Reversed and Remanded and Memorandum Opinion filed July 9, 2019.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-18-00057-CV

                      OSCAR ROMERO III, Appellant
                                       V.
      D. R. KIDD COMPANY, INC. D/B/A KIDD ROOFING, Appellee

                  On Appeal from the 200th District Court
                           Travis County, Texas
                  Trial Court Cause No. D-1-GN-17-001123

                         MEMORANDUM OPINION

      A homeowner appeals a summary judgment in favor of a roofing company
that sued the homeowner for damages after the homeowner allegedly failed to pay
for roofing services and disparaged the roofing company’s business in an online
review. The homeowner contends that the trial court erred in granting the roofing
company’s summary judgment motion and in denying the homeowner’s motion to
strike deemed admissions and motion to dismiss the business disparagement claim
under the Texas Citizens Participation Act. We reverse and remand.
                                       I. BACKGROUND

      In March 2017, Appellee D.R. Kidd Company, Inc., d/b/a Kidd Roofing,
sued appellant Oscar Romero III in a Travis County district court, asserting claims
based on a sworn account, breach of contract, quantum meruit, and business
disparagement.1 Kidd Roofing alleged that Romero failed to pay for roofing work
provided at Romero’s house as agreed in a written contract and published
disparaging words about Kidd Roofing’s business and employees on Angie’s List,
a web-based service. Romero timely responded with a general denial.

      On June 1, 2017, Kidd Roofing filed and served on Romero a notice of
deemed admissions. In the notice, Kidd Roofing asserted that it served a request
for admissions on Romero on March 28, 2017, Romero failed to timely respond,
and the requested admissions were deemed admitted as required by Rule 198.2 of
the Texas Rules of Civil Procedure. When Romero received the notice of deemed
admissions, he served Kidd Roofing with his response to the requested admissions
that same day. Romero denied all sixteen of the requested admissions.

      On August 7, 2017, Kidd Roofing filed a combined traditional and no-
evidence motion for summary judgment on its claims. Kidd Roofing supported its
motion with Romero’s deemed admissions and late-filed response, as well as other
evidence. A hearing on the motion was set for September 18.

      On September 7, Romero filed an amended, verified answer. On September
11, Romero timely filed a response to Kidd Roofing’s motion for summary
judgment. Romero also filed a motion to strike the deemed admissions attaching a
copy of his responses and a motion to dismiss Kidd Roofing’s business



      1
          Kidd Roofing also sued Romero’s sister but ultimately nonsuited its claims against her.

                                                 2
disparagement claim pursuant to the Texas Citizens Participation Act (TCPA),2
The next day, one day after the filing deadline, Romero filed his affidavit in
support of his response to the summary judgment motion along with a motion for
leave to file the affidavit. In the motion for leave, Romero stated that the affidavit
was intended to be included in his summary judgment response but was omitted in
the e-filing of the document.

      In support of its summary judgment motion, Kidd Roofing relied on a
written contract, the unpaid invoice and related correspondence, a copy of
Romero’s review on Angie’s List, and the following deemed admissions as
evidence of every assertion of fact made in support of its claims:

    “Kidd Roofing and [Romero] entered into a valid agreement for the Work.”
    “Kidd Roofing performed its obligations under the contract by supplying the
     Work.”
    “[Romero] breached [his] contract with Kidd Roofing when [Romero] failed
     to instruct [his] insurance carrier to include DR Kidd as an additional payee
     on the check issued to pay for Kidd Roofing’s work.”
    “[Romero] breached [his] contract with Kidd Roofing when [Romero] failed
     to pay Kidd Roofing the sum of $6,648.52 due and owing for the Work.”
    “Romero published false disparaging words about Kidd Roofing’s business
     and its employees on Angie’s List with the intent of interfering with Kidd
     Roofing’s potential clients, business reputation and economic interest.”

Kidd Roofing also relied on the affidavit of its president and the unverified answer
Romero originally filed as additional support for its sworn account claim. See Tex.
R. Civ. Proc. 185 (providing that if a defendant does not timely file a verified
denial, then “he shall not be permitted to deny the claim, or any item therein”).
Kidd Roofing prayed for a judgment awarding it $6,548.52 for the amount owed,
$10,000.00 for business disparagement, and other relief.

