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Texas Smac, LLC v. EMJ Corp.

Court of Appeals of Texas, Fourth District, San Antonio

May 1, 2019

TEXAS SMAC, LLC, Appellant
v.
EMJ CORPORATION, Appellee

          From the 111th Judicial District Court, Webb County, Texas Trial Court No. 2017CVK001067D2 Honorable Monica Z. Notzon, Judge Presiding

          Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Liza A. Rodriguez, Justice

          MEMORANDUM OPINION

          REBECA C. MARTINEZ, JUSTICE

         This is an appeal of a summary judgment based on deemed admissions. Appellant, Texas SMAC, LLC ("SMAC"), contends the trial court erred in denying its motion to strike the deemed admissions and in granting summary judgment. We affirm the trial court's judgment.

         Background

         On January 22, 2016, Appellee, EMJ Corporation ("EMJ"), as general contractor, and SMAC, as subcontractor, entered into a contract under which SMAC agreed to provide certain mechanical work for a construction project located in Laredo, Texas. SMAC subsequently defaulted on its obligations and failed to cure its default after receiving notice of default from EMJ.

         On June 1, 2017, EMJ filed suit against SMAC, and SMAC answered the lawsuit on July 12, 2017. On November 2, 2017, EMJ served discovery requests on SMAC, including requests for admissions. SMAC's responses were due on December 4, 2017; however, SMAC failed to respond by the deadline.

         After SMAC failed to timely respond to EMJ's discovery requests, EMJ's attorney placed several phone calls to counsel for SMAC inquiring as to the status of the discovery responses. In addition, on January 10 and January 16, 2018, EMJ notified other attorneys and personnel in SMAC's counsel's office via email that SMAC had failed to respond to the discovery requests. SMAC's counsel never responded to EMJ's attorney.

         On April 5, 2018, EMJ filed a motion for summary judgment based on the deemed admissions. On April 23, 2018, the trial court sent SMAC a notice, setting EMJ's motion for hearing on May 17, 2018.

         On May 8, 2018, SMAC did not appear for a pretrial hearing. Trial was set for June 25, 2018. On May 9, 2018, SMAC filed a motion to strike deemed admissions and motion for continuance. SMAC attached the affidavit of SMAC's counsel in support of its motion to strike. SMAC argued its failure to timely respond to the discovery requests was not intentional and constituted good cause to strike the deemed admissions. According to SMAC's counsel, the December 4, 2017 deadline was missed because he was busy preparing for a trial set November 27, 2017. He only became aware that the responses were overdue while reading the motion for summary judgment and drafting a response to it. The affidavit did not include any reference to a case number, nor any reference to the nearly six months that had lapsed since SMAC's responses were due. SMAC argued EMJ would not be prejudiced if the trial court granted a continuance after it struck the admissions, but did not explain how the merits of the case would be served by striking the admissions.

         The trial court held a hearing on both SMAC's motion to strike and EMJ's motion for summary judgment on May 17, 2018. EMJ informed the trial court that SMAC's responses to the requests for admissions were not attached to SMAC's motion to strike. SMAC responded that only the first page of the responses was attached to its motion due to a clerical error.

         The trial court denied the motion to strike and granted the summary judgment in favor of EMJ, finding SMAC failed to show good cause. The trial court submitted in its finding of facts and conclusions of law that SMAC showed conscious indifference, noting the numerous opportunities SMAC was given to respond and failed to do so. The trial court also found EMJ would be unduly prejudiced by the striking of the deemed admissions. In its judgment, the trial court awarded EMJ $947, 620.82 in damages plus attorney's fees. SMAC appeals.

         Standard of Review

         We review a trial court's decision to permit or deny withdrawal of deemed admissions under an abuse of discretion standard. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex.1996) (per curiam). "An abuse of discretion occurs when a court acts without reference to guiding ...


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