Martin v. Simmons

• Decision Date: 21 November 1990
• Docket Number: No. 89-CA-0452,89-CA-0452
• Citation: Martin v. Simmons, 571 So.2d 254 (Miss. 1990)
• Parties: Samuel F. MARTIN and Wife, Juanita R. Martin v. Margaret Rogers SIMMONS, Debra Gail Simmons Hall, Margaret Louise Simmons Mayo, Dianna Lynn Simmons, Bobby Jean Blount and Phyllis P. Blount.
• Court: Mississippi Supreme Court

Page 254

571 So.2d 254

Samuel F. MARTIN and Wife, Juanita R. Martin v.Margaret Rogers SIMMONS, Debra Gail Simmons Hall, Margaret Louise Simmons Mayo, Dianna Lynn Simmons, Bobby Jean Blount and Phyllis P. Blount.

No. 89-CA-0452.

Supreme Court of Mississippi.

Nov. 21, 1990.

Ben F. Horan, Horan & Horan, Water Valley, for appellants.

John J. Crow, Jr., Water Valley, for appellees.

Before HAWKINS, P.J., and SULLIVAN and PITTMAN, JJ.

SULLIVAN, Justice, for the Court:

The Martins filed suit in the Chancery Court of Yalobusha County, Mississippi, L.E. Hannaford, Sr., presiding, to confirm title to real estate against the defendants, John Wesley Simmons, Margaret Rogers Simmons, Bobby Jean Blount and Phyllis P. Blount.The complaint alleged that the Simmons had constructed a fence upon a portion of the property involving "... a strip of land which is approximately 22 feet at its widest point" thereby casting a cloud on the title of the Martins.Martin sought removal of the fence and the quieting and confirming of the title to the property in him.

The Simmons averred in their answer and counterclaim that they are vested with title of the disputed property by virtue of adverse possession pursuant to Miss.Code Ann. Secs. 11-17-31and15-1-13 (1972), as Amended.

The Simmons filed Request for Admissions, Interrogatories, and a Request for Production of Documents on September 14, 1988.The Martins did not respond to the Request for Admissions until October 25, 1988, eleven days after the thirty day period to respond under Rule 36 had expired and five days after the Simmons filed their Motion for Summary Judgment.The interrogatories were not answered until October 31, 1988.

On January 25, 1989, the chancellor heard oral argument on the Motion for Summary Judgment and found that the Martins had not answered the Request for Admissions, had not filed a Motion for Enlargement of Time, and had not requested either an oral or written extension of time from counsel for the Simmons.No affidavits were filed by either party for or against the motion for summary judgment.The chancellor concluded that there was no justifiable excuse made by counsel for the failure to file an answer to the request for admissions; "the matter was simply overlooked."

The chancellor held that based upon the pleadings, arguments of counsel and relevant case law, the Request for Admissions filed by the Simmons are deemed admitted.The deemed admissions show that the disputed property had been enclosed by a barbed wire fence when the Simmons purchased adjacent property in 1952; that the Simmons maintained the property West of the barbed wire fence "... by maintaining the property, cutting grass, planting shrubbery, trees and flowers;" that more than ten (10) years ago the Simmons replaced the barbed wire fence with a cyclone fence; that they maintained the property west of this fence "... by mowing the grass, planting shrubbery, trees and flowers;" and that the possession by the Simmons has been actual, open, notorious, visible, continuous, uninterrupted, peaceful and exclusive for more than ten (10) years prior to filing of the Complaint.

The chancellor then found that based on the deemed admissions there was no genuine issue of material fact as to whether or not the Simmons adversely possessed the disputed property for the time required by law.Summary judgment was granted in favor of the Simmons and the complaint of the Martins was dismissed with prejudice.

The tardy answer of the Martins to the Request for Admissions would deny that the possession by the Simmons was actual, open, notorious, visible, continuous, uninterrupted, peaceful and exclusive for more than ten (10) years prior to the filing of the complaint and would deny that the Simmons maintained the disputed property by maintaining it, cutting grass, planting shrubbery, trees and flowers.The belated response would further show that the grounds for adverse possession were not met because when the Simmons purchased the adjacent property there did exist a barbed wire fence, but not where the cyclone fence is located; the cyclone fence was erected with the permission of the Martins; and any occupation/possession of the property west of the cyclone fence by the Simmons was by permission of the Martins or their prior title holders.