      2
          See Tex. Civ. Prac. & Rem. Code §§ 27.001–.011.

                                              3
      In his response, Romero argued that his affidavit raised fact issues on the
breach of contract and related claims. Romero also argued that Kidd Roofing failed
to support its business disparagement claim with any evidence of special damages,
that Romero acted with malice, or that the published material was false, citing
Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 2003)
(listing elements of a business disparagement claim). Romero further asserted that
the lack of evidence of disparagement supported his TCPA motion to dismiss,
which he stated was filed separately. Romero did not mention his motion to strike
the deemed admissions in his summary judgment response.

      On October 9, 2017, the trial court signed an order granting Kidd Roofing’s
summary judgment motion without stating the grounds for the ruling. The trial
court ordered Romero to pay Kidd Roofing $16,548.52, plus pre- and post-
judgment interest. All other requested relief was denied.

      Romero filed a motion for new trial in which he again argued that his
affidavit raised fact issues precluding summary judgment on each of Kidd
Roofing’s claims and that Kidd Roofing was not entitled to a summary judgment.
Romero also mentioned having filed the motion to strike deemed admissions but
did not expressly argue that it should be granted. In response, Kidd Roofing argued
that the trial court had correctly granted Kidd Roofing’s motion for summary
judgment “based on Romero’s Deemed Admissions.”

      At the hearing on the motion for new trial, Romero’s counsel argued that the
case should not be decided based on the deemed admissions because Romero had
filed an amended answer, answered Kidd Roofing’s request for admissions, and
presented a controverting affidavit in opposition to Kidd Roofing’s summary
judgment motion. Kidd Roofing’s counsel maintained that Romero’s response to
Kidd Roofing’s request for admissions was untimely and that Romero had failed to

                                         4
show good cause to grant a new trial. Initially, Romero’s counsel mistakenly
believed that Romero’s motion to strike the deemed admissions had not yet been
filed and asked for a new trial so that the motion could be filed, but Kidd Roofing’s
counsel informed the trial judge that the motion had been filed before the summary
judgment hearing. Romero’s counsel responded that if filed, Romero’s motion to
“un-deem” the admissions should have been heard at the summary judgment
hearing and argued that the admissions should be withdrawn so that the case could
proceed on the merits. The trial judge, recalling that Romero’s motion to strike the
deemed admissions was not raised during the summary judgment hearing, took the
matter under advisement. Romero’s motion for new trial was later denied by
written order.

      Romero appealed the trial court’s judgment to the Austin Court of Appeals,
and the case was transferred to this court. See Tex. R. App. P. 41.3.

                               II. ISSUES ON APPEAL

      In his first and fourth issues, Romero contends that the trial court erred in
granting the roofing company’s traditional and no-evidence summary judgment
motion. In his second issue, Romero contends that the trial court erred in denying
his motion to strike deemed admissions. In his third issue, Romero contends that
the trial court erred in refusing to consider Romero’s TCPA motion to dismiss
Kidd Roofing’s business disparagement claim. We need address only Romero’s
second and third issues to finally dispose of this appeal.

                       Withdrawal of Deemed Admissions

      In his second issue, Romero contends that the trial court erred in denying his
motion to strike the deemed admissions and motion for new trial.



                                          5
A.    Applicable Law and Standard of Review

      Requests for admissions are intended to simplify trials, and they are useful
for addressing uncontroverted matters or evidentiary ones like the authenticity or
admissibility of documents. Marino v. King, 355 S.W.3d 629, 633 (Tex. 2011) (per
curiam). They also may be used to elicit “statements of opinion or of fact or of the
application of law to fact.” Id. (quoting Tex. R. Civ. P. 198.1). They are not
intended for the purpose of asking the defendant to admit the validity of the
plaintiff’s claims or to concede defenses that are in dispute. Id.; Stelly v. Papania,
927 S.W.2d 620, 622 (Tex. 1996) (per curiam).

      If a party serves a request for admissions and the recipient fails to timely
respond, then each request is deemed admitted by operation of law. See Tex. R.
Civ. P. 198.2(c). An admission conclusively establishes the matter 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. A trial court has broad discretion to permit or
deny the withdrawal of deemed admissions, but it cannot do so arbitrarily,
unreasonably, or without reference to guiding rules or principles. Marino, 355
S.W.3d at 633; Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005) (per curiam).

