Skipworth v. Rabun

• Decision Date: 05 December 1996
• Docket Number: No. 94-CA-01072-SCT,94-CA-01072-SCT
• Citation: 704 So.2d 1008
• Parties: Karen McCraw SKIPWORTH and Donna Kaylon Skipworth, a Minor, By and Through Karen Skipworth, Natural Mother and Next Friend, v. Shirley RABUN, Administratrix of the Estate of Bobby Rabun, Deceased, and Dixie Insurance Company.
• Court: Mississippi Supreme Court

Page 1008

704 So.2d 1008

Karen McCraw SKIPWORTH and Donna Kaylon Skipworth, a Minor By and Through Karen Skipworth, Natural Mother and Next Friend, v. Shirley RABUN, Administratrix of the Estate of Bobby Rabun Deceased, and Dixie Insurance Company.

No. 94-CA-01072-SCT.

Supreme Court of Mississippi.

Dec. 5, 1996.

Wayne E. Ferrell, Jr., Jackson, for appellant.

Thomas Y. Page, Page Kruger & Holland, Walter C. Morrison, IV, Upshaw Williams Firm, Rebecca L. Wiggs, Watkins & Eager, Jackson, for appellee.

Before SULLIVAN, P.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.

SMITH, Justice, for the Court:

This case comes on appeal to this Court for a second time from an adverse decision of the Circuit Court of Hinds County on the same issue as previously raised on appeal by Karen Skipworth in Skipworth v. Rabun, 568 So.2d 289 (Miss.1990) (Skipworth I ). Skipworth filed requests for admissions in this previous action that went unanswered by Shirley Rabun for approximately eight months outside of the thirty day time period set out by Miss. R. Civ. P. 36. Skipworth moved for summary judgment but the trial court allowed Rabun to withdraw the admissions and substitute responses. Skipworth appealed the subsequent jury verdict for Rabun and this Court reversed the trial court decision to allow substitution of responses and remanded for the trial court to determine if Rabun had a legitimate reason for failure to timely respond to the request for admissions.

On remand, the trial court allowed rebuttal evidence to the matters deemed admitted and granted summary judgment to Rabun and the co-defendant, Dixie Insurance.

Skipworth now appeals and argues that on remand the trial court erred in holding that the default admissions were inconclusive and therefore erred in allowing rebuttal evidence. Skipworth claims that the trial court erred in denying her motion for summary judgment based on the default admissions. Skipworth also argues that this Court's previous ruling on the default admissions was final so as to preclude the trial court from allowing any withdrawal or amendment of the default admissions.

Rabun responds that the findings of fact from the first trial remain undisturbed including the finding that the decedent, Skipworth's husband, was at fault. Dixie, the codefendant, argues that the default admissions of Rabun are not binding and do not preclude it from introducing evidence of Skipworth's liability. Rabun argues that the award of summary judgment was proper since the case was remanded on one issue and therefore the initial findings of fact were not to be disturbed.

After thorough discussion, we find that in Skipworth I, because of the absence of a record on this issue, this Court remanded on the single issue of whether there was a legitimate reason for the lower court to allow Rabun to withdraw admissions and respond. Other than the listed reason of inability to afford legal services, which was rejected, the Skipworth I court was unable to determine why the trial judge granted Rabun's motion to withdraw admissions. Subsequent to the Skipworth I remand, this Court decided Martin v. Simmons, 571 So.2d 254 (Miss.1990), which mandated "a duty [by the trial court] to review those interrogatories" in order to consider whether a genuine issue of material fact existed. Id. at 258. The trial judge on remand applied Martin and examined Rabun's answers to interrogatories which obviously denied liability. The judge then granted Rabun's motion, and denied summary judgment. Because the case had already proceeded to a jury trial resulting in a verdict in favor of Rabun, the trial judge determined that nothing remained to litigate. We agree and therefore affirm.

FACTS

This appeal arises from the trial court's ruling on various motions filed by all parties following this Court's decision in Skipworth I. In the prior action, the Skipworths filed a wrongful death action on September 9, 1983, against Bobby Rabun. On June 27, 1981, Donald Skipworth was killed in an automobile accident at the intersection of Walnut Street and Winter Street in Jackson. The wrongful death action was brought by Skipworth's wife who at that time was pregnant with their child, Donna. The Skipworths propounded requests for admissions to the defendant, Bobby Rabun, in the original action on February 4, 1984. Rabun did not file his response until November 27, 1984, approximately eight months after the 30 day time period prescribed by Miss. R. Civ. P. Rule 36. Therefore, all matters contained in the Skipworths' requests for admissions were deemed admitted under Rule 36. At an unrecorded hearing, the lower court subsequently granted Rabun leave to withdraw his admissions and denied the Skipworths' partial summary judgment motion as to the matters deemed admitted. The Skipworths filed an interlocutory appeal to this Court, which was denied. The case went to trial and the jury subsequently returned a verdict for the defendant, Rabun.

