                                   NUMBER 13-09-00028-CV

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


JANICE PETREE,                                                                                 Appellant,

                                                      v.

SOUTHERN FARM BUREAU
CASUALTY INSURANCE COMPANY,
ALLSTATE INSURANCE COMPANY
AND ALLSTATE INDEMNITY COMPANY,                                                                Appellees.


                        On appeal from the 267th District Court
                              of Victoria County, Texas.



                                           OPINION
                     Before Justices Yañez, Benavides, and Vela
                            Opinion by Justice Benavides
        Appellant, Janice Petree, appeals from the trial court’s granting of summary

judgment in favor of appellees, Allstate Indemnity Company1 (“Allstate”) and Southern


        1
           The style of the case lists two Allstate com panies as defendants: Allstate Insurance Com pany and
Allstate Indem nity Com pany. In its m otion for sum m ary judgm ent, Allstate referred to itself by both nam es
without distinguishing between the two. The trial court granted “Defendant Allstate Indem nity Com pany’s
Motion for Sum m ary Judgm ent” and then dism issed Petree’s “claim s against Defendant Allstate Insurance
Farm Bureau Casualty Insurance Company (“Southern Farm Bureau”) (collectively, the

“Appellees”). Petree asserts that (1) her due process rights were denied when the trial

court granted summary judgment based on deemed admissions when she was never

served with the request for admissions; and (2) the trial court erred by not granting Petree’s

motion for new trial because there was no competent summary judgment proof supporting

the appellees’ motions for summary judgment. We reverse and remand.

                                             I. BACKGROUND 2

        On August 21, 2002, Petree was traveling on U.S. highway 59 in Victoria County,

Texas, when she was rear-ended by another driver. Petree was driving a vehicle owned

by Jay Williams and insured by Allstate. On August 18, 2006, Petree sued Allstate

Insurance Company and Southern Farm Bureau for breach of contract for refusing to pay

underinsured motorist (“UIM”) benefits. On April 4, 2007, Petree added Allstate Indemnity

Company as an additional defendant. On May 6, 2008, Petree’s counsel filed a motion to

withdraw and a motion for continuance. On May 19, 2008, the trial court granted Petree’s

counsel’s motion to withdraw and for continuance and noted that Petree’s last known

address was: “c/o Mr. Jay Williams, 3308 Coletoville Road, Victoria, Texas 77905.” On

May 27, 2008, in a letter dated May 22, 2008, Allstate sent to Petree, via certified mail, its

request for admissions.3 The request for admissions asked the following three questions:



Com pany.” No party on appeal differentiates between the two com panies, so we will treat them as one for
purposes of this appeal.

        2
            The facts underlying this case are not disputed.

        3
          The sum m ary judgm ent record does not contain a “green card” indicating receipt of the request for
adm issions. Allstate’s request for adm issions contains a certificate of service stating that the request was
sent to Petree. The record also contains a print-out from the United States Postal Service website which
dem onstrates that a package with the sam e tracking label as the one attached to the request for adm issions
was delivered in Victoria, Texas but to a different zip code than the one associated with Petree’s last known
address on file with the trial court.

                                                       2
        Do you admit or deny that the motor vehicle accident that occurred on
        August 21, 2002 between you and James Smith of [sic] which forms the
        basis of this lawsuit was 100% proximately caused by your negligence[?]

        Do you admit or deny that you suffered no injuries as a result of the motor
        vehicle accident that occurred on August 21, 2008 between you and James
        Smith[?]

        Do you admit or deny that you have no valid claim against Allstate Insurance
        Company and/or Allstate Indemnity Company under its insured, Jay
        Williams’[,] Underinsured Motorist coverage of his policy?4

        On August 14, 2008, Allstate filed its motion for summary judgment based on

Petree’s failure to respond to its request for admissions, asserting that the admissions were

deemed admitted and arguing that Petree was therefore unable to prove the requisites of

her underlying UIM claim. On August 20, 2008, Southern Farm Bureau filed its motion for

summary judgment making the same assertions as Allstate and relying on the deemed

admissions to Allstate’s request for admissions. On September 19, 2008, the trial court

held a hearing on both motions for summary judgment. Petree, unrepresented since her

counsel’s withdrawal on May 19, 2008, attended the hearing pro se. The trial court granted

both motions for summary judgment. Petree hired counsel, who filed a motion for new trial,

which, after a hearing, was overruled by operation of law. See TEX . R. CIV. P. 329b. This

appeal ensued.

