        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2015-CA-00433-COA

CURTIS HAWKINS                                                          APPELLANT


v.

DANIEL HALE                                                               APPELLEE


DATE OF JUDGMENT:                        01/28/2015
TRIAL JUDGE:                             HON. ALBERT B. SMITH III
COURT FROM WHICH APPEALED:               COAHOMA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 ROBERT G. JOHNSTON
                                         CHERYL ANN WEBSTER
ATTORNEY FOR APPELLEE:                   WILLIAM O. LUCKETT JR.
NATURE OF THE CASE:                      CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                 SUMMARY JUDGMENT GRANTED IN
                                         FAVOR OF APPELLEE
DISPOSITION:                             AFFIRMED - 02/16/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      JAMES, J., FOR THE COURT:

¶1.   Curtis Hawkins appeals from an order affirming the grant of summary judgment in

favor of Daniel Hale. The County Court of Coahoma County granted summary judgment,

in part, based on deemed admissions by Hale. The Circuit Court of Coahoma County

affirmed the county court’s order granting summary judgment. Finding no error, we affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2.   On April 17, 2013, Hale’s dog, a Labrador Retriever, escaped from chain restraints

in Hale’s backyard and ran toward Hawkins and his wife (the Hawkinses) while they were
in the street in front of Hale’s house. The dog stopped a few feet short of the Hawkinses and

barked aggressively at them. Hale’s neighbor, Daniel Blackwell, who was in his yard at the

time, had observed the Hawkinses yelling and provoking the dog before it ran toward them.

Blackwell intervened, retrieved the dog, and brought it to Hale’s backyard. Two to five

minutes later, the dog returned and bit Hawkins on the leg while he was still in the street.

Again, Blackwell intervened, retrieved the dog, and returned it to Hale’s backyard.

Blackwell then first notified Hale about the attack and bite. The dog was then chained in

Hale’s backyard. On June 14, 2013, Hawkins filed a personal-injury lawsuit against Hale,

seeking damages for injuries sustained as a result of the dog bite.

¶3.    On October 2, 2013, Hale served both of Hawkins’s attorneys, Cheryl Ann Webster

and Robert G. Johnston, with requests for admissions, interrogatories, and requests for

production. The requests for admissions went unanswered for nearly three months. On

December 5, 2013, Hale filed a motion for summary judgment. On December 30, 2013,

while preparing a response to the summary-judgment motion, Hawkins’s attorneys realized

their failure to respond to the requests for admissions. Johnston searched and located the

requests for admissions in his office. He stated that the requests had been “inadvertently mis-

filed and mis-laid” in his office. On December 31, 2013, Hawkins mailed a motion for leave

to file late responses to the requests for admissions and to withdraw deemed admissions. The

motion also included responses to the requests for admissions. The motion was filed on

January 3, 2014.

¶4.    A hearing was held on the respective motions on January 27, 2014. Webster never



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offered any explanation whatsoever as to why she failed to respond to the requests for

admissions. The county court denied Hawkins’s motion for leave and granted summary

judgment in favor of Hale. Hawkins filed a motion for reconsideration, which was denied.

Hawkins appealed and the circuit court affirmed.

¶5.    Hawkins now appeals to this Court arguing that (1) the trial court abused its discretion

in denying his motion for leave to file untimely responses to Hale’s requests for admissions,

and (2) the trial court erred by granting summary judgment. Finding no error, we affirm.

                                       DISCUSSION

       I.     Requests for Admissions

¶6.    Requests for admissions are governed by Mississippi Rule of Civil Procedure 36. The

purpose of Rule 36 “is to narrow and define issues for trial by determining which facts are

not in dispute.” Rainer v. Wal-Mart Assocs. Inc., 119 So. 3d 398, 401 (¶7) (Miss. Ct. App.

2013). Mississippi Rule of Civil Procedure 36(a) provides, in part:

       The matter is admitted unless, within thirty days after service of the request,
       or within such shorter or longer time as the court may allow, the party to whom
       the request is directed serves upon the party requesting the admission a written
       answer or objection addressed to the matter[.]

¶7.    Rule 36(b) provides that “the court may permit withdrawal or amendment 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.” M.R.C.P. 36(b). “So while Rule 36

provides a harsh penalty for the failure to comply, a trial court is still given great discretion

when determining whether it will allow the untimely answers to requests for admissions.”

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Rainer, 119 So. 3d at 401 (¶8) (citing Triangle Constr. Co. v. Foshee Constr. Co., 976 So.

2d 978, 981 (¶7) (Miss. Ct. App. 2008)).

