                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00302-CV


MICHAEL THOMAS ALEXANDER                                              APPELLANT

                                         V.

STATE OF TEXAS AND KELLY                                              APPELLEES
GRIGGS


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          FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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                         MEMORANDUM OPINION1
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                                   I. Introduction

      Appellant Michael Thomas Alexander appeals following the trial court’s

dismissal of his petition in intervention in the underlying forfeiture matter styled

The State of Texas v. $23,843.00 in U.S. Currency and 2002 Oldsmobile Alero.

Alexander contends in two issues that (1) the trial court’s order striking his


      1
       See Tex. R. App. P. 47.4.
intervention violated his due process rights because it was rendered without

notice and hearing and (2) the trial court abused its discretion by denying

Alexander’s request to withdraw the deemed admissions and by striking

Alexander’s intervention because of those deemed admissions. We affirm.

                                  II. Background

      On November 17, 2009, the State filed a notice of seizure and intended

forfeiture in the matter of The State of Texas v. $23,843.00 in U.S. Currency and

2002 Oldsmobile Alero. Law enforcement seized the vehicle and currency from

Appellee Kelly Griggs in Wichita Falls, Texas, pursuant to her arrest for failure to

identify, possession of a controlled substance, and two outstanding arrest

warrants after police officers stopped the Alero in which she was a passenger for

not having operational rear tail lights. The State alleged that the vehicle and

currency were contraband as defined by article 59.01 of the code of criminal

procedure and subject to forfeiture because the property was used or intended to

be used in the commission of a qualifying felony. Alexander filed a petition in

intervention in the forfeiture proceeding and alleged that he owned the seized

property.   On March 2, 2010, Griggs served Alexander with “Interrogatories,

Request for Production, Request for Admissions.”            The request advised

Alexander that he was to provide answers under oath and serve the written

answers within thirty days of receipt.

      Alexander did not answer the requests in writing by the deadline, and they

were therefore deemed admitted. See Tex. R. Civ. P. 198.2(c). As part of the


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deemed admissions, Alexander admitted that he had no legal or equitable claim

to the property subject to the suit. Based on the deemed admissions, Griggs

filed a motion to strike Alexander as a party for lack of standing, and the trial

court granted the motion the next day without a hearing. Alexander was served

with the motion but not with the final order striking him as a party. After he

learned that the trial court had granted the motion, Alexander timely filed a

motion for new trial and motion to strike deemed admissions.

      At the hearing on his motions, Alexander testified that he was acting pro se

when Griggs served him with the discovery requests and that he personally met

with attorneys for both Griggs and the State approximately fourteen days before

the discovery deadline because he believed it would be better to answer the

discovery requests in person. Alexander also testified that the attorneys advised

him to hire a lawyer and respond to the requests in writing. Eleven days after the

discovery was due, Alexander hired an attorney, and three days later, Alexander

filed written responses to the request for admissions.

      Alexander also testified at the hearing that Griggs was his ex-wife and that

he had allowed her to stay at his house because she had requested his help with

quitting drugs. Alexander testified that he had $36,000 in cash in his house the

night that Griggs stayed there and that he had withdrawn the money to use as a

down payment on a house. He testified that he knew that the $23,000 in cash

that police found in the Alero when Griggs was arrested was part of his $36,000

because Griggs knew Alexander had the money in his bedroom, she


                                         3
disappeared the same night as his car and money, she was a drug addict, and

she had no other means of accessing money. However, Alexander also testified

that no one actually saw Griggs take the money or his vehicle and that he did not

notice Griggs leave the bedroom they shared that night because he had taken

sleeping pills.2   During the hearing, Alexander’s attorney referred to the

availability of documents demonstrating Alexander’s ownership of the money, but

the documents were not introduced into evidence. Following the hearing, the trial

court denied Alexander’s motions.