      A court may permit the party to withdraw an admission if the party shows
(1) good cause for the withdrawal, and (2) the court finds that the party relying
upon the deemed admissions will not be unduly prejudiced and that the
presentation of the merits of the action will be subserved by permitting the party to
withdraw. Tex. R. Civ. P. 198.3. Good cause is established by showing that the
failure to respond was accidental or the result of mistake, rather than intentional or
the result of conscious indifference. Wheeler, 157 S.W.3d at 442. A lack of undue
prejudice requires a showing that withdrawing the admission will not delay the
trial or significantly hamper the opposing party’s ability to prepare for it. Id.

                                           6
      Ordinarily, the party seeking withdrawal of the admissions has the burden of
proof. Swanson v. State, No. 03-16-00729-CV, 2017 WL 1832492, at *2 (Tex.
App.—Austin May 2, 2017, no pet.) (mem. op.). But when a party uses deemed
admissions to try to preclude presentation of the merits of a case, due process
requires that the party opposing the withdrawal prove that the moving party’s
failure to respond to the admissions resulted from flagrant bad faith or callous
disregard of the rules. See Marino, 355 S.W.3d at 633–34; Wheeler, 157 S.W.3d at
443–44; Swanson, 2017 WL 1832492, at *3. This is because deemed admissions
that preclude a presentation on the merits implicate the same due process concerns
as case-ending discovery sanctions. See Marino, 355 S.W.3d at 634; Wheeler, 157
S.W.3d at 443. As the Supreme Court of Texas has repeatedly explained, requests
for admissions are intended to simplify trials and “should be used as ‘a tool, not a
trapdoor.’” Marino, 355 S.W.3d at 632 (quoting U.S. Fid. & Guar. Co. v.
Goudeau, 272 S.W.3d 603, 610 (Tex. 2008)).

      Moreover, a summary judgment motion based on merits-preclusive deemed
admissions incorporates the need to show flagrant bad faith or callous disregard as
an element of the movant’s summary judgment burden. Marino, 355 S.W.3d at
634. Accordingly, the summary judgment movant must establish that the non-
movant acted with flagrant bad faith or callous disregard for the rules to
substantiate a summary judgment based on deemed admissions. Swanson, 2017
WL 1832492, at *3 (citing Marino, 355 S.W.3d at 633); see also 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.)).


                                         7
B.    The Trial Court Erred in Denying Motion to Withdraw Merits-
      Preclusive Deemed Admissions
      In his second issue, Romero urges several reasons why the trial court’s
refusal to permit him to withdraw the deemed admissions was error. Romero first
argues that he promptly answered the request for admissions as soon as he became
aware of it and there is no evidence that Kidd Roofing’s request for admissions
was actually served on Romero along with Kidd Roofing’s original petition.
Romero also argues that his motion to strike the deemed admissions, the summary
judgment response, and his supporting affidavit disputing Kidd Roofing’s claims
were timely filed prior to the summary judgment hearing. Further, Romero
contends that the trial court erroneously imposed merits-preclusive sanctions on
him even though the record demonstrates good cause and no undue prejudice.

      As an initial matter, Kidd Roofing contends that Romero failed to preserve
error on this issue because he failed to set the motion to withdraw deemed
admissions for a hearing or bring it to the trial court’s attention at the summary
judgment hearing, and he waited until the hearing on the motion for new trial to
request that the deemed admissions be withdrawn.

      The supreme court has held that, under special circumstances, a party may
bring a request to withdraw deemed admissions for the first time in a motion for
new trial after summary judgment. See Wheeler, 157 S.W.3d at 442–43; see also
Marino, 355 S.W.3d at 633–34 (holding that no waiver occurred even though pro
se appellant failed to file either a summary judgment response or a motion to
withdraw deemed admissions prior to motion for new trial, when good cause and
no undue prejudice was shown). At the same time, the supreme court has also held
that “the equitable 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


                                         8
avenues of relief available.” Wheeler, 157 S.W.3d at 442 (citing Carpenter v.
Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002))

      Here, Romero argues that no evidence confirms that Romero was served
with the request for admissions along with the original petition and request for
disclosure, and therefore Romero’s responses cannot be late. Romero points out
that Kidd Roofing’s citation and return of service state only that he was served
with an original petition and request for disclosure. Kidd Roofing’s documents
show that its law firm instructed the process server to serve the request for
admissions with the citation and original petition and that the process server
received that request. But, these documents do not conclusively demonstrate that
the request for admissions was actually served on Romero with Kidd Roofing’s
original petition, and neither party presented affidavits on the issue. The evidence
presented, while not conclusive, at least raises a fact issue as to the timeliness of
Romero’s response. See Approximately $14,980.00 v. State, 261 S.W.3d 182, 186
(Tex. App.—Houston [14th Dist.] 2008, no pet.) (stating that a party’s duty to
respond to a request for admissions “is dependent upon receipt of the request” and
when service is not perfected “the receiving party cannot be made to suffer the
consequences of not answering or untimely answering”).

