(WITHDRAWN 4-13-94)

IN THE

TENTH COURT OF APPEALS

No. 10-93-170-CV

     MARY ROSE OSTEEN, ET AL.,

                                                                                              Appellants

     v.

     GLYNN DODSON, INC., ET AL.,

                                                                                              Appellees

From the 40th District Court

Ellis County, Texas

Trial Court # 50074

O P I N I O N

      Osteen, joined by her children, sued Glynn Dodson, Inc. and Ferris Farmers Supply, Inc. for negligence contributing to injures to Osteen and the wrongful death of her husband, her children's father. The court granted Dodson a take-nothing summary judgment and rendered a take-nothing judgment in favor of Ferris on a pretrial plea in bar. Both claims were based on deemed admissions entered in an identical suit previously dismissed by Osteen through a non-suit. In two points of error, Osteen claims that the court erred by granting the defendants take-nothing judgments. We will reverse the judgments.

      At approximately 2:00 in the morning of March 9, 1991, an employee of Dodson spilled ammonia while he was pumping the chemical from a Ferris transport truck into a storage tank owned by Ferris. The fumes from the ammonia invaded the Osteen home, allegedly resulting in injuries to Mary Osteen and the death of Jimmie Osteen, Mary's husband and the other plaintiffs' father.

      Osteen filed suit against Dodson and Ferris in 1991. Although the suit was filed by counsel, Osteen apparently proceeded pro se. In July 1992, the defendants served Osteen with requests for admissions, which included requests that she admit the defendants did not cause any damage to Osteen and that the ammonia was not responsible for injuries to Mary or Jimmie Osteen. See Tex. R. Civ. P. 169. Someone handwrote "denied" below each of the requests and returned the requested admissions to the defendants. None of the responses were signed. Because the responses were not signed, the requests were deemed admitted. See id.

      The defendants moved for a summary judgment based on the deemed admissions. See id. 166a. Proceeding pro se, Osteen moved for a non-suit without prejudice. See id. 162. The court granted her non-suit on October 27, 1992.

      On March 8, 1993, Osteen refiled the suit, still proceeding pro se. Dodson moved for a summary judgment, attaching a copy of the deemed admissions from the prior action. Ferris raised a plea in bar, arguing that the second suit was barred as a result of the prior admissions. The court granted both defendants the relief they sought.

DODSON'S MOTION FOR SUMMARY JUDGMENT

      Dodson relied strictly on the deemed admissions from the prior suit in seeking a summary judgment. The parties have framed this case as an interpretation of Rule 169 of the Texas Rules of Civil Procedure. Section 2 of this rule states that, "Any admission made by a party under this rule is for the purpose of the pending action only and neither constitutes an admission by him for any other purpose nor may be used against him in any other proceeding." Reading this rule literally, we hold that the admissions deemed in the prior suit were not available to Dodson for use in the second suit under Rule 169.

      Because the deemed admissions from the prior suit were not available in the second suit, Dodson has failed to carry its burden of demonstrating that there are no genuine issues of material fact to be resolved. See id. 166a(c). Thus, the court erred when it granted a summary judgment for Dodson. See Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex. 1985). Point one is sustained.

      Dodson raises two additional arguments. Dodson first argues that Osteen abused the non-suit process by taking the non-suit to avoid the effect of the deemed admissions. However, "we are unwilling to hold a plaintiff is in bad faith for taking a non-suit when the case has become difficult." See Orion Inv. v. Dunaway and Associates, 760 S.W.2d 371, 374 (Tex. App.—Fort Worth 1988, writ denied). Osteen was entitled to take a non-suit in the face of deemed admissions.

       Dodson also argues that the deemed admissions are a discovery sanction under Rule 215 that survives the taking of a non-suit. However, unlike Rule 169, Rule 215 does not operate automatically. If admissions may be deemed under Rule 215(4)(a) for failure to comply with Rule 169, they may only be deemed upon a motion by the requesting party. See Tex. R. Civ. P. 215(4)(b). There is nothing in the record to indicate that Dodson or Ferris filed a motion requesting sanctions under Rule 215 in the first suit. Thus, the issue of whether deemed admissions survive a non-suit as a discovery sanction is not before us.

FERRIS' PLEA IN BAR

      Ferris raised the plea in bar in its original answer. The court set the plea for a hearing. The docket sheet reflects that the hearing was held on May 13, 1993. The docket entry for that day states: "P app pro se; D's app for Mon - Suits Ds Motions Granted - (P wanted 30 more days)." The final judgment recited that three exhibits were admitted during this hearing and that the court considered these exhibits in rendering the judgment in favor of the defendants.

      The court's action in granting the plea in bar and rendering a take-nothing judgment was improper. "[D]efenses ‛in bar’ are not the proper subject matter of disposition on mere preliminary hearing before the court like pleas in abatement, although a speedy and final judgment may be obtained on the basis of matters in bar and without the formality of a trial on the merits, if the parties so agree or if recourse is had to the process of summary judgment where contested fact issues are not present." Kelley v. Bluff Creek Oil Company, 158 Tex. 180, 309 S.W.2d 208, 214 (1958). The docket entry clearly reflects that Osteen did not agree to the pretrial hearing on Ferris' plea in bar. Thus, Ferris was required to proceed with its claim as a motion for a summary judgment, although the judgment may be upheld if the proceedings can be fairly characterized as one on a summary judgment. See Walker v. Sharpe, 807 S.W.2d 442, 447 (Tex. App.—Corpus Christi 1991, no writ).

      Ferris did not file a motion for a summary judgment. The hearing cannot be characterized as a summary judgment proceeding. See Tex. R. Civ. P. 166a. Ferris concedes that the court conducted an evidentiary hearing on the plea, a procedure that is not allowed in the summary judgment context. See State v. Easley, 404 S.W.2d 296, 297 (Tex. 1966). Thus, the court erred when it granted Ferris a take-nothing judgment on a pretrial plea in bar. Point two is sustained.

      The take-nothing judgments are reversed and this cause is remanded for a trial on the merits.

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Reversed and remanded

Opinion delivered and filed February 16, 1994

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(WITHDRAWN 4-13-94)