Antonio Rangel a/k/a Tony Rangel v. Gerardo Martinez & Trinidad Martinez--Appeal from 57th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00032-CV
Antonio Rangel a/k/a Tony RANGEL,
Appellant
v.
Gerardo Martinez and Trinidad MARTINEZ,
Appellees
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2004-CI-18507
Honorable Johnny D. Gabriel Jr., Judge Presiding (1)

Opinion by: Karen Angelini, Justice

 

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Karen Angelini, Justice

 

Delivered and Filed: April 25, 2007

 

REVERSED AND REMANDED

 

This is an appeal from an order granting Plaintiffs' Motion for Partial Summary Judgment on the issues of negligence and causation, and an order denying Defendant's Motion for New Trial and Motion to Withdraw Deemed Admissions.

I. Factual and Procedural History

On December 14, 2002, plaintiffs, Gerardo and Trinidad Martinez, were stopped at an intersection, waiting to turn left onto Gerald Street. A second vehicle, driven by Juan Quiroga ("Quiroga"), was stopped immediately behind the Martinez's vehicle. Suddenly, a third vehicle, driven by defendant, Anthony Rangel ("Rangel"), ran into the rear of Quiroga's vehicle, causing Quiroga's vehicle to slam into the rear of Martinez's vehicle. As a result of the collision, Gerardo and Trinidad Martinez allegedly sustained personal injuries and sued Rangel.

During his deposition, Rangel admitted that the accident occurred because he was attempting to answer his cell phone and was not paying attention; he further conceded that he alone was responsible for the collisions. The plaintiffs filed a Motion for Partial Summary Judgment and attached excerpts from Rangel's deposition as evidence, seeking to have the trial court find as a matter of law that Rangel's negligence proximately caused damage to the plaintiffs. The trial judge granted the plaintiffs' motion and the case proceeded to trial solely on the amount of damages.

On the day of trial, plaintiffs asked the trial court to take judicial notice of the fact that Rangel had failed to timely respond to Plaintiffs' First Requests for Admissions. (2) Rangel's attorney, Mr. Mickits, was taken completely by surprise by plaintiffs' request and argued that it was his understanding that the parties had a Rule 11 agreement extending the deadline for filing the responses to the discovery requests, including the Requests for Admissions. However, because the Rule 11 agreement was never signed by opposing counsel, the trial court took judicial notice of the fact that the late filed responses to Plaintiffs' Requests for Admissions were deemed admitted. Specifically, Request for Admission Numbers 12 and 13 stated the following:

Admit or Deny that Plaintiff Gerardo Martinez suffered injuries and damages in the amount of at least $50,000.00 as a result of the collision.

 

Admit or Deny that Plaintiff Trinidad Martinez suffered injuries and damages in the amount of at least $50,000.00 as a result of the collision.

Based on these deemed admissions, plaintiffs immediately moved for "directed verdict" (3) as to damages, the sole remaining issue to be determined in the case. The trial court granted plaintiffs' oral motion and entered a final judgment ordering that plaintiffs each recover from Rangel the amount of $50,000.00. Rangel subsequently filed a Motion for New Trial and Motion to Withdraw the Deemed Admissions, arguing that 1) the trial court erred in refusing to withdraw the deemed admissions because there was evidence of good cause and 2) the partial summary judgment as to liability and causation was improper because there were issues of material fact raised. The trial court denied both motions and Rangel now brings this appeal.

II. Motion for New Trial and Motion To

Withdraw Deemed Admissions

A. Standard of Review

We review both a trial court's decision to overrule a motion for new trial and a motion to withdraw deemed admissions under an abuse of discretion standard. Old Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994); Cont'l Cas. Co. v. Hartford Ins., 74 S.W.3d 432, 434-35 (Tex. App.--Houston [1st Dist.] 2002, no pet.); Spiecker v. Petroff, 971 S.W.2d 536, 539 (Tex. App.--Dallas 1997, no pet.); Johnson v. Weitzner, 900 S.W.2d 163, 166 (Tex. App.--Beaumont 1995, no writ). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner, or if it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators,Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
B. Applicable Law

Texas Rule of Civil Procedure 198 provides that a written request that the other party admit the truth of any matter within the scope of discovery, including statements of opinion or of fact or of the application of law to fact, may be served on another party no later than 30 days before the end of the discovery period. Tex. R. Civ. P. 198.1. Once served with such a request, the party responding must generally do so within 30 days; otherwise, the request is considered admitted without the necessity of a court order and is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission. Tex. R. Civ. P. 198.2. A trial court has broad discretion in permitting or denying the withdrawal of deemed admissions, and its ruling will be set aside only upon a showing of a clear abuse of discretion. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996); Employers Ins. of Wausau v. Halton, 792 S.W.2d 462, 464 (Tex. App.-- Dallas 1990, writ denied).