                                                  II. WAIVER

        Before we discuss Petree’s appellate issues, we must address the appellees’

contention that Petree waived her right to complain about the deemed admissions because


        4
          During oral argum ent, this Court strenuously adm onished counsel for the appellees regarding the
use of such requests for adm issions. See Stelly v. Papania, 927 S.W .2d 620, 622 (Tex. 1996) (noting that
the prim ary, intended purpose of requests for adm issions is to “‘sim plify trials by elim inating m atters about
which there is no real controversy, but which m ay be difficult or expensive to prove. [They were] never
intended to be used as a dem and upon a plaintiff or defendant to adm it that he had no cause of action or
ground of defense.’”) (quoting Sanders v. Harder, 148 Tex. 593, 227 S.W .2d 206, 208 (1950)).



                                                        3
she learned of her failure to respond prior to judgment and had other avenues of relief

available, such as filing a motion to withdraw the deemed admissions. See Unifund CCR

Partners v. Weaver, 262 S.W.3d 796, 798 (Tex. 2008) (per curiam). We disagree.

       In Unifund, Unifund CCR Partners (“Unifund”) sued Weaver to recover an unpaid

debt. Id. at 797. Unifund attached requests for disclosure and admissions to its citation.

Id. Weaver, proceeding pro se, filed an answer with his responses to the requests

attached. Id. Although the face of Weaver’s response indicated that he sent a copy to

Unifund’s attorney, and Weaver’s signature follows the text, “CERTIFICATE OF

SERVICE,” Unifund’s attorney filed an affidavit with his motion for summary judgment

declaring that he never received the response. Id.; see TEX . R. CIV. P. 21a, 198.2; Cliff v.

Huggins, 724 S.W.2d 778, 780 (Tex. 1987) (noting that “[r]ule 21a sets up a presumption

that when notice of trial setting properly addressed and postage prepaid is mailed, that the

notice was duly received by the addressee. This presumption may be rebutted by an offer

of proof of nonreceipt.”) (citations omitted)). Unifund claimed that it was entitled to

summary judgment because “the facts set out in its requests for admissions were

automatically admitted when Weaver failed to timely serve his responses.” Unifund, 262

S.W.3d at 797 (citing TEX . R. CIV. P. 198.2(c)). The trial court granted Unifund’s motion for

summary judgment. Id.

       Weaver did not file a motion for new trial, and the first time he asserted that his

responses were timely served was in his brief to the Waco Court of Appeals. Id. The

Waco Court of Appeals reversed “because Weaver’s responses to Unifund’s request for

admissions were on file when the summary judgment motion was granted.” Id.; see TEX .

R. CIV. P. 166a(c) (stating that discovery responses set forth in the motion for summary

judgment, along with the parties’ admissions that are on file with the court at the time of the

                                              4
summary judgment hearing, is competent summary judgment evidence); R.I.O. Systems,

Inc. v. Union Carbide Corp., 780 S.W.2d 489, 492 (Tex. App.–Corpus Christi 1989, writ

denied) (“While the better practice is to attach all summary judgment evidence to the

motion presented to the court, the rule itself states that the trial court shall consider all

summary judgment evidence ‘on file.’”). The supreme court affirmed, stating, “[E]ven if we

broadly construe Weaver’s post-judgment filing, Weaver waived his right to challenge the

deemed admissions.” Unifund, 262 S.W.3d at 798.

       The supreme court distinguished Unifund from Wheeler v. Green, 157 S.W.3d 439

(Tex. 2005) (per curiam), wherein a pro se appellant was permitted to raise, in a motion for

new trial, the timeliness of her responses to requests for admissions, which were untimely

filed and deemed admitted. See Unifund, 262 S.W.3d at 798. The supreme court noted

that, in contrast to Wheeler, “even if we construe Weaver’s post-judgment filing as a motion

for new trial, Unifund’s motion for summary judgment put him on notice of the deficiency

of his response: that Unifund never received the response because Weaver had not

served, or attempted to serve, the response on Unifund.” Id.

       We believe, however, that the present case is similar to Wheeler. 157 S.W.3d at

442. In Wheeler, sixty-four requests for admissions were deemed admitted because

Wheeler, proceeding pro se, filed her response two days late due to a mistake regarding

the “mailbox rule”: Wheeler did not realize that the mailbox rule starts the clock running

for her to respond to the requests on the day the requests are properly placed in the mail.

Id. at 441; see TEX . R. CIV. P. 21a. Summary judgment was entered for Green based on

the deemed admissions. Wheeler, 157 S.W.3d at 441. Green attached the requests for

admission to his motion for summary judgment. Id. In his motion for summary judgment,

“Green argued [that] Wheeler admitted every element of [Green’s] claims against her by

                                             5
failing to timely respond to the requests for admission and, therefore, he was entitled to

judgment as a matter of law.” Wheeler v. Green, 119 S.W.3d 887, 889 (Tex. App.–Dallas

2003), rev’d, 157 S.W.3d at 444. Wheeler did not file a response or a motion to withdraw

the deemed admissions, though she did attend both summary judgment hearings.