¶8.    The county court found that Johnston’s excuse that the requests had been

“inadvertently mis-filed and mis-laid” in his office failed to rise to a compelling and

justifiable excuse for not timely responding. The county court also found that Hawkins’s

other attorney, Webster, failed to give any excuse whatsoever as why she did not timely

respond. The county court also determined that Hale would be prejudiced if the deemed

admissions were allowed to be withdrawn and amended. Although Hawkins identified the

county court’s denial of his request to withdraw the deemed admissions as one of the issues

of this appeal, he made no argument in his brief regarding the reason for his untimely

response to Hale’s requests for admissions. In response to Hale’s brief, which noted this

absence, Hawkins simply stated that he was “not seriously arguing this on appeal and did not

seriously argue it on the [m]otion for [s]ummary judgment in the [c]ounty [c]ourt.”

¶9.    We find the county court did not abuse its discretion in denying Hawkins’s motion to

withdraw the deemed-admitted responses. See Triangle Constr., 976 So. 2d at 982-83 (¶¶9,

13) (affirming the trial court’s denial of a request to withdraw deemed admissions where

defaulting counsel’s reason for his delay included ordinary conflicts of a busy attorney). The

circuit court’s order affirming the county court’s decision to deny Hawkins’s motion to

withdraw the deemed admissions is affirmed.

       II.    Summary Judgment

¶10.   Hawkins argues that summary judgment should not have been granted because there



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are two genuine issues of material fact that should have prevented summary judgment.

Specifically, Hawkins argues that there is a disputed fact as to whether Hale had notice of

the dangerous propensities of his dog. Hawkins also argues there is a disputed fact as to

whether Hale had violated the City of Clarksdale’s leash ordinance.

¶11.   The review of a trial court's grant of summary judgment is de novo. Olier v. Bailey,

164 So. 3d 982, 986 (¶9) (Miss. 2015). The evidence is viewed in the light most favorable

to the party against whom the motion has been made. Id. If the movant can show that there

is no genuine issue of material fact and that the moving party is entitled to a judgment as a

matter of law, then summary judgment is appropriate. Id. (citing M.R.C.P. 56(c)).

              A.     Dangerous-Propensity Rule

¶12.   Mississippi adheres to the dangerous-propensity rule for causes of action based on

animal attacks.

       Under the dangerous-propensity rule, this Court has stated that an animal
       owner may be exposed to liability for an attack by his or her animal when: (1)
       There is some proof that the animal has exhibited some dangerous propensity
       or disposition that the owner was aware of prior to the attack complained of;
       and, (2) There is proof that the owner reasonably should have foreseen that the
       animal was likely to attack someone.

Olier, 164 So. 3d at 990 (¶26) (citing Poy v. Grayson, 273 So. 2d 491, 494 (Miss. 1973)).

¶13.   Because the county court acted within its discretion in denying Hawkins’s motion to

withdraw the deemed admissions, we consider the following requests to be admitted and

conclusively established:

       REQUEST NO. 2: Please admit that in the months prior to the incident in
                      question, you had been in close proximity to the dog in
                      question.


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       REQUEST NO. 3: Please admit that you have visited [Hale’s] home and
                      yard over the past year while the dog was present.

       REQUEST NO. 4: Please admit that you and/or your wife provoked the dog
                      in question by yelling and gesturing at him.

       REQUEST NO. 6: Please admit that the dog did not attempt to charge or
                      attack anyone other than you and/or your wife.

       REQUEST NO. 7: Please admit that during the time between when Daniel
                      Blackwell returned the dog to its yard and when the dog
                      escaped again to allegedly bite you, you had at least five
                      minutes in which you could have fled the scene or
                      otherwise removed yourself to safety.

       REQUEST NO. 8: Please admit that you have no proof that the dog in
                      question has ever exhibited viciousness prior [to] the
                      attack which is the subject of this litigation.

¶14.   Hawkins admitted that he has no proof that Hale’s dog ever exhibited a vicious

demeanor prior to the attack, which is fatal to his claim under the dangerous-propensity rule.

Hale further corroborates this admission in his affidavit, where he asserts that the dog had

never previously bitten or attacked another person or animal. Blackwell, Hale’s neighbor

who witnessed the whole event, stated in his affidavit that he did not know the dog to act in

an aggressive manner and that the dog had never previously bitten or attacked any person or

animal.

¶15.   Hawkins argues that these deemed admissions, at most, prove his comparative

negligence. Hawkins attempts to refute the admissions by claiming that the dog had

exhibited viciousness prior to the attack, and Hale could have reasonably foreseen that his

dog could attack someone. However, “[a]ny admission that is not amended or withdrawn

cannot be rebutted . . . .” DeBlanc v. Stancil, 814 So. 2d 796, 801 (¶25) (Miss. 2002). Here,

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comparative negligence is inapplicable because Hawkins cannot prove negligence under the

dangerous-propensity rule. With no proof that the dog exhibited dangerous propensities prior

to the attack and no proof that Hale should have foreseen such an attack, Hawkins’s claim

fails as a matter of law under the dangerous-propensity rule.

