Opinion
NO. 01-16-00138-CV
06-14-2017
MARILYN PICKAREE-CHAMPAGNE, Appellant v. METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS, Appellee
On Appeal from the 133rd District Court Harris County, Texas
Trial Court Case No. 2014-26462
MEMORANDUM OPINION
In this slip-and-fall premises liability case, appellant Marilyn Pickaree-Champagne appeals a summary judgment entered in favor of appellee, Metropolitan Transit Authority of Harris County, Texas ("METRO"). Pickaree-Champagne argues that the trial court erred by granting summary judgment based on her deemed admissions and by failing to rule on her motion for spoliation of evidence. We reverse and remand.
Background
According to Pickaree-Champagne's petition, after she boarded a METRO light rail train in August 2013, she slipped and fell on liquid on the train floor and suffered a concussion, broken foot, and fractured ankle. Pickaree-Champagne alleges that the liquid on the train's floor "was in close range to and noticeable to the METRO Light Rail Train Worker/Employee who was at the Train's Door" and that METRO should have inspected the area.
METRO served Pickaree-Champagne with its first requests for admissions in March 2015. Pickaree-Champagne responded to METRO's requests, but her responses directed METRO to "Please refer to 'Plaintiff's Original Petition' for elaboration." METRO filed a motion to deem six of its requests admitted, arguing that Pickaree-Champagne's responses were inadequate.
In April 2015, before the trial court ruled on METRO's motion, Pickaree-Champagne filed amended responses to METRO's first requests for admissions. The amended responses included lengthy narratives, but some amended responses contained an outright denial: "I disagree." For example, Pickaree-Champagne responded "I disagree" to requests for admission 4 and 6, which state: "When you entered the METRO train on which you fell, you saw that the floor was wet," and "You are not aware of any evidence that indicates anyone at METRO was actually aware or saw the wet floor on the train before you fell."
Nevertheless, in May 2015, the trial court granted METRO's motion to deem facts admitted. Accordingly, the following facts were deemed admitted:
• "The only condition on the train which you contend made you fall was a wet floor on the METRO train." (Request No. 3).Two days later, Pickaree-Champagne filed second amended responses to the requests for admissions with the trial court. The record does not reflect whether the trial court considered the substance of any of Pickaree-Champagne's amended responses.
• "When you entered the METRO train on which you fell, you saw that the floor was wet." (Request No. 4).
• "You are not aware of any evidence that indicates anyone at METRO was actually aware or saw the wet floor on the train before you fell." (Request No. 6).
• "It had been raining before you got on the METRO train on August 14, 2013." (Request No. 7).
• "The floor of the METRO train was wet because it had been raining or was raining at the time you fell." (Request No. 8).
• "The source of the wet floor of the METRO train on which you fell on August 14, 2013 was rain water." (Request No. 9).
About six months later, in December 2015, METRO moved for summary judgment. It argued that, given the facts deemed admitted, summary judgment was appropriate because Pickaree-Champagne could not establish three of the elements of her premises liability claim. Pickaree-Champagne filed two documents in response: a "motion to strike/dismiss defendant's summary judgment" motion and a separate response addressing each numbered paragraph of the summary-judgment motion. In the latter, Pickaree-Champagne pointed out that she "provided correction(s) for "Admissions No. 3, 4, 6, 7, 8 and 9 to Defendant's Council [sic] on Record, Jon P. Bohn, Esq., Senior Legal Council [sic] for METRO on May 6th, 2015." The trial court granted METRO's motion for summary judgment without specifying its reasons, and Pickaree-Champagne appealed.
Summary Judgment Based on Deemed Admissions
In her first issue, Pickaree-Champagne challenges the trial court's grant of summary judgment on her premises liability claim, which was based on her deemed admissions.
