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FILED JUN 2 2 2016
IN THE SUPREME COURT OF MISSISSIPPI OFFICE OF THE CLERK 2016-CA-00487 SUPREME COURT
GERTRUDE BROOKS, individually and on behalf of the Estate and Wrongful Death Beneficiaries of Leroy Brooks (Deceased)
v.
THE LANDMARK NURSING CENTER, INC., d/b/a The Landmark Nursing and Rehabilitation Center
BRIEF OF APPELLANT
COURT OF APPEALS
Plaintiff-Appellant
Defendant-Appellee
On Appeal from the Circuit Court of Prentiss County, Mississippi Trial Docket No. cv2014-000042-JP
Daniel M. Czamanske Jr.
CHAPMAN, LEWIS AND SWAN, PLLC
P.O. Box 428 Clarksdale, MS 38614
Telephone: (662) 627-4105 Facsimile: 662-627-4171
Email: [email protected] Attorney for Appellant, Gertrude Brooks
(Oral Argument Requested]
Page 1 of22 ORIGINAL
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IN THE SUPREME COURT OF MISSISSIPPI 2016-CA-00487
GERTRUDE BROOKS, individually and on behalf of the Estate and Wrongful Death Beneficiaries of Leroy Brooks (Deceased)
v .
THE LANDMARK NURSING CENTER, INC., d/b/a The Landmark Nursing and Rehabilitation Center
CERTIFICATE OF INTERESTED PARTIES
Plaintiff-Appellant
Defendant-Appellee
The undersigned counsel of record certifies that the following listed persons 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
disqualification or recusal.
(1) Gertrude Brooks, Plaintiff-Appellant
(2)
(3)
(4)
(5)
(6)
(7)
Statutory Wrongful Death Beneficiaries of Leroy Brooks (Appellant's Decedent)
Daniel M. Czamanske Jr., Appellant's Attorney
Landmark Nursing and Rehabilitation Center, Defendant-Appellee
Thomas L. Kirkland Jr., Appellee's Attorney
Andy Lowry, Appellee's Attorney
The Honorable Thomas J. Gardner, III, Trial Judge
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TABLE OF CONTENTS
Certificate of Interested Parties ....................................................................................................... 2
Table of Contents ............................................................................................................................ 3
Table of Authorities ........................................................................................................................ 4
Statement of the Issues ................................................................................................................... 7
Statement of Assignment ................................................................................................................ 7
Statement of the Case ..................................................................................................................... 7
Summary of the Argument ............................................................................................................. 9
Argument ...................................................................................................................................... 10
I. The standard of review is de novo. . ............................................................................ 10
II. Some of the deemed admission requests at issue here improperly called for conclusions of law. . .................................................................................... 11
III. The trial court should have applied the two-pronged test in Rule 36(b) .................... 14
Conclusion .................................................................................................................................... 21
Certificate of Service .................................................................................................................... 22
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TABLE OF AUTHORITIES
CASES:
Aldrich & Co. v. Donovan, 778 P.2d 397 (Mont. 1989) ............................................................. 19
Aydelott v. Quartaro, 124 So. 3d 97 (Miss. Ct. App. 2013) ........................................................ .14
BB Buggies, Inc. v. Leon, 150 So. 3d 90 (Miss. 2014) ............................................................... .11
Benson Tower Condo. Owners Ass'n v. Victaulic Co., 105 F.Supp.3d 1184 (D. Or. May 11, 2015) ...................................................................................................... 12
Bittner v. State for Use & Benefit of Alaska Laborers, 627 P.2d 648 (Alaska 1981) ................................................................................................................................. 19
Boyd v. Boyd, 83 So. 3d 409 (Miss. Ct. App. 2011) .................................................................... 17
Brooks v. Roberts, 882 So. 2d 229, 231-32 (if7) (Miss. 2004) .................................................... .11
Byrd v. Bowie, 933 So. 2d 899 (Miss. 2006) .................................................................. .10, 11, 14
Cole v. Buckner, 819 So. 2d 527 (Miss. 2002) ............................................................................. 10
DeBlanc v. Stancil, 814 So. 2d 796 (Miss. 2002) ....................................................... 10, 11, 14, 15
Disability Rights Council v. Wash. Metro. Area 234 F.R.D. 1 (D.D.C. 2006) .......................... .13
Dukes & Barber v. S.C. Ins. Co., 770 F.2d 545 (5th Cir.1985) .................................................... 19
Earwood v. Reeves, 798 So. 2d 508 (Miss. 2001) ....................................................................... .14
Estate of Finley ex rel. Jordan v. Beverly Health & Rehab. Servs., Inc., 933 So. 2d 1026 (Miss. Ct. App. 2006) .............................................................................................. 17
