Opinion issued May 18, 2017




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-16-00155-CV
                           ———————————
 MARTA RAMIREZ, AS PERSONAL REPRESENTATIVE AND HEIR OF
          RONALD MONROY, DECEASED, Appellant
                                        V.
                       NOBLE ENERGY, INC., Appellee


                   On Appeal from the 215th District Court
                           Harris County, Texas
                     Trial Court Case No. 2015-43210A


                                  OPINION

      In this personal injury case, Ronald Monroy sued Noble Energy, Inc. for

negligence after he allegedly sustained injuries while unloading a truck on Noble’s

property. After Monroy failed to timely respond to Noble’s requests for admissions,
Noble moved for summary judgment. While the case was pending in the trial court,

Monroy died, and his wife and the personal representative of his estate, Marta

Ramirez, took over prosecution of his suit. The trial court granted Noble’s summary

judgment motion. On appeal, Ramirez contends that the trial court (1) abused its

discretion by overruling Monroy’s motion to withdraw deemed admissions, and

(2) erroneously rendered summary judgment in favor of Noble based on the deemed

admissions.

      We reverse and remand.

                                     Background

      Monroy worked as a long-distance truck driver for J&R Express, LLC.1 He

alleged that on April 1, 2014, J & R Express instructed him to deliver a load to Noble

at its facility in Louisiana. Monroy alleged that the area was poorly lit and Noble’s

employees did not assist him in unloading the cargo from his truck. He further

alleged that, in the process of unloading the truck, a steel plate hit his right knee and

right leg. On July 26, 2015, Monroy sued both J&R Express and Noble, alleging,

among other things, that the defendants were negligent by failing to provide him a

safe place to work.



1
      Monroy sued both J&R Express and Noble, but only Noble moved for summary
      judgment. After the trial court rendered summary judgment in Noble’s favor, the
      court severed Monroy’s claims against Noble, creating a final judgment. J&R
      Express is not a party to this appeal.
                                           2
      Noble answered Monroy’s suit and served discovery requests—including

eleven requests for admissions—on Monroy on September 3, 2015. Monroy’s

responses to the requests for admissions and other written discovery were due on

October 5, 2015.

      Monroy did not timely respond to Noble’s discovery requests. Noble thus

filed a motion to compel discovery responses on October 15, 2015. On October 26,

2015, the trial court signed an order requiring Monroy to fully and completely

respond to Noble’s discovery requests within ten days, or by November 5, 2015.

      Monroy responded to Noble’s discovery requests on November 6, 2015, one

day after the trial court’s ten-day deadline had passed. On November 17, 2015,

Noble moved for traditional summary judgment, arguing that because Monroy did

not timely respond to its requests for admissions, the matters within the requests

were deemed admitted. The deemed admissions included admissions that “Noble is

not a proper party to this lawsuit” and that “[t]he truck which [Monroy] was driving

was not Noble’s property.” Noble argued that these admissions demonstrated that

Noble was not a proper party to Monroy’s suit and that Noble had no responsibility

for or involvement in Monroy’s alleged injuries. Noble argued that the admissions

conclusively established that it “did not own the truck out of which the steel plate is

alleged to have fallen and injured” Monroy and that the “driver of a truck is generally

responsible for cargo loading and securement,” citing a provision in the Code of


                                          3
Federal Regulations for support. Noble contended, based on the deemed admissions,

that Monroy had no claim against it and that it was entitled to summary judgment.

      Noble attached as summary judgment evidence the answers that it received to

its requests for admission from Monroy on November 6, 2015. In his answers to the

requests for admissions, Monroy denied that Noble was not a proper defendant to

the suit. Monroy admitted that he drove the truck while employed by J&R Express,

that the truck was not Noble’s property, and that the steel plate that struck him was

on the truck. Noble did not attach any other evidence to its summary judgment

motion.

      Noble also moved for sanctions on the same day that it moved for summary

judgment. In this motion, Noble argued that Monroy’s responses to its discovery

requests and his document production were inadequate. Noble asked the trial court

“to sanction [Monroy] monetarily and to dismiss this lawsuit as against Noble, with

prejudice to refiling, if [Monroy] fails to respond fully and completely to Noble’s

discovery requests within ten (10) days of the Court’s Order.”

