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Torres v. Lee

Court of Appeals of Texas, Fifth District, Dallas

January 3, 2020

GUSTAVO TORRES, Appellant
v.
ANGEL LEE, INDIVIDUALLY AND D/B/A ANGEL CONSTRUCTION AND/OR 1004 CONSTRUCTION, 1004 CONSTRUCTION, INC., MI K. HAN-SON, MIKE K. HANSON AND HEIU S. LEE, Appellees

          On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-02662-2017

          Before Justices Pedersen, III, Reichek, and Carlyle

          MEMORANDUM OPINION

          BILL PEDERSEN. III JUSTICE

         Appellant 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.

         I. Background

         Angel 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.

         On July 24, 2017, defendants served their first set of written discovery on Torres, including requests for disclosures, interrogatories, requests for production, and requests for admissions.[1]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).

         On 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.[2] 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.

         After 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 be reinstated.

         On 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.

         On 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."

         Defendants 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.

         After a hearing, the trial court granted defendants' traditional and no evidence motion for summary judgment. Torres timely filed his notice of appeal.

         II. Withdrawal of Deemed Admissions

         A. Standard of Review

         In his 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 ...


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