George M. Stokes et al. v. Arkansas State Highway Commission

Annotate this Case
ca04-046

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CA04-46

September 8, 2004

GEORGE M. STOKES, et al. AN APPEAL FROM THE CHICOT

COUNTY CIRCUIT COURT

APPELLANTS [CIV2000-132]

v. HONORABLE SAMUEL E. POPE,JUDGE

ARKANSAS STATE HIGHWAY

COMMISSION

APPELLEE AFFIRMED

Olly Neal, Judge

Pro se appellants appeal from a decision of the Chicot County Circuit Court that granted appellee Arkansas State Highway Commission's (Commission) motion for summary judgment. On appeal, appellants argue that the grant of summary judgment denied them their constitutional right to a jury trial. We affirm.

On December 20, 2000, the Commission initiated an eminent-domain action alleging that certain land owned by the appellants was needed for highway purposes. At the same time, the Commission also filed a Declaration of Taking. An Order of Possession, giving the Commission the right of immediate possession of appellants' land, was entered on January 18, 2001.

Acting pro se, appellants George and Mason Stokes filed Objections to Complaint, Countersuit, and a Motion to Stay the Order of Possession on February 9, 2001. Following a May 14, 2001, hearing, the Chicot County Circuit Court denied appellants' Motion to Stay Order of Possession and Objections to Complaint, Countersuit. On April 29, 2003, an order setting a jury trial for September 26, 2003, was entered.

The Commission filed the following Request for Admissions on July 9, 2003:

Request for Admission No. 1: Please admit that Plaintiff is the duly constituted agency of the State of Arkansas charged by law with the construction and maintenance of the highways and roads which comprise the State Highway System of the State of Arkansas.

Request for Admission No. 2: Please admit that the tract described in Schedule "A," attached to Plaintiff's Complaint, is located in Chicot County, Arkansas.

Request for Admission No. 3: Please admit that the tract described in Schedule "A," attached to Plaintiff's Complaint, is needed for State Highway purposes.

Request for Admission No. 4: Please admit that the tract described in Schedule "A," attached to Plaintiff's Complaint, is needed in furtherance of Job No. 020239.

Request for Admission No. 5: Please admit that the title in fee to the tract described in Schedule "A," attached to Plaintiff's Complaint, should be vested in Plaintiff.

Request for Admission No. 6: Please admit that the funds deposited with the Clerk of the Court on the date of taking as estimated just compensation is an amount which will justly compensate you for the tract described in Schedule "A,"attached to Plaintiff's Complaint.

Request for Admission No. 7: Please admit that the allegations made in Plaintiff's Complaint are true and correct.

Request for Admission No. 8: Please admit that the allegations made in Plaintiff's Declaration of Taking are true and correct.

Request for Admission No. 9: Please admit that the value of the tract described in Schedule "A," attached to Plaintiff's Complaint is $9,350.00.

Request for Admission No. 10: Please admit that the real property which you own and which is not condemned in these proceedings will suffer no diminution in value as a result of the condemnation of the tract described in Schedule "A," attached to Plaintiff's Complaint.

Appellants failed to respond to the request for admissions.

Following the appellants' failure to respond to the Request for Admissions, the Commission filed a Motion for Findings of Fact. Appellants failed to respond to the motion, nor did they appear at the hearing on the motion. This resulted in the trial court granting the motion and deeming the facts in the Request for Admissions admitted by each appellant.

Prior to the commencement of the September 26, 2003, jury trial, the Commission filed a motion for summary judgment. The trial court found that there were no genuine issues of fact and granted the motion for summary judgment. From that decision comes this appeal.

On appeal, appellants make the following argument:

The U.S. Constitution and the Constitution of Arkansas clearly state that the appellant has a right to a jury trial, the only exception being when the right to a jury trial is waived by the defendant. The Constitution provides for no procedural rule to trump the defendant's right to a jury trial. Circuit Judge Sam Pope used his authority to prevent the appellants in this case from receiving a jury trial. Therefore, the landowners request that the ruling of Judge Sam Pope be reversed and that he require that the appellants be given a jury trial to establish compensation for property "taken."

Summary judgment is a remedy that should be granted only when there are no genuine issues of fact to litigate and when the case can be decided as a matter of law. Carver v. Allstate Ins. Co., 77 Ark. App. 296, 76 S.W.3d 901 (2002). The moving party bears the burden of showing that there is no issue of material fact. See Wheeler v. Phillips Dev. Corp., 329 Ark. 354, 947 S.W.2d 380 (1997). Once the 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. Spears v. City of Fordyce, 351 Ark. 305, 92 S.W.3d 38 (2002). On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.

Rule 36 of the Arkansas Rules of Civil Procedure provides:

(a) Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or the application of law to fact, including the genuineness of any documents described in the request. . . .

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney.

In interpreting Rule 36, our supreme court has consistently held that when a party fails to timely answer request for admissions, or otherwise fails to object to them, the requested matters are deemed admitted. Norrell v. Giles, 343 Ark. 504, 36 S.W.3d 342 (2001). However, the failure to properly answer request for admissions does not, in and of itself, authorize or require the entry of summary judgment in favor of the party requesting admissions. Phoenix of Hartford v. Coney, 249 Ark. 447, 459 S.W.2d 558 (1970). It only means that the court may take the request to have been admitted, and grant summary judgment if no material issue of fact is left to be determined. Id.

Before the trial court, appellants acknowledged receipt of the Request for Admissions. The Request for Admissions set forth all the facts, including the value of the property taken. When the trial court granted the Commission's Motion for Findings of Fact and deemed the facts in the Request for Admissions admitted by each appellant, there remained no genuine issues of material fact to litigate. Therefore, the Commission was entitled to summary judgment.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.