Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 416th Judicial District Court Collin County,
Texas Trial Court Cause No. 416-02662-2017
Justices Pedersen, III, Reichek, and Carlyle
PEDERSEN. III JUSTICE
Gustavo Torres appeals the trial court's order granting
the appellees' motion for summary judgment. Torres raises
two issues on appeal. He contends that the trial court abused
its discretion by failing to grant his motion to strike or
withdraw deemed admissions. He also contends the trial court
erred by granting summary judgment based on the deemed
admissions. We affirm.
Lee and 1004 Construction, Inc. hired Torres to cut a wooden
counter so it could be removed from the Q Car Wash in Plano,
Texas. Torres was injured while using an electric grinder
with an attached circular wood saw blade. He filed suit
against 1004 Construction, Inc., asserting claims for
negligence and premises liability. He subsequently filed a
second amended petition, adding Angel Lee, Angel Lee d/b/a
Angel Construction and/or 1004 Construction, Mi K. HanSon,
and Heui S. Lee as defendants, and asserting claims for
negligence and premises liability against all of the
defendants. Defendants 1004 Construction, Inc., Heui S. Lee
a/k/a Angel Lee, and Mi K. Han-Son filed their answer denying
the allegations in Torres's petition.
24, 2017, defendants served their first set of written
discovery on Torres, including requests for disclosures,
interrogatories, requests for production, and requests for
admissions.Torres promptly responded to
defendants' request for disclosures, but he failed to
respond to any of the other discovery requests by the August
23, 2017 deadline. On September 11, 2017, defendants filed a
motion to compel written discovery, and they later served
Torres's counsel with notice of hearing on their motion
to compel. On September 22, 2017, Torres served incomplete
responses to defendants' requests for production and
interrogatories and late responses to defendants'
requests for admissions (thirty days late).
September 25, 2017, the trial court conducted a hearing on
defendants' motion to compel. Torres and his counsel did
not attend the hearing. During the hearing, the trial court
found that defendants' discovery requests, including the
requests for admissions, were served by e-filing on
Torres's attorney on July 24, 2017; the court also
determined that Torres's attorney opened the e-filed
discovery requests the same day they were
served. The trial court granted defendants'
motion to compel, and signed an order compelling Torres to
respond to the defendant's unanswered requests within
fourteen days. The trial court further ordered that all of
defendants' requests for admissions were deemed admitted.
Defense counsel provided a copy of this order to Torres's
attorney. Although Torres did not provide his discovery
responses within fourteen days as ordered by the trial court,
he ultimately provided supplemental responses to
defendants' interrogatories and requests for production.
no activity for five months, the trial court set the case on
the dismissal docket, called the case, and received no answer
from the parties. Accordingly, on March 1, 2018, the trial
court dismissed the case for want of prosecution. Torres
filed a verified motion to reinstate, arguing that the
parties had engaged in discovery and should be allowed to
continue the case to trial. On March 22, 2018, the trial
court granted Torres's motion and ordered that the case
April 5, 2018, defendants filed traditional and no-evidence
motions for summary judgment based on the pleadings of the
parties, Torres's deemed admissions, and the trial
court's order granting defendants' motion to compel
plaintiff's responses to discovery. A hearing on
defendants' motions for summary judgment was scheduled
for April 30, 2018.
April 24, 2018, Torres filed a response to defendants'
motions for summary judgment with attached evidence
consisting of Torres's affidavit and Torres's
responses to defendants' requests for admissions. He also
filed "Plaintiffs' Motion to Strike or Withdraw
Deemed Admissions and to Set Aside the Portion of the
September 25, 2017 Court Order Ordering that Defendant's
Requests for Admissions to Plaintiffs Are Deemed Admitted and
Motion for Leave to Late Serve His Responses to
Defendants' Requests for Admissions" (motion to
strike). Torres asserted that "his failure to timely
respond to Defendant's requests for admissions was an
accident or mistake, not intentional or the result of
conscious disregard," and "the same is true with
regards to his failure to appear at the hearing on
Defendant's motion to compel."
filed an objection to Torres's summary judgment response
and evidence. They complained that Torres filed his summary
judgment response late-it was due on April 23, 2018. They
objected to Torres's affidavit to the extent that his
statements contradicted his deemed admissions, and they
objected to specific portions of Torres's affidavit on
the basis that the paragraphs contained opinion testimony
from an undesignated expert. Defendants also filed a response
in opposition to Torres's motion to strike, asserting
that Torres had not demonstrated good cause for allowing the
withdrawal of the deemed admissions and that defendants would
be unduly prejudiced if the deemed admissions were withdrawn
at such a late date.
hearing, the trial court granted defendants' traditional
and no evidence motion for summary judgment. Torres timely
filed his notice of appeal.
Withdrawal of Deemed Admissions
Standard of Review
first issue, Torres asserts that the trial court abused its
discretion by failing to grant his motion to strike. A trial
court has broad discretion to permit or deny the withdrawal
of deemed admissions. Stelly v. Papania, 927 S.W.2d
620, 622 (Tex. 1996) (per curiam); see also Marino v.
King, 355 S.W.3d 629, 633 (Tex. 2011) (per curiam). An
appellate court should set aside a trial court's ruling
only if, after reviewing the entire record, it is clear that
the trial court abused its discretion. Tommy Gio, Inc. v.
Dunlop, 348 S.W.3d 503, 509 (Tex. App.-Dallas 2011, pet.
denied). A trial court abuses its discretion if it acts
without reference to ...