No. 86-39 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

HOLMES & TURNER, a Montana 

partnership, 

Plaintiff and Respondent, 

STEER-IN, a Montana corporation, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Robert Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Philip P. McGimpsey, Billings, Montana 

Pierre L. Bacheller, Billings, Montana 

For Respondent: 

Kirwan & Barrett; Stephen M. Barrett, Bozeman, 

Montana 

Submitted on Briefs: May 30, 1986 

Decided: July 17, 1986 

.j, *, 

Clerk 

L 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Respondent, Holmes & Turner, filed suit in the District 

Court of the Eighteenth Judicial District, Gallatin County, 

to collect from appellant, Steer-In, for services rendered. 

This is an appeal from an order granting summary judgment in 

favor of respondent issued after appellant failed to answer 

appellant's requests for admission. 

Steer-In seeks to have this Court relieve it of the 

effect of Rule 36, M.R.Civ.P., which deems matters in requests for admission that are not responded to as admitted 

and conclusively established. Steer-In argues that it had 

already denied the matter in question in its answer to the 

complaint so that it should not be required to deny the 

matter again. 

We affirm. 

Steer-In is a Montana corporation which operates a 

restaurant and lounge near Three Forks, Montana. Holmes & 

Turner is a Bozeman accounting firm. Steer-In hired Holmes & 

Turner for services in 1980 and 1981. Steer-In did not pay 

Holmes & Turner for the services. 

On January 19, 1982, Holmes & Turner filed suit against 

Steer-In to collect $6,335 for the accounting services. he 

sole factual allegation in the complaint is as follows: 

Defendants, and each of them, owe plaintiff SIX THOUSAND THREE HUNDRED THIRTYFIVE DOLLARS ($6,335.00) for accounting 

services rendered by plaintiff to defendants, and each of them, between July 

15, 1980, and January 5, 1981, with 

interest at the rate of eighteen percent 

(18%) per annum. 

Steer-In denied this allegation and presented the affirmative 

defense of failure of consideration in its answer to the 

complaint. The answer also raised three counterclaims 
alleging that Holmes & Turner negligently designed, implemented and maintained the Steer-In's accounting system. 

Steer-In requested $210,000 in compensatory damages and 

$500,000 in punitive damages. On April 16, 1984, the new 

owner of Steer-in signed a stipulation of dismissal of the 

counterclaims, and a court order dismissing the counterclaims 

with prejudice was issued on February 26, 1985. 

Discovery lasted for an extended period. Finally, on 

February 6, 1985, the parties stipulated to a termination of 

interrogatories by which interrogatories prior to that date 

could go unanswered without penalty. Then, on February 7, 

1985, Holmes & Turner made a request for admission as 

follows: 

Admit that the Defendant Steer-In owes 

Plaintiff the sum of $6,335 plus interest at the rate of 18% per annum for 

accounting services rendered by Plaintiff to Defendant between July 15, 1980 

and January 5, 1981. 

Holmes & Turner also made another request contingent on 

Steer-In's denial of the admission. That request was as 

follows : 

If the answer to the preceding request 

for admission was negative please state 

the basis for the denial, what elements 

of the request for admission are specifically denied, what fees are owed from 

the Defendant to the Plaintiff for 

accounting services, and what basis 

exists in the form of affirmative defenses, offenses, or other charges that 

are alleged to reduce the accounting 

services set forth in the preceding 

interrogatory. 

No further requests were made. 

On May 16, 1985, Holmes & Turner's counsel wrote to 

counsel for Steer-In requesting a response to the request for 

admission and warning that a motion for summary judgment 

would follow if Steer-In did not respond. Steer-In did not 
respond. On July 19, 1985, Holmes & Turner moved for summary 

judgment. On October 29, 1985, the District Court issued an 

order that deemed Holmes and Turner's request for admission 

as admitted by Steer-In's failure to respond. With the 

matter in the admission deemed admitted, no issue of fact 

remained, so the order also granted summary judgment. 

Steer-In appeals. 

Steer-In's main argument has to do with the fact that 

Holmes and Turner's request for admission matches the sole 

factual allegation in its complaint. Steer-In argues that 

since it already denied that allegation in its answer to the 

complaint, it should not be required to answer the same 

allegation in the request for admission. It would be, 

Steer-In argues, an exaltation of procedure over substance to 

order summary judgment where the pleadings clearly show an 

issue of fact. Steer-In's brief also emphasizes the unnecessary increased burden and cost to clients created by procedural rules which require redundant pleadings. 

