Burden v. John Watson Landscape Illumination, Inc.

• Decision Date: 26 January 1995
• Docket Number: No. 11-93-156-CV,11-93-156-CV
• Parties: Alfred Leslie BURDEN, Appellant, v. JOHN WATSON LANDSCAPE ILLUMINATION, INC., Appellee.
• Court: Texas Court of Appeals

Page 253

896 S.W.2d 253

Alfred Leslie BURDEN, Appellant, v. JOHN WATSON LANDSCAPE ILLUMINATION, INC., Appellee.

No. 11-93-156-CV.

Court of Appeals of Texas,

Eastland.

Jan. 26, 1995.

Rehearing Overruled March 1, 1995.

Mark R. Kolitz, Liechty, McGinnis & Kolitz, Dallas, for appellant.

Gary S. Kessler, Ashley E. Interrante, Howard Rubin, Malouf, Lynch, Jackson, Kessler, Collins, Dallas, for appellee.

Before McCLOUD ^*, C.J., and BROWN * and DICKENSON, JJ.

Opinion

McCLOUD, Chief Justice (Retired).

John Watson Landscape Illumination, Inc. (JWLI) sued Alfred Leslie Burden seeking a declaratory judgment that Burden was due no compensation under an employment contract that JWLI had terminated. Burden counterclaimed that JWLI breached the employment contract. Both parties filed motions for summary judgment. The trial court granted summary judgment for JWLI as to Burden's counterclaim, and JWLI dismissed its original claim for declaratory judgment and attorney's fees. Burden appeals. We reverse and remand.

JWLI filed suit against Burden on October 13, 1992. Burden filed his answer and counterclaim on November 10, 1992. The court then sent a letter ¹ to the parties shortening the period for filing responses to requests for admissions to 14 days. The court's March 30, 1993, letter stated that discovery should be completed by May 17, 1993, and set the case for a jury trial on July 12, 1993. JWLI filed its first request for admissions on February 24, 1993. In its request, JWLI stated that the responses should be served upon JWLI within 30 days after receipt or "at such other time as is ordered by the Court."

Before the expiration of the 30-day period allowed under TEX.R.CIV.P. 169, but after the expiration of the 14-day period, Burden's attorney became aware of the court's letter shortening the period for filing responses to request for admissions. Burden filed his responses to the request for admissions on March 24, 1993. On March 25, 1993, Burden filed a motion for protective order, for additional time, and for withdrawal of deemed admissions.

Burden's counsel attached an affidavit to the motion to withdraw the deemed admissions. In the affidavit, counsel stated that the responses to the admissions were filed untimely because he did not see the court's letter and that, through a clerical oversight, the reduced time period was not entered into his firm's docket system. Counsel's affidavit also stated that Burden disputed all of the facts that would be deemed admitted and that Burden would suffer great hardship and prejudice if the motion to withdraw deemed admissions was denied. Burden also stated that he was willing to pay JWLI's reasonable attorney's fees incurred in responding to Burden's motion to withdraw the deemed admissions.

In his first point of error, Burden contends that the trial court erred in denying his motion to withdraw the deemed admissions which formed the basis of the summary judgment against him. We agree.

Rule 169(1) provides in relevant part:

Each matter of which an admission is requested shall be separately set forth. The matter is admitted without necessity of a court order unless, within thirty days after service of the request, or within such time as the court may allow, or as otherwise agreed by the parties, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection. (Emphasis added)

The consequence of "deemed admissions" is that the matters are conclusively established as to the admitting party unless the court, on motion, permits withdrawal or amendment of the admissions. Rule 169(2). The court may permit withdrawal or amendment of the deemed admissions upon a showing of good cause if the court finds that the parties relying upon deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will be served by the withdrawal or amendment of the responses. Rule 169(2). The court's decision will be reversed only if, after searching the record, it is clear that the trial court abused its discretion. Simon v. York Crane & Rigging Company, Inc., 739 S.W.2d 793, 795 (Tex.1987); Employers Insurance of Wausau v. Halton, 792 S.W.2d 462, 464 (Tex.App.--Dallas 1990, writ den'd); Texas Employers' Insurance Association v. Bragg, 670 S.W.2d 712, 715 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.).

Burden relies on Employers Insurance of Wausau v. Halton, supra, in support of his contention that the trial court erred in denying his motion to withdraw the deemed admissions. In Halton, the defendant inadvertently failed to file its responses to the plaintiff's request for admissions within the 30-day response period allowed by Rule 169. The Dallas Court of Appeals held that the trial court abused its discretion in denying the defendant's request to set aside the deemed admissions. The Dallas court found that, once the defendant's attorney discovered his mistake, counsel immediately contacted the plaintiff's attorney to notify him that the responses would be filed late; that defense counsel alleged in his affidavit that the defendant would suffer great hardship if the motion to extend time was denied; that the defendant offered to pay plaintiff's reasonable attorney's fees incurred in responding to the defendant's motions; and that, at the time of the hearing on the defendant's motion, there was almost a month before the trial in which the parties could have conducted additional discovery.

In this case, we note that it is uncontroverted that Burden's failure to timely file the responses was not the result of conscious indifference. Rather, the error was due to a clerical mistake and to the language contained in JWLI's request for admissions. Burden's counsel immediately filed his responses once the error was discovered. The responses were filed within the 30-day time period provided in Rule 169 and more than three months before trial.

We hold that Burden was diligent in rectifying the error and that he showed good cause as to his failure to file the responses within the 14-day time period set by the court. The parties would not have been prejudiced by the withdrawal of the deemed admissions because, at the time of the hearing on Burden's motion to withdraw the admissions, there was more than a month until trial and because the court could have allowed the parties to conduct additional discovery if necessary. Finally, the presentation of the merits would have been served by the withdrawal of the deemed admissions because the parties would have been required to prove their respective claims.

The purpose of the Rules of Civil Procedure is to obtain a just, fair, equitable, and impartial adjudication of the rights of the litigants under established principles of substantive law. TEX.R.CIV.P. 1. The Rules of Civil Procedure...