A court may permit withdrawal or amendment of deemed admissions upon a showing of good cause, if the court finds the party relying on the deemed admissions will not be unduly prejudiced and the merits of the case may be presented to the court for review. Tex. R. Civ. P. 198.3; see e.g. Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005) (per curiam); Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 356-7 (Tex. 1998); see also In re A.M.G., 5 S.W.3d 836, 839 (Tex. App.--San Antonio 1999, no writ) (holding that trial court properly struck deemed admissions where State relied upon attorney's belief that State's deadline had been extended to show good cause). "Good cause is established by showing the failure involved was an accident or mistake, not intentional or the result of conscious indifference." Wheeler, 157 S.W.3d at 442. Undue prejudice, on the other hand, is based on whether withdrawing an admission or filing a late response will delay trial or significantly impede the opposing party's ability to prepare for it. Id. at 443.
Further, it is well settled that "the purpose of the rules of civil procedure is to obtain a just, fair, equitable, and impartial adjudication of the litigants' rights under established principles of substantive law." Stelly, 927 S.W.2d at 622; see also In re Kellogg-Brown & Root, 45 S.W.3d 772, 775 (Tex. App.--Tyler 2001, orig. proceeding). The ultimate goal of the rules of discovery is to seek the truth and therefore, the rules should not be construed to prevent a litigant from presenting the truth to the trier of fact. Spiecker, 971 S.W.2d at 539 (citing Halton, 792 S.W.2d at 464). Rule 198 serves "to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to prove." Stelly, 927 S.W.2d at 622. It was not designed as a trap for the unwary and should not be used as such. Id. C. Time line of Events

The following time line depicts the relevant events in the present case:

December 14, 2002 - Accident occurs.

December 14, 2004 - Suit is filed.

August 23, 2005- Plaintiffs' Requests for Admissions are hand-delivered to Rangel's attorney's (Mickits') office in San Antonio, and then forwarded to Mickits' Corpus Christi office.

September 17- Tropical storm Rita begins forming in the Gulf, increasing in intensity from a depression to a hurricane, and ultimately peaking at a category 5 hurricane.

September 21, 2005- Mickits is in depositions on another case in Laredo. (Wednesday) Evacuation Order issued for both the City of Corpus Christi and the City of Portland, requiring all individuals to begin evacuating immediately and to be evacuated by 8:00 a.m. on Friday, September 23, 2005. Mickits' law office in Corpus Christi closes at 4:00 p.m. on September 21, 2005 due to Hurricane Rita.

While in Laredo, Mickits learns Hurricane Rita has been classified as a category 5 hurricane and that the City of Corpus Christi and the City of Portland, where he lives, are being evacuated. He returns to his office in Corpus Christi at 5:00 p.m. to find all his staff gone and the computers disconnected. (Because Mickits maintained his calendar electronically, he was unable to use his computer to access the office calendar.)

September 22, 2005- Discovery due. All offices, as well as the courthouse, are presumably (Thursday) closed due to the evacuation.

September 26, 2005- Mickits' Corpus Christi office reopens for the first time following (Monday) Hurricane Rita. Mickits is in trial on another case in Corpus Christi. He is notified by his staff that discovery had been due in the Martinez case but the parties had entered into a Rule 11 agreement, extending the deadline until October 3, 2005. (Mr. Mickits understood from speaking with his staff that the actual deadline was on the 26th of September, 2005, and didn't realize until the day of trial that the deadline had already passed, thus necessitating the filing of a motion to withdraw the deemed admissions.)

Rule 11 letter requesting extension for filing discovery faxed to plaintiffs' attorney but never signed. Coincidentally, on the same date Mickits faxes his Rule 11 letter to opposing counsel, the Supreme Court of Texas issues its Emergency Order on Enlargement of Time and per curiam opinion in direct response to Hurricane Rita.

September 30, 2005- Mickits files discovery responses believing he has until October 3, 2005.

October 20, 2005- Trial court grants Plaintiffs' Motion for Partial Summary Judgment as to liability and causation, leaving solely the issue of damages to be determined; deemed admissions never mentioned.

October 25, 2005- Case initially called. Parties announce ready and are told to return the following day.

October 26, 2005- Mickits learns for the first time that the responses were filed late when plaintiffs move for, and are granted, a directed verdict based on the deemed admissions.

Trial court signs final judgment granting Plaintiffs damages based solely on deemed admissions.

