                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00368-CV

LYNDA MARINO,
                                                          Appellant
v.

CHARLES KING,
                                                          Appellee


                         From the 361st District Court
                             Brazos County, Texas
                       Trial Court No. 08-002628-CV-361


                          MEMORANDUM OPINION


       Lynda Marino appeals the granting of Charles King’s traditional motion for

summary judgment, which was based on a request for admissions that were deemed

admitted. Marino complains that the trial court erred by not withdrawing the deemed

admissions, that the deemed admissions served as an impermissible death penalty

sanction, and that King was not entitled to summary judgment as a matter of law even

with the deemed admissions because some of the admissions called for legal

conclusions. Because we find that the trial court did not err, we affirm the judgment of

the trial court.
Request for Admissions

       Rule 198.2(c) of the rules of civil procedure states that the failure to file a timely

response to a request for admissions results in those requests being admitted. TEX. R.

CIV. P. 198.2(c). Rule 198.3 allows a trial court to permit a party to withdraw the

admissions if, (1) the party who failed to answer demonstrates good cause for the

withdrawal of the admissions, and (2) that the opposing party is not unduly prejudiced

by the withdrawal of the admissions. TEX. R. CIV. P. 198.3.

       We review the trial court’s rulings on the withdrawal of deemed admissions for

an abuse of discretion. Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005) (per curiam)

(“[T]rial courts have broad discretion to permit or deny withdrawal of deemed

admissions, but they cannot do so arbitrarily, unreasonably, or without reference to

guiding rules or principles.”).

Procedural History

       King served his discovery requests, including a request for admissions, by mail

on April 6, 2009. Marino signed for the discovery on April 27, 2009. On May 22, 2009,

Marino sent a letter to counsel for King stating that she would provide her responses on

June 2, 2009. She provided her answers on June 2 as stated. On June 12, 2009, King

filed a traditional motion for summary judgment on his theft claim based on Marino’s

deemed admissions because she did not timely respond to the request. The summary

judgment hearing was conducted on August 6, 2009.

       In the interim, Marino propounded her own discovery requests on King, filed a

motion to compel based on incomplete responses to her requested discovery, filed a

Marino v. King                                                                         Page 2
motion to dismiss the suit because of a claim that the wrong party had brought suit, and

filed a motion for mediation. She did not file a response to King’s motion for summary

judgment or a request to withdraw the deemed admissions.

       Marino appeared at the hearing on the motion for summary judgment and

attempted to explain to the trial court the reasons for her failure to answer the

discovery. The trial court explained the need for Marino to have followed the rules of

civil procedure regarding extensions of time to respond to discovery and the effect of

her failure to timely answer the request for admissions. Marino requested the trial

court to delay the summary judgment, described her need for complete discovery from

King to aid in her defense to the trial court, and for the trial court to instead consider

her motion to dismiss. The trial court granted King’s motion for summary judgment

and entered judgment against Marino.

       Marino filed a timely motion for new trial, which was never set for hearing, and

this appeal followed.

Withdrawal of Deemed Admissions

       Marino complains in her first issue that the trial court abused its discretion in not

withdrawing the deemed admissions. Marino contends that the Texas Supreme Court’s

decision in Wheeler v. Green should be determinative of this issue. Wheeler v. Green, 157

S.W.3d 439 (Tex. 2005) (per curiam) (“[E]quitable principles allowing these arguments

to be raised in a motion for new trial do not apply if a party realizes its mistake before

judgment and has other avenues of relief available.”).        Wheeler involved a pro se

respondent in a child custody action who filed her answers to a request for admissions

Marino v. King                                                                        Page 3
two days past the deadline because of a misunderstanding of the “mailbox rule.” Id. at

441-42. The Court ultimately concluded that “nothing in [the] record suggest[ed] that

before summary judgment was granted, [the responding party] 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. at

442. As a result, the Court held that the responding party was entitled to raise the issue

of the mistake for the first time in a motion for new trial. Id.

       King, however, contends that the Texas Supreme Court’s decision in Unifund

CCR Partners v. Weaver is applicable and distinguishes Marino’s claims from those in

Wheeler. Unifund CCR Partners v. Weaver, 262 S.W.3d 796 (Tex. 2008). In Unifund, the

Court held that in an instance when a party was made aware of his mistake in the

opposing party’s motion for summary judgment and did not attempt to rectify it, that

party could not complain for the first time about the trial court’s failure to withdraw the

deemed admissions in a motion for new trial. Unifund, 262 S.W.3d at 798 (“Weaver

knew of his mistake before judgment and could have responded to Unifund’s motion,

but because he did not, he waived his right to raise the issue thereafter.”).

       We agree with King that Wheeler is distinguishable from the facts before us.

Similar to Unifund, Marino was given notice of the late filing of her answers to the

request for admissions in King’s motion for summary judgment.              Marino did not

attempt to have the trial court withdraw the admissions prior to the entry of judgment

against her. Further, while Marino filed a motion for new trial, she did not request the

trial court to withdraw her deemed admissions in that motion either. In order to

Marino v. King                                                                       Page 4
preserve an objection for appeal, the complaint must have been presented to the trial

court.    TEX. R. APP. P. 33.1(a)(1).   We find that Marino has waived her complaint

regarding the withdrawal of the deemed admissions against her by failing to raise the

issue in any manner, either before or after judgment, to the trial court. See TEX. R. APP.

