Norrell v. Giles, M.D., et al

• Court: Arkansas Supreme Court
• Writing for the Court: Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Beverly W. Cutler; PER CURIAM; Cutler
• Citation: Norrell v. Giles, M.D., et al, 36 S.W.3d 342, 343 Ark. 504 (Ark. 2001)
• Decision Date: 01 February 2001
• Docket Number: 00-117
• Parties: JERRY NORRELL, APPELLANT; VS. WILBUR GILES, M.D., AND VIRGINIA RECIPROCAL INSURANCE COMPANY, APPELLEES;SUPREME COURT OF ARKANSAS Opinion Delivered

JERRY NORRELL, APPELLANT VS WILBUR GILES, M.D., AND VIRGINIA RECIPROCAL INSURANCE COMPANY, APPELLEES

No. 00-117

SUPREME COURT OF ARKANSAS

Opinion Delivered FEBRUARY 1, 2001

APPEAL FROM PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION, NO. CV 99-4840; HON. DAVID BOGARD, JUDGE; REVERSED AND REMANDED.

DONALD L. CORBIN, Associate Justice

Appellant Jerry Norrell filed a medical-malpractice action in the Pulaski County Circuit Court against Appellees Dr. Wilbur M. Giles and the Virginia Reciprocal Insurance Company, the insurer for Baptist Medical Center. During the pendency of the lawsuit, Appellees filed requests for admission, some of which went to the ultimate issue of the lawsuit. When Appellant failed to timely answer the requests, Appellees sought an order from the trial court that the requests be deemed admitted under Ark. R. Civ. P. 36(a). The trial court granted Appellees' motion. Appellant then took a voluntary dismissal, or nonsuit, pursuant to Ark. R. Civ. P. 41. Within one year later, Appellant reinstated his suit against Appellees. Appellees sought and were granted summary judgment on the ground that the admissions deemed made prior to the nonsuit entitled them to judgment as a matter of law. The sole issue on appeal is whether admissions made under Rule 36 in an action that ends in a nonsuit may be used against the admitting party in the event the suit is reinstated. This issue is one of first impression; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1). For the reasons stated below, we reverse the trial court's judgment.

Rule 36 provides in part:

(a) Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or the application of law to fact, including the genuineness of any documents described in the request....

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney.

In interpreting Rule 36, this court has consistently held that when a party fails to timely answer requests for admission, or otherwise fails to object to them, the requested matters are deemed admitted. See, e.g., Borg-Warner Acceptance Corp. v. Kesterson, 288 Ark. 611, 708 S.W.2d 606 (1986); Womack v. Horton, 283 Ark. 227, 674 S.W.2d 935 (1984); Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983); Barnett Restaurant Supply, Inc. v. Vance, 279 Ark. 222, 650 S.W.2d 568 (1983). Appellant does not deny that he failed to timely answer the requests for admission, nor does he challenge the propriety of the trial court's determination that the matters were then deemed admitted under Rule 36. Instead, he argues that those deemed admissions lost their effectiveness upon his being granted a voluntary dismissal without prejudice, pursuant to Rule 41(a). We agree.

Rule 41(a)(1) provides in pertinent part that "an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court." This court has consistently recognized that the plaintiff's right to voluntarily nonsuit a claim before final submission is absolute. See, e.g., Beverly Enters.-Ark., Inc. v. Hillier, 341 Ark. 1, 14 S.W.3d 487 (2000); Blaylock v. Shearson Lehman Bros., Inc., 330 Ark. 620, 954 S.W.2d 939 (1997); Pugh v.Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997); Whetstone v. Chadduck, 316 Ark. 330, 871 S.W.2d 583 (1994). The first dismissal is without prejudice and is not an adjudication on the merits. Beverly, 341 Ark. 1, 14,...