Baig Mohammed, Individually and d/b/a T & D's Easy Stop v. American Express Travel Related Service Company, Inc.--Appeal from Co Civil Ct at Law No 4 of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-92-117-CV

BAIG MOHAMMED, INDIVIDUALLY AND d/b/a

T & D's EASY STOP,

Appellant

v.

AMERICAN EXPRESS TRAVEL RELATED SERVICE

COMPANY,

Appellee

From the County Civil Court at Law No. 4

Harris County, Texas

Trial Court # 573,589

O P I N I O N

American Express Travel Related Services Company, Inc. (American Express) sued Baig Mohammed, individually and doing business as T & D's Easy Stop, for breach of a trust agreement and of a personal indemnity and guaranty agreement for failing to remit proceeds from the sale of American Express money orders. The trust agreement permitted Mohammed to issue and sell American Express money orders at his convenience store. The agreement contemplated a bi-weekly accounting of all money orders sold as well as a bi-weekly remittance of money-order proceeds. The personal indemnity and guaranty agreement contractually provided for Mohammed's individual liability in the event of a breach of the trust agreement. The court granted summary judgment against Mohammed on the basis of deemed admissions and affidavits for $39,721.36 principal, $9,188.37 accrued interest, prejudgment and postjudgment interest, attorney's fees, and court costs. In its judgment, the court found that no genuine issue of material fact existed as to the following:

1.The Trust Agreements are trust agreements pursuant to Texas law.

2. Mohammed was trustee under the Trust Agreements and American Express was the beneficiary under the trusts.

3.As trustee, Mohammed was acting in a fiduciary capacity with respect to American Express.

4.By failing to carry out his fiduciary duties under the terms of the Trust Agreement Mohammed committed acts of fraud or defalcation while acting in a fiduciary capacity to American Express.

5.Mohammed is individually liable for all amounts under the Trust Agreements pursuant to the terms of the guaranties.

Mohammed appeals on the following points: 1) The court erred in granting the motion for summary judgment; 2) The court abused its discretion in refusing to allow Mohammed to file late answers to the requests for admission; 3) The court erred when it refused to continue the hearing on the motion for summary judgment in order that Mohammed could comply with the requests for production; and 4) the court erred in failing to grant Mohammed's motion for new trial. We will affirm the judgment.

In early November 1990, American Express served Mohammed with discovery requests, including requests for admission, simultaneously with its first amended original petition. Mohammed's only response to the discovery requests was a handwritten letter acknowledging that he was aware of the lawsuit, that he had expressed his desire to settle, and that he was awaiting word from the opposing attorneys. Mohammed did not respond to the requests for admission. On April 11, 1991, the trial court signed an order deeming each request for admission admitted and ordering Mohammed to respond to the remaining discovery by April 21. After Mohammed failed to comply with the order, American Express sought sanctions. Mohammed then filed an amended answer on May 28 alleging the defense of partial payment. At the same time and without seeking leave of court to withdraw the deemed admissions, Mohammed filed responses to the requests for admission.

On October 24, 1991, American Express moved for summary judgment based upon the deemed admissions, an affidavit of the American Express collections manager (the Waterbury affidavit), and an affidavit for attorney's fees (the Bruman affidavit). Copies of the trust agreements were attached to the motion as exhibits. Mohammed did not controvert or challenge the Bruman affidavit in support of attorney's fees. The Waterbury affidavit set forth the contractual obligation of Mohammed, the conduct constituting the breach, and the resulting damages to American Express. A detailed statement of account reflecting all indebtedness, credits, and interest relating to the money order transactions was attached as an exhibit. The deemed admissions upon which American Express relied established that money orders were issued to T & D by American Express, that $39,721.36 worth of money orders were imprinted by Mohammed and sold to third parties, that the proceeds were not paid to American Express, and that neither T & D nor Mohammed were entitled to any credits on the sums due under the trust agreement other than those already given by American Express. The admissions also established that Mohammed had no excuse for failing to pay the sums owed American Express under the trust and guaranty agreements.

