IN THE SUPREME COURT OF MISSISSIPPI
NO. 2012-CA-00366-SCT
PAUL TYLER
v.
AUTOMOTIVE FINANCE COMPANY, INC.
DATE OF JUDGMENT: 01/31/2012
TRIAL JUDGE: HON. ROBERT WILLIAM ELLIOTT
COURT FROM WHICH APPEALED: CALHOUN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: RICHARD SHANE MCLAUGHLIN
NICOLE H. MCLAUGHLIN
ATTORNEYS FOR APPELLEE: ROBERT J. DAMBRINO, III
JAY GORE, III
ASHLEY NOBILE LANE
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED - 04/04/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE DICKINSON, P.J., PIERCE AND COLEMAN, JJ.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. The trial court granted summary judgment in favor of the plaintiff, Automotive
Finance Company, after the defendant, Paul Tyler, failed to respond in a timely manner to
a request for admissions. Tyler’s appeal rests on the assertion that he was not properly
served with either the request for admissions or the following motion for summary judgment.
The trial court entered an order deeming the unanswered request admitted. Based upon the
evidence contained within the admissions, the court also granted Automotive Finance’s
motion for summary judgment. Well after the trial court entered a final judgment, Tyler filed
a motion to amend his admissions, which the trial court denied. Tyler is appealing both the
order denying reconsideration of summary judgment and the order denying his post-final-
judgment motion to amend the admissions. Finding no error on the part of the trial court, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Jim Earl Aron, sole stockholder in Automotive Finance Company, sold all of his stock
in the company to Paul Tyler for $2.5 million to be paid over time to Aron. After what Aron
perceived as poor management of the company, leading to a loss of revenue for both
Automotive Finance and Tyler, Aron repurchased the company from Tyler in exchange for
releasing Tyler from his indebtedness on the remainder of the $2.5 million obligation. After
repurchasing the company and analyzing its records, Aron found what he believed to be
dishonest business practices and brought suit as Automotive Finance against Tyler in
bankruptcy court on March 4, 2004. Tyler was represented in bankruptcy court by attorney
William Griffin, an attorney with Shelton and Associates in Tupelo, Mississippi. The
bankruptcy court transferred the case to the Circuit Court of Calhoun County on February
14, 2006.
¶3. On April 19, 2006, counsel for Automotive Finance, Adam Kirk, propounded
interrogatories to Griffin at “P.O. Box 1362, Tupelo, MS,” with no street number. This was
the same address to which Kirk sent a copy of his notice of appearance on April 20, 2005,
and the address provided for Griffin in the bankruptcy proceedings.
¶4. However, in a letter dated April 2006, Shelton and Associates informed Kirk that
Griffin was no longer with the firm and provided Griffin’s address as “P.O. Box 1692,
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Tupelo, MS.” Both the 1692 and the 1362 post office box numbers appear in the bankruptcy
court proceedings. On May 24, 2007, Kirk sent the request for admissions to Griffin at “336
N. Broadway.” Kirk received no response to the request for admissions, and on July 9, 2007,
Kirk filed a motion with the court clerk to deem the unanswered request admitted, and served
a copy upon Griffin at “336 N. Broadway, P.O. Box 1692 Tupelo, MS 38802.” The motion
hearing was set by the court for November 2, 2007.
¶5. Jon Crump, an attorney with Shelton and Associates, entered an appearance for Tyler
on October 30, 2007. Crump requested a continuance on the hearing, and it was reset for
January 30, 2008. When the hearing date arrived, Crump did not attend. Instead,
Christopher Bauer, another attorney with Shelton and Associates, appeared on behalf of
Tyler. After Automotive Finance argued in favor of its motion, the trial judge gave Tyler a
chance to offer responsive argument. Bauer stated that the defense had “no response at all.”
On February 8, 2008, the trial court deemed the unanswered request admitted.
