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be withdrawn.1 We find no error and affirm.2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.
2 Cite as 2014 Ark. App. 152
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
3 Cite as 2014 Ark. App. 152
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).
4 Cite as 2014 Ark. App. 152
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
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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.
2 Cite as 2014 Ark. App. 152
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
3 Cite as 2014 Ark. App. 152
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).
4 Cite as 2014 Ark. App. 152
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.
5 Cite as 2014 Ark. App. 152
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.
6 Cite as 2014 Ark. App. 152
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.