      After the trial court denied his motions, Alexander filed a motion to

reconsider. At the hearing on that motion, Alexander introduced the record from

the first hearing, but he did not offer any other evidence to support his motion to

reconsider. The trial court overruled the motion and issued an order severing

Alexander’s intervention from the primary case. Alexander then filed a notice of

this appeal.

                    III. Withdrawal of Deemed Admissions

A. Applicable Law

      In his second issue, Alexander contends that the trial court abused its

discretion by refusing to allow him to withdraw deemed admissions and by

striking his intervention because of those deemed admissions.           The State

      2
       Alexander testified at the hearing on his motion for New trial that he did
not purchase the Alero that police confiscated from Griggs and has never seen
the vehicle. However, he claims an interest in the vehicle based on his “guess”
that Griggs purchased the Alero with part of the $36,000 that he alleges she stole
from him. Alexander also testified that he has no evidence to support that theory.

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responds that Alexander failed to demonstrate good cause for his failure to timely

respond to the requested discovery and that Alexander’s uncorroborated and

refutable claim to ownership of the property is not sufficient to set aside his

deemed admissions.

      When a party fails to properly answer a request for admissions, the

matters therein are deemed admitted as a matter of law.            Tex. R. Civ. P.

198.2(c); Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 355 (Tex. 1998). The

trial court does not have discretion to refuse to deem the requests admitted.

Barker v. Harrison, 752 S.W.2d 154, 155 (Tex. App.―Houston [1st Dist.] 1988,

writ dism’d w.o.j.). In order for a response to requests for admissions to be

proper, the responding party must serve the requesting party with a written

response within thirty days after service of the request. Tex. R. Civ. P. 198.2(a).

Matters that are deemed admitted are “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 a party to withdraw deemed admissions if (1) the

party shows good cause for the withdrawal, (2) the court finds that the parties

relying on the admissions will not be unduly prejudiced, and (3) the presentation

of the merits of the action will be served thereby. Id.; Deggs, 968 S.W.2d at 356.

Good cause is established by showing that the failure to properly answer was an

accident or mistake, rather than intentional or the result of conscious indifference.




                                         5
Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005); Stelly v. Papania, 927

S.W.2d 620, 622 (Tex. 1996).

       A trial court has broad discretion to permit or deny the withdrawal of

deemed admissions. Stelly, 927 S.W.2d at 622. An appellate court should set

aside the trial court’s ruling only if, after reviewing the entire record, it is clear that

the trial court abused its discretion. Id. A trial court abuses its discretion when it

acts without reference to guiding rules or principles or acts arbitrarily or

unreasonably. Wheeler, 157 S.W.3d at 443. Because the good cause rule turns

on the actor’s state of mind, its application may require a different result when the

actor is not a lawyer. Id. at 444. However, “pro se litigants are not exempt from

the rules of procedure.” Id.

B. Discussion

       In Van Hoose v. Vanderbilt Mortgage & Finance, Inc., the Van Hooses

asserted that their failure to respond to a request for admissions was due to Ms.

Van Hoose’s medical condition, which required her to avoid the stress of court.

No. 03-08-00573-CV, 2009 WL 1256646, at *2 (Tex. App.―Austin May 8, 2009,

pet. denied) (mem. op.).        The appellate court determined that this did not

demonstrate that the lack of response was for good cause and denied their

request to withdraw the deemed admissions. Id.

       The court in Ramsey v. Criswell also did not permit deemed admissions to

be withdrawn.     850 S.W.2d 258, 259 (Tex. App.―Texarkana 1993, no pet.).

Ramsey submitted responses two days after the deadline and did not move for


                                            6
an extension of time. Id. Ramsey alleged that his tardy response was due to his

illness and his counsel being out of town on the last day for filing, but he did not

offer any evidence to support his assertions.         Id. at 259–60.     The court

determined that the evidence did not support a finding of good cause. Id. at 260.