Rule 36, M.R.Civ.P., and precedent are such that summary judgment was appropriate. Rule 36(a) provides that a 

request for admission is deemed admitted unless answered or 

objected to within thirty days after service of the request. 

Rule 36(a), M.R.Civ.P., provides in part: 

. . . The matter is admitted unless, 

within 30 days after service of the 

request, 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 admission a written answer or objection 

addressed to the matter, . . . 

Then, Rule 36 (b) , M. R.Civ. P., provides in pertinent part: 

Any matter admitted under this rule is 

conclusively established unless the 

court on motion permits withdrawal or 

amendment of the admission. . . . 
Thus, by Rule 36 (a) , Steer-In had thirty days after it was 

served with Holmes & Turner's request to answer or object to 

the request before the request was deemed admitted. After 

thirty days, Steer-In had the option of moving to withdraw or 

amend the admission under Rule 36(b). 

Over eight months passed between the time Steer-In was 

served with the request and when the court deemed the request 

admitted. In this period, Steer-In did not even attempt to 

exercise any of its options under Rule 36. The court therefore followed the mandate in Rule 36 and deemed the request 

admitted. Once the request was admitted, there could no 

longer be any issues of fact, and the court ordered summary 

judgment pursuant to Rule 56, M.R.Civ.P. 

We have previously addressed the issue of the propriety 

of summary judgment where the basis is a failure to respond 

to requests for admissions. See Morast v. Auble (1974), 164 

Mont. 100, 519 P.2d 157. In Morast, 519 P.2d at 160we followed 8 Wright & Miller, Federal Practice and Procedure: 

Civil § 2264, which states: 

Admissions obtained by use of Rule 36 

may show that there is no genuine issue 

as to any material fact and justify the 

entry of summary judgment under Rule 56. 

This rule states precisely what happened in the case at bar. 

As in Morast, we will follow that rule here. We hold that 

the District Court properly issued summary judgment based on 

a fact deemed established by the operation of Rule 36, 

M.R.Civ.P. We will further comment that the very purpose of 

Rule 36 is to lessen the time of trial and ultimately to set 

the stage for summary judgment. 
Steer-In argues that it should not be required to 

respond to the request because its answer to the complaint 

contains a denial of an identical allegation. We disagree. 

Holmes & Turner made its request for admission on 

February 7, 1985. Steer-In's answer to the complaint is 

dated March 24, 1983. In this period of nearly two years, 

Steer-In acquired a new owner and all three of its counterclaims were dismissed with prejudice. Under these circumstances, Holmes & Turner could suspect that Steer-In had 

changed its position on the factual allegation or the theory 

of its defense. A Rule 36, M.R.Civ.P., request for admission 

was the ideal and proper way for Holmes & Turner to determine 

if Steer-In was holding to its original position. Steer-In 

could have easily handled the matter by reaffirming its prior 

positions. 

We do not believe Holmes & Turner was playing a "procedural chess game" with Steer-In as Steer-In alleges. Moreover, if Steer-In thought Holmes & Turner was "playing games" 

with its request, it could have objected to the request. If 

the prior answer did in fact answer the request for admission, the objection would have satisifed Steer-In's responsibility under Rule 36. Instead, Steer-In made no response at 

all. 

Whether or not Steer-In agrees with the effect of Rule 

36, it is bound by it. Steer-In calls the effect of Rule 36 

in this case an "exaltation of procedure over substance." We 

think that it is Steer-In that did the "exalting" by ignoring 

the rule. If Steer-In had responded as required by Rule 36, 

the substance of the case could have been preserved. 

Steer-In complains about the cost and burden of redundant pleadings. We can see little cost or burden to Steer-In 
in responding to Holmes & Turner's request. Steer-In could 

have simply referred Holmes & Turner to the denial and affirmative defense in the original answer, or as stated earlier, 

it could have objected to the request as redundant. This 

minor burden is insufficient reason for us to undermine the 

operation and purpose of Rule 36. 

The District Court's order granting summary judgment is 

affirmed. 

We concur: /'