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IN THE SUPREME COURT OF MISSISSIPPI
GERTRUDE BROOKS APPELLANT
V. NO. 2016-CA-00487
THE LANDMARK NURSINGCENTER, INC. APPELLEE
Appeal from the Judgment of thePrentiss Circuit Court
BRIEF FOR APPELLEE
Oral Argument IS Requested
Of Counsel:
Thomas L. Kirkland, Jr. (MSB # 4181)Andy Lowry (MSB # 100782)
COPELAND, COOK, TAYLOR & BUSH, P.A.Post Office Box 6020
Ridgeland, Mississippi 39158Telephone: (601) 856-7200Facsimile: (601) 856-8242
E-Filed Document Sep 22 2016 18:09:32 2016-CA-00487 Pages: 28
CERTIFICATE OF INTERESTED PARTIES
The undersigned counsel of record certifies that the following listed persons
or entities have an interest in the outcome of this case. These representations are
made in order that the justices of the Supreme Court and/or the judges of the Court
of Appeals may evaluate possible disqualifications or recusal.
1. Gertrude Brooks (Plaintiff-Appellant).
2. Ursula Y. Holmes, Esq., formerly of The Cochran Firm - Memphis,LLC (former counsel for Brooks).
3. Daniel M. Czamanske, Jr., Esq. of Chapman, Lewis & Swan, PLLC(counsel for Brooks).
4. The Landmark Nursing Center, Inc., d/b/a The Landmark Nursing &Rehabilitation Center (Defendant-Appellee).
5. Thomas L. Kirkland, Jr. and Andy Lowry of Copeland, Cook, Taylor &Bush, P.A. (counsel for Landmark).
6. The Honorable Thomas J. Gardner, III (circuit court judge).
Respectfully submitted,
s/ Andy Lowry Andy Lowry
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TABLE OF CONTENTSPage
Certificate of Interested Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Statement of the Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. Course of Proceedings Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. Relevant Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
I. Brooks’s Arguments on Appeal Are Procedurally Barred. . . . . . . . 10
II. Brooks’s Admissions Were Not “Conclusions of Law”.. . . . . . . . . . 11
III. The Circuit Court Did Not Err in Denying Withdrawal Basedon Lack of Justifiable Excuse. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A. Rule 36(b)’s Two-Part Test Is Discretionary, NotMandatory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
B. The Circuit Court Acted Within Its Discretion. . . . . . . . . . . 16
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
-ii-
TABLE OF AUTHORITIESPage
Cases:
Amer. Auto. Ass’n v. AAA Legal Clinic of Jefferson Crooke, P.C.,930 F.2d 1117 (5th Cir. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 20
Ashmore v. Miss. Auth. on Educ. Telev., 148 So. 3d 977 (Miss. 2014). . . . . . . . . . 8
BB Buggies, Inc. v. Leon, 150 So. 3d 90 (Miss. 2014). . . . . . . . . . . . . . . . . . . . . . . 13
Bennett v. Highland Park Apts., LLC, 170 So. 3d 450 (Miss. 2015). . . . . . . . . . . . 8
Byrd v. Bowie, 933 So. 2d 899 (Miss. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 18
Byrd v. Bowie, 992 So. 2d 1202 (Miss. Ct. App. 2008).. . . . . . . . . . . . . . . . . . 12–13
Carney v. IRS, 258 F.3d 415 (5th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15
Cole v. Buckner, 819 So. 2d 527 (Miss. 2002). . . . . . . . . . . . . . . . . . . . . . . . v, 11–12
Educ. Placement Servs. v. Wilson, 487 So. 2d 1316 (Miss. 1986). . . . . . . . . . . . . 19
Estate of Gibson v. Magnolia Healthcare, Inc., 91 So. 3d 616 (Miss. 2012). . . . 10
Hawkins v. Hale, 185 So. 3d 1076 (Miss. Ct. App. 2016). . . . . . . . . . . . . . . . . 16, 18
Howard v. Gunnell, 63 So. 3d 589 (Miss. Ct. App. 2011). . . . . . . . . . . . . . . . . . . . 10
In re Thomson, 666 So. 2d 464 (Miss. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Kumar v. Loper, 80 So. 3d 808 (Miss. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Langley v. Miles, 956 So. 2d 970 (Miss. Ct. App. 2006).. . . . . . . . . . . . . . . . . 16, 18
M. Hiller & Co. v. J. R. Cotton & Co., 48 Miss. 593 (1873). . . . . . . . . . . . . . . . . . . 20
McCaffrey v. Puckett, 784 So. 2d 197 (Miss. 2001). . . . . . . . . . . . . . . . . . . . . . . . . 11
Rainer v. Wal-Mart Assocs., Inc., 119 So. 3d 398 (Miss. Ct. App. 2013). . . . . . . 18
Riverbend Utils., Inc. v. Brennan, 68 So. 3d 59 (Miss. 2011). . . . . . . . . . . . . . . . 19
Sanders v. State, 678 So. 2d 663 (Miss. 1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Sanford v. Dudley, No. 2015-CA-00464-COA (July 19, 2016).. . . . . . . . . . 17 & n.2
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Page
Sawyer v. Hannan, 556 So. 2d 696 (Miss. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . 18
Smith v. Clement, 983 So. 2d 285 (Miss. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Sunbelt Royalty, Inc. v. Big-G Drilling Co., 592 So. 2d 1011 (Miss. 1992).. . . . . 17
