                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 1999-CT-01074-SCT
GAIL LOFTON DeBLANC

AND DAVID DeBLANC
v.
MABLE LOFTON STANCIL

                                      ON WRIT OF CERTIORARI



DATE OF JUDGMENT:                                  02/17/1999
TRIAL JUDGE:                                       HON. EDWARD E. PATTEN, JR.
COURT FROM WHICH APPEALED:                         LINCOLN COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS:                          J. C. AINSWORTH, JR.
                                                   ROBERT WARREN MOAK
ATTORNEY FOR APPELLEE:                             RAYMOND OSBORN BOUTWELL, JR.
NATURE OF THE CASE:                                CIVIL - REAL PROPERTY
DISPOSITION:                                       REVERSED AND RENDERED - 03/07/2002
MOTION FOR REHEARING FILED:                        3/20/2002; denied 5/2/2002
MANDATE ISSUED:                                    5/9/2002

      EN BANC.

      WALLER, JUSTICE, FOR THE COURT:

¶1. In a dispute over a deed to real property, the trial court found that matters deemed admitted under the
Mississippi Rules of Civil Procedure were sufficient to grant summary judgment. The Court of Appeals
reversed and remanded because the trial court entered summary judgment without considering an affidavit
favorable to the opponents of the motion. After granting the petition for writ of certiorari, we reverse and
render.

                                                       I.

¶2. Mable Stancil executed two deeds in favor of Gail and David DeBlanc. In the first deed, Stancil
conveyed a tract of 2.5 acres, upon which the DeBlancs built a home. In the second deed, Stancil
conveyed a larger tract abutting three sides of the 2.5-acre tract. Stancil's house was located on this larger
tract, and the deed to it reserved unto her a life estate with the remainder to the DeBlancs, plus a present
easement for access to their home site.

¶3. Stancil moved into a nursing home about six years later at the age of eighty-two. She brought an action
against the DeBlancs to set aside the two deeds. Concurrent with the complaint, Stancil served
interrogatories and requests for admissions. The requests for admissions asked the DeBlancs to admit,
among other things, that there had been no consideration for the two deeds and, more directly to the
ultimate issue as things turned out, that the deed to the larger tract was an error and should have conveyed
only an easement and should be set aside.

¶4. Four months after commencement of the action, Stancil moved for entry of default and for a summary
judgment. The motion for summary judgment was based almost solely on the DeBlancs' failure to respond
timely to the requests for admissions. It was only then that the DeBlancs answered the complaint. Another
month passed before the DeBlancs filed their untimely answers to both the interrogatories and the requests
for admissions. The interrogatories were answered in a manner befitting their defense, and the requested
admissions were denied.

¶5. After two more months had passed, the DeBlancs filed their answer to the motion for summary
judgment. This answer offered no reason for the failure to answer timely the admissions, other than the fact
that the attorneys for both sides had discussed the case and that Stancil's attorney had not advised the
DeBlancs' attorney that their response to discovery was overdue. Attached to this answer was an affidavit
by the attorney who had prepared the two deeds for Stancil. The affidavit stated that Stancil had instructed
him that she wanted to convey both tracts to the DeBlancs, reserving unto herself a life estate in the larger
tract, with the DeBlancs also acquiring an easement for access across the larger tract. The affidavit appears
to be admissible evidence, not confidential communications between attorney and client, because the deeds
were filed in the public land records. Most significantly, however, the DeBlancs never filed a Rule 36(b)
motion to avoid the default created by the late answers to the requests for admissions.

¶6. A hearing was held on the motion for summary judgment. The DeBlancs' attorney argued that there
were genuine issues of material fact for trial, as evidenced by the notable affidavit. Stancil's attorney
countered that, as was known by counsel opposite, his client was now in her mid-eighties and that time was
of the essence and much time was already lost.

¶7. The trial court ruled that, while Stancil had not filed a motion to strike the untimely responses to requests
for admissions, the DeBlancs throughout had failed to file a motion to withdraw or amend the admissions
under M.R.C.P. 36(b). The matters thereby admitted were deemed sufficient to prove Stancil's case.
Summary judgment was granted accordingly, and the two deeds were ordered canceled.

