Appeals court cuts pro se plaintiff a little slack

By The SE Texas Record | Jul 30, 2009

There's no denying that "No" is denying, according to the Ninth District appeals court in Beaumont.

The Ninth District ruled on July 16 that a plaintiff who lacked a lawyer didn't have to write the word "denied" in responses to defense requests for admissions.

"A number of responses did not say 'denied' but nonetheless clearly denied the requested admissions," Chief Justice Steve McKeithen wrote.

Justices Charles Kreger and Hollis Horton agreed.

They reversed Polk County District Judge Elizabeth Coker, who ruled that George Thomas admitted everything defendants asked him to admit.

Coker granted summary judgment to U. S. Bank and Select Portfolio Servicing.

On other grounds she granted summary judgment to a third defendant, Meritplan Insurance, but the Ninth District reversed that decision too.

Thomas filed his suit "pro se," which in Latin means "for self."

He claimed Meritplan inspectors evaluating a hurricane claim negligently removed a blue tarp from a roof and caused a leak that damaged his belongings.

He wrote that they "walked on the roof and extensively used the hammer on the roof, causing further damages to the roof."

He wrote, "They failed to replace the roof with any sort of blue tarp to prevent further leak of rain water inside the house."

He claimed Select Portfolio Servicing and U. S. Bank negligently caused him to lose personal property in eviction proceedings.

After Thomas sued, Select and U. S. Bank served him with 33 requests to admit facts. On 21 of them he simply wrote "objection."

Where they asked him to admit he sued Select in federal court, he objected and wrote that the information wasn't relevant.

Where they asked him to admit he couldn't prove ownership of any damaged or stolen property, he wrote that the whole neighborhood saw his belongings on the street. Where they asked him to admit he was instructed to remove personal property before the constable arrived, he wrote, "No proper notice was served."

He wrote that the constable told him to keep him informed of settlement negotiations.

"The negotiations continued until the final inspection," he
wrote. "No reply was received after the offer of $22,000."

Where they asked him to admit the constable served him with a writ of possession, he wrote "No" and added that he was out of town on the day of the eviction.

Where they asked him to admit he had no conversation with them, he wrote, "Always corresponded."

Where they asked him to admit they hadn't caused him any damage, he wrote, "I am not mentally retarded to say such things of vicious crimes did not happen (sic)."

He wrote, "You cheats have damaged me for the rest of my life."

Where they asked him to admit U. S. Bank has title to property that was collateral for his loan, he wrote "No."

U. S. Bank and Select asked Coker to deem all 33 requests admitted and to grant summary judgment.

Thomas tried to withdraw his responses but Coker deemed the requests admitted.

Meritplan separately argued that Thomas couldn't allege negligent claims handling and breach of contract because Meritplan didn't insure him, and Coker agreed.

She granted summary judgment to all three defendants.

Thomas achieved better results after he fired himself as lawyer and hired Michael O'Connor for an appeal.

O'Connor convinced the Ninth District to apply Wheeler v. Green, a Texas Supreme Court decision that cuts some slack to parties without lawyers.

McKeithen wrote that the Wheeler decision permits case determinative discovery sanctions only for flagrant bad faith or callous disregard for rules.

He quoted from Wheeler that application of rules "may require a different result when the actor is not a lawyer."

He wrote, "The record does not support a finding that Thomas acted in bad faith and with callous disregard for the rules."

He wrote, "Here, as was the case in Wheeler, Thomas attempted to rectify his error and respond to all of the requests."

He wrote, "Due process concerns arise when a party uses deemed admissions to preclude presentation of the merits of a case."

The Ninth District also revived Thomas's claim against Meritplan, ruling that he didn't accuse it of negligence in handling a claim.

"Meritplan's agents are not alleged to have been on Thomas's roof for the purpose of repairing it; rather, they were alleged to have been on Thomas's roof to evaluate Select's insurance claim," McKeithen wrote.

"The damages Thomas seeks to recover are damages to the roof caused by Meritplan's agents, not the hurricane," he wrote.

Michael Hord Jr. represented U. S. Bank and Select. Christopher Martin and Levon Hovnatanian represented Meritplan.

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