Taylor v. Taylor

• Decision Date: 15 March 1988
• Docket Number: No. 07-87-0039-CV,07-87-0039-CV
• Citation: 747 S.W.2d 940
• Parties: Mark TAYLOR and Terri Taylor, Appellants, v. Peggy TAYLOR, et al., Appellees.
• Court: Texas Court of Appeals

Page 940

747 S.W.2d 940

Mark TAYLOR and Terri Taylor, Appellants, v. Peggy TAYLOR, et al., Appellees.

No. 07-87-0039-CV.

Court of Appeals of Texas Amarillo.

March 15, 1988.

Rehearing Denied April 11, 1988.

Gary C. Riley, Odessa, for appellants.

J.R. Lovell, Lovell & Lyle, P.C., Michael P. Metcalf, Metcalf & Minkley, P.C., Dumas, Ody K. Jerden, Kilgore, S. Cass Weiland, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellees.

Before REYNOLDS, C.J., and DODSON and BOYD, JJ.

REYNOLDS, Chief Justice.

Mark Taylor and Terri Taylor bring this appeal from a take-nothing summary judgment. The judgment was rendered in their multi-cause action against Peggy Ruth Taylor, individually and as independent administratrix of the estate of Gene Sam Taylor, deceased; Gordon Taylor, d/b/a Taylor Brothers, Taylor Brothers Oil and Gas Company, and Taylor Ventures, who is now deceased; Dorothy Taylor, individually and as co-executrix of the estate of Gordon S. Taylor, deceased; Robert L. Taylor; John H. Goodwin; and Judy Mason. ¹ Mark and Terri contend, with the first two of their three points of error, that the trial court erred in granting summary judgment because (1) depositions on file raised material issues of fact as to one or more of their asserted causes of action, and (2) there is a fundamental defect in the substance and use of requests for admissions of fact upon which the summary judgment is based. By their third point, they contend that (3) the court abused its discretion in basing summary judgment on the entire cause on the request for admissions, subsequent objections and answers. For the following reasons, the points of error will be overruled and the judgment will be affirmed.

In 1972, Gene Sam Taylor and Gordon Taylor, brothers, executed a partnership agreement. Among other things, the agreement provided that assets and liabilities would be shared equally; that the partnership would not terminate upon the death of a partner, but would continue pursuant to a buy-out provision in the partnership agreement; and that no interest in the partnership would pass by will or inheritance.

Gene Taylor died testate in February of 1981, survived by his widow, Peggy Ruth, who qualified as the independent administratrix of his estate; their adopted son, Mark; Gene's daughter from a prior marriage, Terri; and other children. After Gene's death, litigation in the nature of a will contest was initiated by Mark, and then resolved by a settlement agreement signed on 9 October 1981.

By the terms of the settlement agreement, Peggy Taylor was vested with sole authority and discretion to act in the partnership matter, subject to a nonbinding 14-day notification to the heirs prior to making a legally binding commitment. Later, on 24 October 1981, Peggy and Gordon executed a preliminary settlement agreement, which was finalized by their addendum of 15 March 1982, settling the partnership interests.

Thereafter, on 23 October 1982, Mark and Terri initiated the action underlying this appeal. The object of their live trial pleadings, expressed in their 29-page, 83-paragraph fifth amended petition filed on 3 October 1985, was the recovery of monetary damages, alleged to be the difference between what they are entitled to and what they would receive under the 24 October 1981 settlement agreement, occasioned by actionable wrongful acts resulting in the partnership settlement agreement.

Before the filing of the fifth amended petition, a number of depositions and other discovery actions had been taken. Subsequently, ² on 28 October 1985, the Gordon Taylor estate served a request for 140 admissions on Mark, asking for, pursuant to Rule 169, Texas Rules of Civil Procedure, ³ the appropriate response on the 30th day after receipt. ⁴ Then, on 5 November 1985, the estate served Terri, pursuant to rule 168, with a request to answer, not less than 30 days after service, 21 interrogatories. On the following December 6, Peggy directed to Mark her rule 169 request for admissions, consisting of 64 requests addressing the causes of action pleaded against her. Three days later, the Gordon Taylor estate served Terri with a rule 169 request for 170 admissions.

Mark and Terri moved on 23 December 1985 for a protective order authorized by rule 166b(4) upon the bare allegation that the request and interrogatories were designed primarily for the purposes of annoyance, expense, embarrassment, and oppression, and were wholly unnecessary. The motion was not presented to nor ruled upon by the court.