Farmers Elevator Co. of Horace v. Nagel, 307 N.W.2d 580 (N.D. 1981) ................................... .19
First Options of Chicago, Inc. v. Wallenstein, No. Civ. 92-5770, 1996 WL 729816 (E.D. Pa. Dec. 17, 1996) ...................................................................................... 12
Gilcrease v. Gilcrease, 918 So. 2d 854 (Miss. Ct. App. 2005) ..................................................... 18
Gray v. Gray, 562 So. 2d 79, 82 (Miss. 1990) .............................................................................. 11
Hadra v. Herman Blum Consulting Engineers, 74 F.R.D. 113 (D.C. Tex. 1977) ........................ 19
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Hendon v. Lang, 57 So. 3d 664 (Miss. Ct. App. 2010) ............................................................... 18
Herrin v. Blackman, 89 F.R.D. 622 (W.D. Tenn.1981) ............................................................... .19
In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424 (Miss. 2009) ..................... 14
In re Estate of Strong, 11 7 So. 3d 64 7 (Miss. Ct. App. 2013) ...................................................... 18
Langley ex rel. Langley v. Miles, 956 So. 2d 970 (Miss. Ct. App. 2006) .................................... 14
Latendresse v. Latendresse, 294 N.W.2d 742 (N.D. 1980) ......................................................... .19
Manning v. Lovett, 87 So. 2d 494 (Miss. 1956) ........................................................................... 15
Marshall v. Dist. of Columbia, 391 A.2d 1374 (D.C. Ct. App. 1978) ......................................... .19
Martin v. Simmons, 571 So. 2d 254 (Miss. 1990) ............................................................ 17, 19, 20
Montgomery v. Stribling, 115 So. 3d 823 (Miss. Ct. App. 2012) ................................................ 17
Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686 (2d Cir. 1966) .................................................. 19
Petrunich v. Sun Bldg. Sys., Inc., No. 3:04-cv-2234, 2006 WL 2788208 (M.D. Pa. Sep. 26, 2006) ............................................................................................................. 12, 13
Playboy Enters., Inc. v. Welles, 60 F.Supp.2d 1050 (S.D. Cal. 1999) ........................................ .12
Ransom v. U.S., 8 Cl. Ct. 646 (1985) ........................................................................................... 12
Reichenbach v. City of Columbus, No. 2:03-CV-1132, 2006 WL 143552 (S.D. Ohio Jan. 19, 2006) ........................................................................................................... 13
Salazarv. Collins, 255 S.W.3d 191 (Tex. App. 2008) ................................................................. 19
Scoggins v. Baptist Mem'l Hosp.-Desoto, 967 So. 2d 646 (Miss. 2007) ..................................... 17
Skipworth v. Rabun, 704 So. 2d 1008 (Miss. 1996) ..................................................................... 18
State ex rel. Pair v. Burroughs, 487 So. 2d 220 (Miss. 1986) ...................................................... 15
Sw. Sur. Ins. Co. v. Treadway, 74 So. 143 (Miss. 1917) ........................................................ 16, 20
Thompson v. Beasley, 309 F.R.D. 236 (N.D. Miss. 2015) ............................................... 11, 12, 13
Triangle Const. Co. v. Foshee Const. Co., 976 So. 2d 978 (Miss. Ct. App. 2008) ..................... .10
Tucker v. Hinds County, 558 So. 2d 869 (Miss. 1990) ................................................................ 11
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Tulip Computers Int'l, B.V. v. Dell Computer Corp., 210 F.R.D. 100 (D. Del. 2002) ................................................................................................................................. 12
Tyler v. Auto. Fin. Co., 113 So. 3d 1236 (Miss. 2013) ......................................................... .10, 17
United States v. Petroff-Kline, 557 F.3d 285 (6th Cir. 2009) ................................................ .14, 20
Wheat v. Eakin, 491 So. 2d 523 (Miss. 1986) .............................................................................. 15
Young v. Smith, 67 So. 3d 732 (Miss. 2011) ......................................................................... 15, 16
STATUTES AND RULES:
Miss. R. Civ. P. 26 ........................................................................................................................ 11
Miss. R. Civ. P. 36 ................................................................................................................ passim
Miss. R. Civ. P. 56 ........................................................................................................................ 10
OTHER AUTHORITIES:
4A Moore's Federal Practice 2d ed., Admission of Facts-Procedure § 36.05( 4) ......................... 19
8 Wright & Miller, Federal Practice and Procedure§ 2257 at 719-720 (1972) ........................... 19
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I.
STATEMENT OF THE ISSUE
Did the trial court err in granting summary judgment to Defendant Landmark Nursing
Center?
STATEMENT OF ASSIGNMENT
Appellant Brooks would only urge Supreme Court retention insofar as the Supreme Court
accepts the opportunity to update or clarify the standard by which trial courts are to apply the
two-part test of Miss. R. Civ. P. 36(b). Otherwise, she does not object to assignment to the
Mississippi Court of Appeals .
