Carterv.Perry

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTHJul 9, 2015
NO. 02-14-00185-CV (Tex. App. Jul. 9, 2015)

NO. 02-14-00185-CV

07-09-2015

STANWYN J. CARTER APPELLANT v. TAMMIE J. PERRY APPELLEE


FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 2013-70906-431
DISSENTING MEMORANDUM OPINION

See Tex. R. App. P. 47.4.

I respectfully dissent and would not follow the holding of our sister court in CEBI Metal Sanayi Ve Ticaret A.S. v. Garcia, 108 S.W.3d 464, 466 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Likewise, I am not persuaded by Robert K. Wise et al., A Guide to Properly Using and Responding to Requests for Admission Under the Texas Discovery Rules, 45 St. Mary's L.J. 655, 668 (2014), which cites only to one case—CEBI—to support its conclusion that mirror-image admissions "are useless because they create a fact issue." To the extent that this court in Luke v. Unifund CCR Partners, No. 02-06-00444-CV, 2007 WL 2460327, at *2-4 (Tex. App.—Fort Worth Aug. 31, 2007, no pet.) (mem. op.), cited to CEBI to support its holding that the deemed admissions in that case precluded summary judgment because conflicting admissions raised material fact issues, the facts of Luke are distinguishable from the facts of this case. In Luke, the conflicting admissions in question were not mirror-image questions but were admissions properly used against the nonmoving party on the issue of liability that raised a fact issue only as to the exact amount owed.

Admission 11 admitted that Appellant "presently owes" Appellee the amount of $23,596.60. Luke, 2007 WL 2460327, at *3. But Admission 12 admitted that an attached statement accurately stated the amount of money that Appellant "owes" to Appellee, and the statement indicated that Appellant owed $22,938.87. Id. at *3-4. The trial court awarded $22,938.87 "without explanation." Id. at *5. --------

Answers to requests for admissions and deemed admissions are admissible only against the party to whom the requests for admissions were addressed. See Americana Motel, Inc. v. Johnson, 610 S.W.2d 143, 143 (Tex. 1980) (holding that a party cannot use its own denials to requests for admissions to raise a fact issue to preclude summary judgment); Schulz v. State Farm Mut. Auto. Ins., 930 S.W.2d 872, 876 (Tex. App.—Houston [1st Dist.] 1996, no writ) (holding that "[a]nswers to interrogatories and discovery responses may only be used against the party who answered them," and a party's "reliance upon . . . the answers she provided to discovery . . . did not provide competent summary judgment evidence") (emphasis added).

The majority is correct that the deemed admissions in this case conclusively proved that (1) Carter entered into a contract with Perry under which he agreed to pay Perry $121,864.25; (2) Carter signed a promissory note reflecting this obligation owed to Perry; (3) the note attached to the requests was a true and correct copy of the note Carter signed; (4) Perry performed all of her obligations under the note; (5) Carter failed to pay the principal amount owed; (6) Carter's failure to pay was a breach of the terms of the note; (7) because of his breach, Carter owed Perry $121,864.25; and (8) Perry's claims were not barred by any affirmative defenses. But because Carter may not use his own self-serving responses to Perry's request for admissions—or, as in this case, the failure to respond resulting in deemed "admissions"—as evidence at trial or summary judgment, I respectfully disagree with the majority's holding that the converse of some of the above facts were also conclusively established through other deemed admissions.

I would affirm.

/s/ Bonnie Sudderth


BONNIE SUDDERTH


JUSTICE
DELIVERED: July 9, 2015