AFFIRMED and Opinion Filed January 27, 2020 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-19-00055-CV B.J. STRATTON AND KENNETH STRATTON, Appellant V. RITA ROBINS, Appellee On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-11516 

### MEMORANDUM OPINION Before Justices Molberg, Reichek, and Evans Opinion by Justice Reichek Following a trial befo re the court without a jury, B.J. and Ken neth Stratton a ppeal the trial court’s take-nothing judgment on their bailment claim against R ita Robins. The Strattons additionally appeal the trial c ourt’s order requiring them to p ay Robins’s attorney’s fees following the withdrawal of their previously deemed admissions. For the reasons set forth below, we affirm the trial court’s judgment. Factual Background In October 2016, the Strattons hired Robins to board and train one of their dogs. Before the dog was dropped off, the Str attons informed Robins the dog had both separation anxiety and storm anxiety and they provided anti-anxiety medication to give the dog when a storm was anticipated.–2– While staying with Robins, the dog was housed in a heated and air-conditioned facility that included eight 4x6 foot dog runs . Only one other client’s dog was staying with Robins at the time. Throughout the dog’s stay, Robins remained in communication wit h the Strattons and updated them on the dog’s progress. On November 25, Robins called the Strattons and told them the dog was running in circles and pulling the hair out of his tail. R obins asked if the dog had ever done this before and the Strattons responded he had not. Robins des cribed the tip of the dog’s tail as looking like “a little fin ger sticking out.” The Strattons called their veterinarian and explained the situ ation. They stated they were told the hair was gone from a 4-5 inch section of the tail and asked for a recommendation as to what they should do. The vet responded that the dog could be p ulling the hair out of his tail for any number of reasons, including anxiety, fleas, or medical iss ues, and said if they were concerned, they should pick the dog up. The Strattons decided to leave th e dog with Robins with instructions to simply continue to observe th e dog and let them know if thin gs got any worse. Over the course of the next week, Robins used an Elizabethan c ollar, or cone, around the dog’s neck to keep him from chewing on his tail. On Friday, De cember 2, The Strattons sent a text message to Robins asking how training was progressing and whether the dog was still pulling his hair out. Robins said the dog was mak ing good progress and that he hadn’t been able to get to his tail because she was continuing to have him wear the cone. She said she felt the cone was necessary because he had “really done a number on [his tail].” She also told the Strattons she was going to medicate the dog in antic ipation of storms that night and the next day. The following day, Robins calle d the Strattons and said the do g had begun to chew on his rear foot. The Strattons picked up the dog and took him to a l ocal emergency veterinary hospital. The records from the hospital show the dog presented with “seve re tail chewing.” The records further state the training facility where the dog had been stay ing “said he was chewing his tail so–3– much that he needed to leave.” The tail showed severe inflamma tion with a one-centimeter dark patch at the tip that appeared to be necrotic but was warm to t he touch. The dog was also missing hair on both rear limbs and had two small ulcerated areas on hi s scrotum. The dog was diagnosed with “Pyoderma [skin infection] with necrosis on distal tail fr om self-trauma,” “Pyoderma on ventral scrotum,” a nd “anxiety.” The possi ble need for amputat ion of the tip of the dog’s tail was discussed along with managing the dog’s anxiety with medication . There is a notation in the hospital’s record that the Strattons were “electing to manage t he skin lesions open” rather than do daily bandage changes. The following Monday, the Strattons took the dog to their regu lar veterinarian. At that time, the skin on the tip of the t ail had become necrotic. The veterinarian surgically scrubbed the tail to remove one centimeter of dead tissue and recommended ba ndaging the tail. She also suggested the dog get a larger cone. Two days later, the Strat tons discussed the cost, time to heal, and daily care demands of continuing to bandage the dog’s tail compared to a “tail docking” procedure. Following that discu ssion, they decid ed to go ahead with an amputation of part of the dog’s tail. The Strattons brought this suit against Robins alleging claims for breach of bailment, negligence, breach of contract, deceptive trade practices, brea ch of warranty, and gross negligence. With respect to the bailment claim, the Strattons alleged Robin s failed to take reasonable care to safeguard their dog and protect him from injury. The Strattons sought damages for past and future medical care for the dog, property damage, loss of personal pro perty, and mental anguish. Following several unsuccessful motions for summary judgment, t he trial court conducted a bench trial. The Strattons presented the testimony of the do g’s veterinarian, Megan MurphyPeinado, who acknowledged the dog had a history of anxiety for which he had been prescribed–4– medication. Murphy-Peinado further testified that she could no t give a definitive diagnosis as to why the dog began chewing his tail. Robins presented the testimony of an expert witness veterinari an, Dorothy Mikeska, who testified it was common for dogs to hurt themselves and a tail without hair would be very vulnerable to injury. Mikeska fur ther testified that an otherw ise healthy tail without hair could become severely damaged quickly. This was particularly likely i f the dog had a panic attack and began thrashing its tail against his enclosure. Mikeska stated a storm-phobic dog can become violent and, although Robins medic ated the dog for anxiety in a nticipation of upcoming storms, the medication could have worn off before the storms hit. Mike ska noted that the dog’s veterinarian recommended getting a larger cone, which indicated the dog continued to abuse his tail after he got home. After hearing the evidence, the trial court ordered that the S trattons take nothing on their claims against Robins. In its findings of fact and conclusions of law, the court stated a bailment of the dog was created, but “no act or omission of [Robins] was a proximate cause of the dog’s injury.” The court further found that Robins was neither negli gent nor grossly negligent concerning her handling of the dog and did not c ommit any breac h of the bailment. The Strattons filed a motion for new trial that was overruled by operation of law. They then brought this appeal. Analysis I. Bailment Presumption of Negligence In their first issue, the Strattons contend Robins offered no e vidence to overcome the presumption of negligence that is applied in bailment cases. A bailee has the duty to exercise reasonable care to protect propert y that is entrusted to her. Trammell v. Whitlock , 242 S.W.2d 157, 159 (Tex. 1951); Williams v. Lyons , No. 05-95-01234-CV, 1997 WL 644081, at *2 (Tex. App.— Dallas Oct. 20, 1997, no pet.) (not designated for publication) . If the property is damaged while–5– entrusted to the bailee, there i s a rebuttable presumption that the bailee was negligent. Buchanan v. Byrd , 519 S.W.2d 841, 843 (Tex. 1975). To rebut this presumption, the bailee must produce some evidence showing either (1) how the loss or damage occurre d and that it was due to some cause other than the bailee’s own negligence, or (2) however th e loss or damage occurred, it was not due to the bailee’s negligence. Id . at 844; Williams , 1997 WL 644081, at *2. Whether the presumption has been rebutted is a legal question. Williams , 1997 WL 644081, at *3. Once some evidence is presented to rebut the presumption, the presumption disappears and is of no concern to the factfinder. Trammell , 242 S.W.2d at 159. The case resumes its normal posture of th e burden being on the plaintiff to prove t he defendant’s negligence. Id

