June 11, 2013 § 5 Comments

We all know that MRCP 36 dealing with Requests for Admission (RFA) has some sharp teeth that can inflict painful, if not fatal, wounds on your case. R36(b) says that any matter admitted is “conclusively admitted,” unless the court allows withdrawal or amendment of the response.

The scope and dire effect of that “conclusively admitted” language was explored in the COA case of Aydelott v. Quartaro, decided June 4, 2013. The case at trial was one for grandparent visitation, based on a claim that the grandparents had established the statutorily-required relationship with the grandchildren and had provided support. The chancellor allowed the Quartaros to testify contrary to their admissions, which had been neither withdrawn or amended.

So, was the chancellor’s ruling an inconsequential procedural matter not rising to the level of error, or did it warrant reversal? Here’s how Judge Maxwell answered the question:

¶16. First, the fact the Quartaros had not established a viable relationship had been “conclusively established” through the Quartaros’ responses to the Aydelotts’ requests for admissions made under Rule 36 of the Mississippi Rules of Civil Procedure. The Aydelotts had requested both Dorothy and Jack admit they “have not provided financial support for the minor children.” Both gave the same response and “admit the allegations contained in Request for Admission No. 12 due to the fact that [their] daughter throws the things away that the Plaintiff buys for the children.” The Quartaros were also asked to admit they “have not visited with the minor children in the last two years” and “have never had frequent visitation with the minor children which included overnight visits for a period of at least one year.” They also admitted they had never had frequent visitation, because Shassidy would not let them. Under Rule 36(b), “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” The Quartaros never moved to have their admissions withdrawn or amended. So the fact they had never contributed financially to or had frequent visitation with their granddaughters—and thus had never established a viable relationship—had been conclusively established. See In re Dissolution of Marriage of Leverock & Hamby, 23 So.3d 424, 433 (¶33) (Miss. 2009); Boyd v. Boyd, 83 So. 3d 409, 416 (¶21) (Miss. Ct. App. 2011).

¶17. Further, “[a]ny admission that is not amended or withdrawn cannot be rebutted by contrary testimony or ignored by the court even if the party against whom it is directed offers more credible evidence[.]” Gilcrease v. Gilcrease, 918 So. 2d 854, 858 (¶5) (Miss. Ct. App. 2005). Here, the chancellor seemingly ignored the admissions and permitted contradictory testimony that the Quartaros had contributed financially—by allowing Shassidy’s mobile home to be placed on their land—and had frequently visited Acelynn prior to the rift. This was clearly error. While Rule 36 gave the chancellor discretion to permit withdrawal or amendment of the admissions—and is silent about how and when the Quartaros could move for withdrawal or amendment—the fact remains that the Quartaros never moved for withdrawal or amendment, so the lack of financial contribution or frequent visitation were deemed admitted. See Boyd, 83 So. 3d at 416-17 (¶¶21-22).

¶18. We acknowledge that, in the context of child custody, this court has viewed the error of failing to recognize an admitted matter as established and permitting contradictory evidence as merely procedural. Gilcrease, 918 So. 2d at 859 (¶¶8-9). In Gilcrease, when a mother admitted, under Rule 36, that it was in her child’s best interest that custody be awarded to the father, this court found the chancellor’s refusal to deem the best-interest issue admitted was merely a procedural error “made with the proper result in mind.” Gilcrease, 918 So. 2d at 859 (¶9). Because “[c]hild custody is a judicial determination” and not “merely [an] evidentiary matter,” this court held that it would not reverse based on the failure to recognize matters deemed admitted under Rule 36 “absent some other mistake in the chancellor’s substantive decision[-]making process.” Gilcrease, 918 So. 2d at 859 (¶¶8-9).