November 11, 2005 Defendant files Motion for New Trial and Motion to Withdraw Deemed Admissions.

November 29, 2005 Hearing on Defendant's Motion for New Trial and Motion to Withdraw Deemed Admissions.

December 12, 2005 Trial court denies Defendant's Motion for New Trial and Motion to Withdraw Deemed Admissions.

 
D. Did The Trial Court Abuse Its Discretion in Denying
Defendant's Motion for New Trial?

The issue presented for review is whether the trial court abused its discretion in denying Defendant's Motion for New Trial and Motion to Withdraw Deemed Admissions based on the evidence of good cause presented in support of defendant's failure to timely answer the requested admissions. In resolving this issue, we must determine 1) whether Mickits established good cause for failing to timely file his responses to the requests for admissions; and, if so, 2) whether Mickits properly preserved error by presenting a timely request, objection or motion. Tex. App. P. 33.1.

1. Good Cause

In the present case, plaintiffs argue that Mickits failed to demonstrate good cause for failing to timely respond to Plaintiffs' Requests for Admissions because Mickits had a San Antonio office that was not affected by the hurricane, there were other attorneys who were involved in handling the case that could have assisted Mickits throughout this period, and Mickits should not have waited until the last minute to file his discovery responses.

Nevertheless, the fact remains that the discovery was due in this case at a time when both the city where Mickits maintained his main office, and the city where he resided were in a state of evacuation as a result of a natural disaster. And while Mickits' staff did not realize the responses were due until after the law office reopened following the hurricane, it is undisputed that the deadline for filing the responses was calendered; therefore, it was likely that the deadline would have been noted earlier had it not been for Hurricane Rita and the evacuation. At any rate, the rules accord Mr. Mickits 30 days to respond and because of Hurricane Rita, he was not afforded the entire 30 days. Tex. R. Civ. P. 198.2.

Additionally, we note that on September 26, 2005, the Texas Supreme Court issued an Emergency Order on Enlargement of Time, along with a per curiam opinion, in direct response to Hurricane Rita, wherein the Court mandated that ". . . the closure of a court clerk's office is 'good cause' for enlarging the time for filing any document within the meaning of Rule 5 of the Texas Rules of Civil Procedure and any other provisions of the Rules of Civil Procedure and the Rules of Appellate Procedure that permit an enlargement of time on a showing of good cause, or a similar showing." 30 Tex. Reg. 6831 (2005)(emerg. rule)(expired October 31, 2005)(Sup. Ct. of Tex.). Further, in its per curiam opinion, the Court provided that "the inability of lawyers to respond to procedural deadlines because of the storm should also be considered in determining whether time periods should be enlarged." (4) Accordingly, Mickits clearly demonstrated good cause for his failure to timely respond to Plaintiffs' Requests for Admissions.

2. Did Mickits' Properly Preserve Error?

We next turn to the issue of whether Mickits timely filed his motion to withdraw the deemed admissions. Texas Rule of Appellate Procedure 33.1 provides as follows:

(a) In general. As a prerequisite to presenting a complaint for appellate review, the record must show that:

(1) the complaint was made to the trial court by a timely request, objection, or motion that:

(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.

 

Tex. R. App. Proc. 33.1. The issue of whether a party who failed to file a motion to withdraw deemed admissions prior to entry of judgment preserved error on appeal has previously been addressed by the supreme court. Wheeler, 157 S.W.3d at 441. In Wheeler, a pro se mother filed responses to the requests for admissions but mistakenly calculated her deadline; six months later, the father filed a motion for summary judgment and attached the late filed responses as evidence. Id. The mother did not realize until after summary judgment was granted that her responses were, in fact, late, but upon learning this, filed a motion for new trial presenting her arguments of good cause for the first time. Id. The court found that the mother sufficiently placed the trial court on notice of her complaint by presenting arguments and requests regarding the deemed admissions in her motion for new trial since nothing in the record reflected that she knew her responses were late and that she needed to move to withdraw the deemed admissions prior to entry of the summary judgment. Id. However, the court noted that the equitable principles allowing these arguments to be raised in a motion for new trial do not apply if a party realizes its mistake before judgment and has other avenues of relief available." Id. (citing Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002)).

