Opinion
No. 05-04-01550-CV
Opinion issued July 26, 2005.
On Appeal from the 160th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 03-07603-H.
Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
MEMORANDUM OPINION
In this restricted appeal, Daniel A. Boudreau appeals the trial court's summary judgment in favor of Karen Gillum. In three issues, Boudreau contends the trial judge erred in granting Gillum summary judgment because Gillum's claims were barred by limitations, there was no evidence to support the summary judgment motion, and only one of the three defendants were served. In two additional issues, Boudreau claims there is error on the face of the record requiring reversal in this case. We affirm the trial court's summary judgment.
Gillum sued Boudreau and two other defendants for breach of contract, partition of property, trespass, fraud, conspiracy to commit fraud, and unjust enrichment and sought a declaratory judgment, an accounting, and damages. Boudreau was served and filed an answer. The other parties were not served and did not file answers. After Boudreau failed to answer discovery, Gillum moved for summary judgment as to only Boudreau on his deemed admissions. On August 12, 2004, the trial judge granted Gillum summary judgment. On October 29, 2004, Boudreau filed his notice of restricted appeal.
In a restricted appeal, we are limited to considering only the face of the record, but our scope of review is otherwise the same as that in an ordinary appeal, i.e., we review the entire case. See Norman Commc'n v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam) (addressing writ of error, precursor to restricted appeal); Hubicki v. Festina, 156 S.W.3d 897, 900 (Tex.App.-Dallas 2005, pet. filed). The face of the record, for purposes of restricted appeal review, consists of all the papers on file in the appeal, including the reporter's record if appropriate. See Norman Commc'n, 955 S.W.2d at 270. Thus, we may review legal and factual insufficiency claims. See Hubicki, 156 S.W.3d at 900 (citing Norman Commc'n, 955 S.W.2d at 270).
In his first issue, Boudreau contends the lack of a reporter's record constitutes error on the face of the record and that we must therefore reverse this case. In a summary judgment, a reporter's record is "neither necessary nor appropriate to the purposes of such a hearing." See Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 291 n. 141 (Tex. 2004) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n. 7 (Tex. 1993)). It follows that, in the appeal of a summary judgment, the lack of a reporter's record is not error on the face of the record. We overrule Boudreau's first issue.
In his second issue, Boudreau contends the trial judge erred in granting summary judgment because only one of the defendants was properly served with process. In this case, as was the case in M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674 (Tex. 2004) and Youngstown Sheet Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962), the judgment entered by the trial judge expressly disposes of all parties named in the petition except those who were not served. In the case before this Court, the two defendants who were not named in the summary judgment motion or in the final judgment were never served with citation and did not answer, nor is there anything in the record to indicate that Gillum ever expected to obtain service on those defendants. Therefore, we conclude, as did the supreme court in M.O. Dental and Youngstown, that "the case stands as if there had been a discontinuance as to [the defendants who were never served with citation and did not answer], and the judgment is to be regarded as final for the purposes of appeal." Youngstown, 363 S.W.2d at 232; see M.O. Dental, 139 S.W.3d at 674. The trial judge did not err in granting summary judgment against Boudreau when he was the only party served and the sole defendant named in the motion for summary judgment. We overrule Boudreau's second issue.
In his third issue, Boudreau contends the trial judge erred in granting summary judgment because Gillum's claims were barred by the statute of limitations. Limitations is an affirmative defense that must be pleaded. Tex. R. Civ. P. 94. A defendant thus bears the initial burden to plead, prove, and secure findings to sustain its plea of limitations. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988). A party may not raise an affirmative defense for the first time on appeal. See Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (nonmovant must expressly present to trial court any reasons seeking to avoid movant's entitlement to summary judgment); Forrest v. Vital Earth Res., 120 S.W.3d 480, 484-85 (Tex.App.-Texarkana 2003, pet. denied). Because Boudreau did not plead limitations below or raise it in a response to the motion for summary judgment, he may not raise it for the first time on appeal. See City of Houston, 589 S.W.2d at 678 (nonmovant may not urge on appeal as reason for reversal of summary judgment any and every ground he can think of, nor can he resurrect grounds abandoned or not raised below); see also Mellon Serv. Co. v. Touche Ross Co., 17 S.W.3d 432, 436 (Tex.App.-Houston [1st Dist.) 2000, no pet.) (party asserting affirmative defense has burden to raise it in response to summary judgment motion and to come forward with summary judgment evidence raising fact issue). We overrule Boudreau's third issue.
In his fourth issue, Boudreau claims the trial judge erred in granting summary judgment because "the motion was not supported by admissible summary judgment evidence." Under this issue, Boudreau contends there is no evidence to show the requests for admission were actually received by him or were unanswered by him. A review of the summary judgment record belies Boudreau's claims. The record shows Gillum served her December 12, 2003 request for admissions on Boudreau by (i) certified mail, return receipt requested, (ii) two courier receipted deliveries, and (iii) telephonic document transfer (facsimile). The record contains (i) the return certified mail card signed and dated 12-16-03, (ii) both FedEx Express and Countdown Inc. courier-services signed receipts (the former dated 12-15-03, the latter dated 12-12-03), and (iii) transmission verification report by facsimile dated 12-12-03. These documents were attached to Gillum's motion for summary judgment, and constitute sufficient proof of service. See Tex. R. Civ. P. 21a. Also attached to Gillum's motion for summary judgment is Boudreau's December 23, 2003 correspondence, served on Gillum and her attorney, which attached copies of Gillum's December 12, 2003 letter accompanying the request for admissions and her request for admissions. Thus, we conclude Boudreau's complaint that the record fails to show service of the request for admissions lacks merit. When, as here, a party properly serves a request for admissions and the party served fails to respond, the admissions are deemed, and summary judgment may be based on these deemed admission. See Farahmand v. Thang Do, 153 S.W.3d 601, 603 (Tex.App.-Dallas 2004, no pet.); see also Cont'l Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184, 190 (Tex.App.-Dallas 2000, pet. denied) ("Deemed admissions are judicial admissions and may not be controverted with testimony.") (citing Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989)). Because the summary judgment record shows the request for admissions was properly served on Boudreau and he failed to respond, we conclude the matters addressed in Gillum's request for admissions were properly deemed admitted. We overrule Boudreau's fourth issue.
In his final issue, Boudreau contends the trial judge erred in granting summary judgment because "the lack of a court reporter's record and the lack of evidence to prove up unliquidated damages constitutes reversible error." As we have already noted, a reporter's record is inappropriate in a summary judgment case and Boudreau's deemed admissions conclusively establish his liability and the amount of damages in this case. Because his final issue is merely repetitive of his previous complaints, we overrule his fifth issue.
We affirm the trial court's judgment.