IN THE SUPREME COURT OF MISSISSIPPI
NO. 2005-IA-00321-SCT
ISAAC K. BYRD, JR., KATRINA M. GIBBS, AND
BYRD, GIBBS & MARTIN, PLLC f/k/a BYRD &
ASSOCIATES, PLLC
v.
WILLIE J. BOWIE, INDIVIDUALLY, AND
CHARLES BROWN, INDIVIDUALLY, BEING THE
SOLE WRONGFUL DEATH BENEFICIARIES OF
LOIS BROWN, DECEASED
DATE OF JUDGMENT: 01/27/2005
TRIAL JUDGE: HON. SAMAC S. RICHARDSON
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: PRECIOUS TYRONE MARTIN
ATTORNEYS FOR APPELLEES: EDDIE JACOB ABDEEN
STEPHEN LAMAR GOWAN
NATURE OF THE CASE: CIVIL - LEGAL MALPRACTICE
DISPOSITION: AFFIRMED - 04/06/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
SMITH, CHIEF JUSTICE, FOR THE COURT:
PROCEDURAL HISTORY
¶1. This interlocutory appeal stems from numerous motions, including a partial summary
judgment, in a legal malpractice case which case arose after this Court handed down its
opinion in the medical malpractice case Bowie v. Montfort Jones Memorial Hospital, 861
So. 2d 1037 (Miss. 2003). In Bowie, this Court affirmed summary judgment in favor of
Montfort Jones Memorial Hospital (Montfort). The trial court determined that the Plaintiffs,
Bowie and Brown (collectively, “Bowie”) failed to timely designate an expert for their
medical malpractice claim; therefore, summary judgment was granted because Bowie could
not make a prima facie medical malpractice case without this expert. Id. at 1043. The
attorneys representing Bowie were Katrina M. Gibbs (Gibbs) and Isaac K. Byrd (Byrd).
¶2. Following this Court’s ruling in Bowie, Bowie filed a legal malpractice case against
Gibbs, Byrd, and Byrd, Gibbs and Martin, PLLC, f/k/a Byrd & Associates, PLLC (the
“Firm”)( collectively known as the “Defendants”) in the Circuit Court of Rankin County,
Mississippi. The first amended complaint was filed on April 29, 2004. 1 On May 8, 2004,
Gibbs was served with process. On May 10, 2004, Christy Hall, Byrd’s secretary, was served
with process for Byrd and the Firm.2 On June 8, 2004, Gibbs, Byrd and the Firm filed a joint
Answer.3
¶3. On October 19, 2004, Bowie filed a motion for partial summary judgment claiming,
inter alia, that the Defendants failed to respond to requests for admissions. In response, the
Defendants filed (1) a response to the motion for partial summary judgment, (2) a motion for
disqualification of Attorney Eddie Abdeen (counsel for Bowie), (3) a motion to stay
1
The court papers do not indicate that an original complaint was ever filed in the
trial court case.
2
Hall’s first name has various spellings as “Christy” and “Kristie.” We will use
“Christy” unless otherwise indicated in a quoted passage from the hearing transcript.
3
Counsel for Bowie granted the Defendants a 20 day extension.
2
proceedings, and (4) a motion to withdraw default responses to plaintiff’s first set of requests
for admissions.
¶4. The trial court conducted a hearing on these four motions on January 4, 2005.
Following this hearing the trial court granted the plaintiff’s motion for partial summary
judgment on the issue of negligence; denied the motion to stay; denied the motion to
disqualify Abdeen; and denied the motion to withdraw default responses to plaintiff’s first
set of requests for admissions. In the order, the trial court also granted certification for an
interlocutory appeal on the rulings of the four motions. This Court granted interlocutory
appeal. See M.R.A.P. 5. The Defendants raise the following issues:
ISSUES
I. Whether the Trial Court Erred by Granting Partial Summary Judgment on the
Issue of Negligence and by Denying the Motion to Withdraw Default Responses
to Request for Admissions.