¶16.   Hawkins argues there is a material disputed fact by claiming that Hale was put on

notice of his dog’s viciousness. Specifically, Hawkins alleges that Hale was notified about

the dog initially charging, but not biting, Hawkins. Again, any admission that is not amended

or withdrawn cannot be rebutted. See id. Hale admitted that he has no proof that the dog had

exhibited viciousness prior to this attack. Moreover, there is no evidence in the record

supporting Hawkins’s claim that Hale learned of the dog running toward the Hawkinses

when Blackwell initially intervened. It is an undisputed fact that Hale first learned of the

Hawkinses’ encounter with the dog after the dog had actually bitten Hawkins.

¶17.   Blackwell observed the Hawkinses provoking the dog by yelling and gesturing at him

while he was still in Hale's yard. The dog broke from his chains, ran toward the Hawkinses,

and barked aggressively at them. Blackwell intervened, retrieved the dog, and brought him

back into Hale’s yard. Two to five minutes later, the dog returned and bit Hawkins on the

leg. Again, Blackwell retrieved and returned the dog to the backyard. However, this time,

the dog was chained when it was returned. At this point, Blackwell first notified Hale of

what had transpired. Therefore, Hawkins’s argument is without merit.

              B.     Clarksdale Leash Law

¶18.   Hawkins argues that there was a disputed question of material fact regarding whether



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Hale violated the “Clarksdale Leash Law.” Hawkins contends that a violation of the

ordinance amounts to “strict liability.” However, the county court and circuit court, on

appeal, found that there was no evidence that Hale had violated the ordinance. We agree.

¶19.   At the outset, we note that Hawkins raises arguments for the first time on appeal to

this Court that he did not raise in the county court or in his motion for reconsideration filed

following the county court entering its order. Specifically, Hawkins argues for the first time

that notice was imputed to Hale by way of violating certain portions of the ordinance that he

did not mention at the county court level. The Mississippi Supreme Court has held that

matters raised for the first time on appeal will not be considered. Alexander v. Daniel, 904

So. 2d 172, 183 (¶26) (Miss. 2005). Accordingly, we will only address the arguments raised

and specific portions of the ordinance referenced by Hawkins at the trial level.

¶20.   The county court found: “Hale was in compliance with any applicable ‘leash’ laws

[because] his dog was in his yard and restrained by a chain.” Moreover, the circuit court, in

affirming the county court’s order, found:

       Under the ordinances referred to, for [Hale] to violate the ordinance, he must
       knowingly disregard [it] by either keeping or maintaining a violent animal, or
       allow specific acts to take place to justify a nuisance. Looking to the record,
       there is no indication that [Hale] violated the ordinance, because the animal
       did not possess violent tendencies, nor did [Hale] possess the requisite intent
       to violate the ordinance.

¶21.   Hawkins argues that Hale had violated the ordinance because his dog was not

controlled on a leash. The record shows that Hale did not cause or allow his dog to run at

large in violation of the ordinance.     Hale's dog was chained in the backyard prior to

approaching the Hawkinses. At some point, in response to the Hawkinses' provocations, the

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dog broke loose of the chain. Hawkins admitted to the emergency-room physician that he

was bitten by a “dog who broke away from restraints.” This argument is without merit.

¶22.   Hawkins also argues that Hale violated a portion of the ordinance that states in

pertinent part: “It shall be unlawful for the owner of any domestic animal to cause or allow

the same to run at large in the city or be picketed or tied in any public place; or to allow an

animal nuisance . . . for the purpose of grazing or feeding[.]” Clarksdale, Miss. Code of

Ordinances pt. 2, ch. 4, § 15(a) (2013). Again, the dog broke loose of restraints in response

to provocations by the Hawkinses. Moreover, Hale did not allow an animal nuisance for the

purpose of grazing or feeding in violation of the ordinance. Also, the record does not show

that the dog was allowed to run at large, or to be picketed or tied in any public place. This

argument is also without merit.

¶23.   We agree with the county court and circuit court’s findings regarding the alleged

ordinance violations. Hawkins admitted that he has no proof that the dog exhibited vicious

propensities prior to the subject attack. The ordinances referred to by Hawkins were not

violated as the dog broke away from restraints, and the dog had not exhibited any violent

propensities prior to the attack. Moreover, Hawkins did not allow his dog to run at large in

violation of the ordinance. There is no genuine issue of material fact on this issue.

                                      CONCLUSION

¶24.   We find, taking the deemed admissions, along with the depositions, affidavits, and

other evidence within the record, that summary judgment was properly granted as there was

no genuine issue of material fact. Accordingly, we affirm the circuit court’s order affirming



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the county court’s grant of summary judgment in favor of Hale.

¶25. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR
AND WILSON, JJ., CONCUR. GREENLEE, J., NOT PARTICIPATING.




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