As in Wheeler, the record in the present case does not reflect any evidence that Mickits knew that the admissions were deemed admitted prior to trial on October 26, 2005. Although Plaintiffs filed and obtained a partial summary judgment as to liability on October 20, 2005, no mention was made of the deemed admissions in the motion for partial summary judgment or at the hearing, although clearly, the admissions were already deemed admitted by that date. Five days later, the parties again appeared before the court and announced ready on the remaining issue of damages. The parties were told to return the following day for trial; however, at no time during that first day were the deemed admissions mentioned. On October 26, 2005, the parties once again appeared in court, whereupon plaintiffs presented an oral motion for "directed verdict" based solely on the deemed admissions. Mickits was taken completely by surprise and was, therefore, precluded from filing a written motion for continuance or a motion to withdraw the deemed admissions. See Wheeler, 157 S.W.3d at 441 (citing Carpenter, 98 S.W.3d at 686); Green v. Texas Dept. of Protective & Regulatory Servs., 25 S.W.3d 213, 218 (Tex. App.-Dallas 2000, no pet.). Moreover, Mickits sole defense at trial was that he believed the parties had a Rule 11 agreement extending the discovery deadlines; it was only after Mickits returned to his office and reviewed the case with his staff that he was able to piece together the events.

Thereafter, Mickits timely filed a Motion for New Trial and Motion to Withdraw Deemed Admissions, detailing the events that took place in this case, including the fact that only days before the discovery was due, Hurricane Rita hit the coastline, resulting in a mandatory evacuation of the cities of Corpus Christi and Portland. Mickits attached, as evidence, the evacuation orders and the Texas Supreme Court Emergency Order on Enlargement of Time. See 30 Tex. 6831 (2005)(emerg. rule). Additionally, Mickits attached the unsigned Rule 11 agreement dated September 26, 2005, the first day businesses resumed operation after the hurricane, which reflected what Mickits believed to be an agreement extending the time for filing discovery responses until October 3, 2005.

Plaintiffs respond that "a reasonably prudent attorney" would have discovered, prior to trial, the fact that the Rule 11 agreement was never signed by the opposing attorney and that Mickits should have known at the time of trial that his responses were filed late. The Rule 11 agreement, dated and faxed on September 26, 2005, stated the following:

This Rule 11 correspondence is to confirm that you have graciously agreed to extend the deadline for Defendant Antonio Rangel a/k/a Tony Rangel to respond to Plaintiffs' discovery requests. Therefore, Defendant Antonio Rangel a/k/a Tony Rangel['s] Answers, Responses and Objections to Plaintiffs' Interrogatories, Requests for Admissions and Requests for Production will be due on October 3, 2005.

 

And while the Rule 11 letter was not signed by opposing counsel, the issue here is whether Mickits had good cause to believe that the extension had been granted. See In re A.M.G., 5 S.W.3d at 839. We find he did in light of the events surrounding the Rule 11 agreement and more specifically, in light of Hurricane Rita.

In particular, we note that prior to the discovery deadline, Mickits was faced with a mandatory evacuation, and the first "normal business day" following the hurricane, was in trial on another case. He was advised by his staff that discovery was due in this case, but that plaintiffs had agreed to a Rule 11 one-week extension of time in which to file the responses. Given the language and timing of the letter, the representations by Mickits' staff that the extension was granted prior to the due date, the evacuation orders, and the fact that Mickits filed his response within the "extended deadline," Mickits established good cause by showing his failure to timely file the responses to the requests for admissions was an accident or mistake and not intentional. Wheeler, 157 S.W.3d at 442; Halton, 792 S.W.2d at 466; see also AMG, 5 S.W.3d at 839. Indeed, the Texas Supreme Court's Emergency Order on Enlargement of Time and accompanying per curiam opinion stress the need for consideration in the aftermath of a natural disaster, and provide that "the inability of lawyers to respond to procedural deadlines because of the storm should also be considered in determining whether time periods should be enlarged." 30 Tex. Reg. 6831 (2005)(emerg. rule).

3. Undue Prejudice

Finally, plaintiffs argue that they will suffer undue prejudice if the admissions are struck because they did not prove up their medical bills and instead, relied entirely upon the deemed admissions to establish the amount of damages. We disagree that this amounts to "undue prejudice." Several court of appeal cases have held that the reversal of a summary judgment because the trial court failed to set aside deemed admissions is not unduly prejudicial to the party that successfully obtained the summary judgment. Cudd v. Hydrostatic Transmission, Inc., 867 S.W.2d 101, 105 (Tex. App.--Corpus Christi 1993, no writ); North River Ins. Co. v. Greene, 824 S.W.2d 697, 701 (Tex. App.--El Paso 1992, writ denied); see also Matthews v. Weissgarber, No. 04-92-00513-CV, 1995 WL 569281, *6 (Tex. App.--San Antonio, no writ) (not designated for publication). Similarly, in the present case, plaintiffs were granted a directed verdict as to damages based solely on the deemed admissions and were not required to present additional evidence or testimony. Thus, reversing the judgment as a result of the trial court's failure to set aside the deemed admissions would not be unduly prejudicial to the plaintiffs, as it would merely require plaintiffs to "prove their case," which they, presumably, were prepared to do. Cudd, 867 S.W.2d at 105. Rule 198 was designed to simplify trials by eliminating matters about which there is no real controversy and should not be used, as it was in this case, as a trap for the unwary. Tex. R. Civ. P. 198; Stelly, 927 S.W.2d at 622. Accordingly, plaintiffs would not be unduly prejudiced by withdrawing the deemed admissions; we, therefore, reverse the trial court's order denying defendant's motion for new trial and motion to withdraw deemed admissions. Id.

