Good Opinion on Requests for Admissions

Call me crazy, but I believe that trial should be about each side presenting their case within the limits of the Rules of Evidence. I tend to be very skeptical about what I call trial by exclusion, the use of procedural rules to prevent the other guy from putting on his evidence. It does not take much legal skill to win a case when the other guy has to stand there gagged and silent. That is why I was heartened to see a recent opinion out of the Texas Third Court of Appeals which struck down an improper request for admission. Lucas v. Clark, No. 03-10-00474-CV (Tex. App.--Austin, 6/15/11). You can find the opinion here.

Under the Texas Rules of Civil Procedure, a party may serve discovery requests together with the petition. In this case, the Plaintiff included a request for admission which stated:

Request for Admission 2: As a proximate result of your breaching the contract made the basis of this suit, the Plaintiffs have suffered consequential damages in an amount not less than ten million dollars.

The defendant did not answer the lawsuit or the requests for admissions. As a result, the Plaintiff requested a default judgment. The only evidence of damages offered was the deemed admission. The Court awarded damages of $10 million.

On appeal, the Court of Appeals (in an opinion written by Justice Henson and joined by Chief Justice Jones and Justice Goodwin) said not so fast.

The primary purpose of requests for admissions is to “simplify trials by eliminating matters about which there is no real controversy.” (citation omitted). They were never 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. Id. Courts have cautioned that litigants should not be allowed to use requests for admissions as a tool to trap their opposition. (citation omitted). The rule regarding requests for admissions “was designed, not as a trap to prevent the presentation of the truth in a full hearing but as a tool for the fair disposition of litigation with a minimum of delay.” (citation omitted). When a party uses deemed admissions to try to preclude presentation of the merits of a case, however, due process concerns may arise. Therefore, overly broad, merits-preclusive requests for admissions are improper and may not result in deemed admissions. (citations omitted).

Opinion, pp. 6-7.

As a result, the Court of Appeals found that the request for admission should not be given evidentiary effect and found that there was no evidence as to damages. The Court of Appeals reversed and remanded for a new hearing on damages.

This is a good opinion, indeed a courageous opinion. I applaud the Austin Court of Appeals for their ruling.

Here is a rebuttal to this post from James Jolly Clark, the plaintiff in the case. He sent this to me with the title "Sather's crap." These are Mr. Clark's words with no editing by me.

Call me crazy & you are wrong - Lucas was served as it was proven by the process server in testimonial deposition, under oath and the opportunity to file for a trial after Travis County sent him a letter telling him he had a judgment against him. He fully acknowledged he received that notification. In addition, he had the opportunity to file for a Bill Of Review. The deemed admissions outlined some of the losses. They were actually over $50 million, with a personal invested cash loss of over $1,000,000 and another $1,300,000 loss in assets. Was the Plaintiff supposed to go to Lucas's home and beg him to accept service? As a former banker, Lucas knew very well he was served and what he had to do to avoid a judgment. The law suit came about by his purposely, with greedy malice afore thought, reneging on a contact, trying to run Clark into bankruptcy, so he could steal Clark's company for 10¢ on the dollar from a trustee. We found that long before the suit was filed, he set up a corporation to take over the company. I called 4 attorneys looking for one to assist me in filing garnishments - 3 of the 4 had sued Lucas. (If that tells you anything.) Not only did Judge Diane Henson not speak to the 3 issues raised by Lucas in his appeal, she had to go way, way out in left field to manufacturer a fuzzy reason to negate settled law on deemed admissions in order to overturn this judgment. No where in the judgment did it mention lost profits which she said was the reason for her decision. It appears she personally decided a person should not get $10 million on a default judgment and didn't give a damn about the law. If it had been $1,000,000 I 'm sure the outcome would have been different. She was way off base, dead wrong and has added insult to my grievous financial injury, caused by Lucas. My only hope now is if the good Republican Supreme Court does not listen to this liberal Democrat and her manufactured musings, overturns her and affirms "Deemed Admissions" as settled law.

New Rule -- No Dumb Discovery Objections!

Dumb Objections Order

Wouldn't it be great to live in a world where you didn't have to see boilerplate, utterly meaningless discovery objections, devoid of content and existing in some suspended state of phantom word jumble, where you know they're there and yet they are also not there?

Well Magistrate Judge Simonton wants to put a stop to such verbal detritus, and her general discovery order outlines a vision for a better, more substantive discovery world, where people answer interrogatories in good faith and no one interposes "vague" or "overbroad" objections unless there's a really good reason.

Take a gander and you may have a tear in your eye by the time you're finished:

The parties shall not make nonspecific, boilerplate objections....Objections that state that a discovery request is "vague, overly broad, or unduly burdensome" are, standing alone, meaningless, and will be found meritless by this Court.....

If there is an objection based upon an unduly broad scope, such as time frame or geographic location, discovery should be provided as to those matters within the scope which is not disputed.....

