                             NUMBER 13-09-00236-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


SUSAN WELLS,                                                               Appellant,

                                           v.

BEST INSURANCE SERVICES, INC.,                                              Appellee.


                    On appeal from the 23rd District Court
                        of Matagorda County, Texas.



                        MEMORANDUM OPINION
                 Before Justices Yañez, Benavides, and Vela
                 Memorandum Opinion by Justice Benavides
       This is an appeal from an order granting summary judgment in favor of appellee,

Best Insurance Services, Inc. (“Best”), based on admissions by appellant, Susan Wells,

which were deemed admitted under Texas Rule of Civil Procedure 198.2(c) because of

Wells’s failure to timely respond.

       By two issues, Wells contends that the trial court erred in denying her Motion to

Strike Deemed Admissions, in granting Best’s Motion for Summary Judgment based on the
deemed admissions, and in denying her Motion for New Trial because: (1) Wells showed

good cause for the tardiness of her response, and Best would not have been unduly

prejudiced by allowing the admissions to be stricken; and (2) the deemed admissions

called for legal conclusions, and therefore could not serve as the basis for the summary

judgment in Best’s favor. We reverse and remand.

                                      I. BACKGROUND

        In 2007, Wells owned Nalley Insurance Agency. Wells entered into a purchase and

sales agreement with Best, by which Best agreed to purchase certain assets of Nalley

Insurance Agency for $275,000. Best agreed to pay $25,000 in two specified cash

payments and executed a promissory note in favor of Wells for the remaining $250,000,

which was to be paid in 24 monthly installments of $11,306.90. After making only one

payment by the terms of the note, Best filed suit against Wells for fraudulent inducement

and other causes of action based on alleged misrepresentations made by Wells. Within

thirty days, Wells filed an answer generally denying all of Best’s allegations and a

counterclaim for the amounts due under the note.

        In the interim, Wells filed a “Chapter 13" bankruptcy action and the suit was stayed.

On September 5, 2008, the stay was lifted at Best’s request, and Best thereafter served

Wells—through her then attorney, Jessica Siegel—with Best’s First Requests for

Admissions on October 16, 2008. Answers to the requests were due on November 18,

2008.     On October 17, 2008, Siegel contacted Larry Vick—Wells’s bankruptcy

attorney—asking him to take over representation of Wells in the suit, and Vick agreed.

        The next day, on October 18, 2008, Vick’s law office was destroyed by fire, causing

him to move into a temporary, emergency office with several other displaced tenants with

whom Vick was not associated. A temporary receptionist was hired to assist the various

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businesses displaced by the fire. Vick was substituted as trial counsel on November 3,

2008, and on that same day, Siegel had Wells’s file, including the requests for admissions,

delivered to Vick’s temporary office. Upon delivery, however, the receptionist mistakenly

forwarded the file to a different law firm that was also displaced by the fire and that was

sharing the temporary office.

       The error was not discovered until December 10, 2008, at which time Vick first

became aware that requests for admission had been served on Wells and were already

late. Vick immediately contacted counsel for Best and requested an additional ten days

in which to respond. Best denied the request, and on December 16, 2008, filed its motion

for summary judgment based on the deemed admissions and an affidavit from Best’s

president, Russell Burnett. In its motion, Best sought summary judgment on its fraudulent

inducement claim and its offset defense to Wells’s counterclaim. On December 19, 2008,

Vick filed a motion to strike the deemed admissions and responses to the past-due

requests. In support of the motion, Vick filed an affidavit explaining the circumstances of

the change in counsel, the fire, and the receptionist’s mistake in delivering Wells’s file.

Best challenged the affidavit on grounds that it did not contain the statement that it was

“true and correct” and it contained hearsay that was not within Vick’s personal knowledge.

       On February 9, 2009, the trial court denied Wells’s motion to strike the deemed

admissions, granted Best’s motion for summary judgment, and entered a final judgment.

Vick filed Wells’s motion for new trial on March 11, 2009, and the trial court denied the

motion on March 25, 2009.

       The first trial setting in this case was originally set for February 17, 2009, sixty days

after Wells filed her responses to the requests and her motion to strike the deemed

admissions.

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                                        II. DISCUSSION

A.     Standard of Review

       We review a ruling on a motion to strike deemed admissions for an abuse of

discretion. See, e.g., Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005) (per curiam).