      Assuming without deciding that Romero’s answers were late, it is
undisputed that Romero immediately sought to correct his mistake by answering
Kidd Roofing’s request for admissions within hours of receiving the notice of
deemed admissions. Kidd Roofing received Romero’s responses—in which
Romero denied every request for admission—at least one month before filing its
summary judgment motion based on deemed admissions. Kidd Roofing even
attached Romero’s responses to its summary judgment motion as evidence that the
responses were late but did not otherwise mention them.

                                         9
      Romero also responded to Kidd Roofing’s summary judgment motion by
filing a motion to strike the deemed admissions prior to the summary judgment
hearing and attaching a copy of his responses to the request for admissions. In the
motion, Romero argued that there was good cause for the court to strike the
deemed admissions because Kidd Roofing had not presented evidence that Romero
was served with the request for admissions, Romero responded to the request for
admissions as soon as he first became aware of it, and Kidd Roofing would not be
unduly prejudiced if the admissions were stricken because the discovery period
was not due to close for several months. On the same day, Romero also timely
filed a response to Kidd Roofing’s summary judgment motion.

      Kidd Roofing argues that Romero failed to demonstrate good cause to grant
a new trial and that granting a new trial now would cause undue delay and inflict
further harm upon it. But Kidd Roofing does not point to anything in the record
demonstrating that Romero’s failure to request a hearing on the motion was
intentional or the result of conscious indifference rather than an accident or
mistake. See Wheeler, 157 S.W.3d at 442. Nor does Kidd Roofing explain why
granting a new trial and withdrawing the deemed admissions would delay trial or
significantly hamper its ability to prepare for trial. See id. at 443; see also Marino,
355 S.W.3d at 633–34 (holding that there was no evidence that summary judgment
movant would suffer undue prejudice when late-filed response to request for
admissions was received before movant filed motion for summary judgment on
deemed admissions).

      Although the record does not show that Romero set his motion to strike the
deemed admissions for a hearing and Romero’s attorney apparently did not raise
the issue at the hearing on Kidd Roofing’s summary judgment motion,3 Romero’s

      3
          We do not have a record of the summary judgment hearing.

                                              10
filings are some evidence that Romero intended to oppose Kidd Roofing’s
summary judgment motion and the deemed admissions on which Kidd Roofing’s
motion was based. In addition, Romero’s attorney argued at the motion for new
trial that the attorneys had filed with the court the documents believed to be
necessary, that Romero had answered the requested admissions before the
summary judgment was filed, and that Romero’s affidavit in support of his
summary judgment response raised defenses to Kidd Roofing’s claims.

       Similarly, in Medina v. Raven, the record showed that appellee received the
appellants’ late-filed responses well before summary judgment was rendered, and
the appellants argued and presented evidence that they had not been served with
the requests for admissions, that genuine issues of material fact existed, and that a
refusal to set aside the deemed admissions would deprive them of a trial on the
merits of their claims. See 492 S.W.3d at 56–57. The court held that the appellants
did not waive their motion to withdraw deemed admissions even though the relief
was first requested in conjunction with a motion for new trial. See id. at 59–60. We
likewise conclude that on this record, Romero did not waive his request to strike
the deemed admissions by waiting until its motion for new trial to argue that the
deemed admissions should be withdrawn.

       Kidd Roofing does not deny that it tried to use the deemed admissions to
preclude the presentation of Romero’s case on the merits.4 Indeed, Kidd Roofing

       4
          As set out above, Kidd Roofing’s summary judgment motion relied on five deemed
admissions to preclude the presentation of the merits of Romero’s defenses. The admissions were
used as evidence that: Romero entered into a “valid agreement” with Kidd Roofing; Kidd
Roofing “performed its obligations” under the contract; Romero breached the contract by failing
to give payment instructions to his insurance carrier and by failing pay Kidd Roofing a stated
sum; and Romero published false and disparaging words about Kidd Roofing with the intent of
interfering with its business. See Ramirez v. Noble Energy, Inc., 521 S.W.3d 851, 858–59 (Tex.
App.—Houston [1st Dist.] 2017, no pet.) (explaining that requests for admissions that ask a party
to essentially admit the validity of its opponent’s claims, concede defenses, or make admissions
of law are not proper uses for requests for admissions).