¶6. No activity took place in the case from February 2008 until March 17, 2010, when the
clerk moved to dismiss the case as stale. On September 23, 2010, Automotive Finance filed
a motion for summary judgment and served the motion on Crump at Post Office Box 7125,
Tupelo, Mississippi 38802-7125. On January 6, 2011, Automotive Finance filed a
supplemental motion for summary judgment and served the supplemental motion upon
Crump at the same address. Also on January 6, 2011, “Sonya” from Crump’s office called
and informed counsel for Automotive Finance that Crump was no longer with Shelton and
Associates, and that Crump did not take the case with him when he left. On February 2,
2011, Automotive Finance re-served a notice of the March 21, 2011, hearing on its
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supplemental motion for summary judgment on both Jason Shelton and Crump. The notice
of hearing was served on Shelton and Associates at the address it had provided in its own
court filings.
¶7. An attorney from Shelton and Associates was present in the courtroom on the day of
the hearing. Counsel for Automotive Finance discussed the motion with her prior to the
hearing, but she left the courthouse before the hearing began, and no attorney for Tyler
participated in the hearing. The trial court granted the motion for summary judgment and
entered final judgment on March 24, 2011. The same day, Tyler filed a motion pursuant to
Mississippi Rule of Civil Procedure 60 to set aside the order for summary judgment and final
order. On November 29, 2011 – eight months later – Tyler further moved for leave to amend
plaintiff’s request for admissions. Both motions were denied by the trial court on December
29, 2011. Tyler timely appealed.
DISCUSSION
¶8. The case turns on one point: whether the trial court erred by deeming the request for
admissions served by Automotive Finance as admitted. Tyler argues the request for
admissions was not properly served. At the very least, however, Tyler’s attorney, Crump,
received notice of the request. Not only did he ask for a continuance for the hearing
regarding their default admission, one of his colleagues appeared for him in court during the
hearing and stated explicitly that Tyler had no response to Automotive Finance’s motion.
Since Tyler’s counsel appeared in court and did not object to the request being admitted, and
notice of the summary judgment motion was properly served on Tyler, we find no reversible
error.
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Standard of Review
¶9. Although we apply a de novo standard of review to a lower court’s grant of summary
judgment, Tyler did not appeal the order granting summary judgment. Rather, the notice of
appeal filed by Tyler explicitly states it is an appeal of the trial court’s denial of his Rule 60
motion. Our precedents make clear that the standard of review for an appeal of a Rule 60
motion is abuse of discretion. Accredited Sur. and Cas. Co., Inc. v. Bolles, 535 So. 2d 56
(Miss. 1988) (“Motions that seek relief from judgment pursuant to Miss. R. Civ. P. 60 are
addressed to the sound discretion of the trial court, and the only question asked on appeal is
whether the trial court’s ruling on such a motion amounts to an abuse of discretion.”)
(quoting Stringfellow v. Stringfellow, 451 So. 2d 219, 221(Miss. 1984)).
¶10. Likewise, 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. DeBlanc v.
Stancil, 814 So. 2d 796, 802 (¶ 26) (Miss. 2002). However, because Tyler filed his
motion to amend his admissions years after the trial court deemed them admitted and
months after the trial court entered final judgment, we view his motion to amend his
admissions as a Rule 60 motion for relief from the trial court’s much-earlier order
deeming them admitted.
I. Should the trial court’s order denying Tyler’s motion to amend the
admissions be reversed?
¶11. The trial court granted summary judgment in favor of Automotive Finance and entered
final judgment on March 24, 2011. Eight months later, Tyler filed a motion to amend his
admissions. On January 31, 2012, the trial court signed a separate order and opinion denying
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Tyler’s motion to amend his admissions. It is the January 31, 2012, order that Tyler appeals
– not the trial court’s February 8, 2008, order deeming the request admitted. As noted above,
because Tyler’s motion to amend his admissions sought relief from the trial court’s earlier
order deeming the request admitted, we will review it for abuse of discretion as a Rule 60(b)
motion. Out of an abundance of caution, we also address whether the trial court’s initial
decision to consider the request admitted was in error.
