Court of Appeals of Texas, Twelfth District, Tyler
ERIC C. RALLS, APPELLANT
BRIAN FUNK, APPELLEE
from the 7th District Court of Smith County, Texas (Tr.Ct.No.
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Ralls appeals from an adverse summary judgment rendered
against him in Appellee Brian Funk's breach of contract
suit. In a single issue, Ralls asserts the trial court erred
in denying his motion to quash deemed admissions, the summary
judgment is improper, and the attorney's fees awarded are
unreasonable. We affirm.
January 1, 2014, Funk agreed to loan $65, 000 to Ralls,
memorialized by a promissory note. On that same date, the
parties entered into a consultant agreement by which Ralls
agreed to pay Funk $47, 840 for certain services he was to
provide. Ralls failed to pay the amounts due under the note
or the agreement, and Funk sued to recover the sums owed.
court rendered partial summary judgment in favor of Funk on
the cause of action to recover on the promissory note on
April 10, 2018 and severed that cause from the breach of
contract cause. Funk served his first request for admissions
on Ralls on September 19, 2018, to be answered within thirty
days. Funk filed a motion for summary judgment in the breach
of contract case on October 23, 2018, relying on his unsworn
declaration and Ralls's deemed admissions to prove
November 8, 2018, Ralls served responses to Funk's
request for admissions via facsimile wherein Ralls denied
that Funk performed any consulting services for him. On
November 19, 2018, Ralls filed a motion to quash deemed
admissions and, in the alternative, undeem the responses. He
claimed to have mistakenly believed that discovery had been
abated and argued that the request for admissions
impermissibly addressed controverted issues making up the
fundamental legal issues of the case. He specifically argued
that Funk provided no evidence of his performance of the
contract other than the deemed admission. On the same day,
Ralls filed his response to the motion for summary judgment.
The response is supported by numerous exhibits including
Ralls's response to Funk's request for admissions.
Ralls also argued that Funk's self-serving declaration
that he performed is not proof.
filed objections to Ralls's summary judgment evidence.
The trial court granted Funk's objections to the evidence
and granted his motion for summary judgment. The court
ordered Ralls to pay the principal amount of $41, 340, plus
interest and attorney's fees. The court also denied
Ralls's motion to quash the deemed admissions. This
sole issue, Ralls attacks the summary judgment by way of his
assertion that the trial court abused its discretion in
failing to quash, and erred by relying on, deemed admissions.
Ralls asserts that good cause exists to allow withdrawal of
the deemed admissions because he mistakenly believed that
discovery was abated pending mediation. He also argues that
use of the deemed admissions violates due process because one
of the admissions is merits-preclusive, and its use is a
prohibited attempt to get him to admit that Funk has a valid
cause of action and he has no ground of defense. He further
contends that Funk did not meet his burden to show that
Ralls's failure to answer the admissions resulted from
flagrant bad faith or callous disregard of the rules.
of Review and Applicable Law
action is filed, a party may serve written requests for
admissions that can encompass any matter within the scope of
discovery. Tex.R.Civ.P. 198.1. If the opposing party does not
serve its responses to the admissions requests within thirty
days, the matters in the requests are deemed admitted against
the party without the necessity of a court order.
Id. 198.2(c). Any matter admitted or deemed admitted
is conclusively established unless the court, on motion,
permits withdrawal or amendment of the admission.
Id. 198.3; Marshall v. Vise, 767 S.W.2d
699, 700 (Tex. 1989).
review the denial of a request to withdraw deemed admissions
for an abuse of discretion. Stelly v. Papania 927
S.W.2d 620, 622 (Tex. 1996) (per curiam). Withdrawal of
deemed admissions is permitted upon a showing of good cause
for failure to timely respond and a finding by the trial
court that (1) the party relying upon the deemed admissions
will not be unduly prejudiced, and (2) presentation of the
merits of the action will be served by the withdrawal.
Tex.R.Civ.P. 198.3; Marino v. King, 355 S.W.3d 629,
633 (Tex. 2011) (per curiam). The party seeking withdrawal of
the deemed admissions has the burden to establish good cause.
Boulet v. State, 189 S.W.3d 833, 836 (Tex.
App.-Houston [1st Dist.] 2006, no pet.). Good cause is
established by showing 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) (per curiam).
different standard applies when the deemed admissions are
merits preclusive. See id. at 443-444. When requests
for admissions are used as intended, addressing
uncontroverted matters or evidentiary ones like authenticity
or admissibility of documents, deeming admissions by default
is unlikely to compromise presentation of the merits.
Id. at 443. Requests for admissions were never
intended to require a defendant to admit the validity of a
plaintiff's claims or concede his defenses.
Marino, 355 S.W.3d at 632. When a party uses deemed
admissions to try to preclude presentation of the merits,
where the requestor essentially seeks an admission of
liability, the deemed admission can amount to a death-penalty
sanction. Medina v. Zuniga, No. 17-0498, 2019 WL
1868012, at *3 (Tex. April 26, 2019). In that instance,
constitutional due process concerns arise. Marino,
355 S.W.3d at 632.
requests for admissions are merits preclusive, the trial
court is required to allow their withdrawal unless the party
requesting withdrawal acted with flagrant bad faith or
callous disregard for the rules in failing to timely respond
to requests for admissions. Wheeler, 157 S.W.3d at
443. Ordinarily, the burden of showing good cause lies with
the party seeking withdrawal of deemed admissions. See
Boulet, 189 S.W.3d at 836. But when the requests for
admission are merits preclusive, the party opposing the
withdrawal of the admissions has ...