Opinion
No. 05-03-00858-CV.
Opinion issued April 7, 2004.
On Appeal from the 14th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 02-04596-A.
Affirmed.
Before Justices WHITTINGTON, LANG, and LANG-MIERS.
MEMORANDUM OPINION
Sherrie Lowe appeals the trial court's summary judgment in favor of Watersong Villas Apartments and BNC Real Estate. In five issues, Lowe contends the trial judge erred in granting summary judgment because genuine issues of material fact exist. We affirm the trial court's judgment.
The standards for reviewing summary judgment under rule 166a(c) are well established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985); Orozco v. Dallas Morning News, Inc., 975 S.W.2d 392, 394 (Tex. App.-Dallas 1998, no pet.). To prevail on summary judgment, the defendants must either disprove at least one element of each of the plaintiff's theories of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. Int'l Union United Auto. Aerospace Agric. Implement Workers of Am. Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558, 563 (Tex. App.-Dallas 1991, writ denied). Once the defendants establish their right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Muckelroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825, 828 (Tex. App.-Dallas 1994, writ denied).
Although Lowe contends appellees were not entitled to summary judgment because material fact issues exist, we cannot agree. The summary judgment record shows Lowe initially sued appellees for fraud, misrepresentation, breach of contract, and violations of the Texas Deceptive Trade Practices Act. Appellees filed an answer. On July 12, 2002, appellees sent Lowe written interrogatories along with requests for admissions and the production of documents by certified mail, return receipt requested. The signed receipt shows Lowe received the interrogatories and requests on July 18, 2002.
On August 22, 2002, appellees filed a motion for summary judgment stating that although Lowe responded to their interrogatories, she failed to respond to their request for admissions. Appellees claimed that, by failing to respond, Lowe admitted appellees were not liable to her and she had not been damaged by them. Appellees claimed they were therefore entitled to judgment as a matter of law. Lowe filed a response, claiming she had timely responded to their discovery requests "within the allowed time of 50 days after service of the request."
On October 4, 2002, Lowe filed her first amended petition adding several defendants and an additional claim for "bad faith." On October 9, 2002, the trial judge granted appellees a partial summary judgment on all claims except Lowe's "bad faith" claim. On December 26, 2002, appellees filed their second motion for summary judgment on the ground that Lowe's "bad faith" claim lacked merit, relying again on Lowe's deemed admissions. The judge granted the motion for summary judgment, and on June 10, 2003, severed this cause from Lowe's suit against the remaining defendants.
The record shows appellees mailed Lowe their requests for admissions on July 12, 2002. Lowe's responses were therefore due thirty-three days later on August 14, 2002. See Tex. R. Civ. P. 21a 198.2(a); Wheeler v. Green, 119 S.W.3d 887, 891 (Tex. App.-Dallas 2003, pet. filed). Lowe returned her response to interrogatories by certified mail, dated August 19, 2002; she did not respond to the request for admissions. Although she presented evidence showing she received the requests on July 18, 2002, Lowe did not file a motion requesting the trial judge extend the time allowed for responding to the interrogatories and requests. See Tex. R. Civ. P. 21a; Wheeler, 119 S.W.3d at 891. Because she did not seek and receive an extension on the deadline to file her responses pursuant to rule 21a, Lowe's response to interrogatories was untimely, and the admissions, which she did not return to appellees, were automatically deemed admitted. Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989) (holding that unanswered requests for admissions are automatically deemed admitted unless court on motion permits withdrawal or amendment; once admitted, admission is judicial admission, whether deemed or otherwise).
Lowe's admissions include that (i) appellees did not own the apartment complex of which Lowe complained; (ii) Lowe did not provide appellees with money, including a security deposit, at any time; (iii) appellees' conduct was not negligent; (iv) Lowe's petition and claims and causes of action were baseless, frivolous, and lack merit; (v) appellees owed Lowe no duty and were not liable to her in any capacity; and (vi) Lowe had no damages. Because the admissions established appellees' right to judgment as a matter of law on all of Lowe's claims, we conclude the trial judge did not err in granting summary judgment. We overrule Lowe's five issues.
We affirm the trial court's judgment.