A. Standard of Review
We review de novo the trial court's ruling on a motion for summary judgment. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). When reviewing a summary judgment, we review the evidence in the light most favorable to the nonmovant, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In a traditional summary-judgment motion, the movant has the burden to show that no genuine issue of material fact exists and that the trial court should grant judgment as a matter of law. TEX R. CIV. P. 166a(a), (c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). If the movant meets its summary-judgment burden, the burden shifts to the nonmovant, who bears the burden to raise a genuine issue of material fact precluding summary judgment. Phan Son Van v. Pena, 900 S.W.2d 751, 753 (Tex. 1999); Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 704 (Tex. App.—Houston [1st Dist.] 2014, no pet). If a trial court grants summary judgment without specifying the grounds for granting the motion, we uphold the trial court's judgment if any of the grounds are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
B. Applicable Law
Requests for admissions are intended to simplify trials and are useful when addressing uncontroverted matters; they were not intended to be used to force a party to admit the validity of his claims or concede his defenses. Marino v. King, 355 S.W.3d 629, 632 (Tex. 2011) (per curiam); Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996) (per curiam) (noting that requests for admissions were not intended "to be used as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of defense"). Requests for admissions should be used as "a tool, not a trap door." Marino, 355 S.W.3d at 632 (quoting U.S. Fid. & Guar. Co. v. Goudeau, 272 S.W.3d 603, 610 (Tex. 2008)).
"Constitutional imperatives favor the determination of cases on their merits rather than on harmless procedural defaults." Id. at 634. When admissions are deemed as a discovery sanction to preclude presentation of the merits of the case, the deemed admissions "implicate the same due process concerns as other case-ending discovery sanctions." Id. at 632; see also Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005) (per curiam) ("But when a party uses deemed admissions to try to preclude presentation of the merits of a case, the same due-process concerns arise."); Ramirez v. Noble Energy, Inc., - S.W.3d -, No. 01-16-00155-CV, 2017 WL 2180719, at *4 (Tex. App.—Houston [1st Dist.] May 18, 2017, no pet. h.) (same).
Thus, to substantiate a summary judgment based solely on merits-preclusive deemed admissions, the party relying upon the deemed admissions must demonstrate "flagrant bad faith or callous disregard for the rules" as an element of the movant's summary-judgment burden. Marino, 355 S.W.3d at 634; Wheeler, 157 S.W.3d at 443-44; Ramirez, 2017 WL 2180719, at *4; see also Medina v. Raven, 492 S.W.3d 53, 62 (Tex. App.—Houston [1st Dist.] 2016, no pet.) ("This showing of flagrant bad faith or callous disregard is 'an element of the movant's summary judgment burden.'"). "Bad faith is not simply bad judgment or negligence, but the conscious doing of a wrong for dishonest, discriminatory, or malicious purpose." Time Warner, Inc. v. Gonzales, 441 S.W.3d 661, 666 (Tex. App.—San Antonio 2014, pet. denied) (quoting Armstrong v. Collin Cty. Bail Bond Bd., 233 S.W.3d 57, 63 (Tex. App.—Dallas 2007, no pet.)).
C. Analysis
METRO relied solely on Pickaree-Champagne's deemed admissions as its basis for traditional summary judgment. On appeal, METRO argues that the trial court properly granted its traditional summary judgment on Pickaree-Champagne's premises liability claim because Pickaree-Champagne's deemed admissions conclusively established Pickaree-Champagne's knowledge of the wet floor and METRO's lack of actual knowledge of the condition.
In Wheeler v. Green, the trial court deemed 64 requests for admissions admitted after the pro se litigant failed to timely respond. 157 S.W.3d at 441. The pro se litigant never filed a motion to withdraw the deemed admissions or a response to the motion for summary judgment and the trial court granted summary judgment based solely on the deemed admissions. Id. The Court of Appeals affirmed the trial court's grant of summary judgment, but the Texas Supreme Court noted that "nothing in this record suggests that before summary judgment was granted, [the pro se litigant] realized that her responses were late, that she needed to move to withdraw deemed admissions, or that she needed to file a response to the summary judgment raising either argument." Id. at 442. The Wheeler court went on to note that the record was devoid of a showing of "flagrant bad faith or callous disregard for the rules" which was necessary to substantiate a summary judgment based solely on deemed admissions. Id. at 443-44. Accordingly, the Texas Supreme Court reversed the summary judgment based on the merits-preclusive deemed admissions. Id. at 444. In doing so, the Wheeler court noted that pro se litigants are not exempt from the rules of procedure, but, "when a rule itself turns on an actor's state of mind (as these do here), application may require a different result when the actor is not a lawyer." Id.