The Skipworths then appealed to this Court which reversed the trial court's ruling on the admissions issue and remanded this action in Skipworth v. Rabun, 568 So.2d 289 (Miss.1990). In Skipworth, this Court stated that the issue was whether or not the trial judge followed Rule 36 or whether he abused his discretion in allowing the withdrawal of the admissions and the filing of the response out of time. Skipworth, 568 So.2d at 290. This Court further stated:

We do not know the circuit court's rationale for denying the motion. This undoubtedly confirms our need to have a record of the original hearing in order that we may determine whether the trial court abused its discretion in its determination that Rabun offered legitimate grounds for his failure to timely respond. Assuming arguendo that the first reason alleged in the motion for reconsideration is true, i.e. that Raybun [sic] was financially unable to defend himself, we find that this is not a justifiable excuse. If this were the basis for allowing withdrawal of the "deemed" admission, then the trial court abused his discretion.

Id. at 291. Skipworth held that since there was "no record of a good and sufficient reason offered by Rabun to the trial judge for allowing the withdrawal of the admission and the filing of a response, we conclude that it was an abuse of discretion for the trial court to allow the defendant on oral motion to withdraw the admissions and file responses out of time." Id.

The matters that the Skipworths deem admitted are as follows: (1) that Rabun was guilty of negligence per se; (2) Skipworth died as a result of injuries sustained by him when he collided with the buildings after Rabun forced him off the road; (3) the negligence of Rabun proximately caused the injury and death of Donald Skipworth; (4) plaintiffs suffered damages in the amount of at least $150,000 due to the loss of their husband and father; (5) Rabun is legally liable for the losses and damages suffered by the plaintiffs as a result of the death of Donald Skipworth; and (6) as a result of the above admissions, the Skipworths are entitled to a judgment of at least $150,000 as a matter of law.

On remand, the Skipworths again moved in the trial court for summary judgment against Rabun and Dixie Insurance Company ¹ on November 21, 1990, based on the admissions by Rabun in the initial proceeding. Rabun's estate filed a response to the Skipworth summary judgment motion on December 10, 1990. The estate of Rabun contends that pursuant to Miss. R. Civ. P. 36(b) these admissions should be withdrawn since "the presentation of the merits of the action will be subserved thereby" and that the Skipworths would not be prejudiced in maintaining this action.

In an attempt to reconstruct the events surrounding the earlier motion to withdraw as desired by this Court, Rabun again filed a motion to withdraw which included affidavits from the judge who granted Rabun's earlier motion and from defense counsel for both Rabun and Dixie Insurance Company. The motion included an unsigned affidavit from Rabun's attorney who is now deceased. Several people involved in the original claim are now deceased: Rabun, himself the victim of a hit and run accident; Emerson Sterling, the claims adjuster who originally assigned the defense to Suzanne Saunders concerning the uninsured motorist claim for the $10,000 policy limit; B. Galloway Austin, defense counsel for Rabun; and, as mentioned earlier, Donald Skipworth, the plaintiffs' husband and father. The Skipworths argue that these affidavits are contradictatory evidence and cannot be admitted.

Rabun also argued in response to the Skipworth's motion for summary judgment that pursuant to this Court's ruling in Martin v. Simmons, 571 So.2d 254 (Miss.1990), decided after Skipworth I, that Skipworth's responses to interrogatories conflicted with her admissions, if these were not withdrawn. Because a general issue of material fact existed, Rabun argued summary judgment would therefore be improper.

Skipworth claimed that the Skipworth I court possessed these interrogatories on appeal and did not rely upon them to determine if there was a genuine issue of material fact. The trial judge on remand, relying on Martin, denied the Skipworth summary judgment motion and declared the Rabun estate's motion to withdraw, which was based on several affidavits, moot. Rabun then agreed to withdraw the affidavits which were attacked in Skipworth's motion to strike.

The Skipworths then petitioned this Court for an interlocutory appeal which was denied. Returning to the trial court, the Skipworths moved on September 9, 1993, for a trial setting. Dixie Insurance Company opposed the Skipworths' motion for trial setting and were joined in opposition by the Rabun estate in arguing that there had already been a complete trial on the merits resulting in a judgment for Rabun. The trial court granted the Skipworths' motion and set the trial for October 11, 1994. Dixie Insurance, later joined...