                                               11
argued in response to Romero’s motion for new trial that the trial court correctly
granted summary judgment “based on” the deemed admissions. Because the
deemed admissions were merits-preclusive, the burden of establishing bad faith or
callous disregard for the rules shifted to Kidd Roofing. See Marino, 355 S.W.3d at
633; Swanson, 2017 WL1832492, at *3. But Kidd Roofing has not argued or
presented any evidence that Romero’s actions amounted to flagrant bad faith or
callous disregard for the rules.

      Moreover, Romero served his response to the request for admissions before
Kidd Roofing filed its summary judgment motion based on the deemed
admissions, and Romero moved to withdraw the deemed admissions shortly after
the summary judgment motion was filed. See Swanson, 2017 WL1832492, at *4
(concluding on similar facts that the record contained no evidence of bad faith or
callous disregard of the rules of procedure, and no undue prejudice). Because the
record contains no evidence of flagrant bad faith or callous disregard for the rules,
nothing to justify a presumption that Romero’s case lacks merit, and nothing to
suggest that Kidd Roofing was unable to prepare for trial without the admissions,
we hold that the trial court abused its discretion when it failed to grant Romero’s
motion for new trial and allow the merits-preclusive admissions to be withdrawn.
See Wheeler, 157 S.W.3d at 443; Swanson, 2017 WL1832492, at *4; Medina, 492
S.W.3d at 63–64.

      Kidd Roofing next contends that the trial court properly granted its
traditional and no-evidence summary judgment motion because all of the evidence
before the trial court supported the motion. First, Kidd Roofing argues that
Romero’s motion was not properly before the court because Romero filed his
affidavit in support of his response to the motion less than seven days before the
summary judgment hearing scheduled for September 18, 2017, and the trial court

                                         12
did not grant Romero’s motion requesting leave to late-file the affidavit. See Tex.
R. Civ. P. 166a(c). Additionally, Kidd Roofing asserts that the trial court’s order
granting summary judgment also ordered that any other relief requested was
denied, which operated to deny Romero’s motion for leave to late-filed the
affidavit.

       Kidd Roofing’s arguments overlook the fact that the summary judgment
hearing date was reset from September 18 to October 3, making the affidavit
timely filed. See Dorsett v. Hispanic Hous. & Educ. Corp., 389 S.W.3d 609, 611–
12 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding that non-movant’s
response was timely even though it was filed less than seven days before original
date of summary judgment hearing when hearing was rescheduled to a date one
month later). For the same reason, Romero’s amended, verified answer required
Kidd Roofing to prove its sworn account claim. See Hose ProConnectors, Inc. v.
Parker Hannifin Corp., 889 S.W.2d 555, 558 (Tex. App.—Houston [14th Dist.]
1994, no writ) (stating that once a defendant in a suit on a sworn account files a
verified denial as required by Rule 185, the evidentiary effect of the itemized
account is destroyed, and the plaintiff is forced to prove its case).

       Romero’s affidavit, if taken as true, and his amended, verified answer
controverted Kidd Roofing’s version of events and raised fact issues on each of the
claims asserted in Kidd Roofing’s traditional summary judgment motion.5
Accordingly, nothing in the record overcomes the presumption that the
presentation of the merits will be served by allowing Romero to withdraw his
merits-preclusive deemed admissions. See Swanson, 2017 WL1832492, at *4.

       5
         Kidd Roofing would not be entitled to a no-evidence summary judgment because Rule
166a does not permit a party to move for a no-evidence summary judgment when the moving
party has the burden of proof. See Tex. R. Civ. P. 166a(i); Haven Chapel United Methodist
Church v. Leebron, 496 S.W.3d 893, 904 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

                                           13
      We therefore sustain Romero’s second issue. Because the trial court abused
its discretion by failing to grant Romero’s motion for new trial and allow the
merits-preclusive admissions to be withdrawn, we reverse the trial court’s
judgment and remand the case for further proceedings. We therefore do not reach
Romero’s first and fourth issues.

