Chapman v. City of Houston
| Decision Date | 25 June 1992 |
| Docket Number | No. A14-91-00856-CV,A14-91-00856-CV |
| Citation | 839 S.W.2d 95 |
| Parties | 78 Ed. Law Rep. 1115 Jonathan CHAPMAN, Appellant, v. The CITY OF HOUSTON and the University of Houston, Appellees. (14th Dist.) |
| Court | Texas Court of Appeals |
Thomas C. Hall, San Antonio, for appellant.
Craig E. Ferrill, Jr., Houston, Connie Hawkins, of Austin, for appellees.
Before PAUL PRESSLER, SEARS and ELLIS, JJ.
This is an appeal of summary judgments granted in favor of City of Houston and The University of Houston, appellees. Appellant, Jonathan Chapman, sued appellees for personal injuries as the result of an unreasonably unsafe and dangerous condition on property owned or under the control of appellees. Appellant based his cause of action on the TEX.CIV.PRAC. & REM.CODE ANN. § 101.022 (Texas Tort Claims Act). The trial court concluded in two consecutive orders, an interlocutory summary judgment entered in favor of University of Houston, and then a summary judgment in favor of City of Houston, disposing of all remaining issues and parties, that appellees were entitled to summary judgment as a matter of law. We affirm.
On June 21, 1987, appellant was walking with his girlfriend and cousin on the Main Street bridge along a double wall in front of the University of Houston Building downtown. Appellant thought there was a sidewalk on the other side of a small ledge that he saw next to him. He jumped over the wall and fell 2 floors down into the parking lot causing severe personal injuries.
Appellant sued the University of Houston (University) and City of Houston (City) for the unreasonably dangerous and unsafe condition or design under their control which caused appellant's injuries, and for failing to provide adequate warnings and maintenance. Specifically, appellant alleged that the double wall at the street level above parking lot M, between the One Main Plaza Building at the University of Houston downtown campus and the Main Street Bridge overpass, was a premises defect and/or a special defect pursuant to Sec. 101.022 of the Tort Claims Act.
Appellant sent requests for admissions to the University and to the City on February 10, 1988. The City filed its responses to request for admissions on March 9, 1988. The University failed to file its responses to request for admissions within the thirty days required by the Texas Rules of Civil Procedure. The University filed its responses on April 4, 1988.
On March 8, 1990, the University filed its motion for summary judgment based on governmental immunity, and for failure to state a claim actionable under the Texas Tort Claims Act. Then on April 2, 1990, the University filed a motion requesting the trial court withdraw any deemed admissions. The University requested hearing on the motion to withdraw deemed admissions on May 7, 1990. Nevertheless, prior to this hearing date, the trial court granted the University's motion for summary judgment on April 3, 1990.
The City of Houston subsequently filed motion for summary judgment asserting essentially the same arguments as University of Houston. The City's motion for summary judgment was granted on July 22, 1991. In the Court's order, the Court declared that it was a final judgment since summary judgement had been previously granted in favor of the University therefore the suit should be dismissed.
In points of error one and two, appellant contends that the trial court erred in granting summary judgment in favor of both appellees. To be entitled to summary judgment, the movant has the burden to establish that there exist no genuine issues of material fact thereby entitling him to judgment as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991) (citation omitted). An appellate court must resolve all doubts against the movant and view the evidence in the light most favorable to the non-movant. Id. (citation omitted). Both appellees moved for summary judgment based on governmental immunity and failure to present a claim actionable under the Texas Tort Claims Act. As to appellees' claim that appellant failed to present a claim actionable under the Texas Tort Claims Act, appellees were require to disprove, as a matter of law, at least one of appellant's essential elements in his claims under the Texas Tort Claims Act. Id. at 471. (citation omitted). With regard to the defense of governmental immunity, an affirmative defense, appellees were required to conclusively prove all essential elements of this defense to be entitled to summary judgment. Montgomery v. Kennedy, 669 S.W.2d 309 (Tex.1984). Once appellees presented summary judgment evidence to prove this defense entitled them to judgment, appellant could prevail by showing that an issue of fact exists as to one or more of the elements of that defense. Byrd International of Dallas, Inc. v. Electronic Data Systems, Corp., 629 S.W.2d 177, 178 (Tex.App.--Dallas 1982, writ ref'd n.r.e.). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).
In point of error one, appellant contends the trial court erred in granting summary judgment in favor of the University. Appellant first argues that because the University failed to timely file its responses to request for admissions, University admitted the following:
3. that Jonathan Chapman was injured as a result of a fall on June 21, 1987.
4. that the area in which the plaintiff fell was on property owned by the defendant, University of Houston.
5. that the area in which the plaintiff fell was maintained by the defendant, University of Houston.
7. that the defendant, University of Houston posted no warnings concerning the danger of falling between the double wall area in which the plaintiff fell.
8. that no individual, innately or institution other than the defendant, University of Houston owned, maintained or exercised control over the premises in the area of the double wall where the plaintiff fell on or about June 21, 1987.
10. that the defendant, University of Houston was not acting in its governmental capacity as defined in the Texas Tort Claims Act in the maintenance of the premises.
11. that the defendant, University of Houston was not acting in its governmental capacity as defined in the Texas Tort Claims Act in the construction of the premises.
12. that the defendant, University of Houston was not acting in its governmental capacity as defined in the Texas Tort Claims Act in the operation of the premises.
Appellant contends that based on these deemed admitted request for admissions, the University cannot argue that it did not have a duty to warn plaintiff of any dangerous condition because it does not process or control the Main Street bridge, and that the University has admitted in request for admissions that the acts in question were done outside of its governmental capacity, and are therefore discretionary, and not subject to the Texas Tort Claims Act allowing immunity. We disagree.
Texas Rule of Civil Procedure 169(1) states that the matters of which are requested in a party's request for admission are "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 ..." Rule 169(2) then goes on to state that matters deemed admitted under 169(1) will be conclusively established "unless the court on motion permits withdrawal or amendment of the admission" and the court may permit withdrawal of "deemed admissions upon a showing of good cause for such withdrawal or amendment if the court finds that the parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will be subserved thereby." In the present case, the University failed to respond to the requests for admissions within the thirty days required; however, the University filed late answers which it attached to its motion to have deemed admissions withdrawn and to allow late filing. Although the court never conducted a hearing on the University's motion and did not enter an order stating that it was allowing the University to file the answers late, it can be inferred from the fact that the court granted the University's motion for summary judgment the day after it received this motion attaching the University's responses that the court did allow late answers in conformance with rule 169. We understand that in reviewing summary judgment, all doubts are to be resolved in favor of appellant. Nevertheless, the doubts as to whether the court allowed late answers does not go to the actual summary judgment evidence being considered in our review but goes to whether the Court allowed late responses based on Rule 169. As this court has previously stated, the rules of civil procedure allow for liberal construction in evaluating the withdrawal prerequisites of Rule 169. Esparza v. Diaz, 802 S.W.2d 772, 775 (Tex.App.--Houston [14th Dist.] 1990, no writ). Rule 169 clearly states a court does not have to enter an order to have responses deemed admitted. Rule 169 is silent as to whether an order is required when the court allows the late filing of responses to requests for admissions. Rule 169 only requires that a motion be filed to permit withdrawal or amendment of the admission. A motion was filed in the present case. We hold based on the inference from the summary judgment entered in the University's favor, that no order was required. Since late filing was allowed by inference, there were no deemed admissions.
The state as sovereign is immune from suit without consent even though there...
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