      On December 8, 2015, Monroy responded to Noble’s motion for sanctions.

Monroy argued that Noble had not demonstrated any harm or prejudice from his

allegedly inadequate discovery responses. Monroy also stated that his counsel had

repeatedly advised Noble that her secretary had left her firm in July 2015, shortly

after Monroy filed suit, and that the discovery responses had been overlooked due


                                         4
to the change in personnel. Monroy thus argued that Noble could not demonstrate

that his failure to respond was intentional or due to conscious disregard of his

discovery obligations. Monroy attached email correspondence between his counsel

and Noble’s counsel in which his counsel stated that her new assistant, who had been

in training for two months, had quit and she was “uncovering past due discovery that

wasn’t calendared.” She stated, “I will need about 2-3 weeks to send discovery

responses.” The correspondence also included an email from Monroy’s counsel’s

legal assistant, dated October 23, 2015, stating that she had a meeting with Monroy

scheduled for October 27, 2015, “to answer discovery.”

      On December 30, 2015, Monroy filed a motion to withdraw the deemed

admissions. Monroy stated:

      The reason Plaintiff’s counsel failed to respond was due to a mistake
      and not the result of conscious indifference. Plaintiff[’s] counsel’s
      long-time assistant left the firm and the new assistant hired was in
      training when plaintiff received discovery requests. The assistant did
      not calendar discovery deadlines, including discovery in this action.

Monroy also noted that the trial court had set the discovery deadline for September

12, 2016, and the trial setting for November 14, 2016, and, as a result, Noble would

not be prejudiced by the withdrawal of deemed admissions because the withdrawal

would not “delay trial or hamper [Noble’s] ability to prepare for trial.”

      That same day, Monroy moved for an extension of time to respond to Noble’s

summary judgment motion, asking that the trial court grant additional time and rule


                                          5
first on his motion to withdraw deemed admissions.            Monroy requested “a

continuance for additional time to secure the court’s ruling” on the motion to

withdraw deemed admissions and also to conduct additional discovery concerning

his claims. He argued that Noble’s sole basis for summary judgment was the deemed

admissions and that Noble “should not be allowed to exit this case before J&R

Express answers and additional discovery can be conducted.”

      The trial court did not rule on Monroy’s request for an extension of time.

Monroy did not file a response to Noble’s summary judgment motion.

      On January 8, 2016, the trial court granted Noble’s summary judgment motion

and dismissed Monroy’s claims against Noble with prejudice. The trial court denied

Noble’s motion for sanctions and denied Monroy’s motion to withdraw deemed

admissions.

      On February 19, 2016, after the trial court had severed Monroy’s claims

against Noble from his claims against J & R Express, Ramirez filed a suggestion of

death, stating that Monroy had died on December 15, 2015. Ramirez, acting as

Monroy’s personal representative, then filed a notice of appeal.

                       Withdrawal of Deemed Admissions

      In her second issue, Ramirez contends that the trial court abused its discretion

by denying Monroy’s motion to withdraw deemed admissions.




                                          6
A.    Standard of Review and Governing Law

      A party may serve on another party written requests that the other party admit

the truth of any matter within the scope of discovery, including statements of

opinion, statements of fact, and statements of the application of law to fact. TEX. R.

CIV. P. 198.1. The responding party must serve a written response within thirty days

after service of the request. TEX. R. CIV. P. 198.2(a). If the responding party does

not timely serve his responses, “the request is considered admitted without the

necessity of a court order.” TEX. R. CIV. P. 198.2(c).

      A matter admitted under Rule 198 “is conclusively established as to the party

making the admission unless the court permits the party to withdraw or amend the

admission.” TEX. R. CIV. P. 198.3. The trial court may permit withdrawal of an

admission if (1) the party shows good cause for the withdrawal, and (2) the court

finds that the party relying on the deemed admission will not be unduly prejudiced

and that the presentation of the merits of the case will be served by permitting

withdrawal. Id.