Approximately one year after the requests for admission were filed and served on Mohammed, he filed an unverified motion for leave to file late answers in which he stated that his failure to timely answer the requests was due to a "misunderstanding." He also filed an opposition to the motion for summary judgment, supported by his conclusory affidavit which alleged that he did not owe the amount American Express was seeking to recover. He filed a second amended answer omitting the defense of partial payment and alleging the failure of consideration.

The court correctly granted summary judgment for American Express because the pleadings, admissions, and affidavits then on file showed that there was no genuine issue of material fact and that Mohammed's liability was established as a matter of law. See Tex. R. Civ. P. 166a(c). The relevant facts were deemed admitted against Mohammed as a matter of law by his failure to timely respond or object to the requests for admissions, and no formal court order deeming them admitted was necessary. See Barker v. Harrison, 752 S.W.2d 154, 155 (Tex. App. Houston [1st Dist.] 1988, writ dism'd w.o.j.); Volvo Petroleum, Inc. v. Getty Oil Co., 717 S.W.2d 134, 136 (Tex. App. Houston [14th Dist.] 1986, no writ). Deemed admissions will support the granting of a summary judgment. Flores v. H.E. Butt Stores, Inc., 791 S.W.2d 160, 162 (Tex. App. Corpus Christi 1990, writ denied). Mohammed failed to raise a fact issue in his affidavit to prevent the granting of the summary judgment. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979). The alleged fact issues Mohammed attempts to argue on appeal were not those which he attempted to raise in his affidavit filed in the trial court and thus may not be considered on appeal as grounds for reversal. See Clear Creek, 589 S.W.2d at 676. Moreover, admissions may not be contradicted by either live testimony or summary judgment affidavits. Cherry v. North American Lloyds, 770 S.W.2d 4, 6 (Tex. App. Houston [1st Dist.] 1989, writ denied).

The court did not abuse its discretion in refusing to allow Mohammed to file late answers to the requests for admissions. See Tex. R. Civ. P. 169(2); Eckman v. Centennial Sav. Bank, 757 S.W.2d 392, 396 (Tex. App. Dallas 1988, writ denied). Mohammed failed to demonstrate that good cause existed for withdrawal of the deemed admissions, that American Express would not be prejudiced, and that the merits of the action would be furthered by their withdrawal and by the filing of late responses. See Tex. R. Civ. P. 169(2). Particularly in view of the many written notifications indicating his responses were overdue, that Mohammed may have "misunderstood" that a response was required does not constitute good cause. See U.S. Fire Ins. Co. v. Maness, 775 S.W.2d 748, 751 (Tex. App Houston [1st Dist.] 1989, writ ref'd).

Although Mohammed asserts that American Express failed to show that the requests for admission were served according to the rules of procedure, that they failed to include a deadline for responding, and that the court failed to conduct a hearing on his motion for leave, he has waived these complaints by failing to present them to the trial court and by failing to present a record to show such objections. See Tex. R. App. P. 50(d).

Points one and two are overruled.

Mohammed complains in points three and four that the court erred in refusing to continue the hearing on the motion for summary judgment and in refusing to grant his motion for new trial. Although Mohammed requested additional time for discovery in his opposition to the motion for summary judgment, he failed to comply with the requirements of Rule 251; he did not describe the additional discovery he believed to be necessary or explain why that discovery had not been diligently sought prior to the summary judgment proceeding. See Tex. R. Civ. P. 251. The court did not abuse its discretion in denying the continuance. See State v. Wood Oil Distrib., Inc., 751 S.W.2d 863 (Tex. 1988). Mohammed has presented no new arguments or authorities to support point four and has not shown that the court abused its discretion in denying the motion for new trial. In addition, Mohammed has waived both points by failing to cite supporting authority in his brief. See Tex. R. App. P. 74(f); Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 810 (Tex. App. Houston [1st Dist.] 1987, writ ref'd n.r.e.), cert. dismissed, 485 U.S. 994, 108 S. Ct. 1305, 99 L. Ed. 2d 686 (1988). Points three and four are overruled.

We affirm the judgment.

PER CURIAM

Before Justice Cummings and

Justice Vance

(Chief Justice Thomas not participating)

Affirmed

Opinion delivered and filed November 25, 1992

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