                                  Cite as 2014 Ark. App. 152

                 ARKANSAS COURT OF APPEALS
                                         DIVISION I
                                         No. CV-13-77


                                                   Opinion Delivered   February 26, 2014

CHERLE MARIE DUNCAN and                            APPEAL FROM THE GARLAND
LLOYD LEO DUNCAN                                   COUNTY CIRCUIT COURT
                  APPELLANTS                       [NO. CV-06-1443-2]

V.                                                 HONORABLE VICKI SHAW COOK,
                                                   JUDGE
DR. ROBERT OLIVE
                                  APPELLEE
                                                   AFFIRMED



                            WAYMOND M. BROWN, Judge


       Appellants appeal the circuit court’s grant of appellee’s motion for summary judgment.

On appeal, appellants argue that (1) appellee’s requests for admission should not have been

deemed admitted, and (2) summary judgment was improper because even if the requests for

admission were properly deemed admitted, the court should have allowed the admissions to

be withdrawn.1 We find no error and affirm.2




       1
        Appellants contend that this case should be reviewed by our supreme court because
it presents an issue of first impression; however, we decline appellants’ request because this
court addressed the same or similar issues recently in Hardesty v. Baptist Health, 2013 Ark. App.
731, ___ S.W.3d ___.
       2
        This is the second time this case has been before us. We initially ordered appellants
to submit a supplemental record and supplemental addendum due to deficiencies. Duncan v.
Olive, 2013 Ark. App. 680.
                                  Cite as 2014 Ark. App. 152

       On November 29, 2006, appellants filed a medical-malpractice complaint against

appellee, Orthopedic Associates of Hot Springs, Darlene Abernathy, and two Jane Does. The

named defendants timely filed their joint answer on December 14, 2006, contending that the

complaint was without merit. Appellants filed an amended complaint on January 28, 2011.

The named defendants, again, filed a joint answer on February 2, 2011, asserting that the

complaint was without merit. On February 2, 2012, appellee filed and served upon appellants

two sets of requests for admission. The first request stated:

       REQUEST FOR ADMISSION NO. 1: Please admit that you have not obtained an
       affidavit that has been signed and executed by an expert engaged in the same type of
       medical practice or specialty as the Defendants, which demonstrates reasonable cause
       for filing your Complaint for medical injury against the Defendants in accordance with
       Ark. Code Ann. § 16-114-209.

The second set of requests stated:

       REQUEST FOR ADMISSION NO. 1: Admit that the Defendants . . . were not negligent
       in any way in the medical care and treatment they provided to Cherle Duncan.

       REQUEST FOR ADMISSION NO. 2: Admit that the Defendants . . . did not fail to meet
       the applicable standard of care in their medical care and treatment of Cherle Duncan.

       REQUEST FOR ADMISSION NO. 3: Admit that there was no act or omission by the
       Defendants . . . that was the proximate cause of injury or damage to Cherle Duncan
       and/or Lloyd Leo Duncan.

       REQUEST FOR ADMISSION NO. 4: Admit that the Defendants . . . complied with the
       standard of care required of them in the medical care and treatment they provided to
       Cherle Duncan.

       REQUEST FOR ADMISSION NO. 5: Admit that the Defendants . . . are not liable in any
       way to Cherle Duncan and/or Lloyd Leo Duncan.

       REQUEST FOR ADMISSION NO. 6: Admit that you do not have expert testimony from
       a qualified medical expert willing to testify that the Defendants . . . failed to meet the
       applicable standard of care in their medical care and treatment of Cherle Duncan.

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       REQUEST FOR ADMISSION NO. 7: Admit that you do not have expert testimony from
       a qualified medical expert that there was any act or omission on the part of the
       Defendants . . . that was the proximate cause of injury or damage to Cherle Duncan
       and/or Lloyd Leo Duncan.

Appellants answered the requests on February 13, 2012, and appellee’s attorney received the

responses on February 14, 2012. However, appellants failed to file their responses to the

requests with the circuit court at that time.

       Appellants filed a motion to nonsuit their claims against Orthopedic Associates of Hot

Springs and Darlene Abernathy, without prejudice, on August 29, 2012. On August 31,

2012, appellee filed a motion for summary judgment, alleging that he was entitled to

judgment as a matter of law because appellants had failed to file their responses to his requests

for admission with the clerk and therefore, the requests were deemed admitted. Appellants

responded to appellee’s summary-judgment motion on September 18, 2012, contending that

their failure to file the responses with the clerk was just an oversight, and that they had

responded to the requests and served their answers upon appellee’s attorney in a timely

manner. Appellants filed their responses to the requests for admission with the clerk on

October 3, 2012. A formal order granting appellee summary judgment was entered on

October 19, 2012. Appellants filed a timely notice of appeal on November 8, 2012. This

appeal followed.

