DOMINIC OKERE,FROM A DISTRICT COURT APPELLANT, v. BLAIN BEATTY, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-01102-CV
DOMINIC OKERE,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
BLAIN BEATTY,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, KINKEADE, AND LAGARDE
OPINION BY JUSTICE WHITHAM
JUNE 16, 1989
        In this negligence action brought following an automobile collision, the plaintiff-appellant, Dominic Okere, appeals from a judgment in favor of the defendant-appellee, Blain Beatty. The principal issue is whether we may treat the trial court judgment as based on Okere's judicial admissions that precluded any possibility of judgment in Okere's favor. We conclude that we may do so. Accordingly, we affirm.
        The present case came on for trial on July 11, 1988. On August 2, 1988, the trial court entered a take-nothing judgment against Okere and in favor of Beatty. The judgment entered recites:
 
 
    After reviewing all documents filed in this matter and the evidence presented by the parties, the Court finds that [Okere] has made judicial admissions that preclude any possibility of a judgment in his favor. Consequently, the Court finds that there are no issues to be submitted to a jury and judgment should be rendered in favor of [Beatty].
At the outset we mention a technical problem. Beatty tells us in his brief that "[t]he trial court's exhibits presented by [Beatty] to prove [Okere's] deemed admissions are missing from the Trial Court and the Dallas County Records Department." Moreover, another panel of this court refused to allow Beatty to show by affidavits of the trial judge and court reporter what occurred in part at trial. In any event, our record does not contain a copy of Beatty's request for admissions other than the one referred to below used by Okere to file his out-of-time answers to Beatty's request for admissions. While our record does not show with certainty that at the time of trial the trial court knew the contents of Beatty's requests for admissions and deemed Okere's answers as true, we conclude that we must affirm the trial court's judgment. We reach this conclusion in light of the record before us and an unrebutted presumption. In light of the record and an unrebutted presumption, we are satisified that the trial court applied the rule that unless the request for admissions is answered within the time and within the manner prescribed, the requested admissions will be taken as true. Masten v. Masten, 165 S.W.2d 225 (Tex. Civ. App.--Fort Worth 1942, writ ref'd).
        Every reasonable presumption will be indulged to sustain a judgment and nothing will be presumed against it. All prior requisites to the rendition of a judgment will be presumed to have been fulfilled and the recitals in a judgment will be presumed to state the truth. Thompson v. State Bar of Texas, 728 S.W.2d 854, 855 (Tex. App.--Dallas 1987, no writ) (citing Miller v. Hood, 536 S.W.2d 278, 285 (Tex. Civ. App.--Corpus Christi 1976, writ ref'd n.r.e.)). Hence, we presume that at trial Okere made judicial admissions that preclude any possibility of a judgment in his favor. We have no statement of facts. However, we know from the record that Beatty served a request for admissions upon Okere on March 15, 1988, to be answered thirty days after service. We know from the record that Beatty's request for admissions asks Okere to:
 
 
    1.        Admit that you have been involved in other accidents both prior to and after the accident of January 13, 1986.
 
    2.        Admit that all the injuries you complain of were the result of other accidents.
 
    3.        Admit that you lost no earnings or earning capacity as a result of the accident of January 13, 1986.
 
    4.        Admit that Blaine Beatty committed no act of negligence in the accident of January 13, 1986.
We know from the docket sheet that request for admissions were filed in the trial court on March 16, 1988. We know from page nine of Okere's brief that "[Beatty's] ... Request for Admissions ... was stamped on March 16, 1987 (sic)." (This action was not filed until September 17, 1987, therefore we read page nine of Okere's brief to state "stamped on March 16, 1988.") We know from the record that Okere filed his answers to Beatty's request for admissions on October 7, 1988, long after entry of the trial court's judgment. We know from the record that Okere made his answers on a copy of Beatty's request for admissions and that the copy used by Okere contains a notation in the upper right corner reading "FILED 88 MAR 16 a 8:50" through which a line has been drawn as though to delete the information shown. We conclude, therefore, that the presumption that at trial Okere made judicial admissions that preclude any possibility of a judgment in his favor stands unrebutted. Indeed, on this record we conclude that this record contains support for the presumption.
        The presumption standing, we must affirm the trial court's judgment. We overrule Okere's points one and two complaining of entry of the trial court's judgment. We note that in Okere's third point of error, Okere asserts trial court error in preventing him from taking a non-suit. The record contains no indication that Okere sought to non-suit. We overrule Okere's third point of error. We note that in Okere's fourth point of error, Okere contends that the trial court erred in overruling his motion for new trial. The record contains no indication that Okere moved for new trial. We overrule Okere's fourth point of error.
        In the present case, Okere was represented by counsel when he filed his original petition. At some point thereafter Okere ceased being represented by counsel. Beatty's counsel served the request for admissions upon Okere as shown by his certificate on the copy used by Okere to file his answers to Beatty's request for admissions on October 7, 1988. Also, Okere represented himself at trial. The trial court's judgment recites that "came the plaintiff, in person and announced ready for trial." In this appeal, Okere represents himself pro se. Under these circumstances, we repeat well-known rules. No basis exists for differentiating between litigants represented by counsel and litigants not represented by counsel in determining whether rules of procedure must be followed. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184 (Tex. 1978). There cannot be two sets of procedural rules, one for litigants with counsel and the other for litigants representing themselves. Litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an advantage over litigants represented by counsel. Mansfield State Bank, 573 S.W.2d at 184-85.
        We affirm the trial court's judgment.
 
                                                          
                                                          WARREN WHITHAM
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-01102.1/ss
 
 
File Date[01-02-89]
File Name[881102]