Court of Appeals of Texas, Fourth District, San Antonio
the 111th Judicial District Court, Webb County, Texas Trial
Court No. 2017CVK001067D2 Honorable Monica Z. Notzon, Judge
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez,
Justice Liza A. Rodriguez, Justice
C. MARTINEZ, JUSTICE
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.
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.
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.
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.
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.
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.
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.
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
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 ...