¶12. Tyler contends that Automotive Finance failed to serve him properly with the request
for admissions. Tyler complains that the request itself, served May 24, 2007, was improperly
served on Tyler’s first attorney, Griffin, who represented Tyler in the bankruptcy
proceedings. Tyler contends that, because Griffin never entered an appearance in circuit
court after the transfer, Griffin was not his attorney for the purpose of service of the request.1
Second, Tyler argues that Automotive Finance served the request upon Tyler by mailing it
to the wrong address.
¶13. The Court need not reach the merits of either of Tyler’s two arguments regarding
proper service. On July 9, 2007, Automotive Finance served a motion to deem the
unanswered request admitted on Griffin at “336 N. Broadway, P.O. Box 1692 Tupelo, MS
38802.” Rule 36 is self-executing, and no motion to have a request deemed admitted is
required. Under the rule, a request is admitted if the receiving party serves no responses or
1
Tyler cites no authority in support of his contention that Griffin ceased to be
counsel of record for Tyler due to the transfer of the case from bankruptcy court, and he
therefore waives the issue. Gillett v. State, 56 So. 3d 469, 517 (¶ 142) (Miss. 2010);
Tupelo Redevelopment Agency v. Gray Corp., Inc., 927 So. 2d 495, 514 (¶ 52) (Miss.
2007).
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objections within thirty days of service of the requests. Miss. R. Civ. P. 36(a). However, the
Court understands that – superfluous though they may be – motions to deem requests
admitted are commonplace, and trial courts regularly consider them. In the case sub judice,
Automotive Finance filed one and served it upon Tyler. On appeal, Tyler does not contend
that the motion was improperly served, nor could he in light of the fact that (1) through
counsel he moved for and received a continuance of the hearing on the motion and (2) his
attorney appeared at the hearing and conceded the motion. Accordingly, through his
attorneys, Tyler knew of the pendency of the request for admissions, and he knew that he had
not responded or objected to it.
¶14. After postponement, the trial court held a January 30, 2008, hearing on Automotive
Finance’s motion to have the request deemed admitted. The hearing took place more than
six months after the motion had been served, during which time Tyler never filed a Rule
36(b) motion to withdraw the admissions. Tyler never filed a response to the motion to have
the request deemed admitted. Most damning of all, when counsel for Tyler appeared at the
hearing on Automotive Finance’s motion and was offered a chance to argue on Tyler’s
behalf, counsel stated, “Your honor, the defendant has no response, no response at all, your
Honor.” At that moment, Tyler had the opportunity to raise all of the arguments he makes
now on appeal regarding improper service, etc. He did not. Even if Tyler’s attorney
appeared in court for the hearing without any knowledge of the nature of the motion
whatsoever, he could have at the very least advised the court that Tyler had not been properly
served with any of the documents at issue. Therefore, we find the trial court did not abuse
its discretion in deeming the request admitted.
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¶15. Tyler argues that the trial court erred in not applying the two-part test found in Rule
36(b), which permits amendment of 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.” However, Tyler cannot escape the clear indication in the record that he –
through counsel – conceded the issue at the January 30, 2008, hearing. His concession came
despite having been granted a continuance in the hearing date.
¶16. Instead, Tyler waited until November 29, 2011, almost four years after the hearing,
to file a motion to amend his admissions and thereby obtain relief from the court’s order
deeming them admitted. Pursuant to Mississippi Rule of Civil Procedure 60(b), motions for
relief from an order or judgment must be “made within a reasonable time.” We hold that, in
the instant case, Tyler failed to file the motion within a reasonable time when he waited
almost four years and until after a final judgment had been entered to file his motion for
relief.
What constitutes reasonable time must of necessity depend upon the facts in
each individual case. The Courts consider whether the party opposing the
motion has been prejudiced by the delay in seeking relief and whether the
moving party has some good reason for his failure to take appropriate action
sooner.
Briney v. U.S. Fid. & Guar. Co., 714 So. 2d 962, 967 (Miss. 1998) (citations omitted). In
the instant case, Tyler offers no reason – good or bad – for his failure to seek relief at an
earlier time.
¶17. We find no abuse of discretion on the part of the trial court in denying a motion to
amend admissions filed years after the fact and after the entry of a final judgment.
