Collision Center Paint & Body, Inc. v. Campbell

• Decision Date: 02 May 1989
• Docket Number: E-Z,No. 05-88-00178-CV,05-88-00178-CV
• Citation: 773 S.W.2d 354
• Parties: COLLISION CENTER PAINT & BODY, INC., Appellant, v. James CAMPBELL, d/b/aRide Auto Sales, Appellee.
• Court: Texas Court of Appeals

Page 354

773 S.W.2d 354

COLLISION CENTER PAINT & BODY, INC., Appellant, v. James CAMPBELL, d/b/a E-Z Ride Auto Sales, Appellee.

No. 05-88-00178-CV.

Court of Appeals of Texas,

Dallas.

May 2, 1989.

Rehearing Denied June 14, 1989.

Jerry L. Hughes, Dallas, for appellant.

Michael W. Stucker, Dallas, for appellee.

Before HOWELL, McCLUNG and ROWE, JJ.

HOWELL, Justice.

This is a dispute between a recorded lienholder on a certificate of automobile title, appellee James Campbell doing business as E-Z Ride Auto Sales (Lienholder), and a possessory lienholder, appellant Collision Center Paint and Body (Repairman). The trial court entered a judgment non obstante veredicto, concluding that Repairman was entitled to recover only the amount specified in a statutory worker's lien notice and ordering Repairman to return possession of the automobile to Lienholder. For the reasons recited below, we agree with the trial court's action and affirm the judgment.

Lienholder sold a 1975 MG Midget to Greg Gomez, retaining a purchase money lien for the sale price as noted on the certificate of title. Gomez took the car to Repairman for painting, but he subsequently defaulted on both the payments to Lienholder as well as the repair costs owed to Repairman. Gomez never picked up the car from Repairman, so the paint shop stored the automobile while awaiting payment. When Repairman could not secure payment from Gomez, it contacted Texas Title and Transfer and had that firm send out a statutory worker's lien notice, pursuant to Texas Property Code section 70.006, to Gomez and the lienholder of record, Lienholder. The notice, dated September 24, 1986, stated that charges of $709 were owed to Repairman, and that if the amount remained unpaid for thirty days, Repairman would sell the car at a public sale and apply the proceeds to the debt.

Lienholder's president, James Campbell, testified that upon receipt of the notice he went in person to Repairman to discuss the situation with Repairman's president, Reg Van Meter. Campbell testified that he offered to pay the $709 recited in the notice, but that Van Meter refused, claiming additional charges had accrued since the time of the notice. Lienholder's attorney, Michael Cantrell, testified that he also attempted to pay the $709 to Van Meter, and that Van Meter also refused this offer of payment. Following these attempts to settle the dispute, Lienholder filed suit and obtained a temporary injunction preventing Repairman from selling the car.

In three points of error, Repairman challenges the trial court's action in disregarding and vacating the jury answers favorable to Repairman. By its fourth point, Repairman claims that the trial court erred in deeming admitted Lienholder's requests for admissions. In its brief, Repairman has failed to present any argument or authority on this fourth point, in violation of Rule 74 of the Texas Rules of Appellate Procedure. Although we are not compelled to consider unbriefed points, ¹ we have decided to address this procedural point regarding the preclusive effect of the deemed admissions.

Lienholder mailed requests for admissions to Repairman's attorney on March 9, 1987. Repairman mailed its responses on April 16, 1987. Simple calculation reveals these responses were served more than thirty days from the date of service of the requests and thus were untimely; the thirtieth day was April 8. Even adding three days for service by mail (TEX.R.CIV.P. 21a) the responses were due April 13, 1987 at the latest. ² As they were not served until April 16, 1987, they were untimely. ³

The Rules of Civil Procedure provide that requested matters are "admitted without necessity of a court order unless, within thirty (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...." TEX.R.CIV.P. 169(1). The rule also allows amendment or withdrawal of deemed admissions upon a showing of good cause. TEX.R.CIV.P. 169(2). Even though the rule itself deems the requests admitted, Lienholder orally moved the court to deem admitted the requested matters. After hearing evidence from both sides, the trial court found Repairman had not shown good cause for the untimely responses and deemed the requests admitted. We see no error in the court's action. Inasmuch as it was consistent with rule 169, we overrule Repairman's point of error four.

In the ordinary case, these deemed admissions would be conclusive proof of the matters admitted. See, e.g., Shaw v. National County Mut. Ins. Co., 723 S.W.2d 236, 238 (Tex.App.--Houston [1st Dist.] 1986, no writ); Curry v. Clayton, 715 S.W.2d 77, 78 n. 2 (Tex.App.--Dallas 1986, no writ); Laycox v. Jaroma, Inc., 709 S.W.2d 2, 4 (Tex.App.--Fort Worth 1986, writ ref'd n.r.e.). We reiterate that an admission, deemed or otherwise, is a judicial admission; a party may not subsequently introduce testimony to controvert it. Whitworth v. Kuhn, 734 S.W.2d 108, 111 (Tex.App.--Austin 1987, no writ); Shaw, 723 S.W.2d at 238. However, a party relying upon an opponent's judicial admissions of fact must protect the record by objecting to the introduction of controverting evidence and to the submission of any issue bearing on the facts admitted. Hurlbut v. Gulf Atlantic Life Ins. Co., 749 S.W.2d 762, 765 (Tex.1987); Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex.1983). A party waives the right to rely upon an opponent's deemed admissions unless objection is made to the introduction of evidence contrary to those admissions. Marshall v. Vise, 32 Tex.Supp.Ct.J. 290, 291 (Mar. 29, 1989).

In the case at bar, however, Lienholder allowed without objection some testimony contrary to the deemed admissions. Repairman's president, Reg Van Meter, testified on direct examination that Lienholder never tendered the full amount actually due--$709 in repair charges, $3,800 in storage charges, and $1,500 in attorney's fees. ⁴ Therefore, we hold that Lienholder waived the right to rely on the deemed admissions as conclusive proof of tender because he failed to protect the record and object to the admission of controverting evidence offered by Repairman.

Thus, without considering the deemed admissions, we now turn to Repairman's three remaining points of error: whether the trial court erred in granting a judgment non obstante veredicto. A trial court's granting of a judgment notwithstanding the verdict will be upheld on appeal only if there is no evidence to support the jury findings. Dowling v. NADW Mktg., Inc., 631 S.W.2d 726, 728 (Tex.1982). This requires a determination that there is more than a scintilla of evidence upon which the jury could make its findings. The court must review the evidence in its most favorable light, considering only evidence and inferences which support findings, and rejecting evidence and inferences contrary to the jury findings. E.g., Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex.1987); Miller v. Bock Laundry Mach. Co., 568 S.W.2d 648, 649-50 (Tex.1977). See also Atrium Boutique v. Dallas Mkt. Center Co., 696 S.W.2d 197, 198-99 (Tex.App.--Dallas 1985, writ ref'd n.r.e). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, no evidence. Kindred v. Con/Chem Inc., 650 S.W.2d 61, 63 (Tex.1983).

Section 70.006 of the Texas Property Code governs the sale of a motor vehicle subject to a worker's lien. ⁵ A worker who retains possession for thirty days after the charges accrue must send a written notice to the owner and any recorded lienholder; the notice must include the amount of the charges and a request for payment....