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Serrano v. Ryan's Crossing Apartments

Court of Appeals of Texas, Eighth District, El Paso

November 18, 2004

ROSA SERRANO, Appellant
v.
RYAN'S CROSSING APARTMENTS, Appellee.

          Appeal from County Court at Law No. 5 of El Paso County, Texas (TC# 2002-J00062-5)

          Before Panel No. 4 Barajas, C.J., Larsen, and McClure, JJ.

          MEMORANDUM OPINION

          ANN CRAWFORD MCCLURE, JUSTICE.

         This is a forcible entry and detainer case. Rosa Serrano, pro se, appeals a summary judgment awarding Ryan's Crossing Apartments possession of an apartment, damages, and attorney's fees. Finding no error, we affirm.

         FACTUAL SUMMARY

         Rosa and Julian Serrano entered into a lease with Ryan's Crossing whereby they agreed to pay rent in the sum of $670 per month. When the Serranos breached the lease by failing to pay rent, Ryan's Crossing filed a forcible entry and detainer suit in justice court. A jury awarded Ryan's Crossing possession of the premises, unpaid rent and other charges in the amount of $3, 803.22, together with attorney's fees. The Serranos appealed to county court for trial de novo. [1] After the case had been pending for several months, Ryan's Crossing moved for summary judgment based on the Serranos' deemed admissions. Rosa Serrano filed a response to the summary judgment motion and a request for a continuance which the trial court denied. The trial court granted summary judgment in favor of Ryan's Crossing. Rosa Serrano [2] filed a timely notice of appeal; Julian Serrano did not. [3]

         SUMMARY JUDGMENT

         Serrano challenges the summary judgment by multiple issues raised on appeal. [4] Ryan's Crossing responds that the trial court properly granted summary judgment based on Serrano's deemed admissions and other summary judgment evidence.

         Standard of Review

         In a traditional summary judgment proceeding, the standard of review on appeal is whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Duran v. Furr's Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.--El Paso 1996, writ denied). The question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant's cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant's cause or claim. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Duran, 921 S.W.2d at 784. In resolving these issues, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant's favor. Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985); Duran, 921 S.W.2d at 784.

         The Elements and Pertinent Evidence

         In order to be entitled to summary judgment, Ryan's Crossing had to conclusively establish that the Serranos materially breached the lease and that the breach resulted in damages. It is undisputed that the Serranos executed the lease related to the apartment in question and agreed to pay monthly rent in the amount of $670. By virtue of deemed admissions, they have acknowledged that they executed the lease, they had not paid the rent due under the lease, and they had received proper notice to vacate. Ryan's Crossing offered an affidavit from the apartment manager stating that the Serranos owed $3, 803.22 for rent and other charges. That amount does not include attorney's fees, costs, or expenses. The summary judgment evidence also includes an affidavit establishing that attorney's fees in the amount of $4, 500 are reasonable and customary for prosecution of the suit. The Serranos filed a response but failed to include any evidence.

         Once an action is filed, a party can serve written requests for admissions. Tex.R.Civ.P.198.1. If the opposing party does not respond within thirty days of service, the requests are deemed admitted without a court order, and the trial court has no discretion to find otherwise. Tex.R.Civ.P. 198.2. A matter admitted is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission. Tex.R.Civ.P.198.3. The court may allow withdrawal or amendment of deemed admissions if the party shows good cause, the party relying upon the deemed admissions will not be unduly prejudiced, and the presentation of the merits of the action will be served by allowing amendment or withdrawal. Tex.R.Civ.P. 198.3. Because the Serranos did not seek or obtain withdrawal of their admissions, the trial court properly considered the admissions in reviewing the summary judgment motion.

         Ryan's Crossing conclusively established each element of its claim against the Serranos. Consequently, the trial court did not abuse its discretion by granting summary judgment ...


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