Brooks v. Landmark Nursing Ctr., Inc.

230 So.3d 1032

Gertrude BROOKS, individually and on behalf of the Estate and Wrongful Death Beneficiaries of Leroy Brooks, Appellant

v.The LANDMARK NURSING CENTER, INC. d/b/a the Landmark Nursing and Rehabilitation Center, Appellee

NO. 2016–CA–00487–COA

Court of Appeals of Mississippi.

March 14, 2017

DANIEL M. CZAMANSKE JR., ATTORNEY FOR APPELLANT

THOMAS L. KIRKLAND JR., ANDY LOWRY, ATTORNEYS FOR APPELLEE

BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.

WILSON, J., FOR THE COURT:

¶ 1. Gertrude Brooks failed to respond to requests for admissions served by the defendant, The Landmark Nursing Center Inc. (Landmark), within the time allowed by Mississippi Rule of Civil Procedure 36(a). Thus, pursuant to Rule 36(a), Landmark's requests were deemed admitted. Even after Landmark filed a motion for summary judgment based on her deemed admissions, Brooks waited another four months to file a motion to withdraw the admissions pursuant to Rule 36(b), and Brooks never actually responded to the requests. The Prentiss County Circuit Court declined to excuse Brooks's "blatant carelessness and neglect," denied her motion to withdraw her admissions, and granted summary judgment for Landmark. The circuit court did not abuse its discretion by denying Brooks's motion to withdraw her admissions, and Landmark was entitled to judgment as a matter of law based on those admissions. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 6, 2014, Brooks filed a wrongful death suit against Landmark in circuit court. Brooks alleged that her late husband, Leroy, had been a resident of Landmark's facility in Booneville from November 3, 2011, until January 4, 2012, and that he died as a result of negligent care and understaffing at the facility. Leroy was admitted to the hospital on January 4, 2012, and passed away three days later.

¶ 3. Landmark answered the complaint and on June 5, 2014, served discovery requests on Brooks, including requests for admissions, interrogatories, and document requests. Brooks failed to answer or otherwise respond to the requests by July 8, 2014. Accordingly, Landmark's requests were "admitted" by operation of law. M.R.C.P. 36(a).

¶ 4. On August 6, 2014, counsel for Brooks left a voicemail for Landmark's counsel asking whether Landmark had served discovery requests. The next day, Landmark's counsel emailed counsel for Brooks another copy of Landmark's discovery requests and a letter stating that Landmark intended to file a motion for summary judgment.

¶ 5. On August 15, 2014, Landmark filed a motion for summary judgment based on the deemed admissions. Landmark argued that, by failing to respond to its requests for admissions, Brooks had admitted that "the health care services provided to Leroy ... were appropriate in all respects," that Landmark "was not negligent in any fashion," and that Leroy "was not harmed by any of the alleged misconduct in the complaint."¹

¶ 6. On September 12, 2014, Brooks served Landmark with discovery requests—although she still had not provided responses to any of Landmark's discovery requests, filed a motion to withdraw her admissions pursuant to Rule 36(b), or responded to Landmark's summary judgment motion.

¶ 7. On November 4, 2014, the circuit judge signed an order directing Brooks to file a response to Landmark's summary judgment motion within ten days of receipt of the court's order. The order provided that if Brooks failed to file a response, the court would enter an order based "solely upon the pleadings previously filed in this matter." On November 14, 2014, Brooks filed a motion asking for an additional thirty days to respond to the summary judgment motion. In the motion, Brooks's counsel represented that she had been unable to respond to Landmark's motion for summary judgment because her firm had lost an attorney, resulting in a "tremendous increase in workload" for her.

¶ 8. On December 8, 2014, Brooks filed a motion to withdraw her deemed admissions. In the motion and her attached affidavit, Brooks's counsel represented that her paralegal had "misplaced and/or misfiled" Landmark's discovery requests. She also stated that in July 2014, one of the three attorneys in her office was suspended and subsequently fired, which required her and the one other attorney in the office to assume his caseload. Brooks argued that she should be allowed to withdraw her admissions because the case was "still in its early stages" and Landmark would not be prejudiced. She stated that she would provide responses "as soon as possible" if the court would grant her leave to respond.

¶ 9. On December 8, 2014, Brooks also filed a response to Landmark's summary judgment motion, together with an affidavit from Dr. Timothy Klein. Dr. Klein opined that Landmark's nursing staff deviated from the applicable standard of care by allegedly failing to notify a doctor that Leroy was experiencing labored breathing on December 30, 2011, and January 2–3, 2012, and had a fever on January 2–3, 2012. Dr. Klein also opined that it was "more likely than not" that Leroy would have survived if he had been admitted to the hospital sooner than January 4, 2012.