STATEMENT OF THE CASE
This case sounds in medical malpractice, statutory wrongful death, common law tort, and
breach of contract. ROA.5-23. It involves Landmark Nursing Center ("the Nursing Home") and
one of its former residents, Mr. Leroy Brooks (deceased). Mr. Brooks' surviving wife has alleged
that her husband ultimately died as a result of injuries sustained while he was a resident in the
Nursing Home and as a result of the Nursing Home's negligence. Id.
The Undersigned did not represent Ms. Brooks below. She filed this case with a different
attorney on March 6, 2014. ROA.24. Upon being served with the Complaint, the Nursing Home
contacted Plaintiffs then-Counsel and requested an extension of time within which to answer the
Complaint. ROA.65. As a courtesy to her colleague, Plaintiffs then-Counsel readily obliged and
granted the Nursing Home until May 7, 2014 to file its answer. ROA.31. Instead, the Nursing
Home answered the Complaint on May 8, 2014, after the agreed deadline. ROA.32. Again, in the
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spirit of professional courtesy and cooperation, Plaintiff's Counsel declined to move for default
judgment, as the delay was relatively minor and caused little disruption or prejudice .
On June 5, 2014, the Nursing Home propounded admission requests. ROA.46 .
Unfortunately, the requests were not timely answered. The outstanding discovery in the instant
case came to the attention of Plaintiff's then-Counsel in early August of 2014. ROA.82. In an
attempt to rectify the situation, Plaintiff's then-Counsel took the liberty of contacting the
Defense, which had theretofore been silent and had taken no action on the pending requests .
ROA.82. Plaintiff's Counsel was forthcoming about the overdue discovery. Id. Despite the prior
courtesies extended to opposing counsel, the very next day the Defense advised of its intent to
seek summary judgment. Id. On August 15, 2014, it did precisely that, relying on no other proof
other than the unanswered admission requests, which were technically deemed admitted per
Miss. R. Civ. P. 36. ROA.49-50; ROA.54-55. The admissions are conclusory statements of
blanket absolution that flatly contradict the more specific factual allegations in the Complaint,
which had only been filed mere months earlier. See ROA.SO, ROA.81-82. 1
Still more procedural hiccups would stymy progress even further - all of which were
beyond Ms. Brooks' control. In late October of 2014, the trial judge recused himself sua sponte
without explanation. ROA.59. Shortly thereafter, the newly-assigned judge granted additional
time for the Plaintiff to respond to summary judgment. ROA.83. On December 8, 2014,
Plaintiff's then-Counsel opposed summary judgment and contemporaneously moved the trial
court to withdraw and amend the admissions. ROA.63. The Nursing Home opposed the motion a
few weeks later.
I The Plaintiff did include a copy of the Defendant's discovery requests in her Designation of the Record for transmission to the Fifth Circuit (ROA. I I I), but the documents are not included in the record (ROA.II). However, the Defendant's summary judgment motion contains quoted language from the relevant admission requests. ROA.50.
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Meanwhile (unbeknownst to the Plaintiff), Plaintiffs then-Counsel was herself in the
process of pursuing employment elsewhere. ROA.95. She submitted two weeks' notice of her
resignation from the law firm in late February of 2016, and over the Plaintiffs objection she
moved to withdraw from this case. Id. The Defense opposed her withdrawal as Plaintiffs
Counsel, citing prejudice in the wake of the pending summary judgment motion. ROA.98.
Within days before the trial court ruled on the pending summary judgment motion, Plaintiffs
then-Counsel was no longer employed at the firm. ROA.95.
Ultimately, the trial court granted summary jµdgment on March 7, 2016, after Plaintiffs
previous Counsel had already departed the law firm. ROA.103. The court found that per the
unanswered admission requests, "Plaintiffs have admitted the Defendants breached no duty and
the Plaintiffs suffered no damages," which the Court held to be "fatal to all of Plaintiffs' claims."
ROA. I 06. The court declined to allow Ms. Brooks to withdraw or amend those technical
admissions. Id. Thus, Ms. Brooks filed her timely Notice of Appeal on March 30, 2016.
ROA.109.
SUMMARY OF THE ARGUMENT
Trial courts "may permit withdrawal or amendment [ of deemed 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." Miss. R. Civ. P. 36(b). Without question, there
was no prejudice to the Defendant - there was not even an assertion, let alone a discussion, of
prejudice by either the Defendant or the Trial Court. Rather than decide this case on the merits, it
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was decided by a summary judgment based solely on conclusory statements that were never
affirmatively admitted by the Plaintiff, but were affirmatively contradicted by expert affidavit.
Rather than awaiting substantive defenses, the trial court awarded the Nursing Home a
favorable judgment based on punitively-imposed default answers to a few conclusory admission
requests. While conceding her prior attorney's missteps, Ms. Brooks now prays for nothing more
than her just day in court, which she lost despite having no advance notice of her case's potential
jeopardy and despite bearing no personal fault for its dismissal.