Thompson v. Beasley, 309 F.R.D. 236 (N.D. Miss. 2015).. . . . . . . . . . . . . . . . . . . 12
Thompson v. City of Vicksburg, 813 So. 2d 717 (Miss. 2002). . . . . . . . . . . . . . . . . 4
Triangle Constr. Co. v. Foshee Constr. Co.,976 So. 2d 978 (Miss. Ct. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Trustmark Nat’l Bank v. Meador, 81 So. 3d 1112 (Miss. 2012). . . . . . . . . . . . . . . . 8
Watters v. Stripling, 675 So. 2d 1242 (Miss. 1996). . . . . . . . . . . . . . . . . . . . . . . . . 16
Young v. Smith, 67 So. 3d 732 (Miss. 2011). . . . . . . . v, 8, 14–16, 17 n.2, 18, 19–20
Rules:
M.R.A.P. 4.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
M.R.C.P. 36.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14, 17 n.2
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STATEMENT REGARDING ORAL ARGUMENT
The Landmark Nursing Center, Inc., Appellee in this case, requests oral
argument. The plaintiff below has appealed to this Court and urged it to treat Rule
36(b) as requiring a trial court to grant or deny a motion to withdraw Rule 36
admissions on the basis of the two-part test set forth therein, which seven justices
of this Court held to be discretionary in Young v. Smith, 67 So. 3d 732 (Miss. 2011).
The Court of Appeals has recently implied that Young may not be good law in that
regard (see page 17, note 2 below).
Appellant has also urged this Court to adopt a new reading of Rule 36 as to
“conclusions of law” that would effectively overrule Cole v. Buckner, 819 So. 2d 527
(Miss. 2002), and other cases.
While these issues appear not to be preserved on appeal (as set forth below),
should this Court reach either or both of them, oral argument should be granted to
provide full deliberation upon such drastic proposed changes to our law.
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STATEMENT OF THE ISSUES
II. Brooks’s brief addresses only two issues, neither of which she argued in the
court below. Is she allowed to raise them on appeal, or are her issues
procedurally barred?
III. Did the Rule 36 requests in fact improperly seek pure conclusions of law, or
were they proper requests?
III. Should this Court reverse the trial court for its choice not to apply a two-part
test that this Court has expressly held not to be required, or should it affirm
the trial court’s exercise of its discretion?
STATEMENT OF ASSIGNMENT
Given that Brooks’s appeal seeks major revisions in this Court’s case law on
Rule 36, Landmark submits that judicial efficiency is better served by this Court’s
retention of the appeal, for the reasons set forth in its foregoing Statement
Regarding Oral Argument (citing cases).
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STATEMENT OF THE CASE
This is a case about a plaintiff who, without any justifiable excuse, never
answered Rule 36 requests, and who now asks on appeal to be rescued from her lack
of diligence, on the basis of objections and arguments she never made below.
I. Course of Proceedings Below
In March 2014, Gertrude Brooks filed a civil action alleging medical
malpractice against The Landmark Nursing Center, Inc., which operates a nursing
home in Booneville, Mississippi. R.E. 1. A timeline will best set forth the relevant1
course of proceedings (and many of the relevant facts as well).
June 5, 2014 Landmark serves interrogatories, requests for production, and
requests for admission on Brooks’s counsel via United States
mail. R. 46.
July 8, 2014 Brooks’s responses are due; she did not request additional time
in advance (which would have been agreed to by Landmark’s
counsel, let it be noted).
Aug. 6, 2014 A month later, Brooks’s counsel leaves a voicemail with
Landmark’s counsel, asking what she calls a “really weird
question”: “for some reason I have it in my head that you sent”
discovery requests. R. 82.
The clerk’s papers in the record on appeal are cited as “R. _.” Brooks’s record1
excerpts are cited as “R.E. _” (record page number), as she did not number orpaginate her excerpts separately. Her brief is cited as “Brooks at _.”
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Aug. 7, 2014 Landmark’s counsel sends Brooks another copy of the requests,
but also sends a letter advising that, because Landmark’s right
to summary judgment has now vested, it has directed him to
file a Rule 56 motion. R. 82.
Aug. 15, 2014 Landmark files its motion for summary judgment. R. 49.
Sept. 12, 2014 Brooks serves discovery requests on Landmark, but still no
responses.
Oct. 15, 2014 Landmark serves its discovery responses. R. 57.
Nov. 3, 2014 Brooks, who still has not answered Rule 56 motion filed Aug.
15, files a motion for time to respond to it (not opposed by
Landmark). R. 61.
