Arango v. Davila

• Decision Date: 19 May 2011
• Docket Number: NUMBERS 13-09-00627-CV,NUMBERS 13-09-00470-CV
• Parties: MARTHA ARANGO AND AMERICARE NURSING SERVICES, INC., Appellants, v. ANDREA DAVILA, Appellee.
• Court: Texas Court of Appeals

MARTHA ARANGO AND AMERICARENURSING SERVICES, INC., Appellants,

v.ANDREA DAVILA, Appellee.

NUMBERS 13-09-00470-CV

NUMBERS 13-09-00627-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

Filed: May 19, 2011

On appeal from the 139th District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Yañez,¹ Garza, and Benavides

Memorandum Opinion by Justice Garza

In these two consolidated appeals, we are asked whether an employer's duty to provide a safe workplace may extend to publicly accessible roadways. The trial court ruled in this case that it does, in part due to deemed admissions resulting from the failure of appellants, Martha Arango and Americare Nursing Services, Inc. ("Americare"), to timely respond to a request for admissions. See Tex. R. Civ. P. 198.2(c). A jury then awarded over $1.8 million dollars in damages to appellee, Andrea Davila. By seven issues on appeal, Americare and Arango contend that: (1) employers have no duty to make public roadways safe for employees; (2) if an employer does have such a duty, that duty is non-delegable and does not apply to Arango individually; (3) the deemed admissions should have been set aside; (4) the trial court erred by denying their request to designate a responsible third party; (5) evidence of contributory negligence should have been admitted; (6) medical expenses written off by health care providers should not have been included in the damages award; and (7) the trial court erred by assessing post-judgment discovery sanctions against Arango. We reverse and remand.

I. Background

Davila, an in-home nurse employed by Americare, suffered multiple severe injuries on April 13, 2005 when the vehicle she was driving collided head-on with another vehicle on a public road in Palmview, Texas. At the time, Davila was traveling from the home of one patient to the home of another patient. It is undisputed that she was in the course of her employment at the time of the collision and that Americare was a non-subscriber under the Texas Workers' Compensation Act. See Tex. Labor Code Ann. § 406.033 (West 2006). Davila sued Americare and its president and director,Arango, asserting claims of negligence, gross negligence, breach of an implied contract, and fraud, and requesting actual and exemplary damages.

Davila later propounded a request for admissions on Americare and Arango. The request asked for, among other things, the following admissions: (1) that Americare failed to provide Davila a safe place to work by "sending [Davila] in[to] an area which Americare and [Arango] knew or in the exercise of reasonable care should have known was an area having a high incidence of motor vehicle accidents and criminal activity"; (2) that Americare "failed to maintain a 'time management and travel scheduling system' which would have prevented [Davila] from being forced to work in an unsafe environment"; (3) that Americare and Arango "negligently and with reckless disregard for the rights of [Davila] scheduled critical home health care visits in a dangerous and unsafe area and in such a manner as to create an unreasonable risk of harm, injury or death to [Davila]"; (4) that, "as a direct and proximate cause [sic] of the negligent and reckless scheduling of critical home health care visits on or about April 13, 2005, [Davila] was seriously injured by a hit and run driver"; (5) that Americare and Arango "scheduled an excessive amount of time critical home health care visits for the sole purpose of maximizing profits for themselves with wanton and reckless disregard for the safety and welfare of their employees"; (6) that Americare and Arango "knew or should have known" that such "excessive" scheduling "created an unreasonable risk of harm, injury or death" to Davila; and (7) that the "excessive" scheduling of visits "in a dangerous area" caused the damages sustained by Davila.² According to Davila, the requests for admissions were served on appellants' counsel on November 2, 2007;Americare and Arango claim that they were not served with the requests until "late December 2007."

Americare and Arango filed responses to the requests on January 8, 2008, denying or objecting to the majority of the requests. They then moved the trial court to "clarify the status" of the admissions by ruling whether the admissions had been deemed due to the alleged untimeliness of their responses. Americare and Arango also asked the trial court, if it found the admissions deemed, to strike the admissions, arguing that: (1) if the responses were untimely served, it was not intentional but rather "due to an old address being used to serve the request for admissions"; (2) as soon as counsel for Americare and Arango became aware that responses were due, he promptly filed responses; (3) Davila "will not be unduly prejudiced" if the admissions are struck; and (4) "there is good cause for the court to strike the admissions." See Tex. R. CIV. P. 198.2(c). The trial court denied both the motion to clarify and the motion to strike.