ARGUMENT
I. The standard of review is de novo.
A "trial court's decision as to whether or not to allow amendment or withdrawal of
admissions is subject to review for abuse of discretion." Tyler v. Auto. Fin. Co., 113 So. 3d
1236, 1239 (i!lO) (Miss. 2013), citing DeBlanc v. Stancil, 814 So. 2d 796, 802 (i! 26) (Miss.
2002). "However, [appellate courts] review a trial court's grant of summary judgment under a de
nova standard," even if it was largely based on Rule 36 admissions. Triangle Const. Co. v.
Foshee Const. Co., 976 So. 2d 978, 980 (i!2) (Miss. Ct. App. 2008). "Summary judgment may
only be granted where there are no genuine issues of material fact such that the moving party is
entitled to judgment as a matter of law." Id., quoting Cole v. Buckner, 819 So. 2d 527, 530 (i!6)
(Miss. 2002).
Moreover, all "evidence must be viewed in a light most favorable to the non-moving
party," which in this case was Ms. Brooks. Byrd v. Bowie, 933 So. 2d 899, 902 (i!5) (Miss.
2006). Ms. Brooks is owed "the benefit of every reasonable doubt," and "if 'there are indeed
triable issues of fact'" then the "decision of the trial court will ... be reversed." Byrd at 901-902
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(ifif5-6), quoting Brooks v. Roberts, 882 So. 2d 229, 231-32 (if7) (Miss. 2004). "Issues of fact
sufficient to require denial of a motion for summary judgment obviously are present where one
party swears to one version of the matter in issue and another says the opposite." Byrd at 902
(if7), quoting Tucker v. Hinds County, 558 So. 2d 869, 872 (Miss. 1990). In this case, the court
below granted summary judgment based solely on the Plaintiffs inadvertent admissions, for
which her substantive medical experts' testimony was "not a magic cure," irrespective of
whatever triable questions of fact they potentially exposed.
II. The admission requests improperly amounted to conclusions of law.
One reason the trial court should have denied summary judgment is because the deemed
admissions involved conclusions of law that are beyond the purview of Rule 36. Admission
requests must be limited to "matters within the scope of Rule 26(b )" and can only "relate to
statements or opinions of fact or of the application of law to fact." Miss. R. Civ. P. 36(a). They
cannot serve as a means for making legal determinations. The Northern District of Mississippi
recently addressed this issue in Thompson v. Beasley, 309 F.R.D. 236 (N.D. Miss. 2015).2 In
Thompson, a party requested admissions "that the Defendants are not liable and have no liability
to Plaintiff," "that the sole proximate cause of Plaintiffs injuries or losses, if any, was his own
negligent or intentional acts," "that Plaintiff was solely at fault for the incident," and "that third
parties were solely at fault for the incident." Thompson at 241. After allowing certain other
requests to stand, the court found those particular requests "to constitute legal conclusions falling
outside the scope of Rule 36(a)(l)." Id.
2 Although this Court is not bound by the federal cases, it nonetheless will "often consider federal authority when construing similar rules," because Mississippi's "rules are generally modeled after the Federal Rules of Civil Procedure .... " BB Buggies, Inc. v. Leon, 150 So. 3d 90, 96 (iJIO) (Miss. 2014), citing Gray v. Gray, 562 So. 2d 79, 82 (Miss. 1990). "The federal rule is identical to our Rule 36(b)." DeBlanc v. Stancil, 814 So. 2d at 801 (iJ25) .
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Thompson explained that although "the rule allows a party to request an admission of
'the application of law to fact,' 'requests for purely legal conclusions ... are generally not
permitted.'" Id., quoting Benson Tower Condo. Owners Ass'n v. Victaulic Co., 105 F.Supp.3d
1184, 1195 (D. Or. May 11, 2015) (citing cases). However, the court conceded that "the
distinction between the application of law to fact and a legal conclusion is not always easy to
draw" and that "lower courts have struggled to consistently apply the rule." Id. Thompson then
assembled the following collection of illustrative rulings from the federal courts:
Compare First Options of Chicago, Inc. v. Wallenstein, No. Civ. 92-5770, 1996 WL 729816, at *3 (E.D.Pa. Dec. 17, 1996) (request to admit that "From October 19, 1987 to October 31, 1987, Mr. Wallenstein owed a fiduciary duty to the creditors of MKI to protect corporate assets from wrongful distribution to Manuel Kaplan" was request for application of law to fact); and Ransom v. U.S., 8 Cl.Ct. 646, 648 (1985) (request to admit that "by execution and delivery of the bid bond referred to in Request No. 33 above, there existed a privity of contract between plaintiffs, and each of them, and the Air Force" was request for application oflaw to fact); with Tulip Computers Int'l, B.V. v. Dell Computer Corp., 210 F.R.D. 100, 108 (D.Del. 2002) ("determining whether a patent is valid would call for a legal conclusion although dependent on factual inquiries"); and Playboy Enters., Inc. v. Welles, 60 F.Supp.2d 1050, 1057 (S.D.Cal.1999) (request to admit that defendant was "public figure" as defined in Supreme Court case law was request for legal conclusion).
