Prepared Table, Inc and Harold Wilcox v. Assured Learning Centers of America, Inc.--Appeal from 61st District Court of Harris County

Affirmed and Opinion filed July 3, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00912-CV

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PREPARED TABLE, INC. and HAROLD WILCOX, Appellants

V.

ASSURED LEARNING CENTERS OF AMERICA, INC., Appellee

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 01-00980

O P I N I O N

Appellants, Prepared Table, Inc. ( PTI ) and Harold Wilcox ( Wilcox ), appeal the entry of summary judgment in favor of appellee, Assured Learning Centers of America, Inc. ( ALCA ). We affirm.

Factual and Procedural Background

In 2000, All Saints Academy ( ASA ) ceased operations without returning or paying for over $65,000 in educational materials provided by ALCA. Shortly thereafter, PTI purchased the building out of which ASA had operated, enrolled many of ASA s former students, and hired a number of its teachers and administrators. ALCA then contacted PTI regarding recovery of the materials. ALCA s efforts, however, proved fruitless, as Wilcox, PTI=s superintendent, instructed his staff to ignore the requests.

ALCA sued PTI and Wilcox for conversion. Both defendants answered with a general denial, whereupon ALCA sent them requests for admissions. When the requests went unanswered, and were thus deemed admitted, ALCA moved for summary judgment on the basis that its cause of action had been established as a matter of law. Without acknowledging their failure to respond to ALCA=s requests for admissions, PTI and Wilcox simply argued that ALCA s motion for summary judgment should be denied. The trial court granted ALCA s motion for summary judgment, and this appeal ensued.

Appellants assert two points of error that: (1) genuine issues of material fact exist as to whether conversion occurred; and, (2) because PTI is an open-enrollment charter school, the doctrine of sovereign immunity shields it from liability.

Standard of Review

The standards for reviewing a traditional summary judgment are well established. See Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994). In a summary judgment proceeding, the plaintiff, as movant, must conclusively prove its entitlement to prevail on each element of the cause of action as a matter of law. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995). Once the plaintiff establishes its right to judgment as a matter of law, the burden shifts to the defendant to respond to the plaintiff=s motion. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). When pleading an affirmative defense to avoid summary judgment, the defendant must come forward with evidence sufficient to raise a material fact issue on each element of its affirmative defense. Id.

Conversion

The unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another, to the exclusion of or inconsistent with the owner=s rights, is in law a conversion. Hunt v. Baldwin, 68 S.W.3d 117, 131 (Tex. App.CHouston [14th Dist.] 2001, no pet.) (quoting Waisath v. Lack=s Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971)). To be entitled to summary judgment on its claim of conversion, therefore, ALCA was required to show: (1) it owned, had legal possession of, or was entitled to possession of the property at issue; (2) PTI and Wilcox assumed and exercised dominion and control over the property in an unlawful and unauthorized manner, to the exclusion of and inconsistent with ALCA s rights; and (3) PTI and Wilcox refused ALCA=s demand for return of the property. Id. (citing Akin v. Santa Clara Land Co., Ltd., 34 S.W.3d 334, 344 (Tex. App.CSan Antonio 2000, pet. denied)).

When a party does not return answers to requests for admissions within thirty days from receipt of service, the matters in the requests are deemed admitted against that party. Tex. R. Civ. P. 198.2; Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 355 (Tex. 1998); Darr v. Altman, 20 S.W.3d 802, 807 (Tex. App.CHouston [14th Dist.] 2000, no pet.). In the instant case, ALCA served its requests for admissions on PTI and Wilcox on March 28, 2001. Neither PTI nor Wilcox ever responded, or sought to withdraw or amend the resulting deemed admissions. Consequently, PTI and Wilcox admitted that they refused to pay for educational materials belonging to ALCA that were in their possession, custody or control, had no excuse for withholding payment or returning the educational materials, and owed ALCA at least $70,000 for wrongfully exerting control over [ALCA] s property to the detriment of [ALCA] s financial and possessory interest in the educational materials. PTI and Wilcox, therefore, admitted all facts necessary to establish conversion as a matter of law. No genuine issues of material fact remain. Accordingly, appellants first point of error is overruled.

Sovereign Immunity

An open-enrollment charter school is part of the public school system of Texas. Tex. Educ. Code Ann. ' 12.105 (Vernon Supp. 2002). As such, in matters related to its operation, the school is immune from liability to the same extent as a school district, and its employees and volunteers are immune from liability to the same extent as school district employees and volunteers. Id. ' 12.1056. Consequently, as an open-enrollment charter school and a superintendent thereof, PTI and Wilcox respectively aver they cannot be held liable for conversion of ALCA=s property.[1]

The defense of immunity from liability is, however, an affirmative defense. Kinnearv. Texas Comm n on Human Rights, 14 S.W.3d 299, 300 (Tex. 2000). PTI and Wilcox were thus required to come forward with summary judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment. Brownlee, 665 S.W.2d at 112 (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678B79 (Tex. 1979); Life Ins. Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d 378, 381 (Tex. 1978)). Moreover, A[a] mere pleading or a response to the summary judgment does not satisfy this burden.@ American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994) (citing Clear Creek Basin Auth., 589 S.W.2d at 678); Keenan v. Gibraltar Sav. Ass=n, 754 S.W.2d 392, 394 (Tex. App.CHouston [14th Dist.] 1988, no writ) (noting that pleadings and responses, even if verified, are not summary judgment evidence).

In support of their response to ALCA=s motion for summary judgment, appellants= offered as evidence an affidavit authored by Wilcox. That affidavit, however, was struck by the trial court, and neither PTI nor Wilcox have challenged that action on appeal. Thus, the record is devoid of any summary judgment evidence supporting appellants claims that they are entitled to immunity from liability. Accordingly, appellants second point of error is overruled.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed July 3, 2002.

Panel consists of Justices Hudson, Fowler, and Duggan.*

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] ALCA contends neither PTI nor Wilcox pled the affirmative defense of immunity from liability, and thus waived consideration of this issue on appeal. We note, however, that the defense was raised by appellants in their combined response to ALCA=s motion for summary judgment and motion for summary judgment. As a consequence, it may properly be examined. See Montemayor v. Chapa, 61 S.W.3d 758, 763 (Tex. App.CCorpus Christi 2001, no pet.) (noting that, where affirmative defenses are raised in a motion for summary judgment, they are put openly in issue in accordance with Texas Rule of Civil Procedure 94); Marshall v. Toys-R-Us Nytex, Inc., 825 S.W.2d 193, 195 (Tex. App.CHouston [14th Dist.] 1992, writ denied) (recognizing that Aa motion for summary judgment is a pleading@).

* The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.