Alexias Bell v Kurt Nichols and Thomas Inman (2014) H&FLR 2014-25
Tenth Texas Court of Appeals
24 April 2014
Coram: Gray CJ, Davis and Scoggins JJ
Appearing for the Appellant: Renee E. Moeller and Susan Allison Kidwell
Appearing for the First Respondent: David Bradley and Trisha Danielle Ross (both of Walters, Balido & Crain)
Appearing for the Second Respondent: Russell Chip Pelley (of Pelley Law Office) and Joe Neal Smith
Catchwords: Texas – college football – mascot – motorcycle – punch – civil procedure – admissions – want of prosecution
Facts: Bell (appellant) was employed by Sam Houston State University to attend a football game as a mascot*. She was being driven to a pre-game function on the front of a four-wheel motorcycle driven by Inman (second respondent). The second respondent allegedly ran into Nichols (first respondent), the coach of the opposing team, who punched the appellant and caused her to fall off the motorcycle. She brought proceedings against the second respondent for negligence and against the first respondent for negligence, gross negligence, assault and battery and intentional infliction of emotional distress.
The appellant’s lawyer withdrew during the proceedings and for a period of time she was unrepresented. During this time the first respondent sent requests for admissions to the appellant. Four of the proposed admissions were to the effect that the respondents neither harmed her nor were the proximate cause of harm to her, had not caused intentional harm to her, and acted reasonably and prudently. She objected to these admissions and the respondents applied to the court to deem the requests admitted.
After an abortive hearing on 28 December 2012 the matter was refixed for consideration on 26 March 2013, by which time the appellant had secured new representation. Her new lawyer amended her response to the request for admissions to deny those to which she had previously objected. The trial court granted the respondents’ motion to deem the admissions sought and dismissed the proceedings for want of prosecution. The appellant appealed.
Held: Allowing the appeal –
1. A court at first instance may dismiss a case for what of prosecution based on a defendant’s motion. If the dismissal is appealed, and the dismissal order does not state the grounds on which it was dismissed, the appellant must show that each of the grounds alleged in the motion to dismiss is insufficient to support the decision to dismiss. Here, the motion to dismiss was based solely on the appellant’s failure to appear at the (non-)hearing on 28 December 2012 and was an abuse of discretion.
Nichols v Sedalco Construction Services, 228 SW.3d 341 (Tex. App. – Waco 2007), followed.
2. Where a party objects to an admission, Rule 215 of the Texas Rules of Civil Procedure allows a court to consider whether the objection is justified. If not, it shall order that an answer be served. It is not able to deem a matter admitted because of an improper objection.
The Court’s judgment is available here.
An appeal appears to have been lodged.
* Known as “Airkat“.