Court of Appeals of Texas, Third District, Austin
COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY NO.
C-1-CV-16-006013, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING
Justices Puryear, Pemberton, and Goodwin
justice court ordered that six of Terry Swanson's dogs be
humanely destroyed, see Tex. Health & Safety
Code § 822.003(d) (requiring trial court to order that
dog be "destroyed if the court finds that the dog caused
the death of a person"), Swanson appealed that
determination for a trial de novo, see Tex. R. Civ.
P. 506.3 (mandating that appeal from justice court "be
tried de novo in the county court"). Prior to the trial
de novo, the State of Texas and the County of Travis
(collectively the "State") sent Swanson discovery
requests, including several requests for admissions, but
Swanson did not timely respond to those requests. See
id. R. 198.1 (allowing party to "serve on another
party . . . written requests that the other party admit the
truth of any matter within the scope of discovery").
After the deadline for responding passed, the State moved for
summary judgment, urged that the requests were deemed
admitted because they were untimely, and argued that the
State was, therefore, entitled to judgment as a matter of
law. See id. § 198.2(c) (describing effect of
failure to respond to request for admission); see also
id. § 166a (governing motions for summary
judgment). In response, Swanson filed a motion to amend or
withdraw the deemed admissions. See id. § 198.3
(authorizing trial court to "permit the party to
withdraw or amend the admission" if certain criteria are
met). The trial court convened a hearing on the motions and
ultimately denied Swanson's motion to amend or withdraw
and granted the State's motion for summary judgment.
Swanson appeals the trial court's order granting the
State's motion for summary judgment based on the deemed
admissions. We will reverse the trial court's order
granting summary judgment and remand for further proceedings.
2016, the Travis County Sheriff's Office received a
report regarding a dead body discovered in the yard of a
home. Upon arriving at the home, the responding officers
found the body of Erin McCleskey, who did not live at the
home and who had been attempting to execute service of
process at the home when she died. The responding officers
also observed that McCleskey's body appeared to be
covered in bite marks, scratches, and abrasions and that
there were six dogs on the property. Animal Protection
Officers were called to the scene to take custody of the
dogs. Subsequently, a hearing was called in a justice court
"to determine whether the dog[s] caused the death"
of McCleskey "by attacking, biting, or mauling"
her. See Tex. Health & Safety Code §
822.003(a). At the end of the hearing, the justice court
issued an order of disposition concluding that Swanson was
the owner of the six dogs; that the dogs "attacked, bit
and mauled . . . McClesk[e]y, causing her death"; and
that the "dogs shall be humanely destroyed."
See id. § 822.003(d).
the ruling by the justice court, Swanson appealed that
determination, and a trial de novo was set for October 31,
2016, in the trial court. After the trial date was set, the
State sent to Swanson various discovery requests, including
the following eight requests for admission that form the
basis for this appeal: whether "McCleskey's death
was caused by the dogs mauling, biting and/or attacking
her"; whether "McCleskey's death was caused by
some of the dogs mauling, biting and/or attacking her";
and whether each of the six dogs individually "caused in
full or part the death of . . . McCleskey." The deadline
for responding to the requested admissions was September 12,
2016. On September 16, 2016, Swanson sent an email to the
State acknowledging that his responses were late, and on
September 18, 2016, Swanson sent his responses to the
receiving Swanson's responses, the State filed a motion
for summary judgment, urging that the dogs caused
McCleskey's death and should be humanely destroyed. In
its motion, the State asserted that it sent discovery
requests to Swanson that were "due on or before
September 12, 2016"; that Swanson did not "attempt
to make any effort to reply to the discovery responses until
he sent an email on . . . September 16, 2016, acknowledging
the delay"; and that Swanson "sent incomplete
responses to" the discovery requests on "September
18, 2016." Further, the State attached as exhibits the
requests for discovery and the email from Swanson
acknowledging that he failed to timely reply to the discovery
requests. In light of the failure to timely respond, the
State asserted that all of the requests were deemed admitted.
See Tex. R. Civ. P. 198.2(c) (explaining that
"[i]f a response is not timely served, the request is
considered admitted without the necessity of a court
order"). Accordingly, the State urged that there were no
factual disputes in this case. Further, the State argued that
because the dogs were deemed to have caused McCleskey's
death, the trial court was required to enter an order that
the dogs be humanely destroyed. See Tex. Health
& Safety Code § 822.003(d).
response, Swanson filed a motion to withdraw or amend his
deemed admissions. See Tex. R. Civ. P. 198.3
(setting out circumstances in which trial "court may
permit the party to withdraw or amend the admission").
