                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00151-CV

ALEXIAS BELL,
                                                            Appellant
v.

KURT NICHOLS AND
THOMAS INMAN,
                                                            Appellees



                           From the 278th District Court
                              Walker County, Texas
                              Trial Court No. 25241


                          MEMORANDUM OPINION

      Alexias Bell sued Kurt Nichols and Thomas Inman after she was allegedly

injured before a college football game at Sam Houston State University. Bell, who was a

Sam Houston student at the time, was working as an inflatable mascot named “Airkat.”

Inman was driving Bell to a pregame tailgate function on a four-wheeler, with Bell

sitting on the front of it. Inman allegedly ran into Nichols, the opposing football team’s

head coach. Nichols then allegedly punched Bell and caused her to fall off the four-
wheeler.      Bell sued Inman for negligence and sued Nichols for negligence, gross

negligence, assault and battery, and intentional infliction of emotional distress.

        After the parties had engaged in discovery, Inman filed no-evidence and

traditional motions for summary judgment. Bell filed a response, and Inman’s motions

were denied. The case was set for jury trial on October 1, 2012, but on September 24,

Bell’s attorney filed a motion to withdraw. On September 28, Bell filed a pro se motion

for continuance that alleged misconduct by her attorney. The trial court granted both

motions at an apparent September 28 hearing.1 According to the parties, the case was

reset to December 28, but no notice or order to that effect appears in the record.2

        While Bell was pro se, Nichols sent requests for admissions to Bell. Bell timely

responded to the requests and objected to four of them. Nichols and Inman then filed a

joint motion to deem that requested the trial court to overrule Bell’s objections and to

deem as admitted the objected-to requests. According to Nichols, the motion to deem

was set for hearing on December 28.

        On December 27, Bell, after learning that a visiting judge would be conducting

the hearing, filed a pro-se objection to the visiting judge.                    According to Bell’s

subsequently retained attorney, a court clerk told Bell that she did not have to appear

the next day and that she should contact opposing counsel, which Bell’s attorney said

Bell did after 5:00 p.m. that day by leaving phone messages at their offices. Counsel for

1
  Nichols asserts that, at the September 28 hearing, the trial court “ordered” Bell to appear, with or
without counsel, on December 28, but no order to that effect is in the clerk’s record, nor is there a
reporter’s record from the September 28 hearing.
2
 It is unclear from the record whether the case was set for trial on December 28 or set for dismissal for
want of prosecution on December 28.

Bell v. Nichols                                                                                   Page 2
Nichols and Inman claimed that Bell did not phone them, and Bell did not fax or

otherwise serve her objection on them. According to a subsequent joint motion to

dismiss, on the next day, counsel for Nichols and Inman appeared for the December 28

hearing and learned of Bell’s objection. According to Nichols’s attorney, the visiting

judge informed them that he could not proceed on the case because of the objection and

told them: “we’ll get you reset and come back and have this hearing before the Court.”

It is undisputed that a hearing did not take place on December 28.

        Nichols and Inman then filed a “joint motion to dismiss & for sanctions,”

requesting dismissal because Bell failed to appear at the December 28 hearing and

requesting monetary sanctions for Bell’s “failure to abide by a Court Order” and her

failure to properly serve opposing counsel, “resulting in a substantial waste of time and

expense for Defendants.”

        The case was eventually noticed for dismissal for want of prosecution on March

26, 2013. The motion to deem and the motion to dismiss and for sanctions were also set

for hearing on March 26. In the meantime, Bell retained new counsel, who on March 20

filed a document consisting of a notice of appearance, a motion to retain, a response to

the motion to dismiss, and a request for referral to mediation.3 It also requested that the

motion to deem be denied and attached an amended response to the requests for

admissions that denied the previously objected-to admissions. At the hearing, the trial

3
  On appeal, Nichols and Inman complain that they were not served with this document, but it bears a
certificate of service showing service by fax. See TEX. R. CIV. P. 21a(e) (certificate of service “shall be prima
facie evidence of the fact of service”). This particular complaint was not raised in the trial court, see TEX.
R. CIV. P. 21b, nor is it, in any event, before us in this appeal. And while the motion to dismiss included
an additional motion and request for monetary sanctions for Bell’s failure to serve the objection, the trial
court did not rule on that request, and it too is not before us in this appeal.

Bell v. Nichols                                                                                           Page 3
court granted the motion to dismiss and the motion to deem. Bell’s motion for new trial

was overruled by operation of law, and this appeal followed.4

        In her first issue, Bell contends that the trial court abused its discretion in

granting the motion to dismiss and dismissing her case. We agree. A trial court may

dismiss a case for want of prosecution based on a defendant’s motion. See, e.g., Nichols

v. Sedalco Constr. Servs., 228 S.W.3d 341, 342-43 (Tex. App.—Waco 2007, pet. denied). In

such a case, if the dismissal order does not state the specific ground on which it was

granted, the appellant must show that each independent ground alleged in the motion

to dismiss is insufficient to support the trial court’s ruling. Id.

