R. Neil Stout, Individually and d/b/a Med-Tox Laboratories v. Abbott Laboratories--Appeal from County Court at Law No 5 of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-068-CV

R. NEIL STOUT, INDIVIDUALLY AND D/B/A

MED-TOX LABORATORIES.

Appellant

v.

ABBOTT LABORATORIES,

Appellee

From the County Court at Law No. 5

Dallas County, Texas

Trial Court # CC93-8242-E

O P I N I O N

This is an appeal by Appellant R. Neil Stout, M.D., from a summary judgment rendered against him in favor of Abbott Laboratories for $10,044.01, plus $465.18 prejudgment interest, and $2,500 for attorneys' fees.

Beginning in 1992 a sales representative of Abbott began sending Stout information about an "ADX" instrument for drug testing. Abbott placed an instrument in Stout's laboratory, and Stout agreed to compare Abbott's testing methods with the method of drug testing Stout was already using. Stout agreed to purchase reagents from Abbott. A dispute arose as to the amount

Stout owed Abbott for reagents.

Abbott filed a suit against Stout on an alleged sworn account on October 28, 1993. Abbott's request for admissions was attached. Stout filed pro se an unsworn original answer on December 6, 1993. On January 11, 1994, Abbot filed a motion for summary judgment for the amount sued for, prejudgment interest, and attorneys' fees. On February 4, 1994, Stout filed a verified first amended answer, pro se, and on the same date filed a response to Abbott's motion for summary judgment containing an affidavit of fact sworn to by Stout. Abbott did not file a reply to Stout's answer to Abbott's motion for summary judgment, or to the affidavit of fact attached. Also on February 4, 1994, Stout further filed answers to Abbott's request for admissions and a motion to withdraw admissions deemed admitted.

Abbott's motion for summary judgment is based on Stout's failure to timely answer Abbott's request for admissions, and asserts that Stout has admitted as true Abbott's request for admissions. The request for admissions which Abbott asserts has been deemed admitted as true would admit that the account sued on is just and true; that all offsets have been allowed; and that Stout owes the amount sued for.

The trial court on February 11, 1994, granted Abbott's motion for summary judgment and rendered judgment for Abbott against Stout for $10,004.01, prejudgment interest, and attorneys' fees.

Appellant Stout appeals on one point of error: "The trial court erred in granting summary judgment in favor of Abbott."

As noted, on February 4, 1994, Stout filed a verified first amended answer along with an affidavit of fact sworn to by Stout. And as noted, Abbott did not reply or object to Stout's answer to the motion for summary judgment or the contents of the affidavit accompanying same. Stout's affidavit denied and put in issue the totality of the deemed admissions by Stout.

In the ordinary case, these deemed admissions would be conclusive proof of the matters admitted. However, a party relying upon an opponent's judicial admissions of fact must protect the record by objecting to the introduction of controverting evidence. A party waives the right to rely on the opponent's deemed admissions unless an objection is made to the evidence contrary to those admissions. Houston v. First American Svg. v. Musick, 650 S.W.2d 764, 769; Marshall v. Vise, 767 S.W.2d 699, 700; Collision Center Paint & Body, Inc. v. Campbell, 773 S.W.2d 354, 356 (Tex. App. Dallas 1989).

Abbott's position on the summary judgment was that Stout had judicially admitted himself out of the lawsuit by failing to timely respond to Abbott's request for admissions. Stout, however, filed his response to Abbott's motion for summary judgment along with his controverting affidavit which showed there were genuine issues of material fact on the sworn account sued on. Since Abbott did not object to this affidavit in any way, Abbott waived any right to rely on such deemed admissions, and genuine issues of fact appear in this record. The trial court erred in granting the summary judgment for Abbott.

Appellant's point of error is sustained.

The judgment is reversed and the cause is remanded for trial on its merits.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas

Justice Cummings, and

Chief Justice McDonald (Retired)

Reversed and remanded

Opinion delivered and filed May 17, 1995

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