In the motion, Swanson stated that Robert McCray was the main
caretaker for the dogs and was "the only person able to
truthfully answer" many of the discovery requests; that
he had been unsuccessful in his attempts to contact McCray;
that he finally made contact with McCray four days after the
deadline for responding had passed; that he learned that
McCray had sustained a serious neck and back injury in August
2016 and had been incapacitated since the injury; that he
emailed the State the responses to the discovery requests on
September 18, 2016, and informed the State about the delay
caused by McCray's injury; and that "[t]he delay
ultimately falls on Defense counsel for not being familiar
with the rules of discovery" and for not "seeking
an agreement to extend the deadline or seeking an order from
the court. Defense counsel practices mainly criminal defense
law and the delay was not intentional or the result of
conscious indifference by Defense counsel." In addition,
Swanson included the amended responses to the requests for
admissions in which he denied that McCleskey's death was
caused by a dog attack and specifically denied that any of
his six dogs were involved. Further, Swanson attached as an
exhibit his response to the State's discovery requests
that he emailed to the State on September 18, 2016,
containing, among other responses, the denials discussed
the motions were filed, the trial court convened a hearing on
the motion to withdraw or amend. In the hearing, Swanson
repeated his arguments regarding his inability to contact
McCray and admitted that he did not attempt to extend the
deadline for filing a response. At the end of the hearing,
the trial court denied the motion to withdraw or amend.
Following that ruling, the trial court granted the
State's motion for summary judgment and ordered that the
six dogs "be humanely destroyed."
OF REVIEW AND GOVERNING LAW
courts "review a trial court's decision to permit or
deny withdrawal of deemed admissions for an abuse of
discretion." Time Warner, Inc. v. Gonzalez, 441
S.W.3d 661, 665 (Tex. App.-San Antonio 2014, pet. denied).
Accordingly, "[a]n appellate court should set aside a
trial court's ruling only if, after reviewing the entire
record, it is clear that the trial court abused its
discretion." Tommy Gio, Inc. v. Dunlop, 348
S.W.3d 503, 509 (Tex. App.-Dallas 2011, pet. denied).
"Although trial courts have broad discretion to permit
or deny the withdrawal of deemed admissions, they cannot do
so arbitrarily, unreasonably, or without reference to guiding
rules or principles." Marino v. King, 355
S.W.3d 629, 633 (Tex. 2011).
the Rules of Civil Procedure, a trial court "may permit
the party to withdraw or amend the admission if . . . the
party shows good cause for the withdrawal or amendment"
and if "the court finds that the parties relying upon
the responses and deemed admissions will not be unduly
prejudiced and that the presentation of the merits of the
action will be subserved by permitting the party to amend or
withdraw the admission." Tex.R.Civ.P. 198.3. "A
trial court has broad discretion to permit or deny the
withdrawal of deemed admissions." Tommy Gio,
Inc., 348 S.W.3d at 508. Generally speaking, "[t]he
burden is on the party seeking withdrawal to establish good
cause by proving that he did not intentionally or consciously
disregard his obligation to timely answer." See
Steffan v. Steffan, 29 S.W.3d 627, 631 (Tex.
App.-Houston [14th Dist.] 2000, pet. denied). "The
failure to answer must have been accidental or the result of
mistake, rather than intentional or the result of conscious
indifference." Id. "Even a slight excuse
will suffice, especially when delay or prejudice to the
opposing party will not result." Spiecker v.
Petroff, 971 S.W.2d 536, 538 (Tex. App.-Dallas 1997, no
pet.). "Undue prejudice depends on whether withdrawing
an admission or filing a late response will delay trial or
significantly hamper the opposing party's ability to
prepare for it." Wheeler v. Green, 157 S.W.3d
439, 443 (Tex. 2005).
"[a] different standard applies when the deemed
admissions are merit-preclusive." In re Sewell,
472 S.W.3d 449, 455 (Tex. App.-Texarkana 2015, orig.
proceeding), overruled on other grounds by In re Bayview
Loan Servicing, LLC, No. 06-17-00040-CV, 2017 Tex.App.
LEXIS 2788, at *3 n.3 (Tex. App.-Texarkana Mar. 31, 2017,
orig. proceeding). If admissions are used "to try to
preclude presentation of the merits of a case, " then
due-process concerns are present. Wheeler, 157
S.W.3d at 443. "By denying a motion to withdraw
merit-preclusive admissions, the trial court effectively
enters a case-ending discovery sanction." In re
Sewell, 472 S.W.3d at 455-56; see also Marino,
355 S.W.3d at 632, 634 (providing that "when admissions
are deemed as a discovery sanction to preclude a presentation
of the merits, they implicate the same due process concerns
as other case-ending discovery sanctions" and that
"[c]onstitutional imperatives favor the determination of
cases on their merits rather than on harmless procedural
defaults"); TransAmerican Nat. Gas Corp. v.
Powell, 811 S.W.2d 913, 918 (Tex. 1991) (noting that
there are constitutional restrictions on power of court to
dismiss action without providing opportunity for hearing on
merits). "Discovery sanctions cannot be used to
adjudicate the merits of a party's claims or defenses
unless a party's hindrance of the discovery process
justifies a presumption that its claims or defenses lack
merit." Powell, 811 S.W.2d at 918. Accordingly,
there must be "a showing of 'flagrant bad faith or
callous disregard for the rules' to substantiate a
summary judgment based solely on deemed admissions."
Marino, 355 S.W.3d at 633 (quoting Wheeler,
157 S.W.3d at 443-44); see also Wheeler, 157 S.W.3d
at 443 (stating that in absence of "flagrant bad faith
or callous disregard for the rules, due process bars
merits-preclusive sanctions"). "Bad faith is not
simply bad judgment or ...