¶8. The DeBlancs filed a motion for rehearing. Before it was heard, the chancellor granted the DeBlancs'
motion to depose the elderly Stancil in order to preserve her testimony. At the deposition, Stancil said it
was her intent to convey the 2.5-acre tract to the DeBlancs, but not the larger tract. Presumably after
subsequent advice of counsel, Stancil dropped her claims regarding the deed to the 2.5 acre tract, leaving at
stake only the deed conveying a remainder interest to the larger tract. The DeBlancs appealed.

¶9. The Court of Appeals, citing, inter alia, Martin v. Simmons, 571 So. 2d 254 (Miss. 1956), remanded
the case to the trial court because the attorney's affidavit directly contradicted issues of material fact
otherwise established by the admissions. Stancil has petitioned for writ of certiorari.

                                                       II.

¶10. The petition for writ of certiorari asserts that the decision by the Court of Appeals will render
meaningless M.R.C.P. 36. We granted the writ to review the proper interpretation and application of Rule
36.
¶11. The trial court granted a motion for summary judgment based upon failure to timely respond to a
request for admissions. The decision of the trial court in regards discovery is subject to review for abuse of
discretion. Earwood v. Reeves, 798 So. 2d 508, 514 (Miss. 2001). The review of an order granting
summary judgment is de novo. State Farm Mut. Auto. Ins. Co. v. Universal Underwriters Ins. Co.,
797 So. 2d 981, 983 (Miss. 2001).

¶12. Rule 36 is straightforward in its terms. Rule 36(a) provides in pertinent part that a "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. . . ." A defendant is allowed forty-five days to respond after
service of summons. Rule 36(b), which usually becomes the focus of any dispute concerning admissions,
provides as follows:

      Any matter admitted under this rule is conclusively established unless the court on motion permits
      withdrawal or amendment of the admission. Subject to the provisions governing amendment of a pre-
      trial order, 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.
      Any admission made by a party under this rule is for the purpose of the pending action only and is not
      an admission by him for any other purpose nor may it be used against him in any other proceeding.

(Emphasis added.)




¶13. The determinative issue here is whether Rule 36 should be interpreted and applied in accordance with
its plain words. In the context of this case, the issue is whether the chancellor should have considered the
affidavit before rendering a summary judgment based on admissions by default. We have decided five cases
of particular relevance.

¶14. In Educational Placement Servs. v. Wilson, 487 So. 2d 1316 (Miss. 1986), the defendant filed no
answer or other response to requests for admissions, totaling more than a year of inaction and through and
including the date of the final order of dismissal. Although no ruling was apparently made by the trial court in
regards the requests, we deemed the matters were nevertheless established. We expressed the following
rule of interpretation:

      We do not intend here to suggest that any request for admissions to which a response, objection or
      motion for time has not been filed before the thirty- first day should be taken as irrevocably admitted.
      Necessary and practicable leniency, however, appear to have generated an air of benevolent gratuity
      about the administration of Rule 36. But, of course, there is no gratuity about it. Courts cannot give or
      withhold at pleasure. Rule 36 is to be enforced according to its terms.

Id. at 1318 (emphasis added).

¶15. In Sawyer v. Hannan, 556 So. 2d 696 (Miss. 1990), plaintiff sued for breach of contract. Defendant
filed a response to plaintiff's request for admissions, but the response came about three weeks late. The
tardy admissions admitted a matter which established plaintiff's case, which defendant would later assert
was a typographical error. The defendant also failed to respond to interrogatories or a request for
documents. Plaintiff thereupon filed a motion for summary judgment, which defendant countered by filing a
Rule 36(b) request to withdraw the admissions. The trial court ruled that the admissions were established
under Rule 36 because of the untimeliness of the response, and because of the admission of the prejudicial
matter in the response. Accordingly, summary judgment was entered for the plaintiff. Defendant argued on
appeal that the trial court should have applied Rule 36 more leniently, relying on the first sentence of the
above quote from Educational Placement Servs., 487 So. 2d at 1318. Citing Education Placement
Services, as well as other cases, we applied an abuse of discretion standard and upheld the trial court in its
application of Rule 36.

