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Arrow Automatic Fire Protection Inc. v. Wesleyan Corp.

Court of Appeals of Texas, Eleventh District

March 3, 2017

ARROW AUTOMATIC FIRE PROTECTION, INC., Appellant
v.
WESLEYAN CORPORATION, Appellee

         On Appeal from the 91st District Court Eastland County, Texas Trial Court Cause No. CV1242779

          Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

          MEMORANDUM OPINION

          JOHN M. BAILEY JUSTICE.

         This appeal arises from a summary judgment based in part upon deemed admissions. Appellant, Arrow Automatic Fire Protection, Inc., failed to timely respond to requests for admission served on it by Appellee, Wesleyan Corporation. The requests for admission were deemed "admitted" by operation of law. See Tex. R. Civ. P. 198.2(c). After Wesleyan filed a motion for partial summary judgment based in part upon the deemed admissions, Arrow filed a motion to withdraw the deemed admissions. The trial court denied the motion to withdraw the deemed admissions. Wesleyan then filed a supplemental motion for summary judgment and no-evidence summary judgment. Wesleyan relied upon on the trial court's order denying Arrow's request to withdraw the deemed admissions in seeking this summary judgment. The trial court granted summary judgment in favor of Wesleyan.

         In two issues, Arrow asserts that (1) the trial court erred when it denied Arrow's motion to withdraw the deemed admissions and (2) the trial court erred when it granted Wesleyan's motions for summary judgment. We reverse and remand.

         Background Facts

         Arrow entered into an agreement with Wesleyan to install fire sprinkler systems in buildings in Eastland and Brownwood. A dispute arose between the parties concerning the placement of a sprinkler control panel in the Eastland building. The sprinkler system was never installed in Brownwood.

         Wesleyan filed the underlying suit against Arrow in Eastland County. Arrow's initial counsel, Jarrod S. Busby from Lubbock, retained attorney Dietrich O. Odom to serve as local counsel in the Eastland County suit. Busby prepared an original answer, which contained a general denial as well as a motion to transfer venue and a motion to abate, and e-mailed it to Odom for filing.

         Wesleyan's original petition contained requests for admission that asked for Arrow to admit liability and damages for breach of contract. Odom subsequently obtained a copy of the original petition. When Odom realized that it contained requests for admission that had not been answered, he contacted Busby who informed him that he and Wesleyan's attorney had agreed to extend discovery deadlines.

         Over the course of three months, Odom made numerous attempts to contact Busby and Wesleyan's attorney to determine the status of this case and obtain a copy of the Rule 11 agreement extending the discovery deadline. Odom eventually received a Rule 11 agreement signed by Wesleyan's attorney, although it had not been signed by Busby. After making numerous calls and sending numerous e-mails, as well as a certified letter to Busby, Odom contacted Arrow and worked with it directly to prepare a response to the requests for admission, which Odom served on Wesleyan in December 2013. Odom filed the response as the only attorney listed for Arrow.

         In June 2014, Wesleyan filed a motion for partial summary judgment premised on the deemed admissions. A week later, Odom filed a motion seeking to withdraw the deemed admissions on behalf of Arrow. After holding a hearing on Arrow's motion to withdraw the deemed admissions, the trial court denied Arrow's request to withdraw the deemed admissions. Wesleyan subsequently filed a supplemental no-evidence motion for summary judgment. The trial court granted both of Wesleyan's motions for summary judgment.

         Analysis

         In its first issue, Arrow asserts that the trial court abused its discretion when it denied Arrow's motion to strike deemed admissions. A request for admission is a "written request[ ] that the other party admit the truth of any matter within the scope of discovery." Tex.R.Civ.P. 198.1. "If a response is not timely served, the request is considered admitted without the necessity of a court order." Tex.R.Civ.P. 198.2(c). An admitted matter is "conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission." Tex.R.Civ.P. 198.3.

         A trial court may allow the withdrawal of a deemed admission upon a showing of (1) good cause and (2) no undue prejudice. Id.; see Marino v. King, 355 S.W.3d 629, 633 (Tex. 2011). The Texas Supreme Court addressed the requisite demonstration of good cause and undue prejudice in Wheeler v. Green. 157 S.W.3d 439, 442-43 (Tex. 2005). Good cause "is established by showing the failure involved was an accident or mistake, not intentional or the result of conscious indifference." Id. at 442. Undue prejudice depends "on whether withdrawing an ...


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