      A party establishes “good cause” by showing that the failure to timely respond

to the requests for admissions was an accident or mistake, not intentional or the result

of conscious indifference. Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005) (per

curiam). Even a “slight excuse” for the failure to timely respond will suffice,

especially when delay or prejudice to the opposing party will not result from the


                                           7
withdrawal. Time Warner, Inc. v. Gonzalez, 441 S.W.3d 661, 665 (Tex. App.—San

Antonio 2014, pet. denied). Courts have held that a showing of a clerical error is

sufficient to establish good cause, even if the party is negligent, as long as the party’s

negligence does not rise to the level of conscious indifference. Boulet v. State, 189

S.W.3d 833, 837 (Tex. App.—Houston [1st Dist.] 2006, no pet.). “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.

Generally, the party seeking withdrawal of the deemed admissions has the burden to

establish good cause. Cleveland v. Taylor, 397 S.W.3d 683, 694 (Tex. App.—

Houston [1st Dist.] 2012, pet. denied) (citing Boulet, 189 S.W.3d at 836).

      Trial courts have broad discretion to permit or deny withdrawal of deemed

admissions; however, courts cannot do so arbitrarily, unreasonably, or without

reference to guiding rules or principles. Wheeler, 157 S.W.3d at 443; Cleveland,

397 S.W.3d at 694 (stating that we review trial court’s ruling on motion to withdraw

deemed admissions for abuse of discretion). Requests for admissions are intended

to simplify trials and are useful when addressing uncontroverted matters; they are

not intended to be used to force a party to admit the validity of his claims or concede

his defenses. See Marino v. King, 355 S.W.3d 629, 632 (Tex. 2011) (per curiam);

Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996) (per curiam) (noting that




                                            8
requests for admissions were not intended “to be used as a demand upon a plaintiff

or defendant to admit that he had no cause of action or ground of defense”).

       When admissions are deemed as a discovery sanction to preclude presentation

of the merits of the case, the deemed admissions “implicate the same due process

concerns as other case-ending discovery sanctions.” Marino, 355 S.W.3d at 632;

Wheeler, 157 S.W.3d at 443 (“But when a party uses deemed admissions to try to

preclude presentation of the merits of a case, the same due-process concerns arise.”).

Thus, to substantiate a summary judgment based solely on merits-preclusive deemed

admissions, the party relying upon the deemed admissions must demonstrate

“flagrant bad faith or callous disregard for the rules.” Marino, 355 S.W.3d at 633;

Wheeler, 157 S.W.3d at 443; see also TransAmerican Nat. Gas Corp. v. Powell, 811

S.W.2d 913, 918 (Tex. 1991) (“Sanctions which are so severe as to preclude

presentation of the merits of the case should not be assessed absent a party’s flagrant

bad faith or counsel’s callous disregard for the responsibilities of discovery under

the rules.”).

       The Texas Supreme Court has held that “[c]onstitutional imperatives favor the

determination of cases on their merits rather than on harmless procedural defaults.”

Marino, 355 S.W.3d at 634. “Using deemed admissions as the basis for summary

judgment therefore does not avoid the requirement of flagrant bad faith or callous

disregard, the showing necessary to support a merits-preclusive sanction; it merely


                                          9
incorporates the requirement as an element of the movant’s summary judgment

burden.” Id.; Medina v. Raven, 492 S.W.3d 53, 62 (Tex. App.—Houston [1st Dist.]

2016, no pet.) (“This showing of flagrant bad faith or callous disregard is ‘an element

of the movant’s summary judgment burden.’”) (quoting Yacoub v. SureTec Ins. Co.,

No. 14-13-00274-CV, 2015 WL 1928618, at *3 (Tex. App.—Houston [14th Dist.]

Apr. 28, 2015, no pet.) (mem. op.)). “Bad faith is not simply bad judgment or

negligence, but the conscious doing of a wrong for dishonest, discriminatory, or

malicious purpose.” Time Warner, 441 S.W.3d at 666 (quoting Armstrong v. Collin

Cty. Bail Bond Bd., 233 S.W.3d 57, 63 (Tex. App.—Dallas 2007, no pet.)).