       Appellants first argue that the trial court erred by deeming the requests for admission

admitted. A trial court has broad discretion in matters pertaining to discovery, and the

exercise of that discretion will not be reversed by the appellate court absent an abuse of



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discretion that is prejudicial to the appealing party.3 To have abused its discretion, the trial

court must have not only made an error in its decision but also must have acted

improvidently, thoughtlessly, or without due consideration.4

       Appellants contend that appellee’s requests should not have been deemed admitted

because the responses were served on appellee. They contend that they complied with the

requirements of Arkansas Rule of Civil Procedure 36 by responding to the requests. They

admit their failure to comply with the requirement of Arkansas Rule of Civil Procedure 5 that

the responses be filed, but argue that the rule does not impose a penalty of admission for

failing to do so. According to Arkansas Rule of Civil Procedure 5(c),5 all papers after the

complaint required to be served upon a party or his attorney shall be filed with the clerk of

the court either before service or within a reasonable time thereafter. Responses to requests

for admission are required to be served on the opposing party and are thus subject to Rule

5(c). Although Rule 5 itself contains no consequence for failure to abide by the rule, our

supreme court has held that it was error for a trial court to fail to strike an answer and enter

a default judgment based on the failure of a party to timely file an answer.6 Default judgment

is also a consequence of failure to respond to a complaint.7 The same rationale that our



       3
           Deering v. Supermarket Investors, Inc., 2013 Ark. App. 56, ___ S.W.3d ___.
       4
           Id.
       5
           (2012).
       6
           Hardesty, supra (citing Webb v. Lambert, 295 Ark. 438, 748 S.W.2d 658 (1988)).
       7
           Ark. R. Civ. P. 55(a) (2012).

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supreme court has applied to failure to file an answer should likewise apply to a failure to file

responses to requests for admission.8 Therefore, we hold that the trial court did not abuse its

discretion by deeming appellee’s requests for admission admitted when appellants’ responses

were not filed as required.

       Next, appellants argue that summary judgment was improper because even if the

requests for admission were properly deemed admitted, the court should have allowed the

admissions to be withdrawn. Summary judgment is to be granted by a trial court only when

it is clear that there are no genuine issues of material fact to be litigated and the moving party

is entitled to judgment as a matter of law.9 Once a moving party has established a prima facie

entitlement to summary judgment, the opposing party must meet proof with proof and

demonstrate the existence of a material issue of fact.10 On appeal, we determine if summary

judgment was appropriate based on whether the evidentiary items presented by the moving

party in support of its motion leave a material fact unanswered.11 This court views the

evidence in the light most favorable to the party against whom the motion was filed, resolving

all doubts and inferences against the moving party.12 Our review is not limited to the




       8
           See Hardesty, supra.
       9
           Midkiff v. Crain Ford Jacksonville, LLC, 2013 Ark. App. 373.
       10
            Id.
       11
            Id.
       12
            Id.

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pleadings, as we also focus on the affidavits and other documents filed by the parties.13 After

reviewing undisputed facts, summary judgment should be denied if, under the evidence,

reasonable people might reach different conclusions from those undisputed facts.14

       Arkansas Rule of Civil Procedure 36(b)15 states that a trial court can permit withdrawal

or amendment of admissions. However, the rule does not make it mandatory that a trial court

grant a request to withdraw and/or amend. The relevant question here is whether the trial

court in this case abused its discretion by denying appellants’ motion to withdraw the

admissions. Appellants have not demonstrated an abuse of discretion by the trial court.

       Appellants had the burden of proving that (1) the degree of skill and learning ordinarily

possessed and used by orthopedic surgeons in good standing, engaged in the same type of

practice or specialty in Garland County, Arkansas, or in a similar locality; (2) that appellee

failed to act in accordance with that standard; and (3) that as a proximate result thereof Cherle

Duncan suffered injuries that would not otherwise have occurred.16 A medical-malpractice

complaint is subject to a motion for summary judgment when the plaintiff fails to present

expert evidence of those three elements and the defending party demonstrates that the plaintiff

lacks proof on one or more of these essential elements.17 By failing to timely file their



       13
            Id.
       14
            Id.
       15
            (2012).
       16
            Ark. Code Ann. § 16-114-206(a) (Repl. 2006).
       17
            Quattlebaum v. McCarver, 2013 Ark. App. 376.

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responses to appellee’s requests for admission, appellants admitted that they could not meet

their burden of proving the essential elements of medical malpractice. Accordingly, appellee

was entitled to judgment as a matter of law, and summary judgment was appropriate under

these facts.

       Affirmed.

       PITTMAN and WYNNE, JJ., agree.

       Michael R. Lipscomb, for appellants.

       Malcom Law Firm, by: J. Phillip Malcom and Glenn Ritter, for appellee.




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