Nov. 13, 2014 Court grants Brooks until Dec. 8 to answer Rule 56 motion.
Dec. 8, 2014 Brooks serves Rule 56 response, R.E. 73, and Rule 36(b)
motion to withdraw admissions, R. 63, but does not respond to
the Rule 36 requests or attach proposed responses.
Dec. 22, 2014 Landmark files Rule 56 reply. R. 81.
Feb. 25, 2016 Brooks’s counsel files her motion to withdraw, without naming
successor counsel. R. 95.
Feb. 29, 2016 Landmark opposes the motion, asking the circuit court to take
up the motion after the Rule 56 motion (to which Brooks’s
counsel had filed her own affidavit in opposition) is decided.
R. 98.
March 7, 2016 Court enters its order granting summary judgment. R.E. 103.
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March 22, 2016 Brooks’s present counsel enters his appearance.
March 30, 2016 Notice of appeal is filed. R. 109. (Prematurely, per Thompson
v. City of Vicksburg, 813 So. 2d 717, 719–20 (Miss. 2002)).
April 7, 2016 Final judgment is entered. R.E. 108. (Thus, the notice of appeal
is deemed filed per M.R.A.P. 4(b).) Some 639 days after her
discovery responses were due, Brooks still has not served any
of them as of the entry of final judgment.
It is a peculiarity of this case that, so far as Landmark knows, the circuit court
never entered an order granting the motion of Brooks’s original counsel to withdraw,
though she has not appeared in this Court on appeal.
II. Relevant Facts
As shown above, Landmark served Rule 36 requests on Brooks’s counsel, who
never denied that she received them. She blamed her paralegal for mislaying them.
R. 67–68 (affidavit of Holmes). Because she did not timely (or ever) respond to
them, these requests were deemed admitted, as Brooks herself conceded. See R. 71
(Brooks response to Landmark’s Rule 56 itemization).
In her December 8, 2014 motion to withdraw her admissions, Brooks did not
argue that the circuit court would abuse its discretion or err as a matter of law if it
did not apply the two-part test from Rule 36(b), which she mentioned in her
standard-of-review section as being “within its [the court’s] discretion.” R. 65.
Rather, she distinguished her case from one where the Rule 36 requests had been
admitted for over seven years before the plaintiff sought to withdraw them, and she
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supplied her counsel’s affidavit blaming both her paralegal and her disrupted office
environment for the failure to timely answer the requests. Her response opposing
summary judgment rested entirely on her theory that, because her admissions were
not expert opinions, they could not support dismissal of her claim. R.E. 76–77.
In its four-page order granting Landmark’s Rule 56 motion, the circuit court
noted that Brooks had not, as of that date (a year and eight months after they were
due), responded to the Rule 36 requests, and it also noted the three material
requests:
The Requests for Admissions included requests, in part, that the Plaintiffsadmit or deny that Defendant’s care of Mr. Brooks was appropriate, thatMr. Brooks was not harmed by the treatment of the Defendant, and theDefendant was not negligent in the care and treatment of the [sic] Mr.Brooks.
R.E. 104. The circuit court considered whether Brooks had shown “justifiable
excuse” or “good reason” to withdraw her admissions. R.E. 105. The circuit court
considered Brooks’s counsel’s complaints about her paralegal and about personnel
troubles at her firm: “While the Court is sympathetic to the position of Ms. Holmes,
the Court cannot excuse the blatant carelessness and neglect in this case.” R.E. 105.
The circuit court found it telling that Brooks discovered no later than August 2014
that she had not responded to the Rule 36 requests, yet she waited until December
2014, “almost four months after counsel should have been aware of the issue,” to
move to withdraw the responses. R.E. 105.
Brooks had submitted the affidavits of a nurse and a doctor regarding the
alleged merits of her case, but the circuit court found them “conclusory in nature”
and noted that they did not “substantially articulate the applicable standard of care.”
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R.E. 106. The circuit court also disagreed with Brooks’s contention that the
admissions were not “fatal” to her claims: “If the Plaintiff, even by virtue of Request
for Admissions, has admitted that there was no breach of duty or damages, the
medical malpractice claims cannot survive summary judgment.” R.E. 106. The
circuit court found the admissions “fatal to all of Plaintiffs’ claims,” granted
Landmark’s Rule 56 motion, and denied Brooks’s motion to withdraw the
admissions. R.E. 106.
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SUMMARY OF THE ARGUMENT
Grant or denial of a Rule 36(b) motion to withdraw admissions is a discovery
issue, and the trial courts are afforded their usual discretion in such matters. Where,
as here, Brooks admitted that Landmark violated no standard of care, committed no
negligence, and caused no damages, and she blamed her failure to respond to Rule
36 requests on her counsel’s office personnel, the circuit court acted well within this
Court’s precedents in finding no justifiable excuse to withdraw the admissions and
in granting summary judgment.
On appeal, Brooks has raised arguments that she did not make to the circuit
court, which thus should be barred on appeal.