“We recognize that trial 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.” Id. (citing Stelly v. Papania, 927 S.W.2d 620, 622 (Tex.

1996) (per curiam)); see also W. Wendell Hall, Standards of Review in Texas, 38 ST .

MARY'S L.J. 47, 60-63 (2006) (citing dozens of cases using an identical standard of review).

B.     Applicable Law

       “When a party fails to answer a request for admissions, the matters therein are

deemed admitted without the necessity of a court order. Such admissions are ‘conclusively

established as to the party making the admission unless the court permits the party to

withdraw or amend the admission.’” Stephenson v. Perata, No. 2-08-375-CV, 2009 Tex.

App. LEXIS 3172, at *3 (Tex. App.–Fort Worth May 7, 2009, no pet.) (mem. op.) (per

curiam) (quoting TEX . R. CIV. P. 198.1-.3). A trial court has no discretion to deny that the

requests be deemed admitted. See TEX . R. CIV. P. 198.2(c). The standard for determining

if deemed admissions should be withdrawn is a showing of: (1) good cause; and (2) no

undue prejudice. See Wheeler, 157 S.W.3d at 442. “A party demonstrates good cause

by showing the failure to answer was an accident or mistake, not intentional or the result

of conscious indifference." Stephenson, 2009 Tex. App. LEXIS 3172, at *6 n.14 (citing

Wheeler, 157 S.W.3d at 442). “Undue prejudice depends on whether withdrawing an

admission . . . will delay trial or significantly hamper the opposing party's ability to prepare

for it.” Wheeler, 157 S.W.3d at 443 (citing Carpenter v. Cimarron, 98 S.W.3d 682, 687-88

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(Tex. 2002)). Rule 198 also provides that “the presentation of the merits of the action

[should] be subserved” when considering whether the admissions should be withdrawn.

TEX . R. CIV. P. 198.3(b). If a party seeking to withdraw the deemed admissions can satisfy

these requirements, a trial court acts unreasonably in refusing to withdraw admissions and

abuses its discretion. See id.; Wheeler, 157 S.W.3d at 442.

C.     Competency of the Affidavits

       First, we will consider the competency of Vick’s affidavit as evidence that could be

considered by the trial court. Best argues at length that the trial court could not properly

consider Vick’s affidavit because it did not contain a jurat attesting to the truth of the

matters contained therein, and because it included hearsay about which Vick could not

have had personal knowledge. We disagree.

       “‘Affidavit’ means a statement in writing of a fact or facts signed by the party making

it, sworn to before an officer authorized to administer oaths, and officially certified to by the

officer under his seal of office.” Ford Motor Co. v. Leggat, 904 S.W.2d 643, 645-46 (Tex.

1995) (citing TEX . GOV’T CODE ANN . § 312.011(1) (Vernon 1998)). Despite the fact that

Vick’s affidavit contained only an acknowledgment, it was sufficient to meet Texas’s

statutory requirements for an affidavit. Id.; see also Rose v. Comerica Bank-Texas, No.

14-3-00440-CV, 2004 Tex. App. LEXIS 9304, at *8-*9 (Tex. App.–Houston [14th Dist.] Oct.

21, 2004, pet. denied) (mem. op.) (“[A]n affidavit containing only an acknowledgment is

nevertheless effective if it states that the signing party appeared before the officer, was first

duly sworn, and on his oath, stated what follows.”). In this case, the affidavit that was

before the trial court upon its ruling to deny the motion to strike the deemed admissions

contained specific language that, “[b]efore me, the undersigned notary, on this day

personally appeared Larry A. Vick, the affiant, a person whose identity is known to me.

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After I administered an oath, affiant testified [as follows]. . . .” We have previously held that

this language is sufficient to make the affidavit competent evidence. King v. Holland, 884

S.W.2d 231, 238 n.1 (Tex. App.–Corpus Christi 1994, writ. denied) (“[T]he affidavit is only

stated to be ‘on his oath’ and sworn before a notary public. The fact that the affidavit is

taken ‘on his oath’ makes the statements therein assignable as perjury, which is the

goal . . . . The affidavit is therefore not fatally defective.”). We hold that the specific

language in Vick’s affidavit was sufficient to satisfy the statutory requirements for an

affidavit.