Thompson v. Beasley, 309 F.R.D. at 241. Notably, of those cases, the ones that referenced
particular dates, individual people, or discrete events were held to be appropriate; whereas those
calling for abstract, conclusory declarations were not.
Thompson also favorably cited Petrunich v. Sun Bldg. Sys., Inc., No. 3:04-cv-2234,
2006 WL 2788208, at *5 (M.D. Pa. Sep. 26, 2006), where the court rejected a request for
admission that a party "was discriminated because of his age." Petrunich found that that request
included "no factual basis to derive the legal conclusion that Defendants discriminated against
Mr. Petrunich because of his age," and therefore, it was "too abstract to be an application of the
law to the facts of the case." Petrunich at *5 (reasoning adopted by Thompson at 242).
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The discovery at issue here bears the same flaws as those rejected in Thompson and
Petrunich. It requested Ms. Brooks' admission "that Defendant and its employees and agents
were not negligent in any fashion" and that the "health care services provided to Leroy Brooks"
were "in accord with all applicable standards of care, laws, and regulations." Req. 4-5 (see
ROA.SO). Because they lack specificity and only offer blanket denials of the ultimate question of
liability, and because they "contain no factual basis to derive the proffered propositions," those
requests should have been "deemed improper legal conclusions and not admitted for the purpose
of this litigation." Thompson at 242. Instead, Ms. Brooks should have been afforded the
opportunity to retain new counsel and to pursue her deceased husband's case on the merits .
The requests in Thompson were retroactively invalidated even though the defaulting
party "failed to serve a written answer or objection in response" at any time. Thompson at 240 .
And after defaulting, the party even "failed to respond to the representation and the argument
that the requests [ we ]re deemed admitted." Id. Despite those derelictions, all admission requests
"that fle]ll outside the scope of Rule 36(a)(l)" could never have been admitted in the first place
and were still subject to proof at trial. Id. To the extent the Nursing Home's admission requests
sought to establish legal conclusions without particular factual support, those requests, likewise,
should not have been deemed admitted. See also, e.g., Disability Rights Council v. Wash. Metro .
Area 234 F.R.D. 1, 3 (D.D.C. 2006) ("inappropriate for a party to demand that the opposing
party ratify legal conclusions that the requesting party has simply attached to operative facts")
and Reichenbach v. City of Columbus, No. 2:03-CV-1132, 2006 WL 143552, at *2 (S.D. Ohio
Jan. 19, 2006) (rejecting admission requests that merely asked "if defendants are in compliance"
with applicable law while making "no reference to facts nor . . . [ any supporting] factual
information").
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III. The trial court should have applied the two-pronged test in Miss. R. Civ. P. 36(b).
At the onset, the undersigned humbly concedes that this case's history offers neither a
model of zealous advocacy nor a flattering depiction of the Plaintiffs prior attorney. The
Undersigned also acknowledges Mississippi's reluctance to disturb lower courts' decisions
regarding discovery-particularly with respect to deemed admissions under Rule 36.3 However,
even though "Rule 36 is to be applied as written, ... 'it is not intended to be applied in Draconian
fashion.' " Aydelott v. Quartaro, 124 So. 3d 97, 103 (ifl 9) (Miss. Ct. App. 2013), quoting In re
Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424, 432 (if28) (Miss. 2009) and
DeBlanc v. Stancil, supra, 814 So. 2d at 801-02 (if26) .
As the Sixth Circuit recently observed, disposing of cases on deemed admissions alone
would seem to betray "such judicial proclivities as the strong reluctance to default defendants for
a few days' delay in filing their responsive pleadings." United States v. Petroff-Kline, 557 F.3d
285, 293 (6th Cir. 2009). Simply put, Rule 36 "is not intended to be used as a vehicle to escape
adjudication of the facts by means of artifice or happenstance." DeBlanc at 802. And yet, the
Nursing Home now enjoys precisely such an unintended perk as a result of the trial court's
rulings below.
To the extent "the Rule may sometimes seem harsh in its application" (as it most
certainly does in the present case), the Mississippi Supreme Court itself has encouraged that "the
harshness may be ameliorated by the trial court's power to grant amendments or withdrawals of
3 See, e.g., Byrd v. Bowie, 933 So. 2d 899, 903-904 (,r,r13-14) (Miss. 2006) (no abuse of discretion for summary judgment based on deemed admissions where the requestor had granted extra time to the defaulting party); DeBlanc v. Stancil, 814 So. 2d at 801 (,r23), quoting Earwood v. Reeves, 798 So. 2d 508, 516 (,r26) (Miss. 2001) ("because of the trial court's broad discretion in such matters, it certainly may also require that parties comply with the rules as stated"); Langley ex rel. Langley v. Miles, 956 So. 2d 970, 975 (,rl5) (Miss. Ct. App. 2006) (defaulting party was excused "for all of the delay which her counsel averred was caused by his cancer treatment and subsequent recuperation" but nonetheless found to have "no excuse for the additional delay after he had returned to work").