Six years later, in Marino v. King, the Texas Supreme Court again reversed a summary judgment based on merits-preclusive deemed admissions because the movant failed to establish the non-movant's flagrant bad faith and conscious disregard for the rules. 355 S.W.3d at 634. In Marino, a pro se litigant responded to requests for admissions one day late, denying liability in her responses. Id. at 630. Her responses were subsequently deemed admitted and the opposing party moved for summary judgment based solely on the deemed admissions. Id. The court of appeals affirmed the summary judgment, concluding that the pro se litigant waived any complaint about the deemed admissions "by failing to raise the issue in any manner, either before or after judgment, to the trial court." Id. at 632. But the Texas Supreme Court reversed, holding that "[u]sing deemed admissions as the basis for summary judgment . . . does not avoid the requirement of flagrant bad faith or callous disregard, the showing necessary to support a merits-preclusive sanction; it merely incorporates the requirement as an element of the movant's summary judgment burden." Id. at 634 (citing Wheeler, 157 S.W.3d at 443-44). The Marino court concluded that there was no evidence of the pro se litigant's flagrant bad faith or callous disregard for the rules and, accordingly, the trial court erred in rendering summary judgment based on deemed admissions. Id.
Here, METRO's requests for admissions to Pickaree-Champagne sought admission of the invalidity of material elements of her claim. Thus, when the responses were deemed admitted, they had a merits-preclusive effect on Pickaree-Champagne's case. Accordingly, Wheeler and Marino required METRO to prove that Pickaree-Champagne acted with bad faith or callous disregard in order to carry its burden to establish that it is entitled to judgment as a matter of law. See id. at 634 ("[u]sing deemed admissions as the basis for summary judgment . . . does not avoid the requirement of flagrant bad faith or callous disregard, the showing necessary to support a merits-preclusive sanction; it merely incorporates the requirement as an element of the movant's summary judgment burden"); Wheeler, 157 S.W.3d at 443-44 (holding record was devoid of a showing of "flagrant bad faith or callous disregard for the rules" which was necessary to substantiate a summary judgment based solely on deemed admissions); see also Ramirez, 2017 WL 2180719, at *4 (showing of flagrant bad faith or callous disregard is an element of movant's summary-judgment burden when movant relies upon deemed admissions); Medina, 492 S.W.3d at 62 (same).
We cannot conclude that METRO met this burden in its motion for summary judgment. METRO's motion for summary judgment, which METRO acknowledges in its appellate brief is a traditional motion, was not supported by any evidence. Although the motion references an "Exhibit A," the version of the motion included in the appellate record contains no such exhibit. Accordingly, the appellate record does not support a finding that METRO adduced summary-judgment evidence from which the trial court could have concluded that Pickaree-Champagne acted with bad faith or callous disregard.
To the contrary, the summary judgment record reflects that Pickaree-Champagne attempted to correct the deficiencies in her amended responses to METRO's requests for admission. Her initial responses to METRO's requests for admission, though substantively deficient, were timely. METRO subsequently filed a motion to deem facts admitted, pointing out the problems with Pickaree-Champagne's responses. Pickaree-Champagne then filed her amended responses with the trial court. After the trial court deemed the facts admitted, Pickaree-Champagne filed second amended responses with the trial court. In these amended responses, Pickaree-Champagne expressly denied or disagreed with the requests for admissions that asked her to concede an element of her claim. Notably, Pickaree-Champagne referenced these amended responses in her response to METRO's summary-judgment motion, and she argues on appeal that these responses cured the defects in her previous responses.
Rule 215.4(a) provides that a party who has requested an admission under Rule 198 may move to determine the sufficiency of the answer:
[A]n evasive or incomplete answer may be treated as a failure to answer . . . . If the court determines that an answer does not comply with the requirements of Rule 198, it may order either that the matter is admitted or that an amended answer be served.
TEX. R. CIV. PROC. 215.4(a) (footnote omitted).