III. Was L
iability Contested?

Defendant asserts that if this court reverses and remands as to damages, it must also remand as to liability as this court is not authorized to order a partial remand in this case. Tex. R. App. P. 44.1. Rule 44.1 of the Appellate Rules provides the following:

If the error affects part of, but not all, the matter in controversy and that part is separable without unfairness to the parties, the judgment must be reversed and a new trial ordered only as to the part affected by the error. The court may not order a separate trial solely on unliquidated damages if liability is contested.

Id. (emphasis added). Plaintiffs respond that the Defendant did not contest liability and in fact, admitted he was responsible for the accident in question. Nevertheless, the supreme court has held that "[i]f a party files a general denial in the trial court, that pleading puts a plaintiff to his or her proof on all issues, including liability; its effect extends to contesting liability in the event of remand on appeal."Estrada v. Dillon, 44 S.W.3d 558, 562 (Tex. 2001). Here, the record reflects that the Defendant "invoked Rule 92 of the Texas Rules of Civil Procedure and in accordance therewith, denied each and every, all and singular, the material allegations contained in Plaintiff's Original Petition and demanded strict proof thereof by preponderance of the evidence." Additionally, both Defendant's Motion for New Trial and appellate brief contest liability insofar as Defendant argues that summary judgment as to liability was improper because there were issues of fact raised. This was sufficient to establish Defendant's intent to contest liability. See Tex. R. App. P. 44.1; Estrada, 44 S.W.3d at 562.

IV. Conclusion

The record here reflects Mickits established good cause for failing to timely file his responses to the requests for admissions, plaintiffs would not be prejudiced by the withdrawal of the deemed admissions, and the merits of the lawsuit would be served by the withdrawal of the deemed admissions. Moreover, in view of the extenuating factors in the present case, we conclude the trial court abused its discretion in denying Rangel's Motion for New Trial and Motion to Withdraw the Deemed Admissions. See Tex. R. Civ. P. 198.3; Spiecker, 971 S.W.2d at 541-42; Halton, 792 S.W.2d at 467. Further, as Defendant has contested liability in the present case, we see no need to reach the merits of Defendant's complaint regarding the trial court's granting of Plaintiffs' Partial Motion for

 

Summary Judgment. Tex. R. App. P. 44.1. Accordingly, we reverse the trial court's judgments and remand the entire cause to the trial court for a new trial. See id.

 

Karen Angelini, Justice

1. The Honorable Joe Frazier Brown, Jr. is the presiding judge of the 57th Judicial District Court of Bexar County, Texas; however, the Honorable David A. Berchelmann, the presiding judge of the 37th Judicial District Court of Bexar County, Texas, signed the order granting Plaintiffs' Motion for Partial Summary Judgment and the Honorable Johnny D. Gabriel, the presiding judge of the 131st Judicial District Court of Bexar County, Texas, signed the order denying Defendant's Motion for New Trial and Motion to Withdraw Deemed Admissions.

2. The Requests for Admissions were hand served at the San Antonio office of Rangel's attorney, Mr. Mickits, on August 23, 2005 and the responses were due on September 22, 2005; however, Mickits did not file the responses to the requests for admissions until September 30, 2005.

3. Although the plaintiffs sought a directed verdict, this was a nonjury trial. See McKinley Iron Works, Inc. v. Texas Employment Comm'n, 917 S.W.2d 468, 469-70 (Tex. App.--Fort Worth 1996, no pet.).

4. Although the Emergency Order on Enlargement of Time was signed on September 26, 2005, and ordered to be "mailed to each registered member of the State Bar of Texas by publication in the Texas Bar Journal," it was not published until November 2005. Mickits did, however, attach a copy of this order to his Motion for New Trial and Motion to Withdraw Deemed Admissions, and while the order expired on October 31, 2005, it was clearly in effect at the time discovery was due and when the trial court initially entered its judgment in favor of the Plaintiffs based on the deemed admissions.