Appeal from the 91st District Court Eastland County, Texas
Trial Court Cause No. CV1242779
consists of: Wright, C.J., Willson, J., and Bailey, J.
M. BAILEY JUSTICE.
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
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.
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.
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.
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.
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
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.
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.
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