IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-00876-COA PERSEPHANY ALLEN, AS THE NATURAL DAUGHTER AND NEX T FRIEND OF CATINA ALLEN STAFFNEY, DECEASED, AND ON BEHALF OF ALL THE HEIRS AT LAW AND WRONGFUL DEATH BENEFICIARIES OF CATINA ALLEN STAFFNEY, DECEASED, AND AS NEX T FRIEND OF MINORS, T.S. AND T.S. APPELLANT/CROSSAPPELLEE

v. JACKSON SQUARE APARTMENT HOMES, LLC D/B/A MELROSE PLACE APARTMENTS AND JUSTIN DAVIS APPELLEES/CROSSAPPELLANTS

DATE OF JUDGMENT: 06/06/2016 TRIAL JUDGE: HON. W ILLIAM A. GOW AN JR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: JEFFREY MATTHEW GRAVES DENNIS C. SW EET III ATTORNEYS FOR APPELLEES: DORIS THERESA BOBADILLA MATTHEW

MILES W ILLIAMS NATURE OF THE CASE: CIVIL - W R ONGFUL DEATH DISPOSITION: AFFIRMED: 12/12/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Persephany

Allen, as the natural daughter a n d n ext f riend o f Catina Allen Staf

f ney , deceased, f

iled a n action against Jackson S quare Apartm ent Hom es, L L C , f o r n e gligence f ollowing t h e d e a t h o f C atina in an apartm e nt f ire. T he circuit court allowed Allen to withd r a w a d m i s s i o n s p r e v i o u s l y d e em ed adm itted, but ultim ately granted s um m ary j udgm entin f

a vor of Jackson Square. ¶2. Upon review, we f ind the circuit c o urt did not abuse its d iscretion in allowing the withdrawa l o f the adm issions, and did n ot err in granting s um m a r y judgm ent i n f

avor of Jackson Square. Thus, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶3. Terry Staf

f n e y executed a reside n t i a l l e a s e a g r e e m e n t w ith Melrose Place Apartm ents,

an apartm ent c om

plex owned and m anaged by Jackson Square. Staf f ney identif

ied him self

, Catina, Terry Allen, and T e rrick Allen as the o ccupants of Unit L -205. The lease agreem ent expired February 28, 2014. Following the expiration of t he lease agreem ent, the occupants

rem ained on the pre mi s e s d e s p i t e their f ailure t o pay additional rent. As a result, Jackson Square obtained a m oney judgm ent against the occupants in the am ount of $639. Thereaf ter, Jackson Square executed an af f idavit f or w arrant o f rem oval and, on May 6, 2014, deposited the requisite sum of m oney with the cour t c l e r k i n order to obtain t he rem o val of the occupants. ¶4. Despite the expiration of the lease agreem ent, their f ailure to pay re n t , a n d J ackson Square’s actions t o rem ove them , the occupants were i nside the apartm ent unit on the night of May 1 6, 2014, when a f ire occurred. All of t he occupants were able to vacate the unit with the exception of Catina, who unf ortunately died. At the tim e of the f ire, a n order of rem oval had not y et been obtained. ¶5. On August 20, 2015, Alle n f i l ed a com

plaint on b ehalf o f herself and all wrongfuldeath benef

iciaries of C atina, and alleged various prem ises-liability claim s a gainst Jackson

2S q u are and Justin D avis, the m a intenance m a n f or the apartm ent com

plex. 1 Specif

icall y , Allen allege d that Jackson S quare had nonf u nctioning or inadequate sm oke detectors and f ire alarm s at the tim e of the f ire, had inadequate and im properly trained m aintenance p ersonnel and m anagers, and knew or s hould have known that no warnings were provided and that the f ire-protection m easures in place were unreasonable and inadequate to warn tenants. ¶6. Jackson Square subsequently served writte n d iscovery , i ncluding requests f or adm ission, u

pon Allen a nd her coun s el. T h e discovery requests were served to Allen’s

c o u n s e l v i a em a il on February 26, 2016, and again at the request o f Allen’s counsel o n February 29, 2016. A l l e n did not respond to the requests f o r adm ission within thirty day s and, as a result, the adm issions were deem ed adm itted by operation of

law. ¶7. On April 12, 2016, Jackson Square’s counsel sent a good

- f a i th request to Allen’s

cou n s e l and requested that Allen p rovide responses within ten d ay s. Allen’s counsel acknowledged the good-f aith request and c o nf

irm ed that discovery responses would be provided within ten day s. ¶8. Despite t he agreed-upon extension, on April 13, 2016, J ackson S quar e m o v e d f or

sum m ary judgm ent based, in part, on Allen’s f ailure t o tim ely respond t o t h e requests f or adm ission. Thereaf

ter, on April 28, 2016, Allen f iled a m otion to withdraw t he adm issions and acknowledged her f

ailure to tim ely respond to the requests f or adm ission. Allen asserted her f ailure to tim e ly respond was due t o her attorney being busy and in t e rof f ice