¶19. Grandparent visitation is different than child custody, as there are other evidentiary considerations besides the child’s best interest that must be considered—namely, whether the grandparent has produced sufficient evidence to show he or she is authorized under the statute to be awarded visitation. Still, while “Rule 36 is to be applied as written, . . . ‘it is not intended to be applied in Draconian fashion.’” Leverock, 23 So. 3d at 432 (¶28) (quoting DeBlanc v. Stancil, 814 So. 2d 796, 801-02 (¶26) (Miss. 2002)). Mindful of this tenet, even if we deemed the chancellor’s failure to recognize the Quartaros’ admissions under Rule 36 as merely procedural, we still must reverse due to a second, substantive error—the chancellor’s finding that a viable relationship may be established based on the grandparents’ desire to establish a relationship with their grandchildren.

The decision went on to say that the mere thwarted desire to establish a relationship is not enough.

This case makes clear that inattention to timely supplementation of your discovery can cost your client big, even to the extent of getting a win turned on its head. If in trial preparation or any point before you believe the prior answers to RFA’s are incorrect and too restrictive, move for leave to amend.

Also, pardon me for sounding harsh, but I think the responses to the RFA’s might have been too “cute.” For example, intead of admitting that they had not supported the children because the mother threw things away, I think it would have been quite accurate and truthful to deny it something like this: “Denied as stated. We have bought numerous things for the children, but our daughter has thrown them away.” Sometimes, in that urge to strike back, clients say things that come back to haunt them. That’s what it looks like happened here.

If you try any grandparent visitation cases, you need to be fully aware of the two major categories of cases, as well as the Martin v. Coop factors. Merely because you have grandparents who are willing to pay you a retainer to try for visitation does not mean they have a viable case.


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  • […] In child custody cases, RFA’s may not be relied upon by the chancellor as the body of proof. And here is another post (with the same title) on the point. […]

  • randywallace says:

    A motion to deem RFAs admitted is not required by the MSSC, but some judges will not treat them as admitted unless you do so.

    “We find that it was unnecessary for the Pendletons to petition the chancellor to deem the requests for admission admitted. Consequently, the chancellor was in error for denying the request as being untimely filed. According to Mississippi Rule of Civil Procedure 36(a), a “matter is admitted unless, within thirty 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.” Thus, a judge does not have the discretion to deem the matter admitted, because a request is conclusively established upon a party’s failure to answer within thirty days, or such time as the judge has determined appropriate. Miss. R. Civ. P. 36(b).”

    In re Dissolution of Marriage of Leverock and Hamby, 23 So.3d 424, 433 (Miss. 2009).

    The MSSC has stated “the purpose of requests for admission under Rule 36 is “to determine which facts are not in dispute. It is not intended to be used as a vehicle to escape adjudication of the facts by means of artifice or happenstance.” Rhoda v. Weathers, 87 So. 3d 1036, 1039 (Miss. 2012).

    That would lead one to believe that RFAs are for facts rather than legal theories such as “admit you were guilty of negligence.”

    However, there are cases out there where the courts have allowed substantial verdicts to stand on appeal based on failure to respond to RFAs that established all of the essential elements of the case (including damages).

    For example in Byrd v. Bowie, 992 So. 2d 1202, 1207 (Miss. Ct. App. 2008), the Court held “all elements of the legal malpractice claim against Byrd, including the proximate cause and actual damages sustained as a result of the legal malpractice, were conclusively established through the requests for admission that were deemed admitted as a result of Byrd’s failure to timely answer the requests. Therefore, we affirm the trial court’s grant of summary judgment and award of damages in the amount of $ 2,000,000 in favor of Bowie.”

    That is $2M reasons to take RFAs seriously!

  • The failure to respond within the time limit to RFAs can be a minefield also as seen in the case of Reeves v. Earwood. I seem to recall though that the appellate courts have taken some of the bite of that recently. Am I wrong? Too, isn’t it required that you file a motion to have the RFAs admitted?

    • Larry says:

      RFA cases are all over the ballpark, in my opinion. In one case the remedy is drastic, in another not so much. You might be thinking of the mssc case, I believe in 2012, that held that RFA’s on the ultimate issue are not to be used to decide the case (e.g., “admit that you are guilty of HCIT and wife is entitled to a divorce”).

      I don’t know that it’s required that you file a motion to deem RFA’s admitted, but it’s the better practice because you can plan better for trial, and there is a clear record of what the judge ruled and why.

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