1 CAUSE NO J CHARLES DURHAM IN THE 191ST DISTRICT COURT VS. LARVAN PERAILTA DALLAS COUNTY, TEXAS PLAINTIFF S MOTION TO RECOVER EXPENSES OF PROOF TO THE HONORABLE COURT: Comes Now, Charles Durham, Plaintiff, and moves the Court for an order for payment of expenses of proof following a failure to admit requests for admissions on the part of Defendant, and as grounds shows the following: I. Prior to trial, the plaintiff served defendant with requests for admissions. Within the time allowed by law, the defendant filed its responses. A true and accurate copy of those responses, along with those denied requests for admissions, is attached as Exhibit A. II. By responses numbered 2-19, Defendant deliberately and without good reason failed to admit the following facts, which are matters of substantial importance in this case: REQUESTS FOR ADMISSION NO. 2: Admit that the Plaintiff was injured when you were involved in a collision with him. REQUEST FOR ADMISSION NO. 3:
2 of this suit. Admit that you your acts of negligence caused the accident which forms the basis REQUEST FOR ADMISSION NO. 4: Admit that you failed to exercise ordinary care in driving at a speed greater than a person using ordinary care would have driven under the same or similar circumstances at the time of the accident in question. REQUEST FOR ADMISSION NO. 5: Admit that you failed to exercise ordinary care in failing to keep a proper lookout at the time of the accident in question. REQUEST FOR ADMISSION NO. 6: Admit that you failed to exercise ordinary care in failing to stay in your lane of traffic at the time of the accident in question. RESPONSE REQUEST FOR ADMISSION NO. 7: Admit that you failed to exercise ordinary care in failing to make proper application of the brakes at the time of the accident in question. REQUEST FOR ADMISSION NO. 8:
3 Admit that you failed to maintain an assured safe distance from the car in front of you at the time of the accident in question. REQUEST FOR ADMISSIONS NO. 9: Admit that you caused the accident in question. REQUEST FOR ADMISSIONS NO. 10: Admit that you owe plaintiff some amount greater than one U. S. cent as a result of the accident in question. REQUESTS FOR ADMISSION NO. 11: Admit that it is your contention that the Plaintiff was not injured when you were involved in a collision with him. REQUEST FOR ADMISSION NO. 12: Admit that it is your contention that your acts of negligence did not cause the accident which forms the basis of this suit. REQUEST FOR ADMISSION NO. 13: Admit that it is your contention that you did not fail to exercise ordinary care in driving at a speed greater than a person using ordinary care would have driven under the same or similar circumstances at the time of the accident in question.
4 REQUEST FOR ADMISSION NO. 14: Admit that it is your contention that you did not fail to exercise ordinary care in failing to keep a proper lookout at the time of the accident in question. REQUEST FOR ADMISSION NO. 15: Admit that it is your contention that you did not fail to exercise ordinary care in failing to stay in your lane of traffic at the time of the accident in question. REQUEST FOR ADMISSION NO. 16: Admit that it is your contention that you did not fail to exercise ordinary care in failing to make proper application of the brakes at the time of the accident in question. REQUEST FOR ADMISSION NO. 17: Admit that it is your contention that you did not fail to maintain an assured safe distance from the car in front of you at the time of the accident in question.
5 REQUEST FOR ADMISSIONS NO. 18: Admit that it is your contention that you did not cause the accident in question. REQUEST FOR ADMISSIONS NO. 19: Admit that it is your contention that you owe plaintiff nothing, not even one cent, as a result of the accident in question. III Under Texas Law, when a party proves the truth of a request for admission that has been denied, they can apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney fees. Tex. R. Civ. Pro. 198 and 215.4(b). The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 193, or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had a reasonable ground to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit. Tex. R. Civ. Pro (b). Here none of the matters denied were done in any good faith belief that they might prevail, there were no objections sustained, nor was there any good reason for their failure to admit. IV. As a direct result of the Defendant s failure to admit these matters, movant was compelled to obtain, prepare, and prepare introduce evidence as proof of those matters during the trial of this cause, as more specifically explained in the affidavit of movant's counsel attached as Exhibit B and incorporated by reference into this motion. Based on movant's proof, each of
6 those matters was established as true, as indicated by the jury's responses to questions submitted to them, in the jury's verdict. Furthermore, there was no basis to deny all the requests for admissions above. IV. Movant's reasonable costs and expenses necessarily incurred in proving the matters described above are as follows: $1275. These expenses are substantiated by the affidavit of counsel attached as Exhibit B. WHEREFORE, movant requests that the Court, after hearing this motion, award the moving party judgment for all of the expenses described above, including reasonable attorney's fees, against the Defendnant, order that such award bear interest at the judgment rate from the date the matters were established as true, and permit the moving party such writs and processes as may be necessary in the collection of this award. Respectfully submitted, BROOKS LAW FIRM 3601 Columbia Boulevard Garland, Texas (972) (972) FAX Ray Brooks State Bar No ATTORNEY FOR PLAINTIFF Certificate of Service This is to certify that a true and correct copy of the foregoing instrument is being sent to opposing counsel as set forth below on this day, April 25, 2003, pursuant to the Texas Rules of Civil procedure.
7 Kyle A. Miller Via Fax: Amis & Bell Brookhollow One, Suite E. Lamar Blvd. Arlington, TX Ray Brooks Certificate of Conference This is to certify that prior to filing this motion a conference was held with opposing counsel, and no agreements could be reached at that time. Ray Brooks
8 Exhibit A
9 STATE OF TEXAS COUNTY OF DALLAS Exhibit B AFFIDAVIT OF RAY BROOKS BEFORE ME, the undersigned authority, on this day personally appeared RAY BROOKS, who after being duly sworn, on oath did state, 1. My name is Ray Brooks. I currently resided in Garland, Texas. I am licensed to practice law in the State of Texas. 2. I have been hired by Charles Durham to represent him in cause J. I have expended numerous attorney hours in representation of him since this suit was filed. 3. In order to prove up the matters that were denied in response to plaintiff s requests for admission, plaintiff has expended total hours of 8.5 hours of attorney time. My usual and customary rate is $150 an hour, although, under some circumstances, I charge more. This is a usual and customary rate for an attorney of my like skill level and experience, and is the usual and customary rate for the area in which this case is pending. It is also my opinion, that the total attorney fees of $1275, are reasonably related and incurred due to the requirement of proving up the matters denied in the requests for admissions. It is also my opinion that these fees were necessarily incurred as a result of the denied requests for admissions. According to my records, and notes made, and work performed to prepare for trial, the following amount of time should be assessed to defendant for her failure to admit the certain requests for admissions: 1. Preparing for and taking her deposition: 2 hours
10 2. Preparing Charles Durham for his deposition: 1 hours 3. Reading Ms. Peralta s deposition for trial:.5 hours 4. Preparing a power point presentation: 1.5 hours Note, More time was spent on the presentation but we are only seeking one-half of the time as that was what was spent on preparing it. 5. Changing the power point presentation after defendant admitted liability at trial..5 hours 6. Preparing voire dire. 1 hours 7. Preparing Cross examination.5 8. Preparing Witnesses, Mr. Durham for Trial 1.5 hours. Total: 8.5 hours Further Affiant Sayeth Not. Ray Brooks SUBSCRIBED AND SWORN TO BEFORE ME on the day of August, 2003, to certify which witness my hand and official seal. Notary Public in and for The State of Texas My Commission expires
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