      In Wheeler, Ms. Wheeler, acting pro se in a custody dispute, was allowed

to withdraw her deemed admissions. 157 S.W.3d at 443–44. Wheeler mailed

her responses to an admissions request twenty-seven days after she received

the request. Id. at 441. However, this was thirty-five days after the mailbox rule

established that she had been served with the request, making her response two

days late.   Id.   Thus, the responses were deemed admitted, and opposing

counsel moved for summary judgment on the basis of those deemed admissions.

Id.   On appeal, the court held that Wheeler should have been allowed to

withdraw the deemed admissions because there was no indication that she knew

that they were late, her tardiness resulted from her unfamiliarity with a technical

legal rule, the responses were filed six months before the summary judgment

motion was heard, and there was nothing in the record to suggest that her case

lacked merit. Id. at 442–44.

      The court in Employers Insurance of Wausau v. Halton also permitted the

withdrawal of deemed admissions. 792 S.W.2d 462, 463 (Tex. App.―Dallas

1990, writ denied).    The attorney typically drafted handwritten responses to

requests for admissions and then gave them to his secretary to type and file. Id.

In reviewing the case file for unrelated reasons after the discovery was due, the


                                         7
attorney discovered that he had never given the handwritten responses to his

secretary. Id. He immediately contacted opposing counsel to explain his failure

to respond and submitted the written responses. Id. The same day that he filed

the responses, opposing counsel filed a summary judgment motion on the basis

of the deemed admissions. Id. The court held that the attorney's negligence did

not rise to the level of conscious indifference. Id.

      With the above cases in mind, we cannot say that the trial court abused its

discretion by refusing to set aside the deemed admissions. Alexander asserts

that he was mistaken as to the proper method to respond to Appellees’ requests

for admissions and thought it would be best to respond in person. To that end,

he met with attorneys for both Griggs and the State two weeks after receiving the

request. However, Alexander testified at the hearing on his motion for new trial

that the attorneys advised him to hire a lawyer and that he should respond to the

requests in writing. The request for admissions also stated that the answers

were due in writing within thirty days, which would have been April 1, 2010.

Based on these facts, the trial court could have determined that Alexander

subjectively knew that his responses to the admissions were due in writing on

April 1, 2010, and that he consciously disregarded the deadline.          Moreover,

Alexander failed to offer sufficient evidence at either hearing that he in fact had

any legal or equitable interest in the seized property. Thus, the trial court did not

abuse its discretion by denying Alexander’s motion to strike the deemed

admissions. See Wheeler, 157 S.W.3d at 444. And because the trial court did


                                          8
not abuse its discretion by refusing to set aside the deemed admissions, the trial

court also did not err by striking Alexander’s intervention.3

      Alexander argues that the court’s refusal to allow him to withdraw the

deemed admissions amounts to a death penalty sanction and is improper given

the facts of this case.    However, similar to the discovery rule that discovery

objections are waived if not made timely, deemed admissions are the

consequence of missing a procedural deadline, not a sanction for discovery

abuse.    Compare Tex. R. Civ. P. 193.2(e) (waiver of objection to written

discovery), and Tex. R. Civ. P. 198.2(c) (deemed admissions), with Tex. R. Civ.

P. 215 (outlining sanctions to be imposed for abuse of the discovery process at

the court’s discretion).   The trial court did not strike Alexander’s pleadings

because he missed the deadline.          Rather, because Alexander missed the

deadline, his answers were deemed admitted.          It was on the basis of these

deemed admissions, by which Alexander admitted to having no legal or equitable

interest in the underlying forfeiture suit, that the trial court granted Griggs’s

Motion to Strike. We overrule Alexander’s second issue.




      3
       A person has the right to intervene in a proceeding if he “could have
brought the same action, or any part thereof, in his own name, or, if the action
had been brought against him, he would be able to defeat recovery, or some part
thereof.” Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652,
657 (Tex. 1990). The would-be intervenor must assert a legal or equitable
interest, but Alexander admitted that he had no legal or equitable interest in the
property. Id.