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II. Do the admissions support the order for summary judgment and final
judgment?
¶18. Tyler appeals the January 2012 denial of his Rule 60 motion for relief, not the trial
court’s March 24, 2011, order and final judgment granting summary judgment. “As a
general rule, the ‘extraordinary relief’ provided for by Rule 60(b) will be granted ‘only upon
an adequate showing of exceptional circumstances,’ and gross negligence, ignorance of the
rules, ignorance of the law, or carelessness on the part of the attorney will not provide
sufficient grounds for relief.” Accredited Sur., 535 So. 2d 56 (Miss. 1988) (quoting
Stringfellow, 451 So. 2d at 221). Mississippi Rule of Civil Procedure 60(b)(1) states that
such relief may be granted by the court if one of six factors is found to be present: (1) fraud,
misrepresentation, or other misconduct of the adverse party; (2) accident or mistake; (3)
newly discovered evidence; (4) voidance of the judgment; (5) satisfaction or discharge of the
judgment; (6) any other reason justifying relief. Miss. R. Civ. P. 60(b)(1).
¶19. Tyler first argues that Automotive Finance never properly served him with the motion
for summary judgment because (1) the motion for summary judgment and supplemental
motion for summary judgment were not served on Tyler’s original attorney, Griffin and (2)
the motion for summary judgment and supplemental motion for summary judgment were not
served on Shelton and Associates.
¶20. It is undisputed, however, that Automotive Finance properly served both the original
and supplemental motion on Crump, who was counsel of record for Tyler. The record
contains no order allowing Crump to withdraw as counsel of record for Tyler, and “[w]hen
an attorney makes an appearance for any party in a case, that attorney will not be allowed to
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withdraw as attorney for the party without the permission of the court.” URCCC 1.13; see
also Triplett v. State, 579 So. 2d 555, 557-8 (Miss. 1991) (citing Myers v. Mississippi State
Bar, 480 So. 2d 1080 (Miss. 1985)). Crump never received permission from the trial court
to withdraw as Tyler’s attorney. Therefore, the motion and supplemental motion for
summary judgment were properly served upon Tyler regardless of whether Automotive
Finance served them upon any other attorneys.
¶21. It should also be noted that, upon being informed Crump no longer represented Tyler,
counsel for Automotive Finance re-served the notice of the summary judgment motion
hearing on both Crump and Shelton and Associates. Despite proper service of the notice of
hearing, Shelton and Associates failed to attend the hearing and took no responsive action
until well after the entry of final judgment.
¶22. Tyler next argues that the trial court erred in granting summary judgment because,
even with the admissions, there remain disputed issues of material fact. Tyler fails to cite
any authority for his position that the admissions do not prove actionable conduct, and his
failure to do so waives the issue. Gillett v. State, 56 So. 3d 469, 517 (¶ 142) (Miss. 2010);
Tupelo Redev. Agency v. Gray Corp., Inc., 927 So. 2d 495, 514 (¶ 52) (Miss. 2007).
¶23. Even if Tyler had cited authority, he failed to point to any part of the record that
would support Rule 60 relief. He did not argue fraud, accident, or mistake. The evidence
regarding service was available to him well before the lower court granted summary
judgment, and he certainly knew of the issues with service prior to the hearing on
Automotive Finance’s supplemental motion for summary judgment. He does not suggest the
judgment is void or has been satisfied, released, or discharged, or that a prior judgment upon
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which it was based has been vacated. Tyler fails to argue any other reason that might justify
relief. Accordingly, we hold that the trial court acted within its discretion in denying Tyler’s
Rule 60 motion.
CONCLUSION
¶24. We find that Tyler appeared in Court through counsel and conceded Automotive
Finance’s motion to deem the request admitted. Therefore, the request was properly admitted
by the trial court. Furthermore, the trial court did not abuse its discretion in denying Tyler’s
Rule 60 motion for relief from the final judgment. Accordingly, we hereby affirm the
decision of the trial court.
¶25. AFFIRMED.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS,
CHANDLER, PIERCE AND KING, JJ., CONCUR. LAMAR, J., CONCURS IN
PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.
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