II. Whether the Trial Court Erred by Denying the Motion to Stay.
III. Whether the Trial Court Erred by Denying the Motion to Disqualify Abdeen.
STANDARD OF REVIEW
¶5. This Court reviews motions for summary judgment de novo. Brooks v. Roberts, 882
So. 2d 229, 231-32 (Miss. 2004) (citing Bowie v. Montfort Jones Mem'l Hosp., 861 So. 2d
1037, 1040 (Miss. 2003)). All evidence is to be viewed in the light most favorable to the non-
moving party. Id. at 232. The decision of the trial court will only be reversed if "there are
indeed triable issues of fact." Id.
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¶6. Rule 56(c) of the Mississippi Rules of Civil Procedure provides that summary
judgment shall be granted by a court if "the pleadings, depositions, answers to interrogatories
and admissions on file, together with affidavits, if any, show that there is no genuine issue
as to any material fact...." M.R.C.P. 56 (c); see Saucier ex rel. Saucier v. Biloxi Reg’l Med.
Ctr., 708 So. 2d 1351, 1354 (Miss. 1998). The moving party has the burden of demonstrating
there is no genuine issue of material fact, while the non-moving party should be given the
benefit of every reasonable doubt. Tucker v. Hinds County, 558 So. 2d 869, 872 (Miss.
1990). See also Heigle v. Heigle, 771 So. 2d 341, 345 (Miss. 2000). A fact is material if it
“tends to resolve any of the issues properly raised by the parties.” Palmer v. Anderson
Infirmary Benevolent Ass’n, 656 So. 2d 790, 794 (Miss. 1995).
¶7. “If, in this view, there is no genuine issue of material fact and, the moving party is
entitled to judgment as a matter of law, summary judgment should forthwith be entered in
his favor. Otherwise, the motion should be denied.” Williamson ex rel. Williamson v. Keith,
786 So. 2d 390, 393 (Miss. 2001). “Issues of fact sufficient to require denial of a motion for
summary judgment obviously are present where one party swears to one version of the matter
in issue and another says the opposite.” Tucker, 558 So. 2d at 872.
Of importance here is the language of the rule authorizing summary judgment
'where there is no genuine issue of material fact.' The presence of fact issues
in the record does not per se entitle a party to avoid summary judgment. The
court must be convinced that the factual issue is a material one, one that
matters in an outcome determinative sense . . . the existence of a hundred
contested issues of fact will not thwart summary judgment where there is no
genuine dispute regarding the material issues of fact.
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Simmons v. Thompson Mach. of Miss., Inc., 631 So. 2d 798, 801 (Miss. 1994)(citing Shaw
v. Burchfield, 481 So. 2d 247, 252 (Miss. 1985)). The evidence must be viewed in the light
most favorable to the non-moving party. See Richmond v. Benchmark Constr. Corp., 692
So. 2d 60, 61 (Miss. 1997); Russell v. Orr, 700 So. 2d 619, 622 (Miss. 1997); Northern Elec.
Co. v. Phillips, 660 So. 2d 1278, 1281 (Miss. 1995); Simmons, 631 So. 2d at 802; Tucker,
558 So. 2d at 872.
¶8. To avoid summary judgment, the non-moving party must establish a genuine issue of
material fact within the means allowable under the Rule. Richmond, 692 So. 2d at 61 (citing
Lyle v. Mladinich, 584 So. 2d 397, 398 (Miss. 1991)). "If any triable issues of fact exist, the
lower court's decision to grant summary judgment will be reversed. Otherwise the decision
is affirmed.” Richmond, 692 So. 2d at 61.
DISCUSSION
I. Partial Summary Judgment and Motion to Withdraw Responses to Requests for
Admissions
A. Service of Requests for Admissions
¶9. The trial court granted summary judgment in favor of Bowie on the issue of liability.
The trial court found the Defendants were served with process concerning the request for
admissions and denied the motion to set aside admissions. The trial court stated:
[I]t appears to the Court that they were served – Byrd – Byrd law firm and
Katrina Gibbs were served. No response was filed. I understand what you say
Mr. Martin [counsel for the Defendants], about why would I file an answer and
not file a motions responses [sic]. I’ve seen it happen a lot of times. With –
Maybe they were overlooked, I don’t know. But it does show a pattern, I
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think. The plaintiff’s Motion for Partial Summary Judgment will be granted
as to the negligence issue but denied as to the monetary value . . . .