B.    Analysis

      Noble propounded eleven requests for admissions to Monroy, including

requests that he admit that Noble was not a proper defendant to the lawsuit, that the

truck he drove was not Noble’s property, and that the steel plate that allegedly struck

and injured him was on the truck that he drove. It is undisputed that Monroy did not

timely respond to these requests for admissions and that these matters were therefore

deemed admitted.

      The trial court granted Noble’s motion to compel discovery responses and

ordered Monroy to respond within ten days, or by November 5, 2015. Monroy

responded on November 6, 2015, and answered Noble’s requests for admissions.




                                          10
Monroy denied eight of the matters and admitted three others, including admissions

that the truck was not Noble’s property and that the steel plate was on the truck.

      Noble moved for traditional summary judgment on November 17, 2015,

eleven days after it received Monroy’s discovery responses. It relied entirely on the

deemed admissions in arguing that summary judgment in its favor was proper.

Specifically, Noble argued:

      [T]hese deemed admissions show that Noble is not a proper party to
      this lawsuit, and further that Noble has no responsibility for nor any
      involvement in the injuries that the Plaintiff allegedly suffered. Further,
      Plaintiff’s admissions conclusively establish that Noble did not own the
      truck out of which the steel plate is alleged to have fallen and injured
      Plaintiff. The driver of a truck is generally responsible for cargo
      loading and securement. See 49 CFR 392.9. This evidence
      conclusively establishes that fact against Plaintiff. Under these
      circumstances, Plaintiff has no claim against Noble and Noble is
      entitled to the Court’s summary judgment, dismissing Plaintiff’s claims
      against Noble.

Noble attached Monroy’s actual responses to the requests for admissions as

summary judgment evidence, but it did not reference these responses in its summary

judgment motion or make any argument for how these responses demonstrated that

it was entitled to judgment as a matter of law on Monroy’s claims. Noble did not

attach any other summary judgment evidence.

      1.     Merits-Preclusive Effect of Deemed Admissions

      We first address whether the deemed admissions at issue in this case were

“merits preclusive.”


                                          11
      “[W]hether an admission is one which precludes litigation of a claim or

defense or merely seeks admission of an uncontroverted matter may not always be

apparent until the admission is evaluated in the context of the other evidence.” In re

Sewell, 472 S.W.3d 449, 460 (Tex. App.—Texarkana 2015, orig. proceeding). It is

not enough to demonstrate that admissions do not conclusively establish the ultimate

issue in the case to escape withdrawal of the deemed admissions. Id. at 461. Instead,

“the record must affirmatively show that the requests are not merit-preclusive, either

by showing that they seek to authenticate or prove the admissibility of documents or

by showing that they involve uncontroverted facts.” Id. Because merits-preclusive

admissions implicate due process concerns, we must presume that the admissions

are merits-preclusive if the record does not affirmatively establish that they are not

merits-preclusive. Id.

      Noble contends that the deemed admissions are “factual in nature and not

merit-preclusive,” noting that it did not ask Monroy to admit that he had no cause of

action against it. Noble did, however, ask Monroy to admit that it was not a proper

defendant to the lawsuit, and this was the deemed admission that Noble principally

relied upon in its summary judgment motion as evidence that Monroy had no cause

of action against Noble. This request thus essentially asked Monroy to admit the

validity of his claim against Noble, which is not a proper use for requests for

admissions. See Marino, 355 S.W.3d at 632 (“King’s requests here, however, asked


                                         12
essentially that Marino admit to the validity of his claims and concede her

defenses—matters King knew to be in dispute. Requests for admission were never

intended for this purpose.”); Time Warner, 441 S.W.3d at 668 (“[R]equests for

admission are improper and ineffective when used to establish controverted issues

that constitute the fundamental legal issues in a case.”); Boulet, 189 S.W.3d at 838

(“[R]esponses to requests for admissions merely constituting admissions of law are

not binding on the court and a party is not precluded from proving a fact necessary

to its cause or defense.”).