Wheeler, 157 S.W.3d at 441; see TEX . R. CIV. P. 198.3 (providing for the amendment or

withdrawal of deemed admissions upon a showing of good cause, no undue prejudice, and

that the “merits of the action will be subserved by permitting the party to amend or withdraw

the admission”).

       Subsequent to summary judgment, Wheeler hired an attorney and filed a motion for

new trial, arguing that the responses were timely filed and attaching copies of the

responses. Wheeler, 157 S.W.3d at 442. Addressing the waiver issue, the supreme court

held that Wheeler’s motion for new trial was sufficient to raise her complaints because

“nothing in this record suggests that before summary judgment was granted, [Wheeler]

realized that her responses were late, that she needed to move to withdraw deemed

admissions, or that she needed to file a response to the summary judgment raising either

argument.” Id.

       Here, Petree, proceeding pro se, did not file or serve a response to Allstate’s

request for admissions. The appellees filed motions for summary judgment based on the

deemed admissions, which the trial court granted. Allstate attached an affidavit from its

trial counsel to its motion for summary judgment stating, in pertinent part, that more than

thirty-three days had passed since its requests for admissions were sent to Petree and that

no response had been received. Following the granting of summary judgment, Petree

hired an attorney who filed a motion for new trial asserting that Petree had never received

the requests for admissions. Petree asked the trial court to grant a new trial and to “either

                                             6
order [appellees] to re-serve their requests for admissions upon [her counsel] or allow

[Petree] to file a motion to undeem the admissions.” As in Wheeler, “the arguments and

requests in [Petree’s] motion for new trial were sufficient to put the trial court on notice of

exactly” her complaint. Id. (citing TEX . R. APP. P. 33.1). We conclude that Petree was

entitled to raise her complaints in her motion for new trial because nothing in the record

suggests that before summary judgment was granted, Petree realized that she needed to

move to withdraw deemed admissions or that she needed to file a response to the

appellees’ motions for summary judgment and raise the lack of service argument therein.

See id.

                                  III. STANDARD OF REVIEW

       We review de novo the trial court’s granting of the appellees’ traditional motions for

summary judgment. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.

2005); see also Garcia v. Corpus Christi Civil Serv. Bd., No. 13-07-00585-CV, 2009 WL

2058892, at *3 (Tex. App.–Corpus Christi July 16, 2009, no pet.) (mem. op.). “The

nonmovant has no burden to respond to a summary judgment motion unless the movant

conclusively establishes its cause of action or defense.” Rhone-Poulenc, Inc. v. Steel, 997

S.W.2d 217, 222-23 (Tex. 1999). When the movant’s summary judgment proof is legally

insufficient, “[t]he trial court may not grant summary judgment by default because the

nonmovant did not respond to the summary judgment motion.” Id. at 223. “The movant

must establish its right to summary judgment on the issues expressly presented to the trial

court by conclusively proving all elements of the movant's cause of action or defense as

a matter of law.” Id.

                                       IV. DISCUSSION

       From our reading of the record, it appears that, while Petree’s claim sounded in

                                              7
breach of contract, the appellees’ motions for summary judgment asserted that they were

not negligent. However, because the appellees argued in their motions for summary

judgment that Petree admitted, through the deemed admissions, that she was 100% liable

for the underlying accident and that she suffered no injuries from the accident, we construe

appellees’ motions as an attack on the elements of Petree’s breach of contract claim based

on the appellees’ denial to pay UIM benefits to Petree. See Brainard v. Trinity Univ. Ins.

Co., 216 S.W.3d 809, 818 (Tex. 2006) (“UIM insurance utilizes tort law to determine

coverage . . . [and] the insurer’s contractual obligation to pay benefits does not arise until

liability and damages are determined.”) (citing Henson v. S. Farm Bureau Cas. Ins. Co.,

17 S.W.3d 652, 654 (Tex. 2000)). To have a claim for UIM benefits, Petree must have

obtained a judgment or settlement “establishing the negligence and underinsured status

of the other motorist.” Id. Therefore, to prevail on summary judgment, the appellees must

have conclusively proven that the other driver was not negligent and not underinsured,5

which they attempt to do utilizing the deemed admissions. Id.; see Rhone-Poulenc, Inc.,

997 S.W.2d at 223.

       Allstate’s requests for admissions asked three questions:

       Do you admit or deny that the motor vehicle accident that occurred on
       August 21, 2002 between you and James Smith of [sic] which forms the
       basis of this lawsuit was 100% proximately caused by your negligence[?]

