                    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



                                               9
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

                                                10
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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