      Additionally, Noble relied upon the deemed admissions that Noble did not

own the truck that Monroy had been driving and that the steel plate that allegedly

injured Monroy was on the truck as further evidence that Monroy had “no claim

against Noble” and that Noble was entitled to summary judgment. Noble argues that

these requests merely sought information that was “factual in nature,” but it relied

upon this evidence, and no other, to argue that it “ha[d] no responsibility for”

Monroy’s injuries and that it was entitled to judgment as a matter of law. See Time

Warner, 441 S.W.3d at 666 (holding that requests for admissions had merits-

preclusive effect when it was “clear that the trial court’s decision to render judgment

in favor of Gonzalez was based solely on the deemed admissions conclusively

establishing the ultimate legal issues in the case”); see also In re Sewell, 472 S.W.3d

at 460 (stating that whether admission precludes litigation of claim or defense or


                                          13
seeks admission of uncontroverted matter “may not always be apparent until the

admission is evaluated in the context of the other evidence”).

      Monroy ultimately responded to Noble’s requests for admissions, Noble

received these responses before it moved for summary judgment, and Noble attached

Monroy’s responses as summary judgment evidence. Monroy admitted the matters

in three of the requests: that he drove the truck to the location where he was injured

while employed by J&R Express; that the truck was not the property of Noble; and

that the steel plate that he claimed struck him was on the truck. The record thus

affirmatively reflects that these three requests involved uncontroverted facts, and

therefore these admissions were not merits-preclusive. See In re Sewell, 472 S.W.3d

at 461. The record does not, however, affirmatively reflect that the other eight

requests seek to authenticate or prove the admissibility of documents or involve

uncontroverted facts and thus are not merits-preclusive, and, indeed, the evidence is

to the contrary. See id.

      We therefore agree with Ramirez that the deemed admissions had a merits-

preclusive effect, implicating due process concerns. See Marino, 355 S.W.3d at 632;

Wheeler, 157 S.W.3d at 443. We thus turn to whether Noble demonstrated that, in

failing to timely respond to the requests for admissions, Monroy acted with flagrant

bad faith or callous disregard.




                                         14
         2.    Flagrant Bad Faith or Callous Disregard

         As the party moving for summary judgment based on merits-preclusive

deemed admissions, Noble bore the burden of demonstrating that in failing to timely

respond to the requests for admissions Monroy acted with flagrant bad faith or

callous disregard for the rules. See Marino, 355 S.W.3d at 634; Medina, 492 S.W.3d

at 62.

         It is undisputed that Noble served its requests for admissions on Monroy on

September 3, 2015, and that his responses were due October 5, 2015. It is undisputed

that Monroy did not respond by this date, and that Noble moved to compel discovery

responses on October 15, 2015. It is further undisputed that on October 26, 2015,

the trial court ordered Monroy to respond within ten days, or by November 5, 2015.

Monroy did not respond until November 6, 2015, one day late.

         In response to Noble’s motion for sanctions, Monroy attached the discovery

responses that he served upon Noble on November 6. He also attached email

correspondence between his counsel and Noble’s counsel, beginning on October 15,

2015, when Noble filed its motion to compel discovery responses and informed

Monroy’s counsel of this filing. His counsel responded to Noble’s counsel, stating

that her “new assistant in training for two months quit and I’m uncovering past due

discovery that wasn’t calendared.” She estimated that she would “need about 2-3

weeks to send discovery responses.” In an email dated October 23, 2015, Monroy’s


                                          15
counsel’s legal assistant stated that she had a meeting scheduled with Monroy for

October 27, 2015, “to answer discovery.” Monroy stated this same reason for his

failure to timely respond in his motion to withdraw deemed admissions:

       Defendant served Plaintiff with written discovery and Plaintiff did not
       respond timely. Noble Energy rejected Plaintiff’s request for an
       extension of time, and instead filed a Motion to Compel Discovery.
       Plaintiff filed a response. The reason Plaintiff’s counsel failed to
       respond was due to a mistake and not the result of conscious
       indifference. Plaintiff counsel’s long-time assistant left the firm and
       the new assistant hired was in training when Plaintiff received
       discovery requests. The assistant did not calendar discovery deadlines,
       including discovery in this action.

