Cases determined by merits, not procedural defaults, Texas justices rule

By Steve Korris | Oct 24, 2011

Texas Supreme Court

AUSTIN – Texas Supreme Court Justices pulled accountant Lynda Marino out of a trap she stepped into when she tried to defend herself in a civil suit without a lawyer.

In a per curium order issued Oct. 21, justices found Brazos County District Judge Steven Smith improperly granted summary judgment against Marino for answering a request for admissions one day late.

"As we have previously observed, requests for admission should be used as a tool, not a trapdoor," they wrote.

"Constitutional imperatives favor the determination of cases on their merits rather than on harmless procedural defaults," they wrote.

After representing herself, Marino prevailed when she retained Marvin Martin of Bryan to represent her.

According to court documents, Marino performed accounting services for Charles King Horticultural Services for several years.

King discharged her and sued her, alleging she took money from one of his accounts.

She denied his allegations and asserted the money was for work she performed.

Marino also argued that King's corporation should have filed the suit against, rather than King himself.

King sent Marino requests for admission.

"Through these requested admissions, King sought to have Marino admit liability for the various claims she had already denied," the justices wrote.

She sent a letter to King's lawyer, Paul Murphy of College Station, asking to extend the deadline for response by a day.

She delivered the response on the extra day, again denying liability.

King moved for summary judgment 10 days later, asking Judge Smith for $33,559 plus $5,000 in legal fees.

"The sole basis for King's motion was Marino's failure to timely respond to his admission requests; admissions he asserted were deemed admitted because Marino's answers were one day late," the justices wrote.

Marino didn't file a response to the motion, but filed a motion to dismiss and served King with requests for disclosure, production, admissions and interrogatories.

According to hearing transcripts quoted by the justices in their opinion, Marino said, "When I knew I was running out of time, I did send the attorney a letter."

King's attorney Murphy objected and Marino said, "It's on file."

Judge Smith said, "When you undertake to represent yourself you have to follow the same rules that we guys who have law degrees do."

"Just writing a letter to a lawyer saying gee, I haven't had time to do this, is not sufficient under the rules of civil procedure."

Marino said she felt like she had "a good defense and it should be heard."

"I have asked and received some discovery from the plaintiff, although not complete in many places," she said. "I also have a motion to compel discovery pending before the court at this time so I just respectfully ask, your honor, to not allow the summary judgment and proceed to hear my motion to dismiss."

Judge Smith said, "Well ma'am, I don't know what lawyer has been writing that for you."

"That frankly sounds like the language of a lawyer."

But Marino said no.

Judge Smith said, "You have not filed any kind of responsive pleading to the motion for summary judgment."

"You filed a lot of other stuff but not a response to the motion for summary judgment."

He rendered judgment for King and the appellate court affirmed him, but the Supreme Court took a dim view of the proceedings.

"Requests for admission are intended to simplify trials," the justices wrote.

"They may be used to elicit statements of opinion or of fact or of the application of law to fact," they wrote. "King's requests here, however, asked essentially that Marino admit to the validity of his claims and concede her defenses – matters King knew to be in dispute.

"Requests for admission were never intended for this purpose," they wrote.

The court found no evidence of flagrant bad faith or callous disregard for rules and nothing to justify a presumption that Marino's defense lacked merit.

They remanded the case to Judge Smith for proceedings consistent with their opinion.

Texas Supreme Court Case No. 10-0854

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