          On Best’s second contention, we see nothing in the affidavit that is necessarily

outside the personal knowledge of the affiant. Best specifically points to paragraph six of

Vick’s affidavit as being hearsay that is outside of his personal knowledge. That paragraph

states:

          On or around November 3, 2008, Ms. Siegel had a delivery service take the
          Defendant’s file to the temporary offices I shared with the other attorneys
          during our transition to our present offices. On December 10, 2008, the
          temporary receptionist discovered she had placed the Defendant’s file in an
          in-box for the wrong set of offices. The file was then immediately delivered
          to my new permanent office at 1143 Heights Blvd., Houston, Texas 77008.

Each of the facts contained in this paragraph are easily deducible from the surrounding

circumstances, and therefore none of these statements necessarily fall outside of Vick’s

personal knowledge.        Moreover, even if this one particular paragraph could not be

considered, it would not make the affidavit as a whole incompetent evidence, and the other

uncontroverted statements in the affidavit are more than enough for Wells to meet her

burden in showing good cause to withdraw the deemed admissions.

          Vick’s general statement that he had “personal knowledge of each of the matters

stated,” served as a sufficient representation of his personal knowledge for purposes of


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making the affidavit competent evidence for the trial court to consider. Cf. Humphreys v.

Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (holding that an affidavit lacking attestation that

the statements were based on personal knowledge was legally insufficient). Therefore, we

hold that Vick’s original affidavit was competent evidence and that it could properly have

been considered by the trial court in its entirety.

D.     Wells’s Motion to Strike Deemed Admissions

       If Wells’s motion to strike the deemed admissions showed good cause and a lack

of undue prejudice to Best, the trial court acted unreasonably in denying the motion and

thereby abused its discretion by not allowing the admissions to be withdrawn. See TEX .

R. CIV. P. 198.3(b); Wheeler, 157 S.W.3d at 443.

       1.     Good Cause

       “Good cause is established by showing the failure involved was an accident or

mistake, not intentional or the result of conscious indifference.” Wheeler, 157 S.W.3d at

442 (citing Carpenter, 98 S.W.3d at 687-88). Having held that Vick’s affidavit was

competent evidence, we look to that document to determine if good cause was established

to excuse Wells’s late response to the requests for admission.           First, there was a

substitution of counsel that occurred only two weeks before the response was due.

Second, a fire destroyed Wells’s attorney’s office on the day after Vick agreed to take on

Wells’s representation. Third, the fire required Wells’s attorney to employ a temporary

receptionist who was unfamiliar with his business. Fourth, the receptionist delivered

Wells’s file, including the requests for admission, to the wrong law office. Fifth, Wells’s

counsel was unaware that the requests for admission had been served on Wells until

December 10, 2008. The record thus reflects that the failure to timely respond was due

to uncontrollable circumstances and mistakes by Wells’s counsel and his staff. Certainly,

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there is nothing in the record that indicates that the tardiness of the response was

intentional or the result of conscious indifference, bad faith, or a callous disregard for the

rules, nor does Best argue the absence of good cause to withdraw the admissions. For

the foregoing reasons, the trial court abused its discretion if it based its ruling on a finding

that Wells did not have good cause to withdraw the deemed admissions.

       2.     Undue Prejudice

       “Undue prejudice depends on whether withdrawing an admission or filing a late

response will delay trial or significantly hamper the opposing party's ability to prepare for

it.” Wheeler, 157 S.W.3d at 443 (citing Carpenter, 98 S.W.3d at 687).

       The rule governing admissions includes as part of the undue-prejudice
       inquiry that the "presentation of the merits [must] be subserved" by permitting
       withdrawal. TEX . R. CIV. P. 198.3(b). The two are different sides of the same
       coin, as presentation of the merits will suffer (1) if the [opposing] party cannot
       prepare for trial, and also (2) if the requestor can prepare but the case is
       decided on deemed (but perhaps untrue) facts anyway.

Wheeler, 157 S.W.3d at 443 n.2. Under this test, we are permitted to make favorable

inferences from the documents filed with the requestor’s motion to strike the deemed

admissions. Cf. Wheeler, 157 S.W.3d at 443 (inferring from the attached evidence that

the party opposing the withdrawal of the deemed admissions “received [the] responses two

days late but six months before the summary judgment motion was heard”).