        In granting the motion to dismiss, the trial court’s order did not state a specific

ground. The only ground for dismissal in the motion is: “[Nichols and Inman] hereby

request that an Order of Dismissal be entered for Plaintiff Alexias Bell’s failure to

appear for the Dismissal for Want of Prosecution and Motion to Deem hearings that

were on the docket December 28, 2012.” Again, it is undisputed that the December 28

hearing did not take place because of Bell’s objection to the visiting judge; at the March

26 hearing, the trial court even acknowledged that the December 28 hearing was “reset

to today.”

        We conclude that the trial court abused its discretion by granting the motion to

dismiss, which was based solely on Bell’s failure to appear at a hearing that did not take

place. Issue one is sustained.



4
  At oral argument, Bell’s appellate counsel informed the court that Bell and Inman had reached a
settlement.

Bell v. Nichols                                                                            Page 4
        Bell’s second issue asserts that the trial court abused its discretion in granting the

motion to deem admissions. The four requests for admissions at issue sought Bell to

admit: (1) “that Defendants, Kurt Nichols or Thomas Inman was never the proximate

cause of any injury or harm to me;” (2) “that Defendants, Kurt Nichols or Thomas

Inman never caused me any harm;” (3) “that Defendants, Kurt Nichols or Thomas

Inman acted reasonable and prudently in all manners;” and (4) “that Defendants, Kurt

Nichols or Thomas Inman ever caused any intentional infliction of emotional distress or

battered me.”     As noted above, Bell’s original pro-se response to the requests for

admissions was timely, and in an amended response, Bell denied the four requests.

        In the order granting the motion to deem, the trial court overruled Bell’s

objections and ordered that the four requests were deemed admitted. Because of the

nature of the requests that were deemed admitted, we agree with Bell that the trial

court’s order was tantamount to a merits-preclusive sanction. Discovery sanctions are

reviewed for an abuse of discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004).

“The test for an abuse of discretion is not whether, in the opinion of the reviewing

court, the facts present an appropriate case for the trial court’s action, but ‘whether the

court acted without reference to any guiding rules and principles.’”            Id. at 838-39

(quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)).

               Requests for admission are intended to simplify trials. They are
        useful when “addressing uncontroverted matters or evidentiary ones like
        the authenticity or admissiblilty of documents.” Wheeler, 157 S.W.3d at
        443. They may be used to elicit “statements of opinion or of fact or of the
        application of law to fact.” TEX. R. CIV. P. 198.1. King’s requests here,
        however, asked essentially that Marino admit to the validity of his claims
        and concede her defenses—matters King knew to be in dispute. Requests

Bell v. Nichols                                                                         Page 5
        for admission were never intended for this purpose. Stelly v. Papania, 927
        S.W.2d 620, 622 (Tex. 1996) (per curiam) (quoting Sanders v. Harder, 148
        Tex. 593, 227 S.W.2d 206, 208 (1950) (stating that requests for admission
        were “never 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”)).

                As we have previously observed, requests for admission should be
        used as “a tool, not a trapdoor.” U.S. Fid. and Guar. Co. v. Goudeau, 272
        S.W.3d 603, 610 (Tex. 2008). And when admissions are deemed as a
        discovery sanction to preclude a presentation of the merits, they implicate
        the same due process concerns as other case-ending discovery sanctions.
        Wheeler, 157 S.W.3d at 443 (citing TransAmerican Natural Gas Corp. v.
        Powell, 811 S.W.2d 913, 917-18 (Tex. 1991). Thus, in Wheeler we required a
        showing of “flagrant bad faith or callous disregard for the rules” to
        substantiate a summary judgment based solely on deemed admissions.
        See id. at 443 (noting that “absent flagrant bad faith or callous disregard
        for the rules, due process bars merits-preclusive sanctions”).

Marino v. King, 355 S.W.3d 629, 632-33 (Tex. 2011).

        A party may object to a request for admission. See TEX. R. CIV. P. 198.2(b). “A

party who has requested an admission under Rule 198 may move to determine the

sufficiency of the answer or objection. … Unless the court determines that an objection is

justified, it shall order that an answer be served. If the court determines that an answer

does not comply with the requirements of Rule 198, it may order either that the matter

is admitted or that an amended answer be served.” TEX. R. CIV. P. 215.4(a)(emphases

added).

        As Bell argues, Rule 215 does not authorize a trial court to deem a matter

admitted because of an improper objection; in that situation, the trial court is to “order

that an answer be served.” Moreover, there is no showing or finding of “flagrant bad

faith or callous disregard for the rules” regarding Bell’s pro-se objections, which were

withdrawn in her amended response. In granting the motion to deem and deeming as

Bell v. Nichols                                                                       Page 6
admitted the four merits-preclusive requests for admissions, the trial court abused its

discretion. We sustain issue two and vacate the trial court’s April 2, 2013 order granting

the motion to deem.

        Having sustained issue one, we reverse the trial court’s dismissal order and

remand this case for further proceedings consistent with this opinion.



                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded
Opinion delivered and filed April 24, 2014
[CV06]




Bell v. Nichols                                                                     Page 7
