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George v. Colony Builders, Inc.

Court of Appeals of Texas, First District

January 28, 2014

DEBOLA GEORGE AND GIFTED KIDS CHILD CARE AND LEARNING CENTER, INC., Appellants
v.
COLONY BUILDERS, INC., Appellee

On Appeal from the County Civil Court at Law No. 2 Fort Bend County, Texas Trial Court Case No. 12-CCV-047454

Panel consists of Justices Keyes, Higley, and Massengale.

MEMORANDUM OPINION

Evelyn V. Keyes, Justice

Appellee, Colony Builders, Inc. ("Colony Builders"), sued appellants, Debola George and Gifted Kids Child Care and Learning Center, Inc. (collectively, "George"), for breach of contract arising out a construction agreement. At trial, Colony Builders sought to enter deemed admissions into evidence. George objected but did not file a written objection or motion to withdraw the deemed admissions. The trial court overruled George's objection, allowed the trial to proceed, and then entered judgment in favor of Colony Builders, awarding it $27, 204 on its breach of contract claim and $10, 000 in attorney's fees. In her sole issue on appeal, George argues that the trial court erred in considering the deemed admissions over her objection because she presented evidence at trial contradicting the deemed admissions to which Colony Builders did not object. George also argues that Colony Builders waived the ability to rely on the deemed admissions.

We affirm.

Background

On September 12, 2011, George entered into a construction agreement with Colony Builders to build out a property that she intended to use to operate a daycare business ("Construction Agreement"). The Construction Agreement provided the specifications for the daycare build-out project ("the Project"). It provided that George would pay $30, 000 up front, "6 payments of $3, 850 including [a] $1, 100 Finance Charge, " and $20, 000 "upon Rough In Inspection."

George paid the $30, 000 down payment, and Colony Builders began work on the Project and completed many of the specified tasks, including procuring drawings and permits, completing the "rough in" for plumbing and electrical fixtures, and roughing in classrooms, the kitchen, and an office. When Colony Builders sought further payment under the terms of the contract, George refused to pay, stating that the building was taking too long.[1] She eventually locked Colony Builders out of the Project and hired another contractor to finish the build-out for the daycare.

On March 5, 2012, Colony Builders sued George for suit on an open account and breach of contract, alleging that it provided goods and services under the Construction Agreement, that George accepted the goods and services and became bound to pay, and that she defaulted on that obligation and breached the agreement by failing to pay. Colony Builders also sought attorney's fees. With its original petition, Colony Builders served several requests for admissions on George.

George answered with a general denial. She did not file responses to the requests for admission.

Colony Builders moved for summary judgment on its claims. It argued that the affidavit of Ali Zare, Colony Builders' representative, and its accompanying exhibits, [2] along with the admissions deemed against George, established that Colony Builders "provided labor and materials pursuant to its agreement with [George], and that [George] [has] failed and refused to pay for those services per their agreement." It further argued that Zare's affidavit and the deemed admissions "establish that value of those services provided for which [Colony Builders] has not been paid is $27, 204.00."

George responded to the motion for summary judgment in writing, arguing in part that the deemed admissions had "since been answered." George filed her own affidavit contradicting some of the facts raised in Colony Builders' motion. However, the record does not include the answers to the requests for admissions. Nor did George file a written motion to withdraw the deemed admissions. The trial court denied Colony Builders' motion for summary judgment, and the case proceeded to trial. The record does not contain a transcript of the hearing on the motion for summary judgment.

At the bench trial, Colony Builders offered, as its first exhibit, a copy of its requests for admissions and argued that the trial court should consider the admissions deemed against George. Colony Builders argued that the requests for admissions had been properly served on George on March 5, 2012, and that she did not respond. Colony Builders offered into evidence the following relevant deemed admissions: that Colony Builders sold George "goods, wares, merchandise or services" as described in the Construction Agreement; that George "accepted goods, wares, merchandise or services" under the Construction Agreement; that the prices Colony Builders charged for the goods and services it provided to George were the prices agreed to by George and were the usual and customary prices for those services at the time they were delivered in the county where they were delivered; that the principal amount due to Colony Builders from George for the goods or services provided under the Construction Agreement was $27, 204 after applying any credits to which George was entitled; that Colony Builders had presented a request for payment according to the terms of the Construction Agreement but George had refused to pay; that the "goods, wares, merchandise or services received by [George] from [Colony Builders] conformed to all representations and warranties made"; and that George "never rejected, disputed or returned" the goods or services provided by Colony Builders.

George objected to admission of her deemed admissions, arguing that she had responded to the deemed admissions prior to trial on July 5, 2012. However, those responses are not included in the record on appeal. George also acknowledged that she never moved for the deemed admissions to be withdrawn, but she asked the court for leave "to make an oral motion to strike based on the fact if you look at ...


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