. The Strattons contend that Robins failed to rebut the presumpti on of negligence and, therefore, the trial court erred in rendering a take-nothing ju dgment in Robins’s favor. Although the Strattons phrase their argument as one of legal and factual sufficiency, the question presented by their issue is whether Robins produced some evidence to rebu t the presumption of negligence.
See Williams , 1997 WL 644081, at *3. In this case it is undisputed t hat the Strattons’ dog chewed on his own tail. Robins immediately notified the Strattons when the dog began to “run a round in circles” a nd pull the hair out of his tail. She further tol d them this chewing resulted i n a bald patch on what appeared to be an otherwise healthy tail. The Strattons chose not to take the dog to a veterinarian at that time. Robins called the St rattons one week later to retrieve the dog after storms passed through the area and the dog, which suffered from storm anxiety, began chewing o n his rear legs. The only diagnosis given by the first veterinarian to examine the dog wa s that its injury was self-inflicted caused by the dog’s chewing on hi mself and “anxiety.” The above constitutes some evidence that the injury to the Stra ttons’ dog was not due to any negligence on the part of Robins. As the trial court noted during trial, the immediate cause of–6– dog’s injury was the dog himself. The Strattons argue that Rob ins was required to provide evidence showing what caused th e dog to begin chewing on his ta il. In other words, the Strattons suggest Robins had the burden to produce evidence of the cause of the cause of the damage to negate the presumption of negligence. Even if this were the ca se, Robins produced some evidence that the tail chewing was caused by the dog’s anxiety which was a condition that predated his boarding with Robins. Although both of the veterinarians who t estified at trial stated there could be many reasons a dog might start chewing its tail, they also b oth acknowledged that one of those reasons was anxiety. The only diagnosis given by the first vet erinarian to treat the dog was that he had an infection caused by self-trauma and anxiety. No othe r injuries or conditions were noted. The Strattons have made no allegation that Robins failed to app ropriately medicate the dog. Because Robins produced some evidence to show that the dog’s in jury was not caused by negligence on her part, we conclude the presumption of negligen ce was rebutted and no longer applied. Trammell , 242 S.W.2d at 159. The trial cour t was free, therefore, to w eigh the evidence and conclude the Strattons failed to meet their burden to show that Robins was negligent. See
Wood v. Gable , 656 S.W.2d 623, 626–27 (Tex. App.—Fort Worth 1983, writ ref’d n.r.e.). We resolve the Strattons’ fi rst issue against them. II. Attorney’s Fees for Withdrawal of Deemed Admissions In their second issue, the Strattons contend the trial court er red in ordering them to pay compensatory attorney’s fees following the withdrawal of their previously deemed admissions. The Strattons argue that Robins suffered no undue prejudice req uiring compensation because the only admission “at issue” was an improper, merits-preclusive ad mission upon which Robins could not have relied. The Strattons’ characterization of Robins’s r eliance on the deemed admissions is inaccurate and the record supports the trial court’s decision.–7– Robins served the Strattons with requests for admission on Febr uary 28, 2018. The Strattons did not submit responses until April 12. Because the Strattons did not timely respond to the requests for admission, they were deemed admitted. See T EX

