holding appellant could not show abuse of discretion in denying motion to withdraw or amend deemed admissions because there was no record of the hearing on that motion
How later courts described this case
- holding appellant could not show abuse of discretion in denying motion to withdraw or amend deemed admissions because there was no record of the hearing on that motion
- holding admission to payment amount and duration “furnishe[d] the basis for an arithmetical calculation ... [that] conclusively established” the credit
Written by the judges who cited it.
The opinion
OPINION ON MOTIONS FOR REHEARING
Wyar and National have both moved for rehearing.
In Wyar’s fifth point of error on rehearing, he contends we erred in reforming the award of attorney’s fees because we failed to consider the trial court’s additional award of $57,070.47 in medical care benefits to Wyar. We agree.
The trial court awarded attorney’s fees equal to 25% of the total judgment ($89,-431.90 as benefits for total and permanent incapacity + $57,070.47 for medical care = $146,502.37 X .25 = $36,625.59 attorney’s fees). As a result of our judgment, the total award has been reduced by a credit of $49,693.00, reflecting a new total judgment of $96,809.37. ($146,502.37 - $49,693.00 = $96,809.37). Wyar contends he is entitled to an attorney’s fee of 25% of that reformed amount, i.e., 25% of $96,809.37, a total of $24,202.34.
National’s response to Wyar’s motion for rehearing contains responses to three of Wyar’s other points of error on rehearing, but does not contest, or even mention, Wyar’s point five regarding attorney’s fees.
We sustain Wyar’s point of error five on rehearing. The judgment is reformed to reflect an attorney’s fee award of $24,-202.34, which is 25% of the damages awarded in the reformed judgment.
All other relief sought in Wyar’s motion for rehearing is denied.
National contends the trial court erroneously granted a judgment in excess of the prayer because Wyar prayed for “medical expenses unpaid,” but the judgment granted no credit for any payments by National. We disagree.
Wyar’s pleadings did not admit that National had paid any medical benefits. On the contrary, Wyar’s pleadings stated National had refused to pay his medical expenses. The prayer sought general relief and “any medical expenses unpaid.” This is the opposite of an admitted credit. It is a claim for affirmative relief. It was National’s burden to prove payment. Tex. R.Crv.P. 94. Nothing in Wyar’s pleadings admitted payment, relieved National of its burden to prove that affirmative defense, or required Wyar to prove the amount of any payments by National. Consequently, the judgment is not in excess of the pleadings.
We overrule National’s motion for rehearing.
We deny National’s motion for rehearing.