Weaver v. UNIFUND CCR PARTNERS

231 S.W.3d 441, 2007 Tex. App. LEXIS 5517, 2007 WL 2005036

• Court: Court of Appeals of Texas
• Decided: July 11, 2007
• Docket: 10-06-00207-CV
• Status: Published

Opinions

OPINION

BILL VANCE, Justice.

Unifund CCR Partners, as assignee of Exxon/Mobil Platinum, sued Kenneth Weaver to recover for unpaid credit card charges in the amount of $11,556.76. Weaver, appearing pro se, filed a letter answer. Unifund moved for and obtained summary judgment. Weaver, still pro se, appeals. We will reverse and remand.

Unifund filed suit on October' 21, 2005. With its petition, Unifund served Weaver with a request for disclosure and requests for admissions on November 3. On November 7, Weaver filed a letter response, which Unifund asserts the trial court treated as an answer. (Appellee’s Brief at 1). Included and filed with Weaver’s letter were responses to the requests for disclosure and admissions, all of which have a certificate of service. All of these items are in the clerk’s record. (Clerk’s Record at 11-17).

Unifund filed a motion for summary judgment, asserting that Weaver had failed to respond to the requests for admissions, which establish Weaver’s debt liability on the credit card account. Filed with Unifund’s motion was its attorney’s affidavit, which states in pertinent part: “Defendant failed to serve upon Plaintiff a written response to the Request for Admissions within 50 days of service.” Weaver did not file a response to Uni-fund’s summary judgment motion. Based on the alleged deemed admissions, the trial court granted Unifund’s summary judgment motion.

We review the decision to grant a summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). The standards for reviewing a traditional motion for summary judgment are well established. The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to the summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Ash v. Hack Branch Distributing Co., 54 S.W.3d 401, 413 (Tex.App.-Waco 2001, pet. denied). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true, and every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor. Nixon v. Mr. Prop. Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

In what Unifund refers to as Weaver’s third issue, Weaver asserts that he did in fact respond to the requests for admissions: “The Plaintiff’s attorney stated on his Motion for a Hearing for a Summary Judgment that the Defendant did not answer requests for disclosures and request for admissions. Yet the record shows that the Defendant did indeed su[b]mit those answers on November 5, 2005.” On this issue, Unifund inadequately addresses Weaver’s allegation that he answered the requests for admissions, merely arguing that Weaver failed to properly present it to the trial court. On the issue of whether Weaver responded to the requests for admissions, he did, as those responses are in the clerk’s record.

On the issue of whether Weaver served his responses on Unifund, a factual dispute exists. Weaver’s responses, along with his “letter answer,” include a generic certificate of service. Unifund did not move for a default judgment and it asserts that the trial court treated Weaver’s letter as an answer. From these events, we can infer that Unifund had notice of or received Weaver’s answer, which was included with his responses to the requests for admissions. But whether Weaver served his responses on Unifund is ultimately of no consequence because they were filed in the trial court.

Under Rule 166a(c), summary judgment may only be rendered if the “discovery responses referenced or set forth in the motion ... and ... the admissions ... of the parties ... on file at the time of the hearing ... show that ... there is no genuine issue as to any material fact....” TexR. Civ. P. 166a(c). Because Unifund’s motion for summary judgment was based on alleged deemed admissions, but in fact Weaver’s responses to those admission were on file, we hold that the trial court erred in granting the motion based on alleged deemed admissions.¹

We sustain Weaver’s third issue, and we need not address his other issues. We reverse the judgment, and remand the cause to the trial court.

Chief Justice GRAY dissenting.

1 . We also address Weaver’s responses to the requests for admissions. Unless a party responding to a request for admission states an objection or asserts a privilege, the party "must specifically admit or deny the request or explain in detail the reasons that the responding party cannot admit or deny the request.” Tex.R. Civ. P. 198.2(b). Weaver’s response to each request was: “Defense: Texas Civil Practice & Remedies (Section 16.004(a)(3)).” Plainly, this was an invocation of the four-year statute of limitations on a debt cause of action, and indulging every reasonable inference in Weaver’s favor, as we must, this invocation is most reasonably construed as an objection to each request on the ground that the debt claim is barred by limitations. No hearing on Weaver’s objections to the request for admissions was held. See Tex.R. Civ. P. 193.4(a). Thus, not only are there no deemed admissions, there are no admissions at all to support the judgment.