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Dillon v. Pico, Inc.

Court of Appeals of Mississippi

September 19, 2017

GARY DILLON AND SHAWNA DILLON APPELLANTS
v.
PICO, INC. APPELLEE

          DATE OF JUDGMENT: 08/11/2016

         HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. CHRISTOPHER LOUIS SCHMIDT

          JAMES KENNETH WETZEL GARNER JAMES WETZEL ATTORNEYS FOR APPELLANTS:

          KATHRYN BREARD PLATT MATTHEW MILES WILLIAMS ATTORNEYS FOR APPELLEE

         EN BANC.

          GREENLEE, J.

         ¶1. Gary Dillon (Dillon) was injured in a vehicle accident with a tractor-trailer driven by an employee of PiCo Inc. Dillon and his wife, Shawna, sued PiCo under a theory of respondeat superior. PiCo was granted summary judgment after Dillon failed to respond timely to PiCo's requests for admissions. On appeal, the Dillons argue the circuit court erred in (1) denying their motion to amend, withdraw, or "strike [the] tardiness of" Dillon's answers to the requests for admissions, (2) denying their motion for additional time to complete discovery, and (3) granting summary judgment. We find no error and affirm.

         FACTS

         ¶2. On July 22, 2014, at approximately 5:30 a.m., Dillon rear-ended a tractor-trailer driven by PiCo employee David Rodgers. Dillon was paralyzed from the waist down as a result of the accident. On April 8, 2015, the Dillons filed suit in Hancock County Circuit Court against PiCo under the doctrine of respondeat superior. According to the Dillons' complaint, Dillon was driving north on Highway 603 in Hancock County, and Rodgers's tractor-trailer was on the shoulder, also facing north. Dillon claimed that without warning, Rodgers pulled onto the road directly in Dillon's path, causing the collision.[1] Dillon alleged PiCo's and Rodgers's negligence caused his injuries, and Shawna alleged loss of consortium.

         ¶3. On May 7, 2015, PiCo filed its answer and counterclaim, alleging the lawsuit was frivolous and seeking attorney's fees and costs. Also on May 7, 2015, PiCo served combined discovery requests, including requests for admissions to Dillon. Dillon was required to answer the requests for admissions by June 8, 2015. See M.R.C.P. 36(a) (setting a thirty-day deadline to answer requests for admissions). When the deadline passed, the requests were deemed admitted by default. Id. On July 14, 2015, Dillon answered PiCo's requests for admissions, denying all substantive requests. Discovery proceeded for the next eight months, and a trial was set for August 22, 2016.

         ¶4. On April 1, 2016, PiCo moved for summary judgment, relying in part on the deemed admissions. PiCo also moved to compel Dillon to respond fully to interrogatories and requests, and PiCo submitted its supplemental interrogatory responses. On April 15, 2016, the Dillons responded to PiCo's summary-judgment motion by filing a Mississippi Rule of Civil Procedure 56(f) motion for additional time for discovery to defend against the summary-judgment motion, and for a scheduling order. Specifically, the Dillons sought additional time to obtain expert opinions, inspect PiCo's truck, present Dillon for a deposition, and obtain a ruling on the Dillons' motion to compel discovery. The motion did not mention the deemed admissions. PiCo responded in opposition, asserting that Dillon had not identified an expert, Dillon had not requested inspection of PiCo's truck, and PiCo was not required to take Dillon's deposition, especially in light of Dillon's admissions.

         ¶5. On May 12, 2016, the parties convened for a hearing on PiCo's summary-judgment motion. The Dillons brought forth their Rule 56(f) motion. The circuit court expressed great concern that Dillon had not timely answered the requests for admissions and had not moved to withdraw the matters deemed admitted by operation of law. The Dillons stated they would file a motion to withdraw the admissions the next day. Over PiCo's objection, the court granted additional time for motions practice under Mississippi Rule of Civil Procedure 78 and requested briefing on the admissions issue. The next day, PiCo filed a motion for reconsideration of the circuit court's decision. PiCo argued that it was an abuse of discretion for the court to "help" Dillon by allowing more time, when almost a year had passed and Dillon had failed to move to amend or withdraw the admissions. On May 16, 2016, the circuit court entered an order, stating that "on or before May 19, 2016, Dillon may file any additional motions relative to the pending Motion for Summary Judgment." The court again specifically requested that Dillon address the issue of the admissions.

         ¶6. On May 17, 2016, Dillon responded to PiCo's summary-judgment motion and moved to amend, withdraw, or strike the tardiness of the answers to the requests for admissions. The Dillons asserted that the answers to the requests for admissions were filed late because counsel had been unable to locate the Dillons. An affidavit from the Dillons' counsel, certifying as such, was attached to the motion. A hearing was held on all motions.

         ¶7. On August 11, 2016, the circuit court granted PiCo's motion to reconsider and PiCo's motion for summary judgment, and dismissed the action with prejudice. PiCo's motion for attorney's fees and costs was denied. By separate order, the circuit court denied as moot all other open motions, including the Dillons' motion to amend, withdraw, or strike the tardiness of the admissions and motion for time to complete discovery. The Dillons appeal, arguing the motion to amend, withdraw, or strike ...


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