¶16. In Martin v. Simmons, 571 So. 2d 254 (Miss. 1990), plaintiffs sought to confirm title to real
property against the claims of defendants. Defendants counterclaimed under a theory of adverse possession.
They served requests for admissions and plaintiffs responded, but the responses were eleven days late.
Defendants filed a motion for summary judgment. Before a hearing on the motion, plaintiffs filed tardy
answers to interrogatories, and defendants failed to move to strike these answers under M.R.C.P. 37.
Neither party filed affidavits for or against the motion. Finding no justifiable excuse for the tardiness of
eleven days, the chancellor ruled the admissions were established against defendants and granted summary
judgment.

¶17. On appeal, we observed that, under Educational Placement Servs., the rule of law in this State is
that Rule 36 is to be enforced according to its terms. Matters admitted by default under Rule 36(a) are
established unless and until the trial court allows amendment or withdrawal by motion under Rule 36(b). We
noted that, although some jurisdictions allow tardy answers if the party propounding the request for
admissions is not prejudiced, that question was not presented. Because the Martin defendants never filed a
motion in the trial court to amend or withdraw the admissions under Rule 36(b), the chancellor was not
called upon to exercise discretion, and ruled correctly regarding the admissions.

¶18. Notwithstanding that the admissions were deemed admitted, we found that the chancellor should have
considered the answers to interrogatories before granting summary judgment. Those answers revealed an
unresolved issue of fact. The summary judgment was therefore reversed.

¶19. A careful reading of Martin reveals that the admissions established certain facts, but failed to resolve
all of the necessary elements of adverse possession. The record in the case likewise reveals that critical
elements were lacking. For example, it was not admitted that defendant's possession had been hostile. The
answers to interrogatories, on the other hand, contained a statement that the possession was permissive.

¶20. Martin should not be read to say that a matter "conclusively established" under Rule 36 can be offset
by a conflicting answer to interrogatories. We did not intend to reduce matters admitted under Rule 36 to
mere evidentiary weight. Rather, the case is more about summary judgments under Rule 56, and the
proposition that the grant or denial of summary judgment is dependent on the existence of an issue of
material fact, as revealed by all the materials which the trial court must examine.

¶21. In Skipworth v. Rabun, 704 So. 2d 1008 (Miss. 1996) ("Skipworth II"), we were presented with
a "procedural quandary." The trial court had allowed withdrawal of admissions without placing anything in
the record to explain why the defaulting party's Rule 36(b) motion was granted. With the admissions
removed from consideration, the trial court denied the requesting party's motion for summary judgment. The
case went to the jury and the jury returned a verdict for the defaulting party. We remanded the case
because of the unexplained ruling which excused default. Skipworth v. Rabun, 568 So. 2d 289 (Miss.
1990) ("Skipworth I"). By the time of any action on remand, however, several of the parties were no
longer available, a new trial judge had ascended the bench, there was no record of the trial court's decision
to grant the Rule 36(b) motion, and "there remained few alternatives to allow [the defaulting party] to
comply with this Court's ruling except to supply affidavits which detailed what those involved remembered
as occurring." 704 So. 2d at 1012.

¶22. With that being the situation on remand, the trial court never made a ruling on the defaulting party's
renewed Rule 36(b) motion. Instead, it determined that Martin v. Simmons controlled and that the
defaulting party's answers to interrogatories supplied an issue of material fact. The question of the
admissions was deemed moot, a ruling which relegated the admissions to a status lower than that of
evidentiary matters, and of little or no purpose or use. The trial court granted summary judgment to the
defaulting party, apparently on the theory that the jury's verdict had decided all disputed facts. We affirmed,
finding that Martin v. Simmons was persuasive in the unfortunate procedural history of the case. We did
not, however, abandon the concept of enforcing Rule 36 in accordance with its terms as expressed in
Educational Placement Servs., particularly when no explanation is offered for the default. In the
Skipworth cases, the defaulting party offered explanations and a motion to withdraw, and had a Rule
36(b) motion granted at one point in the litigation.