¶ 10. On December 22, 2014, Landmark filed a combined response to Brooks's motion to withdraw her deemed admissions and reply in support of its motion for summary judgment. Landmark recounted the history of the case and argued that Brooks failed to present any justifiable cause for her continued failure to respond to the requests for admissions and other discovery. For that reason, Landmark argued that the court should enter summary judgment based on Brooks's deemed admissions alone. Alternatively, Landmark argued that Dr. Klein's affidavit was too conclusory and speculative to avoid summary judgment. Landmark also attached an affidavit from its director of nursing, which stated that Leroy's labored breathing and low fever did not require notification of a physician.

¶ 11. On February 20, 2016, Brooks's attorney filed a motion to withdraw as counsel. In her motion, the attorney stated that she would be taking an in-house position with a private corporation effective March 1, 2016, and that no other attorney in her firm was licensed in Mississippi. The attorney further stated that she had notified Brooks of her new employment and desire to withdraw, and that Brooks refused to consent to her withdrawal.

Landmark opposed the motion to withdraw, arguing that the attorney had effectively "injected herself into the issues surrounding" Landmark's motion for summary judgment. The circuit court never granted or denied counsel's motion to withdraw.

¶ 12. On March 7, 2016, the circuit court denied Brooks's motion to withdraw and amend her responses to Landmark's requests for admissions. Citing Young v. Smith, 67 So.3d 732, 739 (¶ 11) (Miss. 2011), the court noted that the Mississippi Supreme Court has held that such a motion "is properly denied where there is no ‘justifiable excuse’ or ‘good reason’ to allow the relief sought." The court found it significant that Brooks did not move to withdraw her admissions until four months after Landmark filed its motion for summary judgment, and the court declined to "excuse [such] blatant carelessness and neglect." The court concluded that the deemed admissions were dispositive and that Landmark was entitled to summary judgment for that reason alone. The court also concluded that Dr. Klein's affidavit was "conclusory in nature" and failed to "articulate the applicable standard of care."

¶ 13. A new attorney from a different law firm subsequently entered an appearance for Brooks and filed a timely notice of appeal.

DISCUSSION

¶ 14. On appeal, Brooks argues that the circuit court should not have entered summary judgment because the dispositive admissions are conclusions of law that are beyond the scope of Rule 36(a). She also argues that the circuit court abused its discretion by denying her motion to withdraw her admissions pursuant to Rule 36(b). We address these arguments in turn.

I. Scope of Rule 36(a)

¶ 15. Landmark contends that Brooks's first argument is procedurally barred because it was not presented to the circuit court and is raised for the first time on appeal. We agree. " ‘It is a long-established rule in this state that a question not raised in the trial court will not be considered on appeal.’ ... The rule is that a ‘trial judge cannot be put in error on a matter which was never presented to him for decision.’ " City of Hattiesburg v. Precision Constr. LLC, 192 So.3d 1089, 1093 (¶ 18) (Miss. Ct. App. 2016) (emphasis omitted) (quoting Adams v. Bd. of Sup'rs of Union Cty., 177 Miss. 403, 170 So. 684, 685 (1936) ; Methodist Hosps. of Memphis v. Guardianship of Marsh, 518 So.2d 1227, 1228 (Miss. 1988) ). Brooks's failure to raise this issue in the circuit court precludes her from making the argument in this Court.

¶ 16. Procedural bar notwithstanding, Brooks's argument also fails under existing Mississippi Supreme Court precedent. Brooks complains that Landmark's requests for admissions went beyond the proper scope of Rule 36 by asking her to admit essentially that Landmark did not violate the standard of care, that Landmark was not negligent, and that Landmark's alleged conduct was not the proximate cause of any injury to Leroy. Brooks contends that these requests addressed "conclusions of law," which are not a proper subject of Rule 36 requests for admissions.

¶ 17. However, a unanimous Mississippi Supreme Court rejected the same argument in Cole, 819 So.2d 527, another medical malpractice/wrongful death case. There, by failing to respond to requests for admissions, the plaintiff admitted that the defendant doctor "did not deviate from the standard of care in her treatment of [the] decedent" and "complied with the standard of care in performing services for the decedent." Id. at 530 (¶ 8). On appeal, the Supreme Court rejected the plaintiff's argument that the doctor's requests for admissions "did not comply with Rule 36 because they did not...