THOR INDUSTRIES, INC. AND SUBSIDIARIES, Petitioners,
INDIANA DEPARTMENT OF STATE REVENUE, Respondent.
ATTORNEYS FOR PETITIONER: NATHAN J. HAGERMAN JEFFREY D.
STEMERICK TAFT STETTINIUS & HOLLISTER LLP Indianapolis,
ATTORNEYS FOR RESPONDENT: GREGORY F. ZOELLER INDIANA ATTORNEY
GENERAL EVAN W. BARTEL WINSTON LIN DEPUTY ATTORNEYS GENERAL
ORDER ON PETITIONERS' MOTION TO WITHDRAW
Blood Wentworth Judge
Industries, Inc. and Subsidiaries (collectively
"Thor") has moved to withdraw twenty-nine
separately numbered requests for admissions that were
conclusively admitted by operation of law when Thor failed to
timely respond to the Indiana Department of State
Revenue's First Request for Admissions. The Court grants
AND PROCEDURAL HISTORY
August 6, 2015, Thor initiated an original tax appeal
challenging the Department's Proposed Assessments of
additional adjusted gross income tax, interest, and penalties
for the tax periods ending on July 31, 2008, July 31, 2009,
and July 31, 2010. On June 9, 2016, about a week before
settlement negotiations commenced, the Department served Thor
with its First Request for Admissions that asked Thor in
effect to repudiate the allegations in its petition within 30
days. On July 18, 2016, after the time for responding lapsed,
the Department contacted Thor to inquire about the status of
its response. Four days later, the Department moved for
summary judgment and designated as evidence, among other
things, its First Request for Admissions. On July 27, 2016,
Thor filed a Motion to Withdraw Admissions and Request for
Oral Argument. On August 26, 2016, the Court held an
attorney's conference to discuss matters associated with
the pending motions. That same day, the Court denied
Thor's request for oral argument. Additional facts will
be supplied as necessary.
Trial Rule 36(B) governs requests to withdraw admissions.
See Ind. Trial Rule 36(B). Specifically, Trial Rule
36(B) provides that "the court may permit withdrawal or
amendment [of admissions] 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." T.R. 36(B). "The
party seeking withdrawal has the burden of demonstrating that
the presentation of the merits will be subserved by
withdrawal, and the party who has obtained the admissions has
the burden of demonstrating that it will be prejudiced if the
 court permits withdrawal." Cross v. Cross,
891 N.E.2d 635, 640 (Ind.Ct.App. 2008) (citation omitted).
Even if both of these conditions are satisfied, however, the
Rule does not compel the Court to grant withdrawal or
amendment. See General Motors Corp., Chevrolet Motor Div.
v. Aetna Cas. & Sur. Co., 573 N.E.2d 885, 889 (Ind.
Would Withdrawal Subserve the Presentation of the
claims that the presentation of the merits will be subserved
by the withdrawal of its admissions because it would prevent
the litigation from ending without addressing matters that
are the basis of the Department's Proposed Assessments.
(See Pet'rs' Br. Supp. Their Mot. Withdraw
Admis. ("Pet'rs' Br.") at 7-9.) Indeed, a
comparison of Thor's petition with Thor's deemed
admissions supports this claim. (Compare
Pet'rs' Br., Ex. A ¶¶ 8-27 with
Pet'rs' Br., Ex. F at 5-13.) The Department, however,
asserts that Thor cannot meet its burden by 1) simply
claiming that the admissions go to the core issues or 2)
making a blanket request for withdrawal. (See
Resp't Mem. Opp'n Pet'rs' Mot. Withdraw
Admis. ("Resp't Mem.") at 8-9.)
The Core Issues
Department first claims that Thor cannot demonstrate that the
merits of the case will be subserved solely by showing that
the admitted matters concern the core issues in the case.
(See Resp't Mem. at 8 (citing Bryant v.
County Council of Lake County, 720 N.E.2d 1, 6
(Ind.Ct.App. 1999), trans. denied).) More recently,
however, the Court of Appeals has clarified that a litigant
may meet its burden of establishing that withdrawal will
subserve the presentation of the merits in this manner.
See generally Costello v. Zavodnik, 55 N.E.3d 348
(Ind.Ct.App. 2016). Nonetheless, even if the proposition in
Bryant on which the Department relies were not
suspect, it is well settled that Court of Appeals'
decisions are persuasive, but not controlling, authority by
which the Court is bound. See, e.g., LeSea
Broad. Corp. v. State Bd. of Tax Comm'rs, 512 N.E.2d
506, 509 (Ind. Tax Ct. 1987), adopted by 511 N.E.2d
1009 (Ind. 1987) (demonstrating, among other things, that
decisions of the Indiana Court of Appeals are persuasive, not
controlling authority in the Tax Court). Accordingly, the
Department's argument that Thor has not shown that
withdrawal will subserve the presentation of the merits on
this basis is not persuasive.
The Blanket Request for Withdrawal
Department has also asserted that Thor cannot meet its burden
to establish that the presentation of the merits of its case
will be subserved by the withdrawal of its admissions because
blanket requests for the withdrawal of deemed admissions are
prohibited by Trial Rule 36(A). (See Resp't Mem.
at 8-9 (citing T.R. 36(A); General Motors,
573 N.E.2d at 886-89; Larson v. Karagan, 979 N.E.2d
655 (Ind.Ct.App. 2012); Mullins v. Parkview Hosp.,
Inc., 830 N.E.2d 45 (Ind.Ct.App. 2005), aff'd in
part and vacated in part by865 N.E.2d 608 (Ind.
2007)).) Neither the language of Trial Rule 36(A) nor the
holdings in the cases analyzing the Rule prohibit, however,
blanket requests to withdrawal deemed admissions.
Specifically, Trial Rule 36(A) sets forth only the procedures
for propounding and responding to requests for admissions,
not the procedures for filing motions to withdraw admissions.
See T.R. 36(A). Furthermore, while the cited cases
concern the withdrawal of some, but not all, of the
litigants' admissions, none suggests that the specificity
was due to a prohibition against raising blanket requests for
withdrawal or a requirement that litigants "must
separately identify why withdrawal is appropriate for each
admission[, ]" as the Department urges.
(Compare Resp't Mem. at 8 with General
Motors, 573 N.E.2d at 886 (indicating that appeal
involved the withdrawal of three admissions only);
Larson, 979 N.E.2d at 659-60 (indicating that appeal
involved the grant of summary judgment, not the withdrawal of
admissions); Mullins, 830 N.E.2d at 60 (linking the
number of admissions at issue to the appellant's
arguments and the ...