¶23. In the recent case of Earwood v. Reeves, 798 So. 2d 508 (Miss. 2001), plaintiffs' request for
admissions went unanswered for ten months, partly because defendants believed that a motion to transfer
venue would toll the time for response to discovery. Defendants did not file a response until after plaintiffs
filed a motion to have the matters deemed admitted. The trial court ruled for plaintiffs, and the matters were
deemed admitted. Defendants were granted an interlocutory appeal. In some of our strongest language on
the subject to date, we reiterated that Rule 36 is to be enforced despite the fact that harsh consequences
might result, saying as follows:

      We are compelled to acknowledge the adage that rules are promulgated for a purpose, this being
      precisely an instance in which that principle applies. Mechanisms exist whereby a trial court may hold
      that an untimely response does not constitute a deemed admission because the trial court has broad
      discretion in pretrial matters. However, because of the trial court's broad discretion in such matters, it
      certainly may also require that parties comply with the rules as stated. Here, the trial court found no
      compelling reason to allow disrespect of M.R.C.P. 36 regarding the set time for responding to
      requests for admissions; and we find no compelling reason to hold that such was an abuse of
      discretion. [The defaulting party] knew or should have known the severe consequences of failing to
      timely respond.

798 So. 2d at 516.

¶24. These cases promote a common theme when considered collectively. That is, Rule 36 is meant to
provide, and should provide, an authoritative manner of procedure.

¶25. The federal rule is identical to our Rule 36(b). Fed. R. Civ. P. 36(b). Regarding the federal rule, it is
written:

      An admission under Rule 36 is comparable to an admission in a pleading or stipulation drafted by
      counsel for use at trial, as opposed to an evidentiary admission of a party for use at trial. That is to
      say, any matter conclusively established is treated as a judicial admission, not as an evidentiary
      admission.

      A matter that is deemed admitted does not require further proof. Any 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.

7 James W. Moore, et al., Moore's Federal Practice ¶ 36.03[2], at 36-15 (3d ed. 2001) (footnotes
omitted).

¶26. While Rule 36 is to be applied as written, it is not intended to be applied in Draconian fashion. If the
Rule may sometimes seem harsh in its application, the harshness may be ameliorated by the trial court's
power to grant amendments or withdrawals of admissions in proper circumstances. The trial court's ruling in
this regard is subject to review for abuse of discretion. The purpose of the rule is to determine which facts
are not in dispute. Id. ¶36.02[1], at 36-7. It is not intended to be used as a vehicle to escape adjudication
of the facts by means of artifice or happenstance. Just as a matter admitted is "conclusively established" by
the express terms of the Rule, the trial court is likewise directed to carefully examine a Rule 36(b) motion
under the two-prong test there provided.

                                              CONCLUSION

¶27. In the instant case, the DeBlancs never filed a proper Rule 36(b) motion in an effort to withdraw their
tacit admissions. The trial court had the authority to rule that the matters contained in the admissions were
conclusively established.

¶28. The admitted matters include that the deed to the larger tract by Stancil to the LeBlancs was in error,
should have been a conveyance of an easement, and should be set aside. With those matters conclusively
established, the trial court was correct in setting aside the deed by summary judgment. While the answers to
interrogatories could not be used to refute these admissions, we note for the record that the answers do not
directly contradict these admissions. Because the trial court made a ruling within its authority under Rule 36,
the attorney's affidavit could not be used to negate the admissions, even though the affidavit may be viewed
as contradictory.

¶29. Therefore, the judgment of the Court of Appeals is reversed, and the judgment of the Lincoln County
Chancery Court is reinstated.

¶30. REVERSED AND RENDERED.

      PITTMAN, C.J., SMITH, P.J., COBB, DIAZ, CARLSON AND GRAVES, JJ., CONCUR.
      McRAE, P.J. AND EASLEY, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION.