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                                   IV. Due Process

A. Applicable Law

      In his first issue, Alexander contends that the trial court’s order striking his

intervention violated his due process rights because it was rendered without

notice and hearing. After a motion to strike a petition for intervention is filed, the

would-be intervenor has the right to explain, and show proof of, his interest in the

lawsuit. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Pennzoil Co., 866 S.W.2d

248, 250 (Tex. App.―Corpus Christi 1993, no writ). However, the trial court

“may determine an intervening party’s justiciable interest in a lawsuit on the basis

of the sufficiency of the petition in intervention.” Id.

      Even when a party has been denied prior notice of a hearing resulting in

an adverse judgment, “[p]ost-judgment notice and the right to be heard in a

motion for new trial have been held adequate to protect litigants against a

deprivation of due process.”       Finlan v. Peavy, 205 S.W.3d 647, 655 (Tex.

App.―Waco 2006, no pet.); see also State v. Rotello, 671 S.W.2d 507, 508 (Tex.

1984); Tex. Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 648–50 (Tex.

App.―San Antonio 2002, pet. denied); Jimenez v. Transwestern Prop. Co., 999

S.W.2d 125, 129 (Tex. App.―Houston [14th Dist.] 1999, no pet.).

B. Discussion

      In Finlan, the plaintiffs received actual notice of the dismissal of their case

and had the opportunity to file a motion for new trial and request a hearing. 205

S.W.3d at 655.      The court held that any violation of due process that they


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suffered initially had been cured by the actual notice and opportunity to be heard.

Id. Assuming without deciding that Alexander’s due process rights were violated

by the trial court’s failure to conduct a hearing on Griggs’s motion to strike his

petition in intervention, any alleged due process violations were cured by

subsequent events.     See id.    Alexander received actual notice of the order

striking his motion to intervene with sufficient time to file a motion for new trial.

Indeed, Alexander timely filed a motion for new trial and a motion to reconsider

and was twice able to present his evidence and arguments that the deemed

admissions should be set aside.4

      Alexander argues that the hearings on his motion for new trial and motion

to reconsider were insufficient to remedy his alleged due process violations

because, in granting Griggs’s motion to strike Alexander as a party without a

hearing, the trial court shifted the burden of proof from Griggs to Alexander.

However, Alexander’s burden of proof at these hearings was no different than his

burden would have been had there been a hearing on Griggs’s motion to strike.

The admissions were automatically deemed admitted when Alexander failed to

respond by the deadline. See Tex. R. Civ. P. 198.2(c); Barker, 752 S.W.2d at

155. Based on these deemed admissions, Griggs fulfilled her burden of proving

      4
        The fact that these hearings were conducted in front of visiting judges
does not affect our analysis of Alexander’s due process rights. Any objections to
a visiting judge must be raised before the initial hearing, which Alexander failed
to do. See Tex. Gov’t Code Ann. § 74.053(c) (West 2005); see Holstein v. Fed.
Debt Mgmt., Inc., 902 S.W.2d 31, 37 (Tex. App.―Houston [1st Dist.] 1995, no
pet.).


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that Alexander had no interest in the vehicle or currency. See Guar. Fed. Sav.

Bank, 793 S.W.2d at 657. Thus, the burden would have shifted to Alexander to

show good cause for withdrawal of the deemed admissions. See Tex. R. Civ. P.

198.3; Deggs, 968 S.W.2d at 356. Alexander had two opportunities to establish

good cause for his failure to timely respond to the request for admissions and

failed to do so. Thus, Alexander’s opportunities to present his case before the

trial court at the hearing on his motion for new trial and at the hearing on his

motion to reconsider were sufficient to remedy any alleged due process

violations that occurred by the failure to conduct a hearing on Griggs’s motion to

strike. See Finlan, 205 S.W.3d at 655. We therefore overrule Alexander’s first

issue.

                                  V. Conclusion

         Having overruled both of Alexander’s issues, we affirm the trial court’s

judgment.


                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

DELIVERED: August 31, 2011




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