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admissions in proper circumstances." DeBlanc at 801-02 (,26). "Just as a matter admitted is
'conclusively established' by the express terms of the Rule, the trial court is likewise directed to
carefully examine a Rule 36(b) motion under the two-prong test there provided." Id. (emphasis
added). That test requires trial courts to consider (1) whether "the presentation of the merits of
the action will be subserved" by withdrawing the admissions and (2) whether "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." Miss. R. Civ. P. 36(b).
It is true that Rule 36 uses the word "may" when offering this two-pronged test, but the
Mississippi Supreme Court did not equivocate when it "directed" trial courts to actually apply it.
DeBlanc at 802. See also Young v. Smith, 67 So. 3d 732, 744 (,28) (Miss. 2011) (Kitchens, J.,
dissenting). The Chief Justice of the Mississippi Supreme Court has observed that applying the
test is indeed "the best practice," even though it is not strictly required. Young at 743 c,25)
(Waller, C.J., specially concurring). The Plaintiff humbly acknowledges the trial court's
discretion to disregard the Rule 36 test, even though in most other instances any "construction
which will render any part of a statute inoperative, superfluous, or meaningless is to be avoided."
State ex rel. Pair v. Burroughs, 487 So. 2d 220, 226 (Miss. 1986). That discretion
notwithstanding, it remains "the policy of our system of judicial administration to favor
disposition of cases on their merits." Young at 744 (,27) (Kitchens, J. dissenting). Ms. Brooks
urges this Honorable Court to follow Chief Justice Waller's lead, because this policy reigns as
indispensable now as it was thirty years ago, and thirty years before that, and even another forty
years before that. See Wheat v. Eakin, 491 So. 2d 523, 526 (Miss. 1986) (reversing default
judgment and remanding "for consideration on the merits" even despite the "less than desirable"
"form and language" of the defaulting party's response, because "[d]efault is not favored as a
way to settle lawsuits"); Manning v. Lovett, 87 So. 2d 494, 496 (Miss. 1956) ("Courts are
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instituted primarily for the purpose of determining disputes and controversies between litigants
upon the merits of the case, and much liberality should be allowed toward that end"); and Sw .
Sur. Ins. Co. v. Treadway, 74 So. 143, 145 (Miss. 1917) (same) .
Just like the judge in Young, the trial judge below duly "quoted the language of Rule
36(b )" but "did not apply the two-pronged test of that rule." Young at 7 44 (iJ28) (Kitchens, J.,
dissenting). See Order at 3. Instead, the trial court cited its general "great discretion" to allow
withdrawal or not, applied what it categorized as "dicta" that was "somewhat instructive" on the
admittedly unhelpful timing of the Plaintiffs motion to withdraw, conceded that it was
"sympathetic" to the plight of Plaintiffs then-Counsel, but then appeared to nonetheless
conclude that "there [wa]s no 'justifiable excuse' or 'good reason' to allow the relief sought."
ROA. I 05, quoting Young at 739 (i]l l ) .
The trial court considered the affidavit submitted by Plaintiffs then-Counsel; and the trial
court found the affidavits to be conclusory. But the Plaintiffs argument here on appeal is not to
defend the performance of her previous attorney; it is to urge the Chief Justice's preference that
trial courts apply the two-pronged test provided by procedural rules. While the trial court below
took great pains to admonish what it perceived as "lack of diligence" (ROA. I 05), it never
actually addressed whether withdrawal would subserve the merits of the action and whether the
Nursing Home would suffer any prejudice as a result (notably, the Rule places the burden on the
Nursing Home to show prejudice; it is not the Plaintiffs burden to disprove it). Miss. R. Civ. P .
36(b) .
Even a cursory application of the Rule 36 test would have shown that (1) no depositions
had been taken or scheduled, (2) no scheduling order was in place, (3) expert witnesses had been
tendered by the Appellant and were prepared to offer substantive testimony, (4) trial was not
imminent and no one had argued that it would be adversely affected by withdrawing the
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admissions, and (5) other than the admitted inconvenience of a short delay of a few months, there
has been no showing of substantive prejudice to the Nursing Home's ability to defend against the
claims at bar.4 Cf Estate of Finley ex rel. Jordan v. Beverly Health & Rehab. Servs., Inc., 933
So. 2d 1026, 1033 (,r,r19-20) (Miss. Ct. App. 2006) (applying the two-part test that "Rule 36
requires" and finding prejudice only because the defaulting party "made it clear that she was now
pursuing a different tactic" and the "motion to withdraw the responses came less than two weeks
before trial") and Martin v. Simmons, supra, 571 So. 2d at 256 (acknowledging "prejudice[] due
to the death of ... a material witness") .