The Gordon Taylor estate filed on 6 January 1986 ⁵ its motion for, inter alia, an order deeming admitted the matters contained in its 28 October 1985 request for admissions. The basis for the motion was the failure of Mark to answer or object to each requested admission within 30 days. Rules 169(1), 215(4)(a).

Subsequently on January 15, Mark and Terri moved for leave to amend their objections and to provide specific responses to the written discovery requests. As a part of the filing, Mark and Terri, first asserting general objections to the requests, stated Mark's objections, admissions, denials, or inability to admit or deny, to each of the 140 admissions requested by the Gordon Taylor estate on 28 October 1985, to each of the 64 admissions requested by Peggy on 6 December 1985, and Terri's objections, admissions, denials, or the inability to admit or deny, to each of the 170 admissions requested by the Gordon Taylor estate on 9 December 1985. The provided responses were tendered with the condition that should filing be permitted, the court, upon notice and hearing, permit withdrawal of specific answers or objections as the court may deem appropriate.

Afterwards, on March 5, the court, concerned with the question of abuse of the discovery process but then indisposed to apply sanctions, allowed Mark and Terri "ten days from receipt of this correspondence to complete whatever answers they have to the admissions and to make such specific objections as they may desire to make." Mark and Terri did not make any further answer or objection.

Then, on April 4, the Gordon Taylor estate moved for summary judgment. The thrust of the motion was that the admissions requested, embracing the entire claim of Mark and Terri, were admitted as a matter of law, leaving no material fact to establish each and every element of the causes of action. The motion was supported by the requests for admissions, the affidavit of an independent co-executor of the estate, and a prior court order dismissing three of the defendant-appellees from the cause. The court set a hearing on the motion for May 23, later rescheduled for June 13.

On May 19, there was filed the response of Mark and Terri to the motion for summary judgment. The response, in addition to complaints of the numerous requests for admissions and inadequate and incomplete discovery, contained allegations that the requests were answered or objected to and, alternatively, "there would exist material issues of fact in this massive litigation."

In the interim on May 12, Peggy filed a motion to have deemed admitted her 6 December 1985 request for admissions from Mark. Following that, on June 13, the Gordon Taylor estate moved the court to strike the response of Mark and Terri to its motion for summary judgment because the response was not and has not been, nor certified to be, furnished to counsel in violation of rule 72 ⁶ and rule 73. ⁷

On June 13, the court, finding that Mark's answers and objections to Peggy's request for admissions did not satisfy the requirements of the rule and that the request has never been properly responded to, ordered specifically numbered requests for admissions deemed admitted. The court, also finding that the response to the Gordon Taylor estate's motion for summary judgment was not served in violation of rules 72 and 73, ordered the response stricken.

On the same day, June 13, the court heard the motion for summary judgment. Considering the pleadings and the written discovery submitted, and the specified deemed admissions and the lack of a response, the court found there was an absence of a genuine issue of material fact based upon the evidence relied upon by the Gordon Taylor estate and conceded or not sufficiently controverted by Mark and Terri. Thereupon, the court rendered a take-nothing summary judgment in favor of the Gordon Taylor estate defendant-appellees.

The orders and judgment resulting from the June 13 hearing were signed on September 18 and 19. Then, on October 6, Peggy moved for summary judgment. Her motion details the manner in which the deemed admissions, embracing the entire claim of Mark and Terri, refuted the allegations of the causes of action pleaded. The motion was supported by the deemed admissions, the 9 October 1981 settlement agreement, the 24 October 1981 settlement agreement and addendum, and the affidavit of Peggy. No response was filed by Mark and Terri to the motion.

The court heard the summary judgment motion on October 31 and rendered a take-nothing summary judgment signed on November 3. The rendition was upon the court's finding of an absence of a genuine issue of material fact as to all causes of action based upon the evidence relied upon and conceded by Mark and Terri or not sufficiently controverted by them.

The crux of the three-point challenge to the final summary judgment is that (1) depositions on file raised material issues of fact as to one or more of the asserted causes of action, ⁸ thereby (2) precluding summary judgment on the deemed admissions, and (3) constituting a clear abuse of discretion in basing the summary judgment on the deemed admissions. Neither the challenge nor any facet of it is well-founded on this record.

At the outset, it is noted that Mark and Terri declare the summary judgment is void on its face because the case authorities cited in, and as the basis for, the judgment are not at all consistent with the...