Gonzales v. Surplus Ins. Services

• Court: Texas Court of Appeals
• Writing for the Court: Before WALKER; WALKER; BURGESS
• Citation: Gonzales v. Surplus Ins. Services, 863 S.W.2d 96 (Tex. App. 1993)
• Decision Date: 24 June 1993
• Docket Number: No. 09-91-270,09-91-270
• Petition History: writ denied
• Parties: Arnulfo GONZALES d/b/a Pueblo Leasing Insurance Co., Appellant, v. SURPLUS INSURANCE SERVICES, Appellee. CV.

Page 96

863 S.W.2d 96

Arnulfo GONZALES d/b/a Pueblo Leasing Insurance Co., Appellant, v. SURPLUS INSURANCE SERVICES, Appellee.

No. 09-91-270 CV.

Court of Appeals of Texas Beaumont.

June 24, 1993.

Rehearing Denied Aug. 16, 1993.

Cornelia A. Hartman, Paul C. Looney & Associates, Houston, for appellant.

Daniel P. McManus, Raymond W. Greer, Raymond W. Greer & Associates, Houston, for appellee.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

WALKER, Chief Justice.

This appeal results from the trial court's overruling of appellant's motion for new trial after the granting of summary judgment. Appellant alleges in his motion for new trial that he did not receive notice of the summary judgment hearing. The trial court considered the evidence presented at hearing on appellant's motion for new trial and determined that notice to appellant was sufficient, and that appellant failed to show his entitlement to a new trial.

Factually, the parties hereto had an agreement whereby appellant would be responsible to appellee for premiums due on insurance policies issued through appellee to insureds produced by appellant. Appellee filed suit against appellant for monies owed to appellee by appellant. Appellee later filed Plaintiff's First Amended Petition, which included claims against appellant based on sworn account, quantum meruit and quantum valebant, and breach of contract. The record before this Court does not contain plaintiff's original petition nor defendant's answer thereto. However, appellant tells us that plaintiff's original petition was filed on July 17, 1990, same being answered by appellant, Gonzales, through his attorney of record, Peter Sanchez-Navarro, Jr.

To better illustrate the chronology of events relevant to this appeal, the following times and events are set forth:

4"22"91  "Plaintiff's First Amended Petition" and discovery requests, including
                           request for admissions ("Mail 1"), mailed to Appellant
                4"23"91  "Plaintiff's First Amended Petition" and discovery requests, including
                           request for admissions, filed
                4"23"91  First notice of "Mail 1" to Appellant by U.S. Post Office
                4"28"91  Second notice of "Mail 1" to Appellant by U.S. Post Office.
                5"8"91   Return of "Mail 1" to Appellant by U.S. Post Office.
                5"14"91  Appellee again mailed Appellant "Plaintiff's First Amended Petition"
                           and discovery requests, including request for admissions ("Mail 2"),
                           after return of "unclaimed" envelope and conference with Appellant's
                           counsel.
                5"23"91  Appellant claims from U.S. Post Office "Mail 2," envelope containing
                           Plaintiff's First Amended Petition and discovery documents.
                6"27"91  Plaintiff's motion for summary judgment, exhibits, and notice of
                           hearing ("Mail 3") mailed to Appellant after admissions deemed by
                           operation of law.
                6"28"91  Plaintiff's motion for summary judgment, etc., filed.
                6"29"91  First notice of "Mail 3" to Appellant by U.S. Post Office.
                7"4"91   Second notice of "Mail 3" to Appellant by U.S. Post Office.
                7"14"91  Return of "Mail 3" to Appellant by U.S. Post Office.
                7"19"91  Appellant files First Amended Answer and late response to request for
                           admissions.
                7"23"91  Summary judgment granted at hearing.
                8"22"91  Appellant files motion for new trial.
                9"18"91  Appellee files response to motion for new trial, with affidavits.
                9"19"91  Hearing on Appellant's motion for new trial; evidence presented,
                           motion denied.
                

Appellant brings two points of error for this Court's consideration. Point of error one contends that the trial court erred as a matter of law in granting appellee's motion for summary judgment in that appellant did not receive notice of the hearing on same. We take appellant's position to be that unless appellee can affirmatively show at a hearing on motion for new trial that appellant received actual notice of the hearing on motion for summary judgment that a new trial must be granted as a matter of law. Our threshold question is whether or not TEX.R.CIV.P. 21a and 166a require such procedural due process as to mandate proof of actual receipt of notice. The underlying requirement of all civil judgments is that procedural due process be met. Our legal system is and should be diligent in preventing blind siding of party or parties in civil litigation. At a minimum, procedural due process is that right guaranteed by the Fourteenth Amendment to the United States Constitution which protects those who are unaware or unsuspecting of legal proceedings which may ultimately affect their interests.