¶10. The Defendants argue the trial court erred by denying the motion to withdraw default
responses to requests for admissions. The Defendants argue they never received the request
for admissions. Gibbs, Byrd and Precious Martin (Martin), counsel for Gibbs, Byrd and the
Firm, all gave affidavits stating they never received any requests for admissions.
¶11. The trial court papers contain preprinted summonses. The summonses state, in part:
Notice is also hereby given of service of Plaintiffs’ First Requests for
Production of Documents Propounded to Defendant and responses must be
mailed or delivered within forty-five (45) days from the date of delivery of this
summons and discovery.
The summonses for Gibbs and Byrd also had the words “First Set of Interrogatories &
Requests for Admissions” handwritten around the notice paragraph. The Defendants claim
they did not know about the request for admissions until Bowie filed the motion for partial
summary judgment.
¶12. However, during the hearing, a number of witnesses testified about the issue of receipt
of the requests for admissions. Gary Windham, the process server, stated that he served
Gibbs personally, and served Christy Hall, Byrd’s secretary. On cross-examination,
Windham could not identify who hand wrote the words “First Set of Interrogatories &
Requests for Admissions” on the summonses. He also did not know whether those words
were on the summonses at the time he served the summonses. Later, he stated that he served
whatever was written on the returns. The preprinted proofs of service signed by Windham
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showed that the summonses, amended complaint, interrogatories and requests for admissions
were served. The proofs of service were completely typed, unlike the summonses. There
was no handwritten addition concerning the requests for admissions on the returns.
¶13. Suzanne Keys, an attorney that worked for the Firm, testified she was unfamiliar with
the case, but did participate in communications regarding it, as evidenced by emails between
attorney Abdeen and herself. One of the e-mails, dated May 13, 2004, from Abdeen,
contained attachments which included the requests for admissions, which were also discussed
in the text of the email. Moreover, Keys stated that she received the May 13, 2004, e-mail,
although she claims she did not open any of the attachments. In an email dated May 27, 2004,
Keys asked Abdeen, per Gibbs request, for an extension to file an answer. In an email dated
May 28, 2004, Abdeen confirmed a telephone conversation between Keys and Abdeen
regarding an agreement to grant an extension to file a responsive pleading and responses to
discovery:
This email will confirm the discussion we just had wherein I agreed that
Katrina Gibbs, Mr. Byrd, and the Byrd firm can have an additional 20 days to
serve a responsive pleading in the referenced case. The responses to the
discovery served with the complaint will be served at the same time the
answers will be due.
At the hearing on Bowie’s motion for partial summary judgment, Keys admitted to receiving
this email.
¶14. The trial court held an evidentiary hearing pursuant to the Defendant’s motion to
withdraw default responses pursuant to M.R.C.P. 36(b). The record reflects that the agent’s
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process returns showed service of process. Furthermore, the correspondence between Keys
and Abdeen reflects notice to the Defendants. The Defendants’ meager proof or reasons
given to the trial court for their failure to respond to Bowie’s request for admissions were
soundly rejected. The evidence submitted to the trial judge was reasonable and certainly not
manifestly wrong under the applicable standard of review. See Punzo v. Jackson County,
861 So. 2d 340, 343 (Miss. 2003). This Court is thus duly bound to respect the lower court’s
findings of fact when they are supported by reasonable evidence in the record and are not
manifestly wrong. See Allied Steel Corp. v. Cooper, 607 So. 2d 113, 119 (Miss. 1992).
Here, the trial judge did not abuse his discretion, and the evidence reasonably supports the
grant of summary judgment on the issue the defendants’ negligence based on the defendants’
failure to respond to plaintiff’s request for admissions.
B. Negligence as a Matter of Law
¶15. Notwithstanding the defendants’ failure to properly respond to Bowie’s request for
admissions, we find the defendants were negligent as a matter of law. As the defendants
correctly assert in their brief, to prevail, one claiming negligence in a legal malpractice action
must prove by a preponderance of the evidence (1) the existence of an attorney-client
relationship, (2) negligence on the part of the lawyer in handling his client’s affairs entrusted
to him, and (3) proximate cause of the injury. Wilbourn v. Stennett, Wilkinson & Ward, 687
So. 2d 1205, 1215 (Miss. 1996); Hickox v. Holleman, 502 So. 2d 626, 633 (Miss. 1987)
(superseded on other grounds). Moreover, “[c]learly established law provides that expert
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testimony is necessary to establish the breach of a duty of care in a claim of legal
malpractice.” Lane v. Oustalet, 873 So. 2d 92, 99 (Miss 2004); Hickox v. Holleman, 502
So. 2d at 635; Dean v. Conn, 419 So. 2d 148, 150 (Miss. 1982).
