Jimmy E. Henderlight, Jr. v. David Henderlight et al.

This litigation arises from a dispute between cousins who started a business together. During discovery, the trial court found that the plaintiff failed to respond in good faith to the defendants’ requests for admission and deemed all requests admitted. Shortly thereafter, the court entered an order granting the plaintiff’s attorney leave to withdraw. The defendants/counter-plaintiffs then moved for summary judgment on all claims asserted by and against them, relying on the admissions as well as declarations they submitted. The plaintiff failed to file any response to the motions for summary judgment. However, he did appear pro se at the summary judgment hearing and claimed that he was unaware of the summary judgment motions until two days earlier because he did not know that his email address had been provided to opposing counsel and the court, and he had not checked that email since his counsel withdrew. The trial court allowed the plaintiff to testify as to these facts. However, the court ultimately found that the plaintiff was properly served with the motions and had notice of the hearing date. Considering the evidence submitted by the defendants in support of the motions for summary judgment, in addition to the plaintiff’s admissions and his failure to respond to the statements of material facts, the court found that the defendants were entitled to summary judgment on all claims. Thus, the trial court dismissed the claims asserted by the plaintiff and also granted the defendant/counter plaintiffs damages on their counterclaims. The plaintiff retained counsel and timely filed a motion to alter or amend, asserting that his failure to respond to the summary judgment motions was due to excusable neglect. The trial court denied the motion, finding that the plaintiff’s proffered excuse was a tactic for delay, he was not credible, and he acted intentionally. The plaintiff appeals. We affirm.