are hereby deemed admitted and the facts contained ther ein are conclusively

established. On that same day, the trial court entered an order of f inal judgment granting Defendants’ moti on for summary

judgment and th

is appeal resulted. The sole issue on appeal is whethe

r the trial court e

rred in grantin

g summary j udgment.-5-

Pursuant to Rule 36.01 Tenn. R

. Civ. P., a party may serve upon any other pa rty a written request for the admission o

f the truth of any matters within the scope of Rule 26.02 set forth in the request that relate to statements or opinions of fact . Th e ma tte r is adm itt ed u nle ss, wit hin 30 d ays after service of the request, or within such shorter or longer time as the court

may allow, th

e party to whom the request is directed serves upon the party requesting the admission a written answer or objection. Any matter a

dmitted under this

rule is conclusive

ly established unless the court on motion permits withdrawal or amendment of the admission. Admissions purs u ant to Rule 36 may be brought to the trial court’s attention on motion for summary judgment. See Ne ely v. Velsi

col Che m. Corp. , 906 S.W.2d 915, 917 (Tenn. Ct. App. 1995). Requests for admissions that are unanswered are deemed

admitted. Tennessee Dept. of Human Servs. v. Barbee , 714 S.W.2d 263, 266 (Tenn. 1986). Barbee held that an admission under Rule 36, unlike an evidentiary admission, “concludes the matter and avoids any need for proof at trial.” Id . at 266. Thus, no proof is ne cessary to establish a fact admitted, nor should evidence be allowed to refute the admission. See id . at 267.
In summary, Defendants served a request for admissions on August 5, 1998. Plaintiffs did notres pon d wi thi n 30 days as required by Rule 36.01, nor did they re quest additional time. Not until over a year later, November 30, 1999, was the affidavit of Mr. Maness filed averring that he and his wife are the lawful owners of the seized property. Notwithstanding the requirements of Rule 36.02, Plaintiffs did not file a motion seeking permission of the court to withdraw or amend theadmissions, despite the fact the unans wered request for admissions were deemed admitted and the matter reques ted co nclusively established. See Barbee , 714 S.W.2d at 266. Not until February 4, 2000, didPlaintiffs file a Motion To Extend Fili ng Deadline And Response To Defendants’ Second Motion To Deem F acts A dmit ted An d/Or In The Alternative , Motion For Sancti

ons. Rule

36.02 provides that the trial court may permit withdrawal or amendment. The trial court’s order of March 30, 2000, denying Plaintiffs’ motion st

ates that “[f]rom al

l of which it appea

rs to the Court that

withdrawal or amendment of the Deemed Admissions will not promote the presentation of t

he merits and would unfairly prejudice the Defendants.” In reviewing this record, we do not find that the trial court abused its discretion in denying Plaintiffs’ motion given the length of time that lapsed between the request for admissions and the filing of the motion. Consequen tly, we do not find that the trial court erred in granting summary judgment in favor of the Defendants a

s ownership of the

property is

dispositive of Plaint

iffs’ lawsuit. Plaintiffs concedein their brief that no document formally responding to the request for admissions was filed prior

to February 4, 2000. They a rgue in their brief before this court that the purpose for summary judgment is no t to abate the dock et of the trial cou

rt, but to weed out c

ases for trial in which there is no genu

ine issu e of fact. We agree that the summary judgment procedure is not designed to abate the docket of the trial court. As our supreme court said in Barbee , “[a]dmissions were designed to reduce trial time by limiting and narrowing the issues.” Id . at 266. In this case, some18 months passed from the time that the Plaintiffs were served with the request for admissions andtheir motion to extend the filing deadline. The record before us does not

demonstrate just c

ause for suc h un due del ay.-6-

The judgment of the trial court granting summary judgment is affirmed. Costs of this appeal ar e tax ed to Jerry Ma

ness and Patty

Maness, and their

surety, for

which execution ma

y issue if nece ssa ry.

___________________________________ DAVID R. FARMER, JUDGE