Even though the permanence and severity of deemed admissions far outweighed the cost
of delayed responses here, there are cases where appellate courts had affirmed refusals to allow
relief. However, in many of those cases, the defaulting party had never filed a motion under Rule
36(b) as the Plaintiff did below. That motion is a pivotal distinguishing factor in deciding
whether or not relief is warranted. Upon closer examination, the case at bar bears little
resemblance to many of those cases, either procedurally or factually. See, e.g., Tyler v. Auto .
Fin. Co., 113 So. 3d 1236, 1240-41 (i!14) (Miss. 2013) (affirming deemed admissions where
counsel for the defaulting party "never filed a Rule 36(b) motion to withdraw the admissions"
and confessed in open court that it "ha[ d] no response, no response at all"); Montgomery v .
Stribling, 115 So. 3d 823, 829 (i!18) (Miss. Ct. App. 2012) (admonishing an untimely party who
"failed to avail herself of the remedies provided under Rule 36(b )"); Boyd v. Boyd, 83 So. 3d
409, 416-17 (i!21) (Miss. Ct. App. 2011) ("Any difficulty with the case 'could easily have been
eliminated if a motion to withdraw or amend the answers had been filed pursuant to Rule 36(b)
and if there were justifiable excuse' "), quoting Scoggins v. Baptist Mem'l Hosp.-Desoto, 967
4 The Defense did claim it would be prejudiced by Plaintiff's then-Counsel's attempt to withdraw from the case altogether and leave the Plaintiff unrepresented; but it did not make a showing of prejudice with respect to withdrawing the admissions.
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So. 2d 646, 649 (i]15) (Miss. 2007); Skipworth v. Rabun, 704 So. 2d 1008, 1012 (Miss. 1996)
("Rule 36 was to be enforced ... particularly ... when no explanation is offered," but "[h]ere,
however, Rabun did offer explanations and filed a response and a motion to withdraw"); Martin
v. Simmons, 571 So. 2d 254, 256 (Miss. 1990) (defaulting party chastised for "no attempt to
withdraw or amend").
Despite the many past dismissals by operation of Rule 36, there is also precedent for
exceptions. In one recent case, a trial judge actually reversed himself, "vacated his previous
order deeming all unanswered requests as admitted," and "allowed the defendants additional
time to answer." Hendon v. Lang, 57 So. 3d 664, 668 (iJ20) (Miss. Ct. App. 2010). Given his
findings of "good cause" and "little or no detriment to the Hendons," the judge on
reconsideration opted to impose sanctions rather than dismissal. Id. In re Estate of Strong is
another example. 117 So. 3d 64 7 (Miss. Ct. App. 2013 ). There, the appellate court took no issue
with a trial court's denial of summary judgment based on dilatory admission responses, because
the defaulting party had "demonstrated excusable neglect in their failure to timely respond" and
the requesting party "failed to show prejudice from the delay." Id. at 648 (iJ5).
Similarly, the appellate court insisted in a recent divorce case that "even though the
ultimate issue may be admitted through Rule 36, it must be remembered that any trial court in
Mississippi may, as justice requires, allow the withdrawal of the issue admitted in accordance
with the procedure established by the plain text of the rule. M.R.C.P. 36(b)." Gilcrease v.
Gilcrease, 918 So. 2d 854, 858 (iJ7) (Miss. Ct. App. 2005). In that case, the court was "unwilling
to allow [a child's] best interests to be decided by admission." Id. at 858-59 (iJ8). While the
interests of a child may seem to be a far cry from the facts of this case, Ms. Brooks would only
note that her deceased husband is no better able to advocate for his interests than the child in
Gilcrease, and "justice requires" the courts to equally protect both. Id. at 858 (i]7).
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Moreover, there is some indication that relief might even be justified on lack of prejudice
alone. Several years ago, the Mississippi Court of Appeals briefly entertained the question of
whether deemed admissions may be withdrawn "when there is no excusable neglect but a party
is not prejudiced" - a concept akin to harmless error. Martin v. Simmons, supra, 571 So. 2d at
257. Martin acknowledged a relatively small sampling of jurisdictions that had "allow[ed]
untimely answers to a request for admissions" only with a showing of "excusable neglect or
compelling circumstances." Martin at 257, citing Dukes & Barber v. S.C. Ins. Co., 770 F.2d 545,
548-49 (5th Cir.1985) and Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686, 688 (2d Cir. 1966).
