                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-375-CV


ALISA R. STEPHENSON                                              APPELLANT

                                       V.

JOYCE PERATA                                                       APPELLEE

                                   ------------

      FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

     In two issues, appellant Alisa R. Stephenson asserts that the trial court

erred in granting summary judgment for appellee Joyce Perata based on deemed

admissions. We affirm.

     In November 2007, Perata sued Stephenson for allegedly embezzling

$32,820.24 from Perata. Stephenson, acting pro se, timely filed a general



     1
         … See Tex. R. App. P. 47.4.
denial. Perata served requests for admissions on Stephenson and Stephenson

failed to timely respond. Accordingly, the admissions were deemed admitted

against Stephenson without the necessity of a court order. 2 Stephenson neither

asked the trial court to undeem the admissions nor served a late response to

the request for admissions.

      Perata filed a motion for summary judgment supported by the deemed

admissions.    Stephenson requested and was granted a forty-three day

continuance to respond to the summary judgment motion and prepare for the

summary judgment hearing. Stephenson did not file a response to the summary

judgment motion. On the day of the summary judgment hearing, Stephenson

appeared by counsel and asked for additional time to file a late response to the

summary judgment motion. The trial court denied Stephenson’s motion for

leave and granted Perata’s summary judgment motion on her fraud claim and

under the Texas Deceptive Trade Practices - Consumer Protection Act (DTPA).

Stephenson filed a motion for new trial, which