Webb v. Ray

• Court: Texas Court of Appeals
• Writing for the Court: FOWLER
• Citation: Webb v. Ray, 944 S.W.2d 458 (Tex. App. 1997)
• Decision Date: 10 April 1997
• Docket Number: No. 14-95-00839-CV,14-95-00839-CV
• Parties: Max WEBB, Individually, and Kathleen Webb d/b/a Texas Automatic & Standard Transmission, Appellants, v. Brian Keith RAY, Appellee. (14th Dist.)

Page 458

944 S.W.2d 458

Max WEBB, Individually, and Kathleen Webb d/b/a Texas Automatic & Standard Transmission, Appellants, v. Brian Keith RAY, Appellee.

No. 14-95-00839-CV.

Court of Appeals of Texas Houston (14th Dist.).

April 10, 1997.

Bernard E. Brooks, Houston, for appellants.

Ralph Shepard, Staci L. Reeves, Tomball, for appellee.

Before YATES, HUDSON, and FOWLER, JJ.

OPINION

FOWLER, Justice.

This is an appeal from a summary judgment in favor of appellee, Brian Keith Ray. In two points of error, appellants, Max and Kathleen Webb, complain the trial court erred because it did not allow them to withdraw their deemed admissions, granted summary judgment, and overruled their motion for new trial to set aside the summary judgment. Appellants argue the trial court's denial of their motion for new trial violates their due process rights, and is tantamount to imposition of death penalty sanctions. We affirm.

Appellee worked as a mechanic in appellants' auto repair shop, Texas Automatic & Standard Transmission. On September 14, 1993, he resigned, but left his tools and toolbox at the work place. On September 17, 1993, he verbally asked appellants to return his tools. On November 2, 1993, he sent appellants a written demand by certified mail, return receipt requested insisting that they return the remainder of his tools. Attached to his demand letter was an itemized list of tools, valued at $5,000. Appellants did not respond. On December 9, 1993, appellee filed suit against appellants for conversion.

Appellants returned all the tools they claim belonged to appellee on March 3, 1994. On April 25, 1994, appellee properly served appellants with discovery requests and a request for admissions. On May 26, 1994, appellants' attorney asked for a 15-day extension to answer the discovery requests. Appellee agreed to extend the deadline for all discovery except the request for admissions. At the bottom of the letter agreement extending the filing deadline appellee's attorney wrote

[t]he time for answering discovery other than Request for Admissions is hereby extended with my client's permission until June 15, 1994. You are advised that you are not granted any extension of time with regard to the Request for Admissions. Please see that the responses to the Request for Admissions are filed timely; otherwise, everything will be deemed admitted.

Appellants filed their answers to the interrogatories and requests for production on June 17, 1994, but did not file their admissions until June 27, 1994.

On January 12, 1995, appellee filed his motion for summary judgment. Appellants filed a motion to strike deemed admissions on January 18, 1995. The trial court set the motion for hearing on January 26, 1995, but appellants did not appear. The trial court issued an order on January 30, 1995, overruling appellants' motion to withdraw deemed admissions, and found appellee presented uncontroverted evidence that he would be prejudiced if appellants were allowed to withdraw their admissions. Noting that appellants failed to appear at the hearing, the trial court found they did not present evidence of good cause that would allow the trial court to strike their deemed admissions. The trial court also found that "all matters heretofore admitted by Defendants [appellants], through their failure to timely respond to Plaintiff's [appellee's] Request for Admissions, are conclusively established as true and uncontestable [sic] facts."

On February 2, 1995, the trial court held a hearing on appellee's motion for summary judgment, and based on those admissions, found appellants liable for conversion. After a hearing on damages, the trial court awarded appellee $5,800 actual damages for wrongful conversion of his personal property, $21,600 for lost wages, and $10,000 exemplary damages, plus pre- and postjudgment interest. On May 31, 1995, the court signed a summary judgment finding appellants liable for conversion. The trial court overruled appellants' motion for new trial on April 27, 1995.