Because the appellate record does not reflect that METRO adduced summary-judgment evidence to support a finding of Pickaree-Champagne's bad faith or callous disregard, and, on the contrary, reflects that she timely responded to METRO's requests for admissions and made subsequent attempts to correct the defects in her responses, we cannot conclude that METRO established that Pickaree-Champagne acted with flagrant bad faith or callous disregard for the discovery rules. Compare Viesca v. Andrews, No. 01-13-00659-CV, 2014 WL 4260355, at *1-5, 8 (Tex. App.—Houston [1st Dist.] Aug. 28, 2014, no pet) (mem. op.) (finding evidence of callous disregard for rules sufficient to permit judgment based on merits-preclsuive deemed admissions where appellants never responded to requests for admissions or other discovery requests and never responded to appellee's motion for summary judgment based on deemed admissions), and Bernstein v. Adams, No. 01-12-00703-CV, 2013 WL 4680396, *3-4 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013, no pet.) (mem. op.) (distinguishing Wheeler and Marino, concluding there was evidence of flagrant bad faith and callous disregard where appellants never responded to requests for admissions or summary-judgment motion and failed to appear at summary-judgment hearing despite being advised they were facing default judgment), with Medina, 492 S.W.3d at 59-64 (concluding no evidence of bad faith and callous disregard for rules where appellants responded to requests for admissions and responses were on file long before summary-judgment hearing), and Thomas v. Select Portfolio Serving Inc., 293 S.W.3d 316, 318-20 (Tex. App.—Beaumont 2009, no pet.) (reversing grant of summary judgment based on deemed admissions, finding no evidence of flagrant bad faith or callous disregard where pro se plaintiff attempted to answer requests for admissions and attempted to amend his responses to comply with rules); see also Marino, 355 S.W.3d at 634; Wheeler, 157 S.W.3d at 443-44; Ramirez, 2017 WL 2180719, at *4-8. Because this was a necessary element of METRO's traditional summary-judgment motion, which was based on deemed admissions, we conclude the trial court erred in rendering summary judgment. See Ramirez, 2017 WL 2180719, at *4-8 (reversing grant of summary judgment based on merits-preclusive deemed admissions and concluding movant failed to establish that plaintiff acted with flagrant bad faith or callous disregard where plaintiff filed late responses due to calendaring mistake after departure of counsel's administrative assistant); Yacoub v. SureTec Ins. Co., No. 14-13-00274-CV, 2015 WL 1928618, at *3-4 (Tex. App.—Houston [14th Dist.] Apr. 28, 2015, no pet.) (mem. op.) (reversing grant of summary judgment based on merits-preclusive deemed admissions and concluding movant failed to establish plaintiff acted with flagrant bad faith or callous disregard where plaintiff failed to respond to requests for admissions during the pendency of his bankruptcy but promptly served responses when bankruptcy was dismissed); Petree v. S. Farm Bureau Cas. Ins. Co., 315 S.W.3d 254, 258-60 (Tex. App.—Corpus Christi 2010, no pet.) (concluding trial court improperly granted summary judgment based on merits-preclusive deemed admissions where record contained no evidence of flagrant bad faith or callous disregard).
In its summary-judgment motion and on appeal, METRO argued that Pickaree-Champagne is a vexatious litigant because she has filed 11 lawsuits against doctors and pharmaceutical companies in the last ten years. However, METRO did not move to have Pickaree-Champagne declared a vexatious litigant and did not connect this argument with Pickaree-Champagne's conduct in this lawsuit so as to establish that she acted with flagrant bad faith or callous disregard in responding to METRO's requests for admission. And the deposition testimony regarding Pickaree-Champagne's history of litigation on which METRO relies was not part of its summary-judgment proof.
Because we sustain Pickaree-Champagne's first issue in which she challenges the summary judgment, we need not address her second, third, and fourth issues, which would afford her no greater relief.
Conclusion
We reverse the trial court's judgment and remand this case for further proceedings consistent with this opinion.
Rebeca Huddle
Justice Panel consists of Justices Keyes, Bland, and Huddle.