1 T h ere is n o i n d icatio n in th e reco rd th at D av is w as serv ed w ith p ro cess. H o w e v er, h e h a s n o t b een d ism issed

. D av is w as n o t a p arty to t h e s u m m ary - j u d g m en t p ro ceed in g s an d is n o t i n clu d ed in th is ap p e al. F in al j u d g m en t w as en t ered i n f av o r o f Jack so n S q u are an d certif i ed p u rsu an t to M ississip p i R u le o f C iv il P ro ced u re 5 4 (b ). 3m iscom m

unication. Despite seeking to withdraw her adm issions, Allen did not respond to the requests f

or adm ission. I n f

act, Allen did not respond t o the requests until May 31, 2016, well af ter the original due date and less than twenty -f our hours prior to the h earing on Jackson Square’s m otion f or sum m ary

judgm ent. ¶9. Additionally , Allen f ailed to provide any af

f idavits or do c u me n tation in opposition

to the m otion f

o r sum m ary j udgm ent. Moreover, Allen f ailed to subm i t an af

f idavit pursuant to Mississippi Rule of Civil Procedure 56(f ). ¶10. During the hearing o n the m otion f or sum m ary judgm ent, Allen’s c ounsel e xplained that he believed the ten-day agreed-upon e xtension t o respond to discovery included the requests f or adm ission. In response, Jackson Square’s counsel acknowledged that he had not

com m unicated to Allen’s c ounsel that the e xte n s i o n did n ot include the requests f or adm ission since Jackson S quare did not h ave the authority to give such an ext e n s ion on requests f or adm ission. Allen’s c ounsel advised that in an ef f ort to avoid additional tim e and
expense, he did n ot conduct f urther discovery without the circuit court’s r uling on the m otion to withdraw adm issions. ¶11. Following the hearing, the circuit c ourt f ound t hat Allen’s counsel rightf ully believed the extension included the requests f or adm ission, and t heref

ore allowed Allen to withdraw all of the adm issions with t he exception o f two, which were never a n s wered due to “oversight.” However, the circuit court f ound Allen f

ailed to set f

orth s pecif

i c f acts showing that t here was a genuine issue f or trial and, as a result, g ranted s um m ary j udgm ent in f avor of Jackson Square.

4¶12. Allen now appeals a nd a rgue s t he circuit court erroneously granted sum m ary

judgm ent. J ackson Square also appeals and argues the circuit court a bused its discretion in withdrawing the adm issions. ANALYSIS
I. W hether the circuit court erred in allowing the with d r a w a l o f the admissions. ¶13. W e f

i rst address Jackson S quare’s argum ent t hat the c ircuit court abused its discretion in allowing Allen to withdraw her adm issions. “ A [ circuit] cou r t ’ s d e c isions concerning discovery m atters are reviewed f

or an abuse of discretion.” Prime Rx, LLC v. McKendree, Inc., 9 17 So. 2d 791, 794 (¶7) (Miss. 2005) (citing DeBlanc v. Stancil, 814 So. 2 d 796, 798 (¶11) ( Miss. 2002)). “A c ertain am ount of discretion is vested in the trial j udge w ith respect
to whether he or she will take m a tters as adm itted.” Earwood v. Reeves, 798 So. 2d 508, 514 (¶19) (Miss. 2001). ¶14. Mississippi Rule of C i v i l P rocedure 36(a) provides that a request f or adm ission is deem ed a d mi t ted unless, w ithin thirty day s of service, the recipient serves an answer or objection to the request. M.R.C.P. 3 6 ( a )

. “ A n y m atter adm itted under this rule is conclusively established unless the court on m otion perm its withdrawal or am endm ent of the adm ission.” M.R.C.P. 36(b). ¶15. The circuit court m ay perm it withdrawal or am endm ent when: (1) “the presentation of the m erits of the action will b e subserved thereby ,” and (2) “the party who obtained the adm ission f

ails to satisf

y t he c o urt that withdrawal or am e ndm ent will prejudice him in

m aintaining his a ction or def ense on the m erits.” Id

. T h e c i r c u i t court m ust “caref ully

5exam ine a Rule 36(b) m otion under [ this] two-prong test.” Deblanc , 8 14 So. 2d at 802 (¶26).