I.THE UNTIMELY RESPONSE TO REQUEST FOR ADMISSIONS

While a number of jurisdictions with rules analogous to our Rule 36(a)¹ allow trial courts discretion to allow a shorter or longer time for a party to respond to a request for admissions, see8 Wright & Miller, Federal Practice & Procedure, Sec. 2257 at 718(1972);see e.g., Thomson v. Bank, 506 So.2d 1012, 1014(Ala.Civ.App.1987), cert. den.526 So.2d 40(Ala.1987);Farmers Elevator Co. of Horace v. Nagel, 307 N.W.2d 580, 586(N.D.1981), we have stated that "[c]ourts cannot give or withhold at pleasure;Rule 36 is to be enforced according to its terms."Sawyer v. Hannan, 556 So.2d 696, 698(Miss.1990)[quotingEducational Placement Services v. Wilson, 487 So.2d 1316, 1318(Miss.1986) ].

Such admissions, however, are not necessarily irrevocable.Sawyer, 556 So.2d at 697-698(citingEducational Placement Services, 487 So.2d at 1318).Rule 36(b) provides the procedure to revoke admissions:

Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission....[T]he 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.

Miss.R.Civ.P., Rule 36(b).

The Martins made no attempt to withdraw or amend the Requests for Admissions under Rule 36(b);they merely untimely filed the Answers to the Simmons' Request for Admissions.Essentially, the Martins argue that the filing of a late response to Request for Admissions is the equivalent of requesting withdrawal or amendment of the admissions.The Simmons respond that even if this were true, they have been prejudiced due to the death of Wesley Simmons, a material witness.Cf.Brook Village North Asso. v. General Electric Co., 686 F.2d 66, 70(1st Cir.1982).

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(Alaska1981);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 ProcedureSec. 2257 at 719-720(1972); 4A Moore's Federal Practice2d ed., Admission of Facts-ProcedureSec. 36.05(4).Other courts allow untimely answers to a request for admissions when there has been excusable neglect or compelling circumstances.See e.g., Dukes & Barber v. S.C. Ins. Co., 770 F.2d 545, 548-49(5th Cir.1985);Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686, 688(2d Cir.1966).

The problems encountered by the Martins in this 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.SeeSawyer, 556 So.2d at 698;Educational Placement Services, 487 So.2d at 1318.However, 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 because the chancellor was not called upon to exercise his discretion to allow the withdrawal of the amendment of the answers to the admissions under Rule 36(b).SeeDiversified Communications v. Godard, 549 A.2d 362, 363(Maine1988).Since the lower court was never asked to exercise its discretion under Rule 36(b), the trial court properly followed our holding in Educational Placement Services v. Wilson, 487 So.2d 1316(Miss.1986).We therefore are not called upon to determine if an abuse of discretion occurred and we find the chancellor properly applied Mississippi law to this issue.There is no merit to this assignment.

II.

DID THE FAILURE TO ANSWER THE REQUEST FOR ADMISSIONS LEAD

INEVITABLY TO THE GRANTING OF THE SUMMARY

JUDGMENT?

After finding that the Request for Admissions were deemed admitted, the chancellor found there was no genuine issue of material fact to be determined at a trial and granted summary judgment in favor of the Simmons.

The burden in this case is upon the Simmons to show that their possession was open, notorious and visible, hostile, under claim of ownership, exclusive, peaceful, continuous and uninterrupted.Stallings v. Bailey, 558 So.2d 858, 861(Miss.1990).Each of the above mentioned elements must be established for a ten year period.Monroe County Bd. of Ed. v. Rye, 521 So.2d 900, 913(Miss.1988)(Robertson, J. dissenting);Miss.Code Ann. Sec. 15-1-13(1972), as Amended.

Our law concerning summary judgment is well established.

The trial court must review carefully all of the evidentiary matters before it--admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.The evidence must be viewed in the light most favorable to the party against whom the motion has been made.If in this view the moving party...