Alternatively, if this Court examines Brooks’s arguments, they are without
merit. Brooks contends that the Rule 36 requests at issue (which she never objected
to below) were improper demands for “conclusions of law.” But our courts have
already held that requests about whether the standard of care was met, or any
damages incurred, are a sufficient basis for summary judgment where admitted.
Brooks also argues that the trial courts lack discretion whether to apply the
two-part test in Rule 36(b), despite this Court’s express holding that the rule means
what it says. In the present case, the circuit court followed Mississippi case law in
examining whether Brooks had shown justifiable neglect; found that she had not
done so; and granted summary judgment on the basis of her admissions.
The judgment of the circuit court should be affirmed in all respects.
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ARGUMENT
There are two decisions under review in this appeal from the circuit court’s
order: the denial of Brooks’s motion to withdraw her admissions, and the grant of
summary judgment to Landmark. As Brooks concedes (at 10), whether to allow
Brooks to withdraw her admissions is reviewed for abuse of discretion. Review of
that decision must not be muddled up with the de novo standard of review for
summary judgment. Rather, a two-step review must be performed. See, e.g., Bennett
v. Highland Park Apts., LLC, 170 So. 3d 450, 452 (Miss. 2015) (“We would first
review the judge’s evidentiary ruling for an abuse of discretion, then review the
remaining question of law de novo.”) (footnote omitted); Trustmark Nat’l Bank v.
Meador, 81 So. 3d 1112, 1116–18 (Miss. 2012) (reversing abuse of discretion in failing
to strike affidavit, then reversing denial of summary judgment due to lack of
opposing affidavit); Smith v. Clement, 983 So. 2d 285, 290 (Miss. 2008) (affirming
striking of expert affidavit & thus affirming grant of summary judgment).
“Generally, an abuse of discretion only occurs where no reasonable person
could take the view adopted by the trial court.” Young v. Smith, 67 So. 3d 732, 741
(Miss. 2011) (quoting Dawson v. United States, 68 F.3d 886, 896 (5th Cir. 1995))
(emphasis added). Provided only that the “correct legal standard” is applied, review
is sharply limited:
Abuse of discretion is the most deferential standard of review appellatecourts employ. A finding of abuse of discretion absent a definite and firmidentification of clear error violates time-honored standard-of-reviewprinciples.
Ashmore v. Miss. Auth. on Educ. Telev., 148 So. 3d 977, 982 (Miss. 2014) (emphasis
added). Thus, unless the circuit court committed “clear error” in denying Brooks’s
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motion, and unless “no reasonable person” could have denied that motion, then,
absent a failure to apply the “correct legal standard,” the circuit court’s ruling must
be affirmed.
As for summary judgment, the issue then becomes whether, taking the
material requests as admitted, the circuit court erred as a matter of law in granting
summary judgment. This is not a case, however, “where one party swears to one
version of the matter in issue and another says the opposite,” as Brooks (at 11) would
have it (quoting Byrd v. Bowie, 933 So. 2d 899, 902 (Miss. 2006)). Rather, this is
a case where Brooks herself made material admissions and then tried to walk them
back with the affidavits of purported expert witnesses. See M.R.C.P. 36(b) (“Any
matter admitted under this rule is conclusively established unless the court on
motion permits withdrawal or amendment of the admission.”); see also Amer. Auto.
Ass’n v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 1120 (5th Cir.
1991) (“An admission that is not withdrawn or amended cannot be rebutted by
contrary testimony . . . .”).
In Byrd, the defendant claimed not to have been served the requests for
admission, and filed affidavits swearing as much; yet the process server and the
correspondence between the defendant’s secretary and plaintiff’s counsel indicated
service had been made. Byrd, 933 So. 2d at 903–04. This Court found no abuse of
discretion in the trial court’s finding that the requests had been admitted, and found
that summary judgment as to liability logically followed: “Here, the trial judge did
not abuse his discretion, and the evidence reasonably supports the grant of summary
judgment on the issue [of] the defendants’ negligence based on the defendants’
failure to respond to plaintiff’s request for admissions.” Id. at 904.
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Brooks makes two arguments: that the requests which she admitted were
improper, and that the circuit court erred in not applying an optional test for
whether to allow her to withdraw the admissions. In both issues, the correct
standard of review should be carefully applied. First, however, this Court should
address whether these issues were preserved for appeal.
I. Brooks’s Arguments on Appeal Are Procedurally Barred
Failure of an appellant to argue an issue before the trial court will bar review
of that issue on appeal. Estate of Gibson v. Magnolia Healthcare, Inc., 91 So. 3d 616,
625 (Miss. 2012) (holding cross-appellant failed to preserve issue); Howard v.
Gunnell, 63 So. 3d 589, 598 (Miss. Ct. App. 2011). In her brief, Brooks argues that
her admissions were “conclusions of law” that could not support summary judgment,
and that the circuit court erred as a matter of law by not applying or considering the
two-part test from Rule 36(b).