¶16. However, this Court has carved out some exceptions to the general rule that expert
testimony is required in a legal malpractice claim. Applicable to the case at bar is the
exception found in Hickox, 502 So. 2d at 635. There, this Court held an expert is not
required “when the attorney’s conduct is negligent as a matter of law and the plaintiff is
entitled to a directed verdict on liability.” Id. In Hickox, this Court held the attorney’s
failure to file suit prior to the expiration of the statute of limitations constituted negligence
as a matter of law, where the attorney admitted he never performed research to determine the
nature of Hickox’s claim. Id. at 636. See also Thompson v. Erving’s Hatcheries, Inc., 186
So. 2d 756, 759 (Miss. 1966).
¶17. In discussing the need for experts for legal malpractice actions, we stated:
Moreover, attorneys involved in malpractice actions must always remember
there is a pragmatic difference between the trial of other professional
malpractice cases and a legal malpractice case. In the former class, the
lawyers and judges are laymen. In professional malpractice cases, excepting
extreme cases, we rely upon experts for guidance. The attorney who finds
himself the defendant in a legal malpractice case, however, has a judge and the
trial attorneys who are already experts.
Hickox, 502 So. 2d at 636. Furthermore, “[i]t does not require expert testimony to establish
the negligence of an attorney who is ignorant of the applicable statute of limitations or who
9
sits idly by and causes the client to lose the value of his claim for relief.” Id. (quoting
George v. Caton, 93 N.M. 370, 600 P.2d 822, 829 (N.M. Ct. App. 1979)).
¶18. In this case, the question becomes whether Bowie’s claim of legal malpractice calls
for expert testimony in order to establish that the Defendants breached their duty of care. In
Bowie, the Defendants neither timely filed a designation of an expert, nor provided any
excuse as to why they did not timely file the designation. Bowie, 861 So. 2d at 1042. We
find the facts in this case are analogous to the facts in Hickox. An attorney who fails to
designate an expert by a court-mandated deadline and does not provide any reason for doing
so, is negligent as a matter of law, as was the attorney in Hickox. Therefore, Bowie is
entitled to partial summary judgment as to the Defendants’ liability.
II. Motion to Stay
¶19. The Defendants argue the trial court erred by denying a motion to stay. The
Defendants’ legal malpractice insurance carrier is American National Lawyers Insurance
Reciprocal (ANLIR). On June 3, 2004, ANLIR was placed into liquidation by the Chancery
Court of Davidson County, Tennessee. Following the proceeding in Tennessee, the
Defendants filed a motion for stay with the trial court citing that the legal malpractice suit
(1) should be stayed until ANLIR’s assets are distributed; and (2) no discovery and
prosecution of the claim should go forward because the Defendants would not be in a
position to defend themselves which would result in undue prejudice.
10
¶20. The Defendants argue Bowie’s suit would have a direct and substantial adverse effect
on the insurance company’s ability to undergo a successful liquidation. Defendants rely on
Arnold v. Garlock, Inc., 278 F.3d 426, 434 (5th Cir. 2001), for the premise that proceedings
that “relate to” a bankruptcy action include civil suits between third parties which have an
effect on the bankruptcy estate. There is “related to” subject matter jurisdiction when the
outcome of a proceeding between two non-debtors may impact the debtor’s bankruptcy
estate. Id. at 441.
¶21. However, Bowie asserts that the Defendants erroneously argue a “related to”
jurisdiction provision of the United States Bankruptcy Code, 28 U.S.C. Section 1334, for the
first time on appeal. Nevertheless, Bowie argues that domestic insurers are not capable of
being a “debtor” under the bankruptcy code 11 U.S.C. Section 109(b), but rather their
insolvency is based on state law. In re Advanced Cellular Systems, 235 B.R. 713, 717-18
(Bankr. D. Puerto Rico 1999).
