*1 gave The medical doctors who affidavits express opinion
are free to their that there negligence
were no of medical acts commit Bauer,
ted. King v. (Tex.
1985). experts The facade that medical testify only as standard of
care, question negli with the ultimate
gence being longer jury, left
exists. Fairness dictates that medical ex
perts express like these allowed to be their
opinions long opinions so as the are con
fined to relevant issues and are based
proper legal concepts. v. Texar Birchfield Hosp., kana Memorial
(Tex.1987); Tex.R.Evid. 704. affidavits, in testimony, lengthy expert,
showed that the witnesses were they
that the standard of care in knew County, they
Harris did not breach the care, they
standard of and that were not
negligent in any inju- manner which caused
ry I join holding to Hammonds. cannot
that the of Thomas and affidavits McKech- support
nie were insufficient
judgment, if not even controverted.
GRANT, Justice, concurring.
I concur results with the reached
majority opinion, inasmuch as the but area disagreement majority between the
concurring opinion is not vital to the out- case, I express
come of do not an
opinion on that issue. CHERRY, Appellant,
Carl
NORTH AMERICAN LLOYDS OF
TEXAS, Appellee.
No. 01-88-00203-CV. Texas, Appeals of
Court of (1st Dist.). 23, 1989.
Feb.
Rehearing April Denied Houston, Rainosek, appellant.
R.R. g *2 requests Giessel, Jr., mailed for admis- Joseph, Alice M. Richard S. Defendant 26, 1987, August and plaintiff to on Giessel, Stone, sions Lyman, Hous- of Barker & day. the next plaintiff received them ton, appellee. for his answers on defendant Plaintiff served days Thirty-three from September on 29. EVANS, CJ., Before and DUGGAN August September 28. Plaintiff’s 26 was O’CONNOR, and JJ. 28, thirty- by September answers were due date defendant mailed days three from the O’CONNOR, Justice. his an- plaintiff. them Plaintiff served to appeals summary judg- Plaintiff from a day swers one late. He ment based on deemed admissions. day the or September On the answers claims the trial court should have con- due, requests for ad- objections were the requests sidered his answers to missions deemed admitted. Barker were summary admissions before it entered the 154,155 Harrison, (Tex.App. judgment. —Houston w.o. rulings by Reversal j.); Tex.R.Civ.P. (1) to plaintiff Court: served his answers complains the trial court denied Plaintiff requests the answers to the for admissions oral motion to extend the time to serve his time; (2) the trial court not and requests for admissions. If answers to granted have plaintiff made such a ruling. We cannot make either ruling on evidence of it or the trial court’s appellant’s it in the record. It is burden to I. The Deemed Admissions. to present us with a “sufficient record ... requiring reversal.” Tex.R. show error Plaintiff claims he Ms an served'* 50(d). App.P. on time he them to swers because mailed deemed an- days day Once the admissions were defendant within of the he him, against plaintiff’s only remedy swered requests received the for admissions. to was to file a motion with trial court proce Plaintiff misreads the rules civil or amend the admissions. Rule withdraw dure. 169(2)provides: 169 says party must serve [a]ny matter admitted under tMs rule objections written or to the re- conclusively established as to the quests party serving requests on the making unless the court the admission days service, within 30 from or the re- permits withdrawal or amend- quests are deemed par- admitted. When a [Emphasis ment of the admissions. add- mail, ty receives a by document served U.S. ed.] days, counting Tex.R.Civ.P. 21a adds three The trial court can set aside the deemed mailed, from the date the document was to good party proves answers if the he had respond. says Rule 21a service mail is filing Curry v. cause for late answers. complete party deposits the doc- (Tex.App. Clayton, 715 S.W.2d addressed, properly postpaid ument in a n.r.e.). ref 'd Plaintiff did —Dallas writ envelope with the U.S. Postal Service. not file a motion to withdraw or amend The rules his plaintiff authorized to serve response days the date from defendant Summary Judgment II. The Motion for requests mailed the The rules did to him. plaintiff response not authorize to serve Ms for sum Defendant filed a motion 7, 1987, days mary relying the date he received the on October from requests. on a of the insurance sworn error, plaintiffs point complains *In he Because day filed the the same defendant, ‘‘filed’’the for admis- he served the answers on we will requires plaintiff sions on time. Rule 169 interpret point stating his of error as pre- serve the on defendant within the time, “served” them on of "filed.” instead time, scribed not file them with the trial court. the deemed admissions. present proof One sworn of loss to motion, plaintiff on defendant's defendant within 91 loss. filed a to motion for provi- deemed admissions substantiate both judgment and attached the affidavit of the secretary plaintiff's counsel. sustained its Defendant burden show- affidavit, secretary said defense coun issue, and, ing there was no material fact agreed sel could serve late *3 law, judg- as a matter of it was entitled to to the for admissions. ment. Tex.R.Civ.P. 166a. The trial court could have refused to plaintiff’s point of We overrule error and plaintiff’s consider either affirm the of the trial court. First, grounds. 166a(c) Tex.R.Civ.P. a to file the to a summary judgment motion for at least sev OPINION ON MOTION FOR hearing. en before the M REHEARING Co., M& Constr. Co. v. Great Am. Ins. rehearing Plaintiff filed a motion for ask- 526, 749 (Tex.App Corpus S.W.2d 527 — ing this Court to consider the 1988, w.o.j.) Christi There is summary judgment filed to the as a motion nothing in the record that the trial shows to set aside the deemed admissions. Plain- granted plaintiff permission court to file a tiff relies on 1 and 71. Tex.R.Civ.P. late to the motion for rule, pleadings Under the misnomer of court, therefore, judgment. The trial could 71, party mistakenly anything response. not consider in the designates pleading, may, a the court if Second, prohibits Rule 169 from justice requires, correctly treat it as a using evidence to contradict deemed admis An named motion. incorrect title to a Reyes Sup v. International Metals change pleading does not the nature of the Co., 622, ply (Tex.App.— 624 pleading. Dow Chem. Co. v. Public Util. 1984, writ); R. Texas, 601 S.W.2d Comm’n of McDonald, Texas Civil Practice in District (Tex.Civ.App. writ ref’d — Beaumont Courts, (1982). County & sec. 10.09 n.r.e.) is, pleading To determine what
trial court could not consider secre party requests. look at the relief the we tary’s affidavit to contradict the deemed Heard, Bar Texas v. State only admissions. The evidence (Tex.1980). trial at court on the motion for examining plaintiffs response After therefore, summary judgment, was the summary judgment, we con- deemed admissions and the sworn clude we are not able to consider it as a policy. the insurance motion to set aside Summary judgment proper when Nowhere the motion did ask the fact, genuine issue of material trial court to withdraw or set aside the and the movant shows is entitled prayer admissions. judgment as a matter of law. Tex.R.Civ.P. plaintiff merely asked for costs and attor- 166a(c). prove Movant must both. Nixon ney’s fees Co., Property Management v. Mr. (Tex.1985). In 548-49 review ing evidence, plaintiff’s must take We overrule motion for rehear- Court evi ing. dence here favorable to as true any in his resolve doubts favor. Id. summary judgment,
In the motion for provisions
defendant said two in the insur- policy plaintiff’s
ance barred claim. The precluded liability
first if building
insured for 30 was vacant consecu- required days.
tive The second the insured