Neither one of those arguments was made below. Brooks nowhere made any
argument that her admissions were “conclusions of law” that could not support
summary judgment. And while she did recite the two-part test from Rule 36(b), she
expressly acknowledged that whether to apply that test was within the discretion of
the circuit court. R. 65.
There is no “new counsel” exception to the rule that errors below must be
preserved so that the trial court has the opportunity to rule upon them. See Howard,
63 So. 3d at 598 (refusing to review issues raised for first time in Rule 60(b) motion
filed by new counsel). Because Brooks on appeal raises issues that were not
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presented below, she has failed to preserve them for appeal. This Court should apply
the precedents cited above and decline to hear Brooks’s appeal.
In the alternative, should this Court in an abundance of caution wish to
examine Brooks’s arguments, it will find that they fail on the merits.
II. Brooks’s Admissions Were Not “Conclusions of Law”
On appeal, Brooks argues that the circuit court improperly relied on
“conclusions of law” in granting summary judgment, because the Rule 36 requests
supposedly were improper in requesting such conclusions of law. As Brooks
concedes (at 11), Rule 36(a) says that requests for admission may “relate to
statements or opinions of fact or of the application of law to fact.” That is the case
here.
One request asked Brooks to admit that the care provided by Landmark was
appropriate. That is not a conclusion of law. Meeting the standard of care is not a
question of law, obviously, or else it would not be a matter for the expert opinions
of medical professionals. See, e.g., McCaffrey v. Puckett, 784 So. 2d 197, 206–07
(Miss. 2001) (holding whether defendant met standard of care to be question of
fact).
This Court has expressly rejected the claim that a request asking whether a
health-care provider “complied with the standard of care” or “deviated from the
standard of care” sought an improper legal conclusion. Cole v. Buckner, 819 So. 2d
527, 530 (Miss. 2002) (affirming grant of summary judgment on basis of Rule 36
admissions). Cole, an authority directly on point and contrary to Brooks’s argument,
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is nowhere mentioned in this portion of her argument (though she does cite a case
quoting Cole in her discussion of the standard of review—Brooks at 10).
Because Brooks’s suit was premised on medical malpractice, her admission
of appropriate care was dispositive. The other two requests for admission cited by
the circuit court asked Brooks to admit that Landmark was not negligent and that
it caused no damages. These, too, were admitted, and were likewise dispositive.
But, according to the recent federal trial-court opinion touted by Brooks, a
request for admission must set forth specific facts. Thompson v. Beasley, 309 F.R.D.
236, 242 (N.D. Miss. 2015) (Brown, J.). This outlier opinion by a single district judge
appears inconsistent with Cole.
In fact, the Fifth Circuit has expressly held that the federal Rule 36 “allows
litigants to request admissions as to a broad range of matters, including ultimate
facts, as well as applications of law to fact.” Carney v. IRS, 258 F.3d 415, 419 (5th
Cir. 2001) (emphasis added) (affirming summary judgment). Federal courts “around
the country” agree that “Rule 36 allows party to seek admissions as to matters
dispositive of a case and granting summary judgment on basis of deemed
admissions.” Id. at 420 n.6 (emphasis added) (citing cases). Thompson nowhere
cites Carnes.
Thompson is also inconsistent with the Court of Appeals’s holding in Byrd v.
Bowie, 992 So. 2d 1202 (Miss. Ct. App. 2008) (“Byrd II”). (This was the successor
case to the previously-cited Byrd v. Bowie, which was on interlocutory appeal to this
Court.) In Byrd II, the Court of Appeals affirmed the trial court’s grant of summary
judgment:
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The requests for admission propounded to Byrd asked for an admittancethat Byrd’s conduct was the proximate cause of Bowie’s legal injury, andthat such injury damaged Bowie in the amount of $2,000,000. Byrd’s failureto deny or answer such requests for admission resulted in the matters beingadmitted by operation of Mississippi Rule of Civil Procedure 36.
Byrd II, 992 So. 2d at 1206. “Proximate cause” is as much or as little a legal
conclusion as “negligence,” and as to both, the fact that they are questions for the
finder of fact (where a genuine issue of material fact precludes summary judgment)
means that they involve, at worst, the application of law to facts.
What Brooks asks of this Court is a wholesale rewriting of the state’s case law
on Rule 36, where every particular act or omission must be enumerated in a Rule 36
request for admission, or else the request may not address the standard of care,
negligence, etc. That is not the law in Mississippi, as this Court sees from Brooks’s
resort to a federal trial-court opinion. While this Court does look to federal
interpretations of the Federal Rules of Civil Procedure where persuasive, it does not
accept those interpretations where they run contrary to our rules. BB Buggies, Inc.
v. Leon, 150 So. 3d 90, 96–98 (Miss. 2014) (rejecting federal interpretations of Rules
4 and 5). And as Carney shows, the Fifth Circuit has held consistent with our law.
The Thompson ruling effectively revises the language of Rule 36 to impose
requirements not found therein and not present in the M.R.C.P. text of the rule.