However, “[ e]ven when t hese two f actors are established, a [ c ircuit] court still has discretion

to deny a request f

or leave to withdraw or am end an admi ssion.” C a rney v. IRS , 258 F.3d 415, 419 (5th Cir. 2001). ¶16. Here, Jackson Square a rgues A llen did not provide a j ustif iable excuse f

or her f ailure

to tim ely respond to the requests f or adm ission. However, Allen asserts that nothing in Rule 36(b) requires a court t o f ind a j ustif

iable excuse f

or f ailure to tim ely respond. W e hesitate

to agree w ith this assertion given the num ber of cases decided by this Court that hold that a

m otion to withdraw a dm issions was properly denied where there was no justif iable excuse f o r t h e u n tim ely responses. 2 N evertheless, the circuit court f ound that Allen’s counse l rightf ully believed there was an agreed-upon extension to a n swer the requests f or adm ission.
W e do not f

ind s uch a f

inding to be an abuse of discretion. A llen’s m istaken belief that the agreed-upon extension i ncluded the requests f o r adm ission was likely justif iable considering Jackson Square’s acknowledgm ent that it did not clearly com m u nicate otherwise. ¶17. In support of i ts argum ent, Jackson Square relies on the various cases m entioned in f ootnote two. H owever, these cases can easily be distinguished f rom the present c a se, as they did not i nvolve any c laim that a party m istakenly believed opposing counsel h ad agreed to an extension regarding pretrial-discovery m atters. ¶18. In Sanford v
. Dudley, 196 So. 3d 1 106, 1115 ( ¶27) (Miss. C t. A pp. 2016 ) , a case

2 S ee , e .g
. , H

a w kin s v. H

a le , 1 8 5 S o . 3 d 1 0 7 6 (M iss. C t. A p p . 2 0 1 6 ) ; R a i n er v. Wa lM a rt A s so cs., 1 1 9 S o . 3 d 3 9 8 (M iss. C t. A p p . 2 0 1 3 ); B o y d v. B o yd , 8 3 S o . 3 d 4 0 9 (M iss. C t. A p p . 2 0 1 1 ); T

ria n g le C o n str. C o
. v. F

o sh ee C o n str. C

o
. , 9 7 6 S o . 2 d 9 7 8 ( M i s s . C t. A p p . 2 0 0 8 ); L a n g ley ex rel. L a n g l ey v. M iles , 9 5 6 S o . 2 d 9 7 0 (M i ss. C t. A p p . 2 0 0 6 )

. 6s i mi l a r to one bef ore us, we r eversed the circuit c ourt’s denial of the plaintif f ’s m otion to withdraw adm issions. In Sanford , Sanf ord did not take corrective action until the Dudley s

m oved f or sum m a ry judgm ent, since the m otion f or sum m ary j udgm ent was Sanf ord’s f irst notice that he m istakenly believed opposing counsel h ad agreed t o an extension. Id. at 1108 (¶6). This is parallel to our case. ¶19. Here, Jackson Square’s counsel sent a g ood-f aith request f

or Allen to r e s p o n d to discovery

. Allen accepted this request and notif i ed Jackson Square t hat the answers would be served within ten day s . However, the next day , Jackson Square m oved f o r sum m ary judgm ent based, in part, o n the adm issions. As in S anford , the m otion f

or sum m ary j udgm ent

was Allen’s counsel’s f

irst notice that h e h a d m istakenly believed opposing counsel had agreed to an extension regarding the requests f or adm ission. The circuit c ourt noted that it

was “hard to hold [ Allen’s counsel] to what his understanding was when [ Jackson Square’s counsel] didn’t f

u lly com m unicate what [ Jackson Square]’s intent was in the extension.” ¶20. Ja c kson Square argues that Sanford i s distinguishable because the plaintif f in that case im m ediately took corrective action f ollowing the m otion f

o r s um m a r

y judgm e nt by m oving

to withdraw the adm i ssions a nd serving responses to t he requests f or adm ission. However, the d iscrepancy between the present case and Sanford r egarding the tim e i t took f or the plaintif f to f ile a m ot i o n t o w i t h draw the adm issions was not substantial. 3 W e will not intervene with the circuit court’s broad discretion in this m atter.