¶22. Bowie also argues that ANLIR’s Tennessee court order does not provided for a stay
of litigation against its policy holders. Also, Miss. Code Ann. Section 83-23-135 provides
a six month stay for the Mississippi Insurance Guaranty Association (MIGA) in order to
provide a defense to a covered claim within the meaning of the code section. However,
Bowie contends this provision is not applicable because ANLIR policy holders are not
covered or protected under MIGA. Bowie provided an affidavit of John Weeks, the
executive director of MIGA which stated in part:
11
I hereby certify that, according to the Mississippi Insurance Department,
American National Lawyers Insurance Reciprocal (ANLIR), which provided
legal liability and malpractice insurance for certain attorneys in the State of
Mississippi was not licensed with that Department to do business in the State
on or about February 11, 2003. I further certify that, according to the
Mississippi Code, ANLIR policyholders are not covered and/or protected
under the Mississippi Insurance Guaranty Association.
(emphasis added).
¶23. The trial court ruled:
Okay. Motion to Stay will be denied. The Court in Tennessee is not a Federal
Bankruptcy Court where proceedings are automatically stayed. It’s a Chancery
Court of Tennessee, where the receivership – the insurance company A-N-L-I-
R, is not covered under Section § 83-23-135 of the Mississippi Code and not
part of that association of insurers. The Court in Tennessee is really of no
consequence in the outcome of this lawsuit. The only way they could be is if
they provide a defense. But if they could provide a defense, they’ve got funds
to do that; they could also reimburse the defendants for any money expended
on counts which is basically the same thing. They just don’t get to choose who
they pay the money to. The Motion to Stay is denied.
¶24. We find the trial court did not abuse its discretion by denying the motion to stay. See
Herrington v. Leaf River Forest Products, Inc., 733 So. 2d 744, 776 (Miss 1999). The
liability insurance firm, ANLIR, is not protected by Mississippi law. In addition, no
automatic stay is provided to any policy holders of ANLIR. As such, we find the trial court
correctly ruled to deny the motion to stay.
III. Motion to Disqualify
¶25. In Colson v. Johnson, 764 So. 2d 438, 439 (Miss. 2000), this Court ruled on a motion
to disqualify an attorney and held:
12
Little case law exists in Mississippi with regard to the standard of review of
a trial court's decision of a motion to disqualify an attorney. In Quick Change
Oil & Lubrication Co. v. County Line Place, Inc. 571 So. 2d 968, 970
(Miss.1990), we held that manifest error applies only to review of findings of
fact and that the court has broad discretion.
¶26. The Defendants filed a motion to disqualify Abdeen, the attorney of record for Bowie
and Brown, in the legal malpractice case. The basis of the motion was that Abdeen stated
in an affidavit that he had personal knowledge of the facts in the case. Therefore, the
Defendants argue that Abdeen may be called as a witness at trial.4 The actual affidavit states
in part:
1. My name is Eddie J. Abdeen and I have personal knowledge of the
facts set forth herein. I am one of the attorneys of record in this matter.
2. I hereby certify that the attached e-mails are true and correct copies of
the emails [sic] referred to as composite Exhibit “E” in Plaintiffs’
Motion for Partial Summary Judgment in the captioned case.
The Defendants also cite to the transcript of the hearing conducted on January 4, 2005.
Specifically, they cite to the direct and cross-examination of Keys, an attorney and employee
at the Firm. The e-mails mentioned in Abdeen’s affidavit were between him and Keys over
a period of a few weeks. During the hearing, Abdeen questioned Keys about the content and
circumstances which prompted the sending of the e-mails.
¶27. Bowie contends the affidavit merely stated that Abdeen had personal knowledge of
the facts set forth in the affidavit and authenticated the e-mails between Abdeen and Key.
4
The Defendants also claim that Abdeen may have personal knowledge of the case
outside his scope as an attorney. However, the Defendants offer no proof of this assertion,
and, therefore, this Court has no evidence to address this claim.
13
Bowie also argues that Abdeen had no knowledge of the underlying facts of the case itself.
The trial court denied the Defendants’ motion to disqualify Abdeen.