Such changes should be made, if at all, by revising the rule, not by judicially
engrafting them upon a text that has already been interpreted to allow the type of
requests to which Brooks now belatedly objects on appeal.
The only reason to change our law appears to be Brooks’s belief that summary
judgment should not be available on a Rule 36 admission. This Court should decline
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Brooks’s invitation. The decision of the circuit court—which, as noted above, never
even had the opportunity to rule on Brooks’s novel theory—should be affirmed.
III. The Circuit Court Did Not Err in Denying Withdrawal Based on Lackof Justifiable Excuse
Although she conceded below that the circuit court had discretion whether to
apply the two-part test of Rule 36(b), Brooks now argues on appeal that the circuit
court erred as a matter of law in failing to do so. Rule 36(b) says that “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” (emphasis added).
A. Rule 36(b)’s Two-Part Test Is Discretionary, Not Mandatory
First, we address Brooks’s contention that this Court’s holdings over the years
have changed the word “may” in Rule 36(b) to mean “shall” or “must.” This Court
recently considered and rejected that proposition:
A mandatory, two-pronged test urged by the dissent is contrary to both theplain language of Rule 36(b) and prior rulings of this Court. In using thepermissive term “may” rather than the mandatory term “shall,” Rule 36(b)does not create a mandatory, per se requirement that the lower court mustapply before denying the withdrawal or amendment of a deemedadmission.
Young, 67 So. 3d at 739 (emphasis in original). But it is precisely the dissenting
opinion of a single justice that Brooks relies on in her brief (at 15, 16). Seven justices
held otherwise in Young, a holding that this Court has not backed away from since.
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This holding in Young is also consistent with federal interpretations of the
parallel Rule 36: “Because the language of [Rule 36(b)] is permissive, the court is not
required to make an exception to Rule 36 even if both the merits and the prejudice
issues cut in favor of the party seeking exception to the rule.” Carney, 258 F.3d at
419 (quoting Donovan v. Carls Drug Co., Inc., 703 F.2d 650, 652 (2d Cir. 1983)).
It is true that Chief Justice Waller, joined by two other justices, specially
concurred to suggest that application of the Rule 36(b) test is “the best practice.”
Young, 67 So. 3d at 743 (Waller, C.J., concurring). While that may be appropriate
on the facts of some cases, the circuit court in the present case expressly relied on
Rule 36(b) as explicated in Young: “The Mississippi Supreme Court has indicated
that such a motion to withdraw admissions is properly denied where there is no
‘justifiable excuse’ or ‘good reason’ to allow the relief sought. Young v. Smith, 67 So.
3d 732, 739 (Miss. 2011).” R.E. 105.
The circuit court’s reliance on Young for this proposition was well-merited,
given the authorities set forth therein:
See also Langley v. Miles, 956 So. 2d 970, 973 (Miss. Ct. App. 2006) (“[o]nreview, the court is likely to affirm the trial court’s enforcement of Rule 36according to its terms if no justifiable excuse or explanation was offeredfor the default.”); Prime Rx, LLC v. McKendree, Inc., 917 So. 2d 791, 795(Miss. 2005) (citing Earwood, 798 So. 2d at 516) (“it would not be an abuseof the trial court's discretion to require compliance [with Rule 36] when thedefaulting party offered no good reason otherwise.”); DeBlanc, 814 So. 2dat 801 (“we did not . . . abandon the concept of enforcing [R]ule 36 inaccordance with its terms as expressed in [Educational Placement Services]. . . particularly when no explanation is offered for the default.”); Martin v.Simmons, 571 So. 2d 254, 255 (Miss. 1990) (affirming the trial court’s actionof deeming requests for admission admitted where it found no justifiableexcuse for the attorney’s failure to file a timely response); Sawyer, 556 So.2d at 698 (citing Dukes v. South Carolina Ins. Co., 770 F.2d 545 (5th Cir.1985)) (“the control of discovery is committed to the sound discretion of the
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trial court and discretion was not abused in striking [an] untimely responsewhen [the plaintiff] had been evasive and dilatory throughout the litigationand offered no reason for failing to respond within the period providedby Rule 36.”).
Young, 67 So. 3d at 739 (emphasis added). The circuit court plainly applied the
correct legal standard in looking to “justifiable excuse.” This Court should so hold.
B. The Circuit Court Acted Within Its Discretion
Having followed the correct legal standard, the circuit court did not abuse its
discretion—did not act in a manner that no reasonable person could have done—by
finding that Brooks’s casting blame on her attorney’s paralegal, or on the office
politics of Brooks’s counsel’s law firm, did not constitute justifiable excuse or good
cause, which “simple inadvertence or mistake of counsel” will not satisfy. See
Watters v. Stripling, 675 So. 2d 1242, 1243 (Miss. 1996) (holding no good cause
shown for failure to timely serve process). Precisely Brooks’s “misfiled or misplaced”
argument did not satisfy the trial court in Hawkins v. Hale, 185 So. 3d 1076, 1078
(Miss. Ct. App. 2016), and the Court of Appeals correctly affirmed. Id. (noting that
“ordinary conflicts of a busy attorney” did not justify failure to timely respond).
