Luna v. Runyon, No. 03-06-00615-CV (Tex. App. 7/3/2008)
| Decision Date | 03 July 2008 |
| Docket Number | No. 03-06-00615-CV.,03-06-00615-CV. |
| Parties | RICHARD LUNA, INDIVIDUALLY AND D/B/A RICHARD'S MACHINE SERVICES, Appellant, v. DANIEL C. RUNYON AND AUTO, BUS & TRUCK, LP, Appellees. |
| Court | Texas Court of Appeals |
Appeal from the District Court of Travis County, 53rd Judicial District, No. D-1-GN-05-002733, Honorable Margaret A. Cooper, Judge Presiding.
Modified and, as Modified, Affirmed.
Before Justices PATTERSON, PURYEAR and PEMBERTON.
This is a restricted appeal from a summary judgment. Appellees Daniel C. Runyon and Auto, Bus & Truck, LP (Runyon) are in the business of providing air-conditioning and automotive service work. Appellant Richard Luna was formerly employed by Runyon. The record reflects a bitter underlying dispute in which Runyon accused Luna, while still its employee, of stealing, embezzling, or misusing Runyon's property and pursuing Runyon's customers to benefit Luna's own business. In addition to pressing criminal charges,1 Runyon sued Luna for damages, alleging breach of his employment contract, conversion, tortious interference with contractual relations, and breach of fiduciary duty.
Runyon filed a traditional motion for summary judgment on all of its claims, relying on Luna's failure to respond or object to requests for admissions. Runyon attached and incorporated by reference a copy of the requests to its summary-judgment motion, along with a signed certified mail return receipt, or "green card," reflecting delivery of the requests to "Richard Luna, Richard's Machine Shop," at a Cedar Park street address. The address corresponded to Luna's last known mailing address, as expressly found by the district court several months earlier in an order permitting Luna's then-counsel to withdraw. In the same order, the district court had ordered that all further notices in the cause should either be delivered to Luna in person or sent to him at that address via certified mail. The green card attached to Runyon's summary-judgment motion was signed by a "C.G. Murphy."
Luna did not respond to Runyon's summary-judgment motion. The district court granted the motion, specifically confirming that the requests for admissions were deemed admitted; permanently enjoined Luna from performing work for certain Runyon customers; and awarded Runyon $581,852.66 in actual damages, $1 million in punitive damages, and $544,862.89 in attorney's fees. With the exception of the attorney's fee award, the relief awarded was consistent with the admissions made as a result of Luna's failure to respond to the requests for admissions.
Luna brings three issues on appeal. He complains that the district court erred in granting summary judgment because (1) the summary-judgment motion did not adequately specify the grounds on which Runyon was relying, (2) Runyon failed to meet his burden of establishing that Luna had been served with the requests for admissions, and (3) the judgment "was tainted by fraud on the court and otherwise fails to serve the interests of justice." We will modify the attorney's fee award and, as modified, affirm the judgment.
A party filing a restricted appeal must demonstrate that (1) he filed the appeal within six months of the date the judgment was rendered; (2) he was a party to the suit; (3) he did not "participate" in the hearing that resulted in the judgment complained of or file any post-judgment motions or appeals; and (4) error is apparent on the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004).2 Only the fourth issue—whether there is error apparent on the face of the record—is in dispute here.
To determine whether there is error on the face of the record, we review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).3 Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 (Tex. 2004) (citing Knott, 128 S.W.3d at 215-16). In deciding whether there is a disputed material fact issue precluding summary judgment, we take as true proof favorable to the non-movant, and we indulge every reasonable inference and resolve any doubt in favor of the non-movant. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Texas Woman's Univ. v. Methodist Hosp., 221 S.W.3d 267, 276 (Tex. App.-Houston [1st Dist.] 2006, no pet.).
To be entitled to summary judgment, a plaintiff must conclusively establish all elements of his cause of action as a matter of law. Time Out Grocery v. The Vanguard Group, Inc., 187 S.W.3d 41, 42 (Tex. App.-Dallas 2005, no pet.) (citing MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986) (per curiam)). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Allbritton v. Gillespie, Rozen, Tanner & Watsky, P.C., 180 S.W.3d 889, 891 (Tex. App.-Dallas 2005, pet. denied).
Failure to timely respond to a request for admission results in its being considered admitted without further action by the court, often referred to as being "deemed admitted." See Tex. R. Civ. P. 198.2(a) (30-day response deadline), (c) ("If a response is not timely served, the request is considered admitted without necessity of court order."). Deemed admissions may support summary judgment. See, e.g., Acevedo v. Comm'n for Lawyer Discipline, 131 S.W.3d 99, 105 (Tex. App.-San Antonio 2004, pet. denied). Unless the party who failed to respond to a request for admissions obtains a court order setting aside the deemed admissions—which Luna did not attempt to do here4
—they constitute judicial admissions that bind the party and render inadmissible contrary trial or summary-judgment evidence. See Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989); Jones v. Citibank, N.A., 235 S.W.3d 333, 337 (Tex. App.-Fort Worth 2007, no pet.).
In his second issue, Luna contends that Runyon failed to establish that it served him with the requests for admissions. Luna acknowledges that Runyon certified its compliance with rule 21a of the Texas Rules of Civil Procedure, giving rise to a presumption that he received the requests. See Tex. R. Civ. P. 21a; Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987) (). Luna did not present evidence to controvert this presumption. See Huggins, 724 S.W.2d at 780 (). Instead, Luna argues on appeal that the certified mail "green card" introduced by Runyon is evidence of non-receipt. Although Luna does not dispute that the signed green card is evidence that the requests were actually received at his last known address, he urges that the fact that he did not personally sign the green card controverts the presumption of receipt and renders service "fatally defective and invalid." We disagree. Luna, again, did not present evidence of non-receipt. The mere fact that the green card indicating receipt at Luna's address was signed by "C.G. Murphy" provides no greater support for the inference that Luna did not receive the requests than for the inference that he did receive them. See Thomas v. Ray, 889 S.W.2d 237, 238-39 (Tex. 1994) (); cf. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (); Smith v. Holmes, 53 S.W.3d 815, 818 (Tex. App.-Austin 2001, no pet.) (green card signed by another person did not raise fact issue regarding receipt in face of sworn proof of non-receipt). Accordingly, the green card is not evidence of Luna's non-receipt, see City of Keller v. Wilson, 168 S.W.3d 802, 813-14 (Tex. 2005) ( equal-inference rule), and we must give effect to rule 21a's presumption that he received the requests. We overrule Luna's second issue.
In his first issue, Luna argues that Runyon's summary-judgment motion failed to state the "grounds" on which it was based to the extent required by Tex. R. Civ. P. 166a(c) and McConnell v. Southside Independent School District, 858 S.W.2d 337, 340-41 (Tex. 1993). Luna's complaint seems to be that Runyon's motion did not enumerate each element of each of its causes of action or tie each element to specific admissions. We disagree that Runyon's motion failed to state its grounds adequately. Summary-judgment "grounds" refer simply to the "reasons entitling the movant to summary judgment." McConnell, 858 S.W.2d at 339 n.2. Here, Runyon stated in its motion that it was entitled to judgment as a matter of law because it had served requests for admission on Luna, Luna had failed to respond, the requests were accordingly deemed admitted, and these admissions "were dispositive of all issues in the case." Further, Runyon attached a copy of the requests and incorporated them into its motion. Deemed admissions constitute binding...
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