Appellant's brief is both an attack upon the granting of summary judgment and upon the lack of actual notice of the summary judgment proceeding. Regarding the granting of summary judgment, the trial court had before it the following documents:

Plaintiff's First Amended Petition;

Plaintiff's Request for Admissions, deemed admitted by operation of law;

Plaintiff's motion for summary judgment, with affidavits, and a certificate of service showing compliance with TEX.R.CIV.P. 21a and 166a.

Defendant's First Amended Answer;

Defendant's late response to request for admissions, without a request for late filing or request to undeem admissions; The admissions which appellant failed to answer were deemed admitted by operation of law. These admissions proved every element of appellee's case against appellant.

I. PROCEDURAL DEFAULT

In examining the record before us, appellant failed to timely answer request for admissions, or to file written objections, or to file a motion to file answers late, resulting in the appellee's admissions being deemed. Appellant admits receiving the request for admissions on May 23, 1991 and based on Rule 169 and Rule 21a admissions would be deemed by operation of law on June 26, 1991. The record reflects that appellant made no response to anything until July 19, 1991, and summary judgment was granted July 23, 1991. Admissions, once deemed admitted, are judicial admissions and appellant may not then introduce controverting testimony in any legal proceeding related to the instant action. Shaw v. National County Mut. Fire Ins. Co., 723 S.W.2d 236, 238 (Tex.App.--Houston [1st Dist.] 1986, no writ). Deemed admissions may be employed as summary judgment proof, Elkins v. Jones, 613 S.W.2d 533, 534 (Tex.Civ.App.--Austin 1981, no writ); and once admissions are deemed admitted by operation of law and where said admissions fully support each element of appellee's motion for summary judgment, notice to appellant of any proceedings with regard to the motion for summary judgment would appear moot.

A key issue appears to be the timing of appellee's request for admissions. Once appellant received a copy on May 23, 1991, the clock started ticking. The admissions were automatically deemed admitted on June 26, 1991. At this point in the proceedings, no notice problem existed. On June 27, 1991, one day after the deemed admissions took effect which essentially fully proved each and every element of appellee's case as a matter of law and not subject to any controverting evidence, Overstreet v. Home Indem. Co., 669 S.W.2d 825, 827 (Tex.App.--Dallas), rev'd on other grounds, 678 S.W.2d 916 (Tex.1984); American Title Co. v. Smith, 445 S.W.2d 807, 809 (Tex.Civ.App.--Houston [1st Dist.] 1969, no writ), appellant had no recourse except that given to him in Rule 169. Rule 169 permits objections, or motions to withdraw or amend the admissions, to be filed with the trial court. Appellant filed nothing until July 19, 1991. This was 22 days late. What appellant filed on July 19 were the answers originally requested. Appellant did not file a request to file late answers, appellant just filed the answers. On July 23, 1991 the appellee's motion for summary judgment was granted and signed by the trial court. It is not contested that appellant was not present in court on July 23, 1991.

In point of error one, appellant, citing a number of cases in his brief, asserts, "The notice provisions of Rule 166-A are intended to prevent judgment without the opposing party having a full opportunity to respond on the merits." Williams v. City of Angleton, 724 S.W.2d 414, 417 (Tex.App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.). A glaring question arises: "What could appellant have done legally in response to the summary judgment motion?" The answer, for all practical purposes, is, nothing. In permitting appellant to do anything, the trial court's discretion was limited to allowing appellant to somehow attempt to show good cause for filing late answers. Appellant's "Motion For New Trial" states, however: "Defendant would show that his failure to respond to the plaintiff's request for admissions until July 19, 1991, was not intentional or the result of conscious indifference on his part, but due to mistake or accident, accentuated by the plaintiff's unclear pleading."

Therefore, notice to appellant of the summary judgment hearing was essentially moot as appellant was legally precluded from introducing any evidence controverting the deemed admissions. The trial court was essentially performing a ministerial act in granting the summary judgment motion.

Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988) appears, at first blush, dispositive of the issue. In Peralta, a Texas case originating from a default judgment, the appellant was never served with notice on a suit for personal debt. Appellee conceded at oral argument before the Supreme Court that the Court must presume, for purposes of their decision, the truth of appellant's claim that he was never served with process. In our case, it was hotly contested as to whether or not our appellant was "served" with either actual or constructive notice. Nonservice cannot be merely presumed from the conflicting evidence contained in the motion for new trial hearing.

Holding that the default judgment procedure denied...