It also weighs in favor of the circuit court’s order that no motion to withdraw
the admissions was filed until after the serving party had moved for summary
judgment. Triangle Constr. Co. v. Foshee Constr. Co., 976 So. 2d 978, 982 (Miss. Ct.
App. 2008); see also Langley v. Miles, 956 So. 2d 970, 975 (Miss. Ct. App. 2006).
The circuit court expressly relied on those authorities. R.E. 105. The circuit court
found it “most important” that even after Brooks was indisputably aware of the Rule
36 requests due to Landmark’s filing its motion for summary judgment, she waited
“almost four months” before moving to withdraw her admissions. R.E. 105.
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This also distinguishes the present case from the recent case of Sanford v.
Dudley, No. 2015-CA-00464-COA (July 19, 2016), mandate issued (Aug. 9, 2016).
(No Rule 40 motion was filed in Sanford.) In Sanford, the party’s “responses and
her Rule 36(b) motion were served a mere forty-six days after the Dudleys filed their
answer” and only eight days after a Rule 56 motion had been filed. Sanford at ¶ 26.
Brooks’s responses were due July 8, 2014, and she did not move to withdraw her
admissions until five months later—and did not even proffer to the circuit court her
proposed responses, not then, and not ever. “The requests for admissions submitted
to Sunbelt were a simple matter which could have been answered in a few minutes
time.” Sunbelt Royalty, Inc. v. Big-G Drilling Co., 592 So. 2d 1011, 1013 (Miss. 1992)
(affirming summary judgment based on requests deemed admitted). Brooks never
offered the circuit court any explanation why her four-page motion to withdraw took
so long, or why she never even proffered her desired responses (which, for all that
anyone knows, might have admitted one or more requests). The generous ruling in
Sanford is not on point with the present case.2
The Court of Appeals in Sanford appears to have held that it was error for the2
trial court not to “consider” the Rule 36(b) test, contrary to this Court’s holding inYoung, because “that part of the opinion appears to have reflected the views of onlyfour of the participating justices.” Sanford at ¶ 11 n.1. Respectfully, the Court ofAppeals may have mistaken the precedential force of Young, an opinion by then-Justice Randolph in which the joining votes were recorded as follows: “WALLER,C.J., CARLSON AND DICKINSON, P.JJ., CHANDLER, PIERCE AND KING, JJ.,CONCUR.” Young, 67 So. 3d at 743. That is seven votes, not four.
As noted above, Chief Justice Waller did also concur specially, joined by twojustices, to call application of the test the “best practice,” but that is a far cry fromholding, as the Court of Appeals appears to have done in Sanford, that a trial courterrs by looking to “justifiable cause” and exercising its discretion not to address thetwo-part Rule 36(b) test. Chief Justice Waller and the justices who joined hisconcurrence also concurred in the majority (not plurality) opinion in full. No holdingin that decision, therefore, is anything less than binding on the lower courts.
The Court of Appeals in Sanford might also have noticed that the Advisory
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Although the circuit court did not mention it specifically, it must also weigh
against Brooks that she not only did not answer the Rule 36 requests, but she never
served any objections or responses to the interrogatories and requests for production
served at the same time (indeed, within the same document)—although, amazingly,
she found time in September 2014, halfway between the deadline for her discovery
responses and her finally getting around to filing a motion to withdraw her
admissions, to draft and serve discovery requests upon Landmark. Given the Rule
36 issue, Landmark did not find it necessary to file a motion to compel, but Brooks’s
contempt for the discovery procedures instituted by this Court is clear and
unmistakable. “Failure to comply with this Court’s Rules . . . may impede or interfere
with the disposition of litigation and the fair and efficient administration of justice.
This Court will not tolerate such actions, and neither should the trial courts of
Mississippi.” In re Thomson, 666 So. 2d 464, 475 (Miss. 1995) (op. on order of Lee,
P.J.). Note that Brooks’s case remained pending throughout the whole of 2015,
without her serving a single discovery response.
Brooks recites cases where no Rule 36(b) motion to withdraw admissions was
ever filed, arguing that this is “a pivotal distinguishing factor.” But there are plenty
of cases where such a motion was filed and denied, and the denial was affirmed. See,
e.g., Hawkins, 185 So. 3d at 1077; Rainer v. Wal-Mart Assocs., Inc., 119 So. 3d 398,
401 (Miss. Ct. App. 2013); Young, 67 So. 3d at 736; Langley, 956 So. 2d at 972;
Byrd, 933 So. 2d at 901; Sawyer v. Hannan, 556 So. 2d 696, 697 (Miss. 1990).
Committee Note to Rule 36 quotes Young for the discretionary nature of evenconsidering the two-part Rule 36(b) test. M.R.C.P. 36 cmt.