       In this case, Best argues that it would be unduly prejudiced because it relied on the

deemed admissions, “and thus discovery was limited, including but not limited to, [Best] not

taking at least forty depositions . . . as well as not sending approximately forty-four

depositions by written questions . . . which would be needed to properly prepare for trial.”

Best argues that by the date that the answers to the requests were filed with the motion to

strike, less than thirty days remained in the discovery period, which would not have allowed


                                               8
Best to adequately prepare for trial. We find Best’s argument unconvincing.

        First, the first trial setting in this case was set for sixty days after Wells’s responses

to the requests for admissions were finally filed. This was ample time for Best to continue

discovery and request additional time from the trial court. See Employers Ins. of Wausau

v. Halton, 792 S.W.2d 462, 467 (Tex. App.–Dallas 1990, writ denied) (“[P]laintiff had

almost a month before trial to conduct additional discovery to prove the matters previously

admitted.”).

        Second, Best conducted none of the allegedly necessary depositions between the

time the lawsuit was filed on February 27, 2008, and the time the requests were deemed

admitted on November 18, 2008. Despite being aware of Wells’s general denial of all of

the material allegations based on her March 27, 2008 original answer, Best did not conduct

any of the depositions that it claims are necessary to its preparation for trial.1 The fact that

Best was on notice of Wells’s general denial but did not conduct the discovery it claims was

necessary shows that Best was not unduly prejudiced. See id. (finding no undue prejudice

based in part on the fact that the “plaintiff had known since early July, when defendant filed

its original answer, that defendant contested almost all material issues in the case”).

        Third, under Texas Rule of Civil Procedure 198, deemed admissions are to be

stricken if they prevent a substantive trial on the merits, so long as the good cause element

is satisfied. TEX . R. CIV. P. 198.3(b). Moreover, absent flagrant bad faith or callous

disregard for the rules, due process bars merits-preclusive sanctions. Wheeler, 157

S.W.3d at 443. In this case, the presentation of the merits of the action will be subserved


        1
         W e recognize that during a portion of this tim e, W ells was in chapter 13 bankruptcy and discovery
was not perm itted. The record is unclear as to how long this action was stayed. However, the stay was lifted
on Septem ber 5, 2008, giving Best at least ten weeks to conduct discovery before the requests were deem ed
adm itted.

                                                     9
by permitting Wells to withdraw her admissions because, otherwise, summary judgment

will preclude a trial on the merits entirely. “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.” Id. (citing Stelly, 927 S.W.2d at 622). Best was clearly on

notice that the requests for admissions that it sought were not these types of

uncontroverted or evidentiary matters, and therefore, Best could not have reasonably relied

on the admissions in lieu of other discovery.

         We hold that Best would not be unduly prejudiced by a withdrawal of the deemed

admissions. Further, we hold that the trial court abused its discretion in not granting

Wells’s Motion to Strike Deemed Admissions, sustain Wells’s first issue, and reverse the

trial court’s order accordingly.

E.       Best’s Motion for Summary Judgment

         In a traditional summary judgment proceeding, a successful movant must show that

there is no genuine issue of material fact and that judgment should be granted as a matter

of law. TEX . R. CIV. P. 166(a); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.

1991).    Because we have held that Wells’s deemed admissions should have been

withdrawn by the trial court, Best’s motion for summary judgment could only have been

properly granted based on the affidavit from Best’s president, Russell Burnett, because it

was the only other evidence offered in support of the summary judgment. Because

Wells’s general denial controverted all of the material statements made in Burnett’s

affidavit, Burnett’s affidavit is not sufficient to show that there is no genuine issue of

material fact. Therefore, we reverse the trial court’s order granting summary judgment in


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favor of Best.

                                     III. CONCLUSION

       Because Wells showed good cause and no undue prejudice in its Motion to Strike

Deemed Admissions, the trial court abused its discretion by not granting the motion.

Further, we hold that summary judgment was improper because Wells’s general denial

raised a genuine issue of material fact. Because we sustain Wells’s first issue, we need

not reach Wells’s second issue that the deemed admissions called for legal conclusions.

For the foregoing reasons, we reverse the trial court’s orders denying Wells’s Motion to

Strike Deemed Admissions, and granting Best’s Motion for Summary Judgment. We

remand this cause to the trial court for further proceedings consistent with this opinion.




                                                    ______________________________
                                                    GINA M. BENAVIDES,
                                                    Justice


Delivered and filed the
28th day of October, 2010.




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