Schindler v. AG Aero Distributors, Inc.
| Decision Date | 30 November 1973 |
| Docket Number | No. 813,813 |
| Citation | 502 S.W.2d 581 |
| Parties | Charles J. SCHINDLER, Appellant, v. AG AERO DISTRIBUTORS, INC., Appellee. |
| Court | Texas Court of Appeals |
David B. Connery, Jr., Rockport, for appellant.
Roland M. Yeager, Hatch & Yeager, Aransas Pass, for appellee.
This is a summary judgment case. Ag Aero Distributors, Inc., plaintiff, sued Charles J. Schindler, defendant, on a past due promissory note executed by defendant and payable to plaintiff's order. Judgment was rendered for plaintiff. Defendant has appealed. We reverse and remand.
Defendant presents two points of error: first, that the trial court erred in granting plaintiff's motion to deem its request for admissions admitted; and, second, that the trial court erred in granting summary judgment because genuine issues of material fact exist.
Plaintiff filed its petition on February 5, 1971. It alleged that on June 4, 1970, defendant executed and delivered to it his promissory note 1 in the original principal sum of $1,500.00 payable to plaintiff's order 45 days after date, with interest thereon from date thereof at the rate of 8% Per annum; that the note was unpaid; that the note was not entitled to any offsets or credits; and that plaintiff was the legal owner and holder of the note.
Defendant timely filed a sworn answer. In addition to denying generally the allegations of plaintiff's petition, he specially denied liability on the note because of failure of consideration. He admitted in his answer that he executed the note as part of the purchase price for an aircraft which plaintiff sold to him on June 4, 1970. He averred that plaintiff 'warranted said aircraft to be in good operable condition and to perform well', but that after delivery it was discovered that the 'longerons were defective and should be repaired'; that he was notified by the FAA that 'the aircraft was not airworthy and that until repaired properly it was grounded'; that he requested plaintiff to replace the aircraft 'with an airworthy aircraft, or to return defendant's purchase price', and that plaintiff refused to do either.
Plaintiff filed a request for admissions on July 12, 1971, wherein twenty-five days 'after receipt hereof' were given defendant for answer thereto. Plaintiff filed a motion for summary judgment on September 2, 1971, and a motion on September 7, 1971 to deem the matters inquired about in its request for admissions admitted. Both motions were predicated upon the absence of answers to the previously filed request for admissions. On September 13, 1971, defendant, without leave or permission of court, filed answers to the request for admissions which, according to plaintiff's unchallenged statement in its brief, was twenty-eight days late. Such answers admit that defendant executed and delivered the note made the basis of suit, that the copy of the note attached to plaintiff's petition is a true and correct copy of the original, that defendant's signature as the same appears on the copy is a true representation of his signature, and that defendant had not paid any part of the note; however, the answers further deny that the aircraft met the standard specifications of the manufacturer, or that the aircraft, after it was repaired, performed and operated as a new aircraft. They further stated that the aircraft was structurally defective when it was delivered. In summary, the answers set up several issues of fact relating to the defendant's defense of failure of consideration that could only be resolved by the trier of facts after a trial on the merits.
On September 15, 1971, defendant filed a motion to permit the delayed filing of his answers to plaintiff's request for admissions. The trial court, on February 23, 1972, granted both of plaintiff's motions, denied defendant's motion, and entered summary judgment for plaintiff. On motion for rehearing by defendant, the trial court, on March 23, 1972, vacated the summary judgment and the order which granted plaintiff's motion that the matters inquired about in its request for admissions be deemed admitted, and granted defendant's motion to permit him to file his answers to the request for admissions out of time.
Thereafter, plaintiff, on February 12, 1973, filed its second motion that the matters inquired about in its request for admissions be deemed admitted, and, on the same day, filed its second motion for summary judgment, wherein it alleged that defendant had admitted its requests for admissions as shown by his failure 'to make any response or reply to such request within the time prescribed', and that 'as a matter of law there is no material disputed fact issue in this case'.
Summary judgment was rendered in plaintiff's favor on April 4, 1973 for $1,500.00 with interest thereon at 8% Per annum from June 4, 1970 until paid, for attorney's fees in the amount of $275.00 with interest thereon at 6% Per annum from date of judgment, and for court costs. The judgment recited that plaintiff's requests for admissions 'are hereby in all things deemed admitted by the defendant', and that defendant's motion to permit the delayed filing of his answers to plaintiff's request for admissions 'be, and the same is hereby denied'.
As a result the following facts were deemed admitted: 1) that the copy of the note attached to plaintiff's petition is a true and correct copy of the original note; 2) that defendant executed and delivered the note sued on to plaintiff; 3) that defendant had not paid any part of the note; 4) that defendant received the aircraft in question in June, 1970; 5) that the aircraft was repaired pursuant to FAA Airworthiness Directive 69--23--3 Amendment 39--871 at the expense of Piper Aircraft Corporation and not at defendant's expense; 6) that defendant refused to permit Piper Aircraft Corporation or any of its agents to repair the aircraft until sometime in October, 1970; 7) that defendant still has the aircraft and has used it since it has been repaired; and, 8) that the aircraft, 'after it was repaired, performed and operated and now performs and operates in the same manner as a new aircraft'.
The trial court, under Rule 169, Texas Rules of Civil Procedure, has considerable discretion in refusing or granting a motion to deem...
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...evidence that it is the present legal owner and holder of the note sued upon. See Blankenship, 899 S.W.2d at 238; Schindler v. AG Aero Distrib., Inc., 502 S.W.2d 581, 585 (Tex. Civ. App.-Corpus Christi 1973, no In support of its motion for summary judgment, TSB attached the following summar......
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...(1958). The letter was not evidence of the fact that Dean would cause serious harm to herself or to others. Schindler v. AG Aero Distributors, Inc., 502 S.W.2d 581 (Tex.Civ.App.1973). The letter attached to the petition could not be considered unless the court could have taken judicial noti......
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...Rule 169, and the ruling of the court will be disturbed only upon a showing of a clear abuse of that discretion. Schindler v. Ag Aero Distributors, Inc., 502 S.W.2d 581, 584 (Tex.Civ.App. Corpus Christi 1973, no writ), and cases there cited. Under this record and aside from the fact that de......
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Texas Employers' Ins. Ass'n v. Bragg, 13-83-163-CV
...Mathes v. Kelton, 565 S.W.2d 78 (Tex.Civ.App.--Amarillo 1977, affirmed on other grounds 569 S.W.2d 876 (Tex.1978); Schindler v. AG Aero Distributors, Inc., 502 S.W.2d 581 (Tex.Civ.App.--Corpus Christi 1973, no writ). In order to avoid the consequences of a failure to answer, the party must ......