Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
KENNETH A. EVERHARD, Appellant,
PLAINSCAPITAL BANK, Appellee.
appeal from the 93rd District Court of Hidalgo County, Texas.
Chief Justice Contreras and Justices Rodriguez and Benavides
M. BENAVIDES, JUSTICE
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.
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.
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.
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
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
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.
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
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.
Amended Admissions to Discovery
second issue, which we address first, Everhard alleges the
trial court erred by allowing PCB to amend its admission
Standard of Review and Applicable Law
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
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
(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
Id. R. 198.3.
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.)).
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 ...