Jones v. Ikard TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00063-CV

Jerry Frank Jones, as Attorney Ad Litem for Anne Holladay Shires, Amanda Alexandria Lannon, and Edward R. Lannon III and as Guardian Ad Litem for Amanda Alexandra Lannon and Edward R. Lannon III; and Harriet ("Hatsy") Heep, Appellants

v.

Frank Ikard, Jr., Attorney Ad Litem for Stahl Frederick Urban and Laura Henderson Urban, Acting Derivatively on Behalf of the Herman F. Heep Trust No. 1 and the Herman F. Heep Trust No. 2, Appellee

FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY, NO. 59,620F, HONORABLE GUY HERMAN, JUDGE PRESIDING

PER CURIAM

This appeal arises from a summary judgment rendered on one cause of action asserted as part of a larger probate proceeding. The proceedings generally concerned two trusts established after the death of Herman Heep. Appellee Frank Ikard, Jr., was appointed attorney ad litem for Laura Henderson Urban and Stahl Frederick Urban, the minor children of Elizabeth Urban, one of Herman Heep's three granddaughters. Appellant Harriet ("Hatsy") Heep is another of Heep's granddaughters. Appellant Jerry Frank Jones was appointed attorney ad litem for Anne Holladay Shires, Amanda Alexandria Lannon, and Edward R. Lannon III, and guardian ad litem for Amanda Alexandria Lannon and Edward R. Lannon III, the minor children of Hatsy Heep.

In the severed phase of the proceedings concerning the trust beneficiaries' claims of breach of fiduciary duty against the trustee, Ikard filed a counterclaim against Heep for tortious interference with inheritance rights. Ikard counterclaimed in his capacity as attorney ad litem and derivatively on behalf of the trusts, alleging that Heep had brought numerous causes of action in the proceedings and made demands on the trustee without grounds and in bad faith. Ikard served requests for admission on Heep, following which, in his derivative capacity only, he moved for a partial summary judgment on the counterclaim. The trial court rendered a partial summary judgment against Heep and, on Ikard's motion, severed the summary judgment into a separate cause. Both Jones and Heep assert points of error on appeal. We will reverse the trial court's judgment.

In his third point of error, Jones argues that the summary-judgment evidence fails to demonstrate that the requests for admission sent to Heep were properly deemed admitted. Ikard moved for summary judgment on his counterclaim against Heep, asserting that, because Heep had neither answered nor objected to his requests for admission within thirty days of service, the matters requested were deemed admitted. See Tex. R. Civ. P. 169. The matters allegedly deemed admitted form the basis for the summary judgment.

Ikard's summary-judgment evidence consists of his requests for admission and his affidavit. Ikard states in the affidavit that he sent the requests for admission to Heep on May 28, 1993, and that he received a fax from Heep on June 1 in which she acknowledged receiving the requests.

A summary judgment is proper only if the movant establishes that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). In reviewing a summary judgment, the appellate court must consider as true all evidence favorable to the non-movant, and indulge every reasonable inference and resolve any doubt in favor of the non-movant. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

Matters of which an admission is requested are admitted without necessity of a court order unless, within thirty days after service of the request, the party serves a written answer or objection on the party requesting the admission. Tex. R. Civ. P. 169. Properly deemed admissions can constitute summary-judgment proof. Laycox v. Jaroma, Inc., 709 S.W.2d 2, 4 (Tex. App.--Corpus Christi 1986, writ ref'd n.r.e.); see Elkins v. Jones, 613 S.W.2d 533, 534 (Tex. Civ. App.--Austin 1981, no writ).

Ikard alleges in his summary-judgment motion that Heep failed to answer the requests for admission, but his summary-judgment evidence does not support the allegation: Ikard verifies in his affidavit only that Heep received the requests. Although we find no response from Heep filed of record, nothing in the record as it appeared to the trial court at the time of the hearing shows that Heep failed to serve answers on Ikard. See Johnson v. Weitzner, 900 S.W.2d 163, 165 (Tex. App.--Beaumont 1995, no writ). To conclude that Heep did not serve answers on Ikard, we would have to rely on inference rather than direct evidence. The standard for reviewing a summary judgment requires, however, that we make all inferences in favor of Heep, as non-movant. Nixon, 690 S.W.2d at 548-49. Because the summary-judgment evidence does not prove that Heep failed to serve her answers on Ikard, we sustain Jones' point of error three.

In her ninth and tenth points of error, Heep contests the trial court's order severing the partial summary judgment from the remainder of the cause. Heep filed a combined motion for new trial and motion to set aside the severance seventy-seven days after the trial court signed its judgment. Although Heep filed the motion to set aside severance during the period of the trial court's plenary power, Heep failed to obtain the court's ruling on the motion. She has thereby waived her contention for review. Tex. R. App. P. 52(a); Moore v. Rotello, 719 S.W.2d 372, 380 (Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.). We overrule Heep's points of error nine and ten.

In light of our disposition of Jones' third point of error, we need not address the parties' remaining points. ⁽¹⁾ Because the summary-judgment evidence fails to establish that the admissions were properly deemed admitted against Heep, we reverse the trial court's judgment and remand the cause for further proceedings.

Before Chief Justice Carroll, Justices Jones and B. A. Smith

Reversed and Remanded

Filed: October 25, 1995

Do Not Publish

1.   Our holding renders it unnecessary to decide whether the trial court's discovery sanctions apply to Ikard's counterclaim for tortious interference with inheritance rights.

laimed in his capacity as attorney ad litem and derivatively on behalf of the trusts, alleging that Heep had brought numerous causes of action in the proceedings and made demands on the trustee without grounds and in bad faith. Ikard served requests for admission on Heep, following which, in his derivative capacity only, he moved for a partial summary judgment on the counterclaim. The trial court rendered a partial summary judgment against Heep and, on Ikard's motion, severed the summary judgment into a separate cause. Both Jones and Heep assert points of error on appeal. We will reverse the trial court's judgment.

In his third point of error, Jones argues that the summary-judgment evidence fails to demonstrate that the requests for admission sent to Heep were properly deemed admitted. Ikard moved for summary judgment on his counterclaim against Heep, asserting that, because Heep had neither answered nor objected to his requests for admission within thirty days of service, the matters requested were deemed admitted. See Tex. R. Civ. P. 169. The matters allegedly deemed admitted form the basis for the summary judgment.

Ikard's summary-judgment evidence consists of his requests for admission and his affidavit. Ikard states in the affidavit that he sent the requests for admission to Heep on May 28, 1993, and that he received a fax from Heep on June 1 in which she acknowledged receiving the requests.

A summary judgment is proper only if the movant establishes that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). In reviewing a summary judgment, the appellate court must consider as true all evidence favorable to the non-movant, and indulge every reasonable inference and resolve any doubt in favor of the non-movant. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

Matters of which an admission is requested are admitted without necessity of a court order