¶28. We find the record is clear that Abdeen had no knowledge of the underlying case. He
merely had an e-mail exchange with an employee of the Firm, Keys, which occurred after
Gibbs, Byrd, and the Firm were served with process. Abdeen had no personal knowledge
of the underlying Bowie case which led to the filing of a legal malpractice case against the
Defendants. Accordingly, we find that the trial court did not err by denying the Defendants’
motion to disqualify Abdeen.
CONCLUSION
¶29. For the reasons stated above, we find the trial court was correct in its rulings and
affirm the trial court in toto.
¶30. AFFIRMED.
WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR.
EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE
WRITTEN OPINION JOINED BY GRAVES, J. COBB, P.J., AND DIAZ, J., NOT
PARTICIPATING.
EASLEY, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶31. I agree with the majority’s opinion to affirm the trial court findings to deny the motion
to stay and the motion to disqualify. However, I disagree with the majority’s decision to
affirm the trial court on the issue of granting partial summary judgment in Bowie’s favor.
I believe there is a genuine issue of material fact concerning whether the defendants received
14
Bowie’s First Set of Requests for Admissions. I also strongly disagree with the trial court
and this Court’s failure to consider the sworn affidavits of the defendants, Gibbs and Byrd,
and their counsel, Martin. The affidavits state that none of them received the requests for
admissions. I find it astonishing and disappointing that the trial court, and the majority of
this Court by way of affirmance, completely disregarded the sworn affidavits of the
Defendants and their counsel, all officers of the court. The failure to consider these
affidavits sends a message to all lawyers that their sworn affidavits are untrustworthy and
have no credibility in a court of law. For these reasons, I must concur in part and dissent in
part with the majority’s opinion today.
¶32. Here, the trial court granted summary judgment in favor of Bowie on the issue of
liability; found the Defendants were served the request for admissions; and denied the motion
to set aside admissions. At the hearing the trial court stated:
[I]t appears to the Court that they were served – Byrd – Byrd law firm and
Katrina Gibbs were served. No response was filed. I understand what you say
Mr. Martin [counsel for the Defendants], about why would I file an answer and
not file a motions responses [sic]. I’ve seen it happen a lot of times. With –
Maybe they were overlooked, I don’t know. But it does show a pattern, I
think. The plaintiff’s Motion for Partial Summary Judgment will be granted
as to the negligence issue but denied as to the monetary value . . . .
A. Service of Requests for Admissions
¶33. The main issue is whether the Defendants were served with process on the Request
for Admissions. Of significance, Gibbs, Byrd, and Precious Martin (Martin), counsel
15
for Gibbs, Byrd, and the Firm, all gave affidavits stating that they never received any
requests for admissions.
¶34. The trial court papers contain preprinted summonses which stated that the Defendants
had notice and service of the Plaintiffs’ First Requests for Production of Documents
Propounded to Defendant. Gibbs and Byrd also received summonses with a handwritten
notation stating “First Set of Interrogatories & Requests for Admissions” near the notice
paragraph. However, the Defendants argue that they had no knowledge of the request for
admissions until Bowie filed the motion for partial summary judgment.
¶35. During the hearing, Windham, the process server, stated that he served Gibbs
personally, and served Christy Hall, Byrd’s secretary. He could not identify who hand wrote
the words “First Set of Interrogatories & Requests for Admissions” on the summonses. Of
significance, Windham did not know if those words were on the summonses at the time
he served them. Despite this testimony, Windham claimed that he served whatever was
written on the returns. Windham also signed preprinted proofs of service that indicated
service of the summonses, amended complaint, interrogatories and requests for admissions.
These proofs of service were completely typed, unlike the summonses, which had the
handwritten notations concerning the requests for admissions on the returns.
¶36. Keys testified regarding a number of e-mails between Attorney Abdeen and her. One
of the e-mails, dated May 13, 2004, from Abdeen contained attachments which included the
requests for admissions. Keys stated that she received the May 13, 2004, e-mail. However,
16
Keys stated that she did not open any attachments. Also, Keys’s e-mails to Abdeen do
not reference any admissions. She stated that she was unfamiliar with the case. Keys also
stated that Gibbs solely requested that she seek an extension from Abdeen to file their
answer. Keys stated that she merely attempted to get an extension for filing an answer in the
case. Keys testified that she was not the registered agent for the Firm and not authorized to
speak on behalf of the Firm.