3 In S a n f o r d , t h e p l ain tif

f mo v e d to w ith d raw t h e ad m issio n s eig h t d ay s af ter th e d ef en d a n t m o v ed f

o r su m m ary j u d g m en t. S

a n fo r d , 1 9 6 S o . 3 d at 1 1 1 4 (¶2 4 ). H ere, A l len m o v ed to w ith d raw t h e ad m issio n s f if teen d ay s af

ter J a c k so n S q u are m o v ed f o r su m m ary j u d g m en t. 7¶21. Rule 36 “is not intended to be applied in Draconian f ashi o n.” Deblanc, 814 So. 2d

at 801 (¶26). Although “the Rule m ay som e tim es s eem h arsh in its a pplication, t he h arshness

m ay be am eliorated by the [ circuit] court’s power to g rant a m endm ents or wi t hdrawals of adm issions in proper circum stances.” Id

. at 801-02 (¶26). ¶22. Based on the f

acts of this case, we f

ind t hat the presentation of the m erits of the action would be subserved by allowing Allen to withdraw her adm issions a nd that the w ithdrawal of the adm issions would not prejudice Jackson Square. 4 See M.R.C.P. 3 6(b). Accordingly ,

we f ind no abuse of discretion by t he circuit court in allowing Allen to withdraw her adm issions. W e theref

ore af f i rm as to this issue.
II. W hether the circuit court erred i n granting summary judgment in favor of Jackson Square. ¶ 23. W e next address Allen’s argum ent that the circuit cour t erred in granting sum m ary judgm ent. “W e r e v i e w the grant or denial o f a m otion f or sum m ary judgm ent de novo, viewing the evidence ‘in the light m ost f avorable to the party against whom the m otion has been m ade.’” Karpinsky v. Am. N at’l Ins. , 109 So. 3 d 84, 88 ( ¶9) (Miss. 2013) (quoting Pratt v. Gulfport-Biloxi Reg’l Airport Auth ., 97 So. 3d 68, 71 (¶5) (Miss. 2012)). ¶24. A m o tion f

or sum m a ry judgm ent is governed by Mississippi Rule of Civil Procedure 56(c), which provides: The judgm ent sought shall be rendered f orthwith if the pleadings, d epositions, answers to interrogatories and adm issions on f i le, together with the af

f idavits, if any , show that there i s no genuine issue as to any m a terial f act and that the m oving party

is entitled to a judgm ent as a m atter of law.

4 T h e r eco r d sh o w s th e case w as p en d i n g l e s s t h a n o n e y ear a n d w as in th e early stag es o f d isco v ery . 8W h en a m otion f or sum m ary judgm ent is m ade a n d supported as provided in Rule 56, “an adverse party m ay not rest u pon t he m ere allegations or denials of [ the] pleadings[ ; rather, the] response m

ust set f orth specif

ic f acts show i n g t h a t there is a genuine issue f or trial.” Stuckey v. Provident Bank , 9 12 So. 2d 859, 864 (¶8) (Miss. 2005). If t he nonm oving party does not respond accordingly , “sum m ary judgm ent, i f appropriate, shall be entered against [ the nonm oving party ].” Id

. ¶25. Here, the record shows Allen f ailed t o provide any evidence to create a genuine issue of m aterial f

ac t

. I n s t ead, in response to Jackson S quare’s m o tion f or s u m m ary j udgm ent, Allen s i mp l y relied upon the allegations set f orth in her com

plaint and the argum ents of counsel. However, m ere allegations are insuf f icient to c r eate a genuine issue f or trial and
argum ents of counsel are not evidence. See One 1970 Mercury Cougar v. Tunica Cty. , 115 So. 3d 792, 796 (¶20) (Miss. 2013). ¶26. W h ile Allen acknowledges the standard under Rule 56(c), she asserts a n exception to this rule is set f

orth in Rule 56(f

). Rule 56(f

) provides: Should it a

ppear f r o m the af

f idavits o f a party o p p o s i n g the m otion that he ca nnot f or reasons stated present by af f idavit f acts essential to justif

y his opposition, the court m ay ref use the application f

or judgm ent or m ay

order a continuance to p erm it af

f id a v i t s t o be obtained or depositions to be taken or discovery to be had or m ay

m ake such order as is just. However, despite A llen’s reliance on Rule 56(f ), the record is void o f any af f idavit or m otion pursuant to Rule 56(f

). Indeed, Allen “adm its that no af f idavit was subm itted [ pursuant to Rule 56(f )] supporting the reasons f or f ailure to obtain af

f i davits creating f

a ct issues.” ¶27. Additionally , a lthough Allen asserts “that t here were f act issues that could likely have

9been established if the p a rties w ere allowed to conduct d iscovery , ” t he record shows that in

the m onths during which t his case was pending, Allen did n ot propound written d i s c overy

or even inf

orm ally request that docum entation be produced. Moreover, “parties m ay not

. . . escape sum m ary judgm ent by outlining what they m ight discover later.” Franklin Collection Serv., Inc. v. Kyle , 955 So. 2d 284, 291 (¶24) (Miss. 2007). ¶28. As Allen f

ailed to set f

orth specif

ic f acts showing that there was a genuine issue f or trial, sum m a ry

judgm ent was proper. Accordingly , we af f irm

. ¶29. AFFIRMED. LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, GREENL E E , WESTBROOKS AND T INDELL, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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