       A panel of this Court recently noted that “a lack of care, simple bad judgment,

or a mistaken belief that no discovery had been served does not rise to the level of

bad faith or callous disregard for the rules.” In re TT-Fountains of Tomball, Ltd.,

No. 01-15-00817-CV, 2016 WL 3965117, at *11 (Tex. App.—Houston [1st Dist.]

July 21, 2016, orig. proceeding) (mem. op.).         This Court stated, “Rather, a

determination of bad faith or callous disregard for the rules has been reserved for

cases in which the evidence shows that a party is mindful of pending deadlines and

nonetheless either consciously or flagrantly fails to comply with the rules.” Id. at

*12.

       Monroy’s discovery responses were originally due on October 5, 2015. He

eventually responded on November 6, 2015, thirty-two days late. The record

contains evidence that Monroy failed to timely respond to the requests for


                                          16
admissions because his counsel’s legal assistant quit and her replacement, who was

in training when Noble sent the discovery requests, did not calendar the discovery

deadlines. See Boulet, 189 S.W.3d at 837 (noting that “a showing of clerical error

has been held sufficient to establish good cause for a failure to timely respond to a

request for admission . . . as long as the party’s negligence does not rise to the level

of conscious indifference”). The record also contains evidence that, after being put

on notice that the responses were late, Monroy’s counsel started working with him

to obtain his answers to the requests. Monroy answered the discovery requests,

albeit one day after the new response deadline set by the trial court. This is therefore

not a situation in which Monroy or his counsel deliberately refused to participate in

discovery. Cf. Soto v. Gen. Foam & Plastics Corp., 458 S.W.3d 78, 84–85 (Tex.

App.—El Paso 2014, no pet.) (holding that evidence in record demonstrated

defendant’s flagrant bad faith and callous disregard when defendant’s counsel

withdrew from representation because defendant refused to cooperate and would not

produce requested discovery “even when faced with a sanctions hearing”); see also

Cleveland, 397 S.W.3d at 688–89, 696 (noting, in holding that trial court did not err

in denying withdrawal of deemed admissions, that parties “failed to respond to

numerous discovery requests and orders compelling production”).

      Noble also argues that Monroy “has hindered the discovery process

throughout this lawsuit” and that his failure to adequately respond to its discovery


                                          17
requests “justifies a presumption of callous disregard for the rules.” After receiving

Monroy’s discovery responses, Noble moved for sanctions against Monroy, arguing

that Monroy’s responses were inadequate and incomplete and requesting that the

trial court order Monroy to fully and completely respond to the requests within ten

days. However, as Noble acknowledges, the trial court denied its motion for

sanctions, and the court did not order Monroy to submit further responses to Noble’s

discovery requests. We therefore do not agree that the alleged inadequacy of

Monroy’s discovery responses justifies a presumption of callous disregard for the

discovery rules. See TEX. R. CIV. P. 193.1 (“When responding to written discovery,

a party must make a complete response, based on all information reasonably

available to the responding party or its attorney at the time the response is made.”)

(emphasis added); TEX. R. CIV. P. 193.5 (imposing duty on party to amend or

supplement discovery responses if party learns that response to written discovery

was incomplete or incorrect when made or, if complete and correct when made, is

no longer complete and correct).

      Noble further argues that Monroy failed to satisfy the evidentiary

requirements of Rule 198.3 because his motion to withdraw deemed admissions did

not include any evidence to support findings of good cause and no undue prejudice

to Noble. Similarly, Noble argues that Monroy’s counsel’s verification for this

motion was legally insufficient because it stated that the facts in the motion were


                                         18
“true and correct to the best of [counsel’s] knowledge,” and thus improperly

qualified her personal knowledge.

      Ordinarily, the party seeking withdrawal of deemed admissions bears the

burden of establishing the requirements of Rule 198.3: that good cause exists for the

withdrawal, that the withdrawal will not unduly prejudice the party relying upon the

deemed admissions, and that withdrawal will serve the presentation of the merits.

