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Everhard v. PlainsCapital Bank

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

June 6, 2019

KENNETH A. EVERHARD, Appellant,
v.
PLAINSCAPITAL BANK, Appellee.

          On appeal from the 93rd District Court of Hidalgo County, Texas.

          Before Chief Justice Contreras and Justices Rodriguez and Benavides [1]

          MEMORANDUM OPINION

          GINA M. BENAVIDES, JUSTICE

         By three issues, appellant Kenneth Everhard challenges the trial court's granting of appellee PlainsCapital Bank (PCB)'s motion for summary judgment. Everhard alleges that the trial court committed error: (1) by granting the motion for summary judgment because there was a fact issue; (2) by allowing PCB to amend its admission responses; and (3) by refusing to grant Everhard a continuance to have certain documents authenticated. We affirm.

         I. Background

         In 2009, Everhard signed a note for $500, 000 (Note 1) with First National Bank (FNB). Note 1 was renewed multiple times and matured in 2015. In 2010, Everhard signed another note with FNB for $156, 000 (Note 2). Note 2 was not renewed and also matured in 2015.

         Prior to 2013, FNB ceased operations, and the Federal Deposit Insurance Corporation (FDIC), as a receiver, took over FNB's operations and assets. Among the assets that the FDIC took control of were the two notes at issue in this case. The FDIC then sold these notes to PCB in a negotiated sale. As a result, PCB became the successor-in-interest to the FNB notes and sought to recover the balances of these notes from Everhard.

         PCB made a demand to Everhard for the amount due on the notes. When Everhard failed to pay, PCB initiated this lawsuit in October 2015. PCB sought to enforce Note 1 as an owner and Note 2 as the holder and owner under the business and commerce code. See Tex. Bus. & Comm. Code § 3.309. PCB had copies of the notes at that time but had not located the originals in the documents it received from the FDIC. Everhard filed counterclaims alleging common-law fraud, fraud by nondisclosure, unjust enrichment, and exemplary damages.

         Early in discovery, Everhard sent PCB a request for admissions asking PCB to admit that it did not have possession of the original signed notes, and PCB admitted it did not. In Everhard's third discovery request, he asked PCB to admit that the original signed notes were destroyed. However, PCB subsequently located the original signed Note 1 and its first renewal documentation and the original signed Note 2 on October 31, 2017. PCB responded to Everhard's third discovery request stating that it had located some of the original documents and made the documents available for inspection.

         PCB also sent Everhard amended discovery responses to reflect the discovery of the original notes. PCB filed a motion to withdraw prior responses to requests for admission with the trial court and a motion for summary judgment on its claims and Everhard's counterclaims.

         Everhard filed a response to PCB's motion for summary judgment on December 7, 2017, arguing that because PCB had admitted to not having possession of the notes in question, then PCB could not now argue that it had possession of the notes or prove its standing to enforce the notes. Everhard also moved for summary judgment of PCB's claims. On December 14, 2017, Everhard filed a motion for continuance, asking to have the notes examined by an expert to determine their authenticity, and an amended response to PCB's motion for summary judgment.

         After a hearing, the trial court granted PCB's request to amend its discovery responses and motions for summary judgment and denied Everhard's motion for continuance and motions for summary judgment. This appeal followed.

         II. Amended Admissions to Discovery

         By his second issue, which we address first, Everhard alleges the trial court erred by allowing PCB to amend its admission responses.

         A. Standard of Review and Applicable Law

         A party may serve on another party written requests that the other party admit the truth of any matter within the scope of discovery, including statements of opinion, statements of fact, and statements of the application of law to fact. Tex.R.Civ.P. 198.1. The responding party must serve a written response within thirty days after service of the request. Id. R. 198.2(a). Texas Rule of Civil Procedure 198.3 states that:

Any admission made by a party under this rule may be used solely in the pending action and not in any other proceeding. A matter admitted under this rule is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission. The court may permit the party to withdraw or amend the admission if:
(a) the party shows good cause for the withdrawal or amendment; and
(b) 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.

Id. R. 198.3.

         A party may withdraw or amend an admission if: (a) the party shows good cause for the withdrawal or amendment, and (b) 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. Id. R. 198.3; ConocoPhillips Co. v. Noble Energy, Inc., 462 S.W.3d 255, 264 (Tex. App.-Houston [14th Dist.] 2015), aff'd, 532 S.W.3d 771 (Tex. 2017). "Good cause is established by showing that the failure involved was an accident or mistake, not intentional or the result of conscious indifference." Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005). Even a "slight excuse" for the failure to timely respond will suffice, especially when delay or prejudice to the opposing party will not result from the withdrawal. Time Warner, Inc. v. Gonzalez, 441 S.W.3d 661, 665 (Tex. App.-San Antonio 2014, pet. denied). "Undue prejudice depends on whether withdrawing an admission . . . will delay trial or significantly hamper the opposing party's ability to prepare for it." Wheeler, 157 S.W.3d at 443. Generally, the party seeking withdrawal of the deemed admissions has the burden to establish good cause. Cleveland v. Taylor, 397 S.W.3d 683, 694 (Tex. App.-Houston [1st Dist.] 2012, pet. denied) (citing Boulet v. State, 189 S.W.3d 833, 836 (Tex. App.-Houston [1st Dist.] 2006, no pet.)).

         A trial court has broad discretion to permit or deny the withdrawal of admissions. Noble Energy, 462 S.W.3d at 264; see Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996) (per curiam). We only set aside the trial court's ruling if, after reviewing the entire record, it is ...


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