Appellants' first point of error claims the trial court erred by not allowing them to withdraw their deemed admissions, and by granting the summary judgment based on those deemed admissions. A party may withdraw a deemed admission "upon a showing of good cause for such withdrawal ... if the court finds that the parties relying upon the responses ... will not be unduly prejudiced and that the presentation of the merits of the action will be subserved thereby." TEX.R. CIV. P. 169(2). The threshold standard for withdrawal of deemed admissions is "good cause." A party can establish good cause by showing that its failure to answer was accidental or the result of a mistake, rather than intentional or the result of conscious indifference. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex.1996). The burden of proof is on the party seeking withdrawal of the deemed admissions to establish good cause. To prevail, they must prove they did not intentionally or consciously disregard their obligation to timely answer. North River Ins. Co. Of New Jersey v. Greene, 824 S.W.2d 697, 699-700 (Tex.App.--El Paso 1992, writ denied). Even a slight excuse will suffice, especially where delay or prejudice will not result against the opposing party. See Gotcher v. Barnett, 757 S.W.2d 398, 401 (Tex.App.--Houston [14th Dist.] 1988, no writ).

Appellants' motion to strike deemed findings, filed January 18, 1995, states that their answers to the request for admissions were timely drafted and typed, but not served on appellee because of their rush to meet the deadline on plaintiff's other discovery requests. Because they claim they did not intentionally ignore the deadline, appellants argue they have established a "good cause" for failing to timely file their response. They also contend appellee would not have been unduly prejudiced if the trial court struck the deemed admissions. But, appellants offered no evidence of these assertions.

The trial court set the motion to strike deemed admissions for hearing on January 26, 1995. Appellants and their counsel failed to appear. The evidence taken at the hearing proves that on May 26, 1994, appellee's counsel reminded opposing counsel in writing that appellants' responses to the request for admissions were due three days from the date of the letter, May 29, 1994. The responses were not filed until June 27, 1994, twenty-nine days after the due date. Appellants' answers to the interrogatories and requests for production were due June 15, 1994, but were not filed until June 17, 1994, two days late.

Appellee presented evidence of his alleged reliance on the deemed admissions, and submitted evidence in an attempt to support his claim that he would be unduly prejudiced if the trial court allowed appellants to withdraw the deemed admissions.

Overruling appellants' motion to withdraw their deemed admissions, the trial court issued an order on January 30, 1995, finding that: 1) appellee presented uncontroverted evidence that he would be prejudiced if appellants were allowed to withdraw their admissions; 2) appellants failed to appear at the hearing on their own motion, and waived the opportunity to prove that good cause existed to allow them to withdraw their admissions; and 3) "all matters heretofore admitted by Defendants [appellants], through their failure to timely respond to Plaintiff's [appellee's] Request for Admissions, are conclusively established as true and uncontestable [sic] facts."

A trial court has broad discretion to permit or deny the withdrawal of deemed admissions. Employers Ins. Of Wausau v. Halton, 792 S.W.2d 462, 464 (Tex.App.--Dallas 1990, writ denied). An appellate court should set aside the trial court's ruling only if, after reviewing the entire record, it is clear that the trial court abused its discretion. Stelly, 927 S.W.2d at 622. An abuse of discretion occurs when a court acts without reference to guiding rules or principles, or acts arbitrarily or unreasonably. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

After reviewing the record, we cannot say the trial court erred in finding appellants intentionally ignored the deadline for filing their response to appellee's request for admissions. As we noted earlier, the threshold issue is whether appellants established good cause by showing that their failure to answer was the result of accident or mistake. Stelly, 927 S.W.2d at 622. It was the appellants' burden to establish good cause. Id. Appellants did file a motion to strike the deemed admissions stating that they did not intentionally fail to timely file their responses and thereby attempting to show good cause. But, appellants' actions--or lack thereof--belie their claim. First, only three days before the admissions' due date, appellants requested an extension of time to answer the admissions. Appellees' counsel refused, warning appellants that they must timely file their answers to the admissions, or the admissions would be deemed admitted. Appellants did not heed this warning and filed the answers late. Second, when they filed the admissions late, they did not file a motion to withdraw deemed admissions. In fact, appellants did not file a motion to withdraw the deemed admissions until over six months later, in response to appellee's motion for summary judgment based on the deemed admissions. Third, appellants did not even bother to show up for the hearing on their motion to strike the deemed admissions. And, if appellants had a good reason for missing this hearing, they made no attempt to inform the court why they missed it.

In spite of these actions, appellants maintain they met the good cause requirement, citing us to several cases they claim support their appeal. But, the cases appellants rely on are clearly distinguishable. In Cudd v. Hydrostatic Transmission, Inc., the appellant showed good cause by proving...