A partial instructed verdict was subsequently entered against Americare and Arango on the issue of negligence and causation, and only a damages question was submitted to the jury. The jury awarded $1,818,606.20 to Davila, including pre-judgment interest, assessed jointly and severally against Americare and Arango. Americare and Arango filed a motion for judgment notwithstanding the verdict contending that they owed no duty to Davila as a matter of law. On August 3, 2009, the trial court entered judgment on the verdict, thereby implicitly denying the motion for judgment notwithstanding the verdict. These appeals followed.³

II. DISCUSSION

A. Request to Set Aside Deemed Admissions

We first consider Americare and Arango's third issue, by which they argue that the trial court erred in denying their request to set aside the deemed admissions. Appellants do not dispute that Roberto Puente, their attorney at the time Davila's requests for admissions were propounded, failed to timely respond to the requests. The trial court was therefore correct in considering the admissions deemed. See Tex. R. Civ. P. 198.2. Americare and Arango argue, however, that the trial court abused its discretion in declining to permit the withdrawal of the admissions because there was no evidence that Puente acted with "callous disregard or bad faith" in failing to timely respond to the requests.

Once an action is filed, a party can serve written requests for admissions on an adverse party. Tex. R. Civ. P. 198.1. When a party does not serve responses to requests for admissions within thirty days, the matters in the requests will be deemed admitted against that party. Tex. R. Civ. P. 198.2; Wal-Mart Stores, Inc., v. Deggs, 968 S.W.2d 354, 355 (Tex. 1998). Any matter deemed admitted is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. Tex. R. Civ. P. 198.3; Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989).

Withdrawal or amendment of an admission is permitted on a showing of good cause and a finding by the trial court that (1) the party relying on the deemed admission will not be unduly prejudiced, and (2) presentation of the merits of the action will be served thereby. Tex. R. Civ. P. 198.3; Deggs, 968 S.W.2d at 356. "Good cause isestablished by showing that the failure involved was an accident or mistake, not intentional or the result of conscious indifference." Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005). "Even a slight excuse will suffice, especially when delay or prejudice to the opposing party will not result." Boulet v. State, 189 S.W.3d 833, 836 (Tex. App.-Houston [1st Dist.] 2006, no pet.); Spiecker v. Petroff, 971 S.W.2d 536, 538 (Tex. App.-Dallas 1997, no writ). The party seeking withdrawal of deemed admissions has the burden to establish good cause. Id. (citing Webb v. Ray, 944 S.W.2d 458, 461 (Tex. App.-Dallas 1997, no writ)). "Undue prejudice depends on whether withdrawing an admission or filing a late response will delay trial or significantly hamper the opposing party's ability to prepare for it." Id. at 836-37 (citing Wheeler, 157 S.W.3d at 443).

We will not set aside a trial court's ruling to permit or deny the withdrawal of deemed admissions unless we find an abuse of discretion. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996); Boulet, 189 S.W.3d at 837. Although a trial court has broad discretion to permit or deny the withdrawal of deemed admissions, it cannot do so arbitrarily, unreasonably, or without reference to guiding rules or principles. Boulet, 189 S.W.3d at 837 (citing Wheeler, 157 S.W.3d at 444). Among those "guiding rules and principles" is the notion that, "absent flagrant bad faith or callous disregard for the rules, due process bars merits-preclusive sanctions." Wheeler, 157 S.W.3d at 443. Moreover, "[d]iscovery sanctions cannot be used to adjudicate the merits of a party's claims or defenses unless a party's hindrance of the discovery process justifies a presumption that its claims or defenses lack merit." TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991).

According to Davila, the requests at issue were sent to Puente by certified mail, return receipt requested, on November 2, 2007. The requests were sent to Puente's address as contained in the court's file; however, Puente had since moved from that address and did not file a notice of address change. The return receipt was signed by Emilia Puente, Roberto Puente's mother, and indicated that the item was delivered on December 10, 2007.⁴ The responses were therefore due on January 10, 2008. See Tex. R. Civ. P. 198.2(a). No responses were served on Davila's counsel by that date.

Later in 2008, Puente withdrew as counsel for Americare and Arango. Appellants' substitute counsel, Peter Ferraro, then filed the above-referenced motion to clarify or strike the deemed admissions. At a hearing on September 18, 2008, Ferraro stated that,...