TEX. R. CIV. P. 198.3; Boulet, 189 S.W.3d at 836 (“The party seeking withdrawal of

deemed admissions has the burden to establish good cause.”). However, when, as

here, the party seeks withdrawal of merits-preclusive deemed admissions, due

process requires the party opposing withdrawal to prove that the moving party’s

failure to timely answer the requests resulted from flagrant bad faith or callous

disregard for the discovery rules. Medina, 492 S.W.3d at 62; In re Sewell, 472

S.W.3d at 456; Time Warner, 441 S.W.3d at 666. “This showing of flagrant bad

faith or callous disregard is ‘an element of the movant’s summary judgment

burden.’” Medina, 492 S.W.3d at 62; see also Marino, 355 S.W.3d at 634 (stating

that using merits-preclusive deemed admissions as basis for summary judgment

“incorporates the requirement [of showing flagrant bad faith or callous disregard] as

an element of the movant’s summary judgment burden”).

      We have already held that eight of the deemed admissions, including the

primary admission relied upon by Noble in its summary judgment motion, were


                                         19
merits-preclusive. Thus, Noble, not Monroy, had the burden to demonstrate that

Monroy’s failure to respond was the result of flagrant bad faith or callous disregard.

See Medina, 492 S.W.3d at 62.

      As we have stated, Noble has not presented evidence that, in failing to timely

respond to discovery requests, Monroy acted with flagrant bad faith or callous

disregard for the discovery rules. See Marino, 355 S.W.3d at 634; Wheeler, 157

S.W.3d at 443; Medina, 492 S.W.3d 62–64. Furthermore, Monroy moved for

withdrawal of deemed admissions in December 2015. In his motion, he noted that

the trial court had set the discovery deadline for September 12, 2016, and the trial

setting for November 14, 2016, nine and eleven months, respectively, after the date

Monroy moved for withdrawal. Noble presented no evidence that withdrawal of the

deemed admissions would cause it undue prejudice or that withdrawal would not

serve presentation of the merits. See Medina, 492 S.W.3d at 64. We therefore hold

that the trial court erroneously denied Monroy’s motion to withdraw deemed

admissions.

      We sustain Ramirez’s second issue.

C.    Entitlement to Summary Judgment

      In her first issue, Ramirez contends that the trial court erred in rendering

summary judgment in favor of Noble based on deemed admissions.




                                         20
      To prevail on a traditional summary judgment motion, the movant bears the

burden of proving 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); Mann Frankfort Stein &

Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A traditional

summary judgment movant “must establish his entitlement to a summary judgment

on the issues expressly presented to the trial court by conclusively proving all

essential elements of his cause of action or defense as a matter of law.” City of

Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); see Frost

Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010) (“A defendant who

conclusively negates at least one of the essential elements of a cause of action . . . is

entitled to summary judgment.”). A traditional motion for summary judgment “must

stand or fall on [its] own merits, and the non-movant’s failure to answer or respond

cannot supply by default the summary judgment proof necessary to establish the

movant’s right to judgment.” Amedisys, Inc. v. Kingwood Home Health Care, LLC,

437 S.W.3d 507, 511–12 (Tex. 2014) (quoting McConnell v. Southside Indep. Sch.

Dist., 858 S.W.2d 337, 343 (Tex. 1993)).

      Noble moved for traditional summary judgment on Monroy’s negligence

cause of action. It relied solely on Monroy’s deemed admissions in arguing that it

was entitled to judgment as a matter of law, and the only evidence that it attached

was Monroy’s actual responses to the requests for admissions. These responses


                                           21
included Monroy’s admissions that he drove the truck to Noble’s facility while

employed by J&R Express, that the truck was not Noble’s property, and that the steel

plate that allegedly struck Monroy was on the truck.

      We have held that the trial court erred by denying Monroy’s motion to

withdraw the deemed admissions. To the extent that the trial court considered the

deemed admissions in rendering summary judgment, we agree with Ramirez that

this was improper.    To the extent the trial court considered Monroy’s actual

admissions, Noble has not demonstrated that these three admissions conclusively

negated an element of Monroy’s negligence cause of action. See Fernandez, 315

S.W.3d at 508. We therefore hold that the trial court erred in rendering summary

judgment in favor of Noble.

      We sustain Ramirez’s second issue.

                                    Conclusion

      We reverse the judgment of the trial court and remand the case for further

proceedings.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Bland, and Huddle.



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