       Do you admit or deny that you suffered no injuries as a result of the motor
       vehicle accident that occurred on August 21, 2008 between you and James
       Smith[?]

       Do you admit or deny that you have no valid claim against Allstate Insurance
       Company and/or Allstate Indemnity Company under its insured, Jay
       Williams’[,] Underinsured Motorist coverage of his policy?



       5
           No party contends that the other driver was not underinsured.

                                                     8
Because Petree did not timely serve responses to the requests, they were deemed

admitted. See TEX . R. CIV. P. 198.2(c).

       In their motions for summary judgment, the appellees rely on deemed admissions

to the first two questions: (1) that Petree’s negligence was 100% the proximate cause of

the accident; and (2) that Petree incurred no injuries as a result of the accident. These two

admissions defeat the prerequisite to a UIM claim: that she was damaged by the other

driver’s negligence. See Brainard , 216 S.W.3d at 818. Thus, the appellees argued to the

trial court that they were entitled to summary judgment on Petree’s breach of contract claim

against them.

       In Petree’s first issue, she argues that the trial court denied her due process by

granting the appellees’ motions for summary judgment based on the deemed admissions,

particularly when she did not receive the requests in the first place. The appellees respond

that because Petree received all of the process that was due her, summary judgment was

proper. We agree with Petree.

       When the non-movant has not engaged in “flagrant bad faith or callous disregard

for the rules,” summary judgment is improper when the only evidence presented by the

movant is in the form of merits-preclusive deemed admissions.             Cedyco Corp. v.

Whitehead, 253 S.W.3d 877, 881 (Tex. App.–Beaumont 2008, pet. denied); Wheeler, 157

S.W.3d at 443. This is so because “absent flagrant bad faith or callous disregard for the

rules, due process bars merits-preclusive sanctions . . . .” Wheeler, 157 S.W.3d at 443

(noting that, for due process purposes, merits-preclusive deemed admissions are the

equivalent of merits-preclusive discovery sanctions); see Whitehead, 253 S.W.3d at 881

(holding that deemed admissions on pure questions of law are improper summary



                                             9
judgment evidence); Boulet v. State, 189 S.W.3d 833, 838 (Tex. App.–Houston [1st Dist.]

2006, no pet.) (declaring that summary judgment in a forfeiture action may not be

sustained on deemed admissions embracing the “fundamental legal issues to be tried”).

       When requests for admissions are used as intended[—]addressing
       uncontroverted matters or evidentiary ones like the authenticity or
       admissibility of documents[—]deeming admissions by default is unlikely to
       compromise presentation of the merits. But when a party uses deemed
       admissions to try to preclude presentation of the merits of a case, the same
       due-process concerns arise [as in merits-preclusive discovery sanction
       cases].

Wheeler, 157 S.W.3d at 443 (citations omitted).

       Here, the deemed admissions were on the prerequisite fundamental issue to be

tried: liability for and damages arising from the underlying accident. See Brainard, 216

S.W.3d at 818; Boulet, 189 S.W.3d at 838. A deemed admission that Petree was 100%

the proximate cause of the accident defeats her negligence claim against the other driver

as a matter of law. See TEX . CIV. PRAC . & REM . CODE ANN . §§ 33.001-.002 (Vernon 2008).

Additionally, a deemed admission that Petree incurred no injuries as a result of the

accident defeats her claims for damages against the other driver. See Van Horn v.

Chambers, 970 S.W.2d 542, 544 (Tex. 1998) (setting forth the elements of a negligence

cause of action). Under the record before us, we find no evidence of flagrant bad faith or

callous disregard for the rules on Petree’s part. See Wheeler, 157 S.W.3d at 443-44.

There is no evidence that the appellees would be unable to prepare for a trial on the merits

if Petree’s admissions were withdrawn or would suffer undue prejudice. See id. & n.2; TEX .

R. CIV. P. 198.3 (noting the standard for withdrawing deemed admissions requires a

showing of good cause for the withdrawal, lack of undue prejudice, and that the merits of

the action will be subserved by permitting the withdrawal). We conclude that, on this


                                            10
record, the trial court erred in granting summary judgment, and we sustain Petree’s first

issue.6

                                                 V. CONCLUSION

           Having sustained Petree’s first issue, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.




                                                                  _______________________________
                                                                  GINA M. BENAVIDES,
                                                                  Justice

Delivered and filed the
24th day of June, 2010.




           6
               Because we sustain Petree’s first issue, we need not address her second issue. See T EX . R. A PP .
P. 47.1.

                                                          11