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The circuit court quoted Rule 36(b) correctly and was well aware of its
discretion in the matter, and it chose, on the paucity of Brooks’s arguments, not to
exercise its discretion in her favor. Reversing such a ruling would mean second-
guessing the trial courts on discovery matters, which this Court has repeatedly
affirmed it will not do. “[I]n discovery matters trial courts have considerable
discretion and should be reviewed with great deference.” Riverbend Utils., Inc. v.
Brennan, 68 So. 3d 59, 62 (Miss. 2011) (citation omitted).
Rule 36 is not a matter of the trap’s snapping shut on the 31st day and a
party’s having no further hope, but neither it is a matter of Rule 36’s being treated,
like the Pirate’s Code in Disney’s Pirates of the Caribbean films, as “more what you’d
call guidelines”:
We do not intend here to suggest that any request for admissions to whicha response, objection or motion for time has not been filed before thethirty-first day should be taken as irrevocably admitted. Necessary andpracticable leniency, however, appear to have generated an air ofbenevolent gratuity about the administration of Rule 36. But, of course,there is no gratuity about it. Courts cannot give or withhold at pleasure.Rule 36 is to be enforced according to its terms.
Educ. Placement Servs. v. Wilson, 487 So. 2d 1316, 1318 (Miss. 1986) (emphasis
added). And the rule says that the trial court “may” allow withdrawal. The circuit
court acted well within its discretion when it held that, due to Brooks’s lack of any
justifiable neglect, she was not entitled to do so.
Brooks complains much of the judgment below as premised on technicalities,
but this Court’s language in Young v. Smith applies equally to the present case:
For certain, all courts, counsel, and litigants would rather see casesdecided on the merits. But this aspirational goal carries with it acommensurate responsibility imposed upon all to abide by the Rules andthe decisions of our courts, as opposed to seeking a benevolent decision
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from a trial judge. See DeBlanc, 814 So. 2d at 801 (citing Earwood, 798 So.2d at 516) (“Rule 36 is to be enforced despite the fact that harshconsequences might result . . . .”). But for Young’s conduct (or lackthereof), perhaps that goal could have been achieved in this case. Insummation, we conclude that Young’s assertion of abuse of discretion mustfail, as the record clearly reveals the circuit judge properly followed theapplicable rule and our caselaw interpreting same.
67 So. 3d at 741. Here too, the circuit court “properly followed the applicable rule
and [the] caselaw interpreting same.” That is no basis on which to reverse the
judgment below. As the Fifth Circuit put it:
Courts have, upon occasion, allowed withdrawals of admissions inextraordinary circumstances: where the admission was made in relianceupon incorrect information obtained from the other party; where theadmitting party misconstrued the request; or where the admission was“inadvertent” and the plaintiff was seeking damages of more than a milliondollars. The fact that the party found more credible by the district courtmay lose a suit because of its patent disregard of procedural rules,however, does not rise to the level of manifest injustice. This mayconstitute manifest incompetence, but not manifest injustice.
Amer. Auto Ass’n, 930 F.2d at 1121 (emphasis added).
Finally, Brooks should not be allowed to take refuge in blaming her attorney.
Representation by counsel is a choice she undertook, and “it is the responsibility of
the parties to ensure that their attorneys diligently represent them.” Kumar v.
Loper, 80 So. 3d 808, 816 (Miss. 2012). See M. Hiller & Co. v. J. R. Cotton & Co., 48
Miss. 593, 605 (1873) (holding party, “having selected an attorney, must abide the
consequences of any lack of diligence or promptitude on his part”).
The circuit court did not err as a matter of law. This Court should affirm the
judgment of the circuit court.
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CONCLUSION
For all the reasons stated above, the circuit court did not err in denying
Brooks’s motion to withdraw her admissions or in granting summary judgment to
Landmark. This Court should affirm the final judgment of the circuit court.
Respectfully submitted, this the 22d day of September, 2016.
THE LANDMARK NURSING CENTER,INC.
By: s/ Andy Lowry Andy LowryCounsel for Appellee
Of Counsel:
Thomas L. Kirkland, Jr. (MSB # 4181)Andy Lowry (MSB # 100782)COPELAND, COOK, TAYLOR & BUSH, P.A.Post Office Box 6020Ridgeland, Mississippi 39158Telephone: (601) 856-7200Facsimile: (601) [email protected]
Counsel for Appellee
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CERTIFICATE OF SERVICE
The undersigned counsel for Appellee hereby certifies that he has on this date
caused service to be made of the foregoing document by sending a true and complete
copy via United States mail, postage prepaid, to:
The Honorable Thomas J. Gardner, IIIFirst Circuit Court DistrictPost Office Drawer 1100Tupelo, Mississippi 38802-1100
Daniel M. Czamanske, Jr., Esq.Chapman, Lewis and Swan, PLLCPost Office Box 428Clarksdale, Mississippi 38614
SO CERTIFIED, this the 22d day of September, 2016.
s/ Andy Lowry Andy Lowry
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