¶37. Bowie argues that the Defendants were not entitled to relief pursuant to M.R.C.P. 36
because they never presented a justifiable excuse for failing to respond to the requests for
admissions. Bowie relied on Earwood v. Reeves, 798 So. 2d 508, 517 (Miss. 2001), for
authority. The Defendants argue that they had no knowledge of the requests for admissions
until the motion for partial summary judgment was filed by Bowie. Thereafter, the
Defendants immediately filed a motion to withdraw the requests for admissions. As
previously mentioned, Gibbs, Byrd, and Martin all gave affidavits stating that none of them
were served with any discovery including any requests for admissions.
¶38. In Earwood, Reeves filed a complaint against Earwood and his law firm. Id. at 514.
Instead of filing an answer and responding to requests to discovery, Earwood filed a motion
to transfer for change of venue to another county. Id. Earwood and the firm argued that they
believed in good faith that the filing of the motion to transfer tolled the time limit for
responding. Id. at 515. This Court found no abuse of discretion by the trial court and
affirmed the grant of partial summary judgment. Id. at 516.
17
¶39. Here, the facts are distinguishable from Earwood. The Defendants claim that they
never received the request for admissions and signed affidavits to that effect. The
Defendants and their counsel are all officers of the court and have an obligation to the court
to be truthful. Once Bowie filed the motion for partial summary, the Defendants immediately
filed a motion to withdraw default responses. Earwood cites two other cases, Martin v.
Simmons, 571 So. 2d 254 (Miss. 1990) and Sunbelt Royalty, Inc. v. Big-G Drilling Co., 592
So. 2d 1011 (Miss. 1992), for examples of cases in which this Court upheld a trial court
decision which deemed unanswered requests for admission to be admitted. Earwood, 798
at 517. However, these cases are also distinguishable because the defendants these two cases
had no counsel, and the Defendants here gave signed affidavits that they never received the
requests for admissions.
¶40. The trial court ruling clearly referenced and relied on the Defendants’s failure to
answer the request for admissions to grant partial summary judgment in favor of Bowie.
However, there is a genuine issue of material fact, that being, whether Gibbs and Byrd were
actually served with the requests for admissions. The testimony from Windham indicates
that he does not know what he served on Gibbs and Byrd’s secretary, Hall. Windham also
does not know whether the words “First Set of Interrogatories & Requests for Admissions”
were written on the summonses at the time he served them on the Defendants. Keys stated
that she knew nothing about the case and never opened any attachments from Abdeen. In
18
addition, Gibbs, Byrd, and their counsel, Martin, as officers of the court, all gave sworn
affidavits that they never received any requests for admissions.
¶41. The majority states that the trial court soundly rejected the Defendants “meager proof”
and reasons for the their failure to respond to the request for admissions. However, I find it
worrisome that by affirming the trial court ruling, this Court is endorsing the complete refusal
of the trial court to consider the submission of sworn affidavits from lawyers, who are
officers of the court.
¶42. Accordingly, I believe that the trial court erred by granting Bowie’s motion for partial
summary judgment. There exists a genuine issue of material fact, that being, whether Gibbs
and Byrd ever received the request for admissions. Based upon the cloud surrounding
service of process of the requests for admissions, the grant of partial summary judgment
should be reversed, and the case should be remanded to the trial court.
B. Negligence - Bowie
¶43. Bowie asserts a collateral estoppel argument on the issue of liability claiming that
Bowie established that the Defendants breached their legal duty of care as a matter of law.
Bowie claims that if the Defendants are allowed to withdraw the admissions he would suffer
additional delay, expenses, and effort.
¶44. This Court in Bowie affirmed a trial court ruling to grant summary judgment because
the plaintiffs failed to timely designate an expert in a medical malpractice case. Bowie, 861
So. 2d at 1043. “The trial judge made a specific finding that the plaintiffs had failed to show
19
any excusable neglect as to why the designation of the expert was not timely filed.” Id. at
1042. Contrary to Bowie’s assertions, this Court made no actual finding of legal malpractice
in Bowie. Therefore, I believe that this issue is without merit.
¶45. For the foregoing reasons, I respectfully concur in part and dissent in part with the
majority opinion.
GRAVES, J., JOINS THIS OPINION.
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