However, it also compiled a much larger list of jurisdictions and legal authorities opting instead
for a merits-based interpretation of Rule 36:
A number of courts do allow untimely Answers to Requests for Admissions, when to do so would aid in the presentation of the merits of the action and no prejudice would ensue to the party who made the request. See e.g., Aldrich & Co . v. Donovan, 778 P.2d 397, 399 (Mont. 1989); Herrin v. Blackman, 89 F.R.D. 622, 624 (W.D. Tenn. 1981); Bittner v. State for Use & Benefit of Alaska Laborers, 627 P.2d 648, 649 (Alaska 1981); Farmers Elevator Co. of Horace v. Nagel, 307 N.W.2d 580, 586 (N.D. 1981); Latendresse v. Latendresse, 294 N.W.2d 742, 747-48 (N.D. 1980); Marshall v. Dist. of Columbia, 391 A.2d 1374, 1379 (D.C. Ct. App. 1978); Hadra v. Herman Blum Consulting Engineers, 74 F.R.D. 113 (D.C. Tex. 1977); See also, 8 Wright & Miller, FEDERAL PRACTICE AND PROCEDURE § 2257 at 719-720 (1972); 4A MOORE'S FEDERAL PRACTICE 2d ed., Admission of Facts-Procedure§ 36.05(4).
Martin at 256-57. In particular, the Plaintiff would humbly note the approach taken by the State
of Texas, where "[g]ood cause is established by a showing that the failure to respond to the
request for admissions was an accident or mistake" and "[ e ]ven a slight excuse will suffice"
where "prejudice to the opposing party will not result." Salazar v. Collins, 255 S.W.3d 191, 196
(Tex. App. 2008), reh'g denied March 18, 2008 (citing several cases, internal quotations
omitted). Salazar defined "[u]ndue prejudice" as anything that would "delay the trial or
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significantly hamper the opposing party's ability to prepare for trial," none of which has been
shown in the instant case. Id .
Despite its compelling survey, ultimately Martin declined to answer this significant
question regarding when the Mississippi courts may withdraw deemed admissions. Martin at 257
("we need not reach the issue whether withdrawal or amendment may be allowed when there is
no excusable neglect but a party is not prejudiced"). If Mississippi allows withdrawal even
without excusable neglect, then that would militate even more heavily in favor of Ms. Brooks'
requested relief. In addition to restoring Leroy Brooks' opportunity to posthumously prove his
claim, the instant appeal also presents a perfect occasion for this Honorable Court to clarify the
law in this regard and to spare other litigants and trial courts alike the burden and
unpredictability of a virtual Rule 36 free-for-all .
As noted earlier, the Sixth Circuit has likened the often disproportionately harsh effect of
deemed admissions to that of default judgments against unresponsive defendants. United States
v. Petroff-Kline, supra, 557 F.3d at 293. In that analogous context, the Mississippi Supreme
Court long ago observed as follows:
We realize the importance of the enforcement of the rules of procedure and practice in the courts, and that the law favors the diligent and is against the careless; and we appreciate the fact that the large discretion resting with the circuit judge in dealing with such questions before him should not be encroached upon, restricted, nor considered abused, unless it manifestly appears that the discretion exercised in any particular case was wrongful and resulted in injustice to a litigant. We do not think any fixed, ironclad rule can be safely adopted with reference to the setting aside of default judgments, but that the courts must look to the facts of the particular case, and if from the whole record the court can reasonably say that justice and right demand that the default judgment should be set aside and a trial had upon the merits, it should be done, and thereby bring about a result by trial on the merits of the controversy between the parties .
Sw. Sur. Ins. Co. v. Treadway, 74 So. 143, 145 (Miss. 1917). In the present case, Ms. Brooks
does not advocate any ironclad rule that would eviscerate the language or the spirit of Rule 36 .
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Instead, she only hopes her deceased husband's claims and those of his beneficiaries will not be
collaterally snuffed out by the missteps of her previous attorney, at no fault of the Plaintiff.
CONCLUSION
For all the reasons stated above, Ms. Gwendolyn Brooks respectfully prays the Court to
reverse the summary judgment entered below and reinstate this wrongful death case, so that the
parties can proceed with their very first depositions and Ms. Brooks' new Counsel can duly
prosecute her case on the merits .
Respectful·l· y sub~~?~/------------
~~-;·
By:~ ~ .... f~..,,--·-------
Dam anske Jr. CHAPM 'LEWIS AND SWAN, PLLC P.O. Box 428 Clarksdale, MS 38614 Telephone: (662) 627-4105 Facsimile: 662-627-4171 Email: [email protected] Attorney for Appellant, Gertrude Brooks
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on June ~ , 2016, a complete and accurate
copy of the foregoing was duly served via U.S. Mail (postage pre-paid) upon the following
counsel ofrecord:
Thomas L. Kirkland, Jr. Andy Lowry, Esq . Matt Sitton, Esq. COPELAND COOK TAYLOR & BUSH, P.A. Post Office Box 6020 Ridgeland, MS 39158
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