An objection that a discovery request is irrelevant and not reasonably calculated to lead to admissible evidence must include a specific explanation describing why the request lacks relevance and why the information sought will not reasonably lead to admissible evidence.....

The parties shall not recite a formulaic objection followed by an answer to the request. It has become common practice for a Party to object on the basis of any of the above reasons, and then state that "notwithstanding the above," the Party will respond to the discovery request, subject to or without waiving such objection. Such an objection and answer preserves nothing and serves only to waste the time and resources of both the Parties and the Court. Further, such practice leaves the requesting Party uncertain as to whether the question has actually been fully answered or whether only a portion of the question has been answered.

In other words, welcome to Discovery Shangri-La.

(Feels good, doesn't it?)

Have You Ever Experienced "Premature Discovery Dispute" Syndrome?

I'm not ashamed to admit that I have.

What can I say, sometimes a person gets excited!

(It's not where you start, it's where you end.)

The first step, however, is to acknowledge you may have a problem, like our friend the witty Magistrate Judge Goodman does here:

Some discovery motions are brought to the Court too early. The discovery disputes at issue here fit into that category. As musically noted by well-known singer-songwriter Tom Petty, “the waiting is the hardest part.”2

I really love footnote 2, this is why Judge Goodman's orders are such fun:

The lyric is from the song “The Waiting,” the lead single from Tom Petty and the Heartbreakers’ album Hard Promises, released in 1981. Although now 30 years old, the song is still used in popular culture. It was featured in at least one promotional spot for the fifth season of the television situation comedy “The Office” and is used at Philadelphia Flyers home games (when officials are reviewing a play). http://en.wikipedia.org/wiki/The_ Waiting_(song) (last visited 5/16/2011). See also http://www.lyricstime.com/tom-petty-the-waiting-lyrics (last visited 5/16/2011).

Can you imagine being Judge Goodman's clerk on this matter:

"Quick, I need you to research recent cultural references to an old Tom Petty song.  What?  Ok, Tom Petty was a singer a long time ago.  You mean they didn't teach you this in law school?  Welcome to my world."

Judge, you are welcome to guest blog here anytime.

3d DCA Watch -- Let's Do the Time Warp Again -- Apex Depos, Economic Loss Rule and Venetian Salami!

I have a quick question -- can you convert a simple breach of contract action into a tort claim for damages?

Has anyone researched this?

Oh well, let's suck in a deep whiff  -- and hold it -- from this week's written utterances, freshly baked from the dank, dark, desultory, Desilu Studios'-like concrete wonderland that is our very own JusticeBunker™:

Walker v. Figarola:

It appears we have finally found something truly apodictic:

Similarly, their complaint failed to state a cause of action for civil theft. As this Court explained in Ginsberg, 645 So. 2d at 494, “Where damages sought in tort are the same as those for breach of contract a plaintiff may not circumvent the contractual relationship by bringing an action in tort.” The Walkers seek to recast their simple breach of contract claim into a tort claim to avoid the reality that the statute of limitations has run on their contract claim. But the allegations are for a simple breach of an oral contract—Figarola borrowed $25,000 from the Walkers which he promised to repay within three weeks, and the loan remains unpaid.

Hmm, you don't say -- is there a rule that governs all this?

Rocomonde v. Marshalls:

Judge Emas in the house, reversing an sj for a lady who tripped on a mobile clothing rack at Marshalls:

In the instant case, the trial court found, as a matter of law, that Marshalls was not negligent, because Rocamonde saw the mobile rack in the aisle, had the ability to look at the base of the rack, and failed to do so. However, “it is the dangerous condition of an object which must be open and obvious, not simply the object itself.” Kloster Cruise Ltd. v. Grubbs, 762 So. 2d 552, 555 (Fla. 3d DCA 2000). Although the cart itself was open and obvious, a primary issue here is whether the protruding bottom portion of the rack – the condition which is alleged to have caused her to trip and fall – was open and obvious. Viewing the record in a light most favorable to Rocamonde, there is evidence that she tripped over the protruding base of the rack which was hidden or obscured from her view. It cannot be said as a matter of law that Rocamonde was aware of this condition.

I don't know, but the last time I was at the downtown Marshalls I would have been thrilled to just have a mobile clothing rack blocking my aisle.

If I recall correctly, I had immediately in front of me the following:

1.  scattered children's books;
2.  part of a gourmet macaroni box that someone noshed from and was now on the floor;
3.  an LSU Tigers golf club cover;
4.  a homeless person; and
5.  Herman Russomanno.

See what I mean?

Reynolds v. Gero:

Venetian Salami.

Yes, you heard me.

Deal with it.

General Star v. Atlantic Hospitality:

Apex depos -- what is this, the 90s?

Listen closely, kids:

Discovery is intended to be part of the “just, speedy, and inexpensive" determination of disputes—not a device to get greater attention at an adversary’s headquarters.

Ok then, I suppose I should send out a cancellation notice for that three-day Kim Rothstein depo I just scheduled in Aruba.