P. 33.1(a). We overrule issue one.

Death Penalty Sanctions

         Marino complains in her second issue that the trial court’s granting of King’s

motion for summary judgment constituted a “death penalty sanction” for discovery

abuse and was an abuse of discretion. For purposes of this issue we will assume

without deciding that deeming a request for admissions that was not timely responded

to is a discovery sanction. However, like her first issue, Marino never presented this

complaint to the trial court or objected to the trial court on this basis. Therefore, Marino

has also waived this complaint by failing to raise it to the trial court. TEX. R. APP. P.

33.1. We overrule issue two.

Traditional Motion for Summary Judgment

         Marino complains in issue three that even if the admissions were properly

deemed admitted, King was not entitled to judgment on his motion for summary

judgment as a matter of law because some of the requests sought legal conclusions

which are not proper summary judgment proof. Specifically, Marino complains of four

of the thirty-one requests.




Marino v. King                                                                        Page 5
Standard of Review

       We review a trial court’s decision to grant or to deny a motion for summary

judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d

184, 192, 199 (Tex. 2007).   Under the traditional summary judgment standard, the

movant has the burden to show that no genuine issues of material fact exist and that it

is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop.

Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). In deciding whether there is a disputed

material fact issue precluding summary judgment, evidence favorable to the

nonmovant will be taken as true, and every reasonable inference must be indulged in

favor of the non-movant and any doubts resolved in its favor. Nixon, 690 S.W.2d at 548-

49.

       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.

Objections to Summary Judgment Evidence

       While objections to the form of summary judgment evidence must be raised

before the trial court in order to be preserved for purposes of appeal, objections to the

Marino v. King                                                                     Page 6
substance of the evidence may be raised for the first time on appeal. Choctaw Props.,

L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003, no pet.). An objection

that summary judgment evidence seeks a conclusion regarding a question of law is an

objection to the substance of the evidence. See Id. at 241-42.

King’s Motion for Summary Judgment

        King’s motion for summary judgment sought judgment on his claim pursuant to

the Texas Theft Liability Act only.1 See TEX. CIV. PRAC. & REM. CODE ANN. Ch. 134

(Vernon 2005). Pursuant to the Texas Theft Liability Act, a person who commits theft is

liable for the damages resulting from the theft. TEX. CIV. PRAC. & REM. CODE ANN. §

134.003(a) (Vernon 2005). Theft is defined as “unlawfully appropriating property or

unlawfully obtaining services as described by Section 31.03, 31.04, 31.05, 31.06, 31.07,

31.11, 31.12, 31.13, 31.14” of the Texas Penal Code. Id. § 134.003(a); see also TEX. PEN.

CODE ANN. §§ 31.03-31.07, 31.11-31.14 (Vernon 2003 & Supp. 2008). Section 31.03(a) of

the Texas Penal Code provides that a person commits an offense if that person

unlawfully appropriates property with intent to deprive the owner of property. TEX.

PEN. CODE ANN. § 31.03(a). Appropriation of property is unlawful if it is without the

owner’s effective consent. Id. § 31.03(b)(1).

Objectionable Admissions

        Marino complains of four of the admissions as seeking legal conclusions. The

first seeks an admission that the relationship between King and Marino “was one in


1 King’s original petition included claims for breach of fiduciary duty, conversion, money had and
received, fraud, negligent misrepresentation, and pursuant to the Texas Theft Liability Act. King sought
actual and punitive damages as well as attorney’s fees for these claims.

Marino v. King                                                                                   Page 7
which [King] placed special confidence in [Marino], and, as such, you [Marino] in

equity and good conscience were bound to act in good faith with due regard for the

interest of [King].” The second sought an admission that the money she withdrew from

King’s account was King’s personal property. The third sought an admission that the

money Marino withdrew belonged to King “in equity and good conscience.” The

fourth sought an admission that King was entitled to recover actual damages in a

certain amount.

Other Admissions

       King contends that even if those admissions were improper, the other

admissions to which Marino did not object are sufficient to sustain the trial court’s

granting of the motion for summary judgment.           We agree.     The unobjected-to

admissions contained admissions that Marino had made withdrawals from King’s

account without King’s knowledge; that Marino had made unauthorized payments and

advances to herself; that Marino had withdrawn funds for Christmas bonuses; that

Marino had not attempted to repay the advances; that King owned, possessed, or had

the right to immediate possession of the $33,559.92 that was withdrawn by Marino; that

Marino exercised control over that money and that King suffered injury as a result; and

that she was in possession of the $33,559.92.

Analysis

       Even if we assume without deciding that the admissions of which Marino

complains were improper and should not have been considered because they

constituted legal conclusions, the remaining admissions were sufficient to establish each

Marino v. King                                                                     Page 8
element of theft as required by the Penal Code and the Theft Liability Act. We overrule

issue three.

Conclusion

       We find that Marino has waived her complaints regarding the failure of the trial

court to withdraw the deemed admissions by failing to make her complaint to the trial

court. We find that even without the admissions of which Marino complains, the

evidence was sufficient to sustain the trial court’s granting of King’s motion for

summary judgment. We affirm the judgment of the trial court.



                                        TOM GRAY
                                        Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed September 1, 2010
[CV06]




Marino v. King                                                                   Page 9