. R. C IV

. P. 198.2(c). Approximately three months later, the Strattons filed a motion for no-evidence and traditional summary judgment. The next day, Robins also filed a motion for no-evidence summary judgment. As part of Robins’s motion, she referenced and incor porated the deemed admissions. Robins noted that the Strattons h ad not requested either withdr awal or amendment of the deemed admissions and, therefore, the matters admitted were conclusive ly established. See T EX

. R. C IV

. P. 198.3. One month later, Robins filed her response to the Strattons’ mo tion for summary judgment. In her response, Robins again relied in part on the Strattons’ deemed admissions and attached them as summary judgment evidence. Rob ins specifically cited to ele ven different admissions regarding her care of the dog and its condition. Several hours later, th e Strattons filed a response to Robins’s motion for summary judgment toge ther with a motion to withdraw the deemed admissions. In the motion to withdraw, the Strattons argued their lead counsel had overlooked service of the requests and promptly served responses once the error was discovered. T he Strattons further contended the admissions were irrelevant to Robins’s pending motion for no-ev idence summary judgment and withdrawal would not cause Robins undue prejudice. Finally, th e Strattons argued that two of the fifty-one admissions were merits -preclusive and, therefore, cou ld not be deemed absent a showing of bad faith or conscious disregard of the rules. The trial court conducted a join t hearing on the cross-motions for summary judgment and the motion to undeem the admissions. The portion of the hearin g addressing whether the admissions should be undeemed was he ld off the record. Once th e hearing was on the record, the trial court stated it found good cause to undeem the admissions , but was concerned about undue–8– prejudice to Robins in connection with the motions for summary judgment. The court was particularly concerned that Robi ns had used the admissions as e vidence in response to the Strattons’ motion for summary judgm ent to rebut the presumption of negligence and she could potentially have summary judgment rendered against her if this evidence was withdrawn. Based on this, the trial court determined that it would reset the hea ring on the motions for summary judgment and allow both sides to re-brief and submit additional evidence. In addition, because Robins could no longer rely on the previously submitted briefin g and evidence through no fault of her own, the court orde red the Strattons to compensate her for her attorney’s fees. The trial court then heard testimony on the amount of fees incurred by Robins. Robins’s counsel testified rega rding the number of hours spent by her, her paralegal, and her legal assistant on the res ponse to the Stratton’s motion fo r summary judgment and the rate charged per hour by each person. Counsel stressed she was not including any time spent on preparation of her client’s no- evidence motion for summary judg ment and that her response to the Strattons’ motion for summary judgment would need to be complet ely reworked without the deemed admissions. When asked by opposing counsel why she subm itted summary judgment evidence in addition to the deemed admissions, counsel stated s he felt that rebutting the presumption of negligence required some evidence beyond just th e Strattons’ admission that Robins exercised “reasonable car e.” But she further stated she would have provided more extensive evidence if she had known she could not use the deeme d admissions. Based on this testimony, the trial court awar ded Robins $3,755.50 in compensa tory attorney’s fees to be paid within fourteen days. 1

