Freudenmann v. Clark and Associates, Inc.
| Decision Date | 30 April 1980 |
| Docket Number | No. 1537,1537 |
| Citation | 599 S.W.2d 132 |
| Parties | Ben FREUDENMANN and Kathleen Freudenmann, Appellants, v. CLARK AND ASSOCIATES, INC., Appellee. |
| Court | Texas Court of Appeals |
This summary judgment case arose from a suit brought in Matagorda County, Texas, by Clark and Associates, Inc., (called Creditor) against Ben Freudenmann and wife, Kathleen Freudenmann (called Debtors) to enforce an Arizona state court judgment. The trial court granted the Creditor's motion for summary judgment. Debtors had failed to participate in the summary judgment proceeding. This appeal by writ of error followed. We affirm.
The Creditor alleged in its original Texas petition that it had instituted suit in the Arizona Superior Court, Maricopa County, Arizona; that the Debtors though served with citation within Arizona wholly made default; that on May 10, 1977, the Arizona court rendered judgment for $46,825.82 for the Creditor against the Debtors; and that the Debtors have paid no part of the judgment. The Creditor attached a copy of the Arizona judgment, with accompanying certificates, to its petition.
Thereafter, the Creditor filed requests for admissions under Rule 169, T.R.C.P., to which the Debtors, though served, did not respond. Whereupon the trial court, upon motion of the Creditor, by order deemed the facts admitted in the requests for admissions. Then the Creditor filed its motion for summary judgment alleging, among other things, that the motion is based upon the pleadings, the Creditor's requests for admissions and the order deeming same admitted; that all pleadings are made a part of the record including the Creditor's original petition. The Debtors made no response to the motion for summary judgment nor appeared at the hearing on the motion. After the trial court granted the motion and rendered its judgment thereon, the Debtors brought this appeal.
In six points of error the Debtors contend that the trial court erred in granting Creditor's motion for summary judgment because: 1) and 2) there was no evidence and insufficient evidence properly admissible of an Arizona judgment before the trial court 3) and 4) there was no evidence and insufficient evidence properly admissible that the Arizona judgment was a final judgment; 5) there was failure by the Creditor to plead and prove the finality of the Arizona judgment; and 6) the Creditor failed to comply with Rule 184a, T.R.C.P., (regarding judicial notice of the laws of other states).
About the no evidence and insufficient evidence complaints in points 1 and 2, the Debtors contend that the Arizona judgment was not proper summary judgment evidence because it appears in the record only as an attachment (Exhibit "A") to the Creditor's petition; that, even if considered, the judgment lacked the judge's certificate which states that the attesting officer (clerk here) has legal custody of the original judgment, all in violation of Tex.Rev.Civ.Stat.Ann. art. 3731a, § 4.
In that regard, we look to the requests for admissions which were deemed admitted. Admissions based upon requests for admissions may be proper summary judgment evidence. Thornell v. Equitable Life Assurance Soc. of U. S., 385 S.W.2d 716 (Tex.Civ.App. Texarkana 1964, no writ); Masten v. Masten, 165 S.W.2d 225 (Tex.Civ.App. Fort Worth 1942, writ ref'd). Creditor's request No. 4 is as follows:
So the Arizona judgment was properly considered by the trial judge by reason of the above quoted admission even though the judgment (on file with the papers of the cause) was not attached to the Creditor's motion for summary judgment.
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