Joseph J. Guidry, Jr. D/B/A Guidry's House Leveling v. Mamie Wells

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-05-182 CV ____________________ JOSEPH J. GUIDRY, JR., d/b/a GUIDRY'S HOUSE LEVELING, Appellant V. MAMIE WELLS, Appellee On Appeal from the County Court at Law No. 1 Jefferson County, Texas Trial Cause No. 100756 MEMORANDUM OPINION Mamie Wells sued Joseph J. Guidry, Jr., d/b/a Guidry's House Leveling for deceptive trade practices, fraud, and negligence in leveling Wells's house. Without identifying the claim on which Wells recovered judgment, the trial court granted Wells's motion for summary judgment and awarded her $23,480.00 in actual damages and $3,000.00 in attorney's fees. On appeal, Guidry contends Wells failed to establish her right to judgment as a matter of law. Wells contends the judgment is supported by deemed admissions. (1) Guidry contends Wells failed to set out grounds in support of judgment. A motion for summary judgment must state the specific grounds for judgment. See Tex. R. Civ. P. 166a(c). Wells alleged a cause of action for deceptive trade practices, fraud, and negligence, but her motion for summary judgment alleges the cause is a suit for damages for breach of contract. The motion for summary judgment claimed Guidry's deemed admissions entitled Wells to judgment on her claim for breach of contract, but did not identify which admissions satisfy each element of her cause of action. Guidry contends Wells failed to provide competent summary judgment evidence to support her motion. Wells attached a document titled "Request for Admission of Fact" to her motion for summary judgment. The request for admissions is dated January 31, 2005. Although the motion for summary judgment states the document was served on Guidry on January 29, 2005, and that Guidry failed to serve a response within thirty days of having received it, no supporting affidavit is attached to the motion for summary judgment. Guidry contends the lack of a supporting affidavit renders the attached request incompetent as summary judgment evidence. Authentication of discovery documents is unnecessary if the proponent complies with Rule 166a(d). McConathy v. McConathy, 869 S.W.2d 341, 342 (Tex. 1994). No statement of intent to use discovery appears in the record, but Wells specifically referred to the request for admissions in her motion and attached an unauthenticated copy to the motion. This action effectively placed Guidry on notice that Wells intended to rely on the request for admissions to support summary judgment. See Garcia v. Andrews, 867 S.W.2d 409, 411-12 (Tex. App.--Corpus Christi 1993, no writ). The request for admissions is the only summary judgment evidence offered by Wells to support the judgment. A certificate by the party showing compliance with Tex. R. Civ. P. 21a is prima facie evidence of the fact of service. Dunn v. Menassen, 913 S.W.2d 621, 626 (Tex. App.--Corpus Christi 1995, writ denied). Guidry did not controvert the certificate of service in the trial court, and may not do so on appeal. See Wilson v. Gen. Motors Acceptance Corp., 897 S.W.2d 818, 820 (Tex. App.--Houston [1st Dist.] 1994, no writ). The request for admissions establishes that Wells requested admissions from Guidry. However, the fact that a request for admissions was served on a party does not conclusively establish that the party failed to respond in a timely manner. Wells offered no summary judgment evidence that the requested admissions were deemed admitted through Guidry's failure to respond within thirty days. The non-movant's failure to except or respond to a motion for summary judgment does not, in and of itself, supply by default the grounds or the proof necessary to establish the movant's right to judgment as a matter of law. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993). The movant relying on deemed admissions as summary judgment evidence must conclusively establish proper service and failure to respond. Sosa v. Williams, 936 S.W.2d 708, 710 (Tex. App.--Waco 1996, writ denied); Rent Am., Inc. v. Amarillo Nat. Bank, 785 S.W.2d 190, 194 (Tex. App.--Amarillo 1990, writ denied). (2) Summary judgment requires evidence; a mere allegation in the motion is insufficient to meet the movant's burden to establish her right to judgment. Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). A party moving for summary judgment on deemed admissions must prove that the non-movant failed to respond to the request. The lack of discovery response in the trial court's record does not conclusively establish that the requested admissions have been deemed admitted. Citing Stewart v. United States Leasing Corp., 702 S.W.2d 288, 290 (Tex. App.--Houston [1st Dist.] 1985, no writ), Wells argues that the lack of a response to the admissions would be conclusively established by the lack of documents in the file. Stewart was decided at a time when all discovery was filed in the trial court. Discovery products are no longer filed with the trial court. See Tex. R. Civ. P. 191.4(a); Jefferson (Tex.) Dist. Ct. Loc. R. 8. The absence of a response in the court's file does not conclusively establish that Guidry failed to respond. In this case, the trial court granted summary judgment based entirely on admissions which the appellee failed to establish as deemed admissions through operation of Rule 198.2(c). We hold the trial court erred in granting summary judgment. We sustain the appellant's issue, reverse the judgment, and remand the cause to the trial court for further proceedings consistent with this opinion. REVERSED AND REMANDED. _____________________________ STEVE McKEITHEN Chief Justice Submitted on January 2, 2006 Opinion Delivered February 2, 2006 Before McKeithen, C.J., Kreger and Horton, JJ. 1. Among the requested admissions were: (1) "Plaintiff's damages are $5,980.00"; (2) "the amount of exemplary damages or additional damages is $17,500.00"; and (3) "a reasonable attorney's fee for Plaintiff is $3,000.00." 2. Sosa and Rent America were decided under former Rule 169(1), which required the request for admissions and proof of service be filed with the trial court before they would be deemed admitted. Although the procedure for deeming admissions changed with the promulgation of Rule 198, the procedure for establishing a right to a traditional summary judgment under Rule 166a(c) still requires proof of proper service and failure to respond.