1 The ruling was made by the trial court orally at the hearing and the Strattons do not complain on appeal about the absence of a written order.–9– The trial court possesses broad discretion to permit or deny wi thdrawal of deemed admissions. Emp’rs Ins. Of Wausau v. Halton , 792 S.W.2d 462, 464 (Tex. App.—Dallas 1990, writ denied). The court’s ruli ng will not be se t aside unless there is a clear s howing of abuse. Id

. Withdrawing deemed admissions is proper upon a showing of (1) g ood cause and (2) no undue prejudice. Wheeler v. Green , 157 S.W.3d 439, 442 (Tex. 2005). The Strattons contend the only admission “at issue” is their ad mission that Robins provided their dog with reasonable care. T hey argue Robins should have known she could not rely on this admission because it contradicted their claim that Robins acted negligently. Requests for admission are improper and ineffective when used to establish c ontroverted legal issues that are fundamental to the case. Time Warner, Inc. v. Gonzalez , 441 S.W.3d 661, 668 (Tex. App.—San Antonio 2014, pet. denied). A party cannot rely on such an imp roper admission in deciding to not otherwise develop evidence. Id . Because the issue of whether Robins took reasonable care of the dog was the fundamental issue in the case, the Strattons conten d they should not be forced to compensate Robins for filing a r esponse that relied on an impro per admission as to that matter. Although the “reasonable care” ad mission was one of the admissi ons listed in Robins’s response to the Strattons’ motion for summary judgment, Robins also listed multiple other admissions, including admissions about her communications with the Strattons, instructions she was given for care of the dog, the fact that she did not have p ermission to take the dog to a veterinarian, and the extent of the dog’s injuries. Indeed, Ro bins’s counsel state d in her testimony that she did not rely exclusively on the “reasonable care” admi ssion and she would have to rework the response completely to ensure there was sufficient evidence to rebut the presumption of negligence without the other deemed admissions. Both this Court and the Texas Supreme Court have recognized tha t compensatory attorney’s fees may alleviate any undue prejudice caused by the withdrawal of deemed admissions.–10– See Wheeler , 157 S.W.3d at 444; Halton , 792 S.W.2d at 467. I n this case, the a ward of such fees is particularly justified when, despite being aware of their un timely response to the requests for admission, the Strattons made no attempt to undeem their admiss ions until just before the summary judgment hearing which was conducted four months after the admi ssions were automatically deemed and one month after Robins made them aware she intended to rely on the deemed admissions as summary judgment evidence. We conclude the trial court did not err in awarding Robins her attorney’s fees. We overrule the Strattons’ second issue. We affirm the trial court’s judgment.

190055F.P05 /Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE–11– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

B.J. STRATTON AND KENNETH STRATTON, Appellants

No. 05-19-00055-CV V. RITA ROBINS, Appellee On Appeal from the 193rd Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-17-11516. Opinion delivered by Justice Reichek. Justices Molberg and E vans participating.

In accordance with this Court’s opinion of this date, the tria l court’s judgment is AFFIRMED

. It is ORDERED that appellee RITA ROBINS recove r her costs of t his appeal fro m appellants B.J. STRATTON AND KENNETH STRATTON.
Judgment entered January 27, 2020