                              TCPA Motion to Dismiss

      In his third issue, Romero contends that the trial court erred in in not
applying the TCPA to the facts of the case to protect Romero’s First Amendment
right to free speech in expressing his opinions online regarding the services
rendered by Kidd Roofing. Kidd Roofing responds that the trial court did not err
because Romero’s motion to dismiss Kidd Roofing’s business disparagement claim
was untimely filed. We agree with Kidd Roofing.

      The TCPA provides for dismissal of a “legal action” that is “based on,
relates to, or is in response to a party’s exercise of the right of free speech, right to
petition, or right of association” as defined by the statute. Tex. Civ. Prac. & Rem.
Code § 27.003(a). A motion to dismiss a legal action under the TCPA “must be
filed not later than the 60th day after the date of service of the legal action.”
Id. § 27.003(b). However, the trial court may extend the time to file a motion on a
showing of good cause. Id.; see Morin v. Law Office of Kleinhans Gruber, PLLC,
No. 03-15-00174-CV, 2015 WL 4999045, at *3 (Tex. App.—Austin Aug. 21,
2015, no pet.) (mem. op.) (stating that the granting of an extension of time under
section 27.003(b) is left to the trial court’s discretion).

      In this case, Romero was served with Kidd Roofing’s lawsuit on May 28,
2017. Romero did not file his TCPA motion to dismiss until September 11, 2017,
more than 160 days after the statutory deadline. Although Romero points out that
he included a request for a hearing in his motion to dismiss, he did not set his
                                            14
motion for a hearing or make an oral or written motion to extend the sixty-day
filing deadline for good cause. The trial court made no ruling on Romero’s motion
to dismiss. On appeal, Romero complains that the trial court simply disregarded his
motion without providing an opportunity for further discovery or a “merits-based
finding to resolve the legitimate issues raised.”

      Because Romero’s TCPA motion to dismiss was filed well after the sixty-
day deadline required by the statute, the trial court did not err in refusing to
consider the untimely motion. Tex. Civ. Prac. & Rem. Code § 27.003(b); see
Braun v. Gordon, No. 05-17-00176-CV, 2017 WL 4250235, at *3 (Tex. App.—
Dallas Sept. 26, 2017, no pet.) (mem. op.) (holding that the TCPA requires a
defendant seeking its protections to move for dismissal and obtain a hearing on the
motion within clearly defined periods or forfeit the statute’s protections); Miller
Weisbrod, L.L.P. v. Llamas-Soforo, 511 S.W.3d 181, 193–94 (Tex. App.—El Paso
2014, no pet.) (holding that TCPA motion to dismiss filed after sixty-day deadline
was untimely). Moreover, absent a request and a ruling on a motion for extension
of time, any complaint that the trial court abused its discretion by refusing to
consider the late-filed motion to dismiss has not been preserved for review. See
Tex. R. App. P. 33.1(a); Miller Weisbrod, 511 S.W.3d at 194; In re Estate of
Check, 438 S.W.3d 829, 836 (Tex. App.—San Antonio 2014, no pet.).

      Nevertheless, Romero cites to Marino to assert that “constitutional
imperatives favor the determination of cases on their merits rather than on
harmless procedural defaults,” see 355 S.W.3d at 634, and points out that his
motion to dismiss was filed more than twenty-one days before the summary
judgment hearing. According to Romero, his failure to timely file the motion to
dismiss was merely a “procedural defect” that should not have resulted in the
“merits-preclusive sanction” that occurred when the trial court disregarded his

                                          15
motion and instead granted the business disparagement claim based on the deemed
admissions. But Romero cites no case holding that Marino’s due process analysis
overrides the TCPA’s express statutory filing deadline, and his argument runs
counter to the TCPA’s procedure for expediting the dismissal of claims brought to
intimidate or to silence a defendant’s exercise of First Amendment rights. See
ExxonMobil Pipeline Co. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per
curiam). We therefore decline to adopt his argument and overrule Romero’s third
issue.6

                                     III. CONCLUSION

       We overrule Romero’s third issue and do not reach his first and fourth
issues. We sustain Romero’s second issue and hold that trial court abused its
discretion by failing to grant Romero’s motion for new trial and allow the merits-
preclusive admissions to be withdrawn. We therefore reverse the trial court’s
judgment and remand the case for further proceedings.




                                            /s/    Ken Wise
                                                   Justice


Panel consists of Justices Wise, Zimmerer, and Spain.




       6
          Accordingly, on remand the case should continue “as if the motion to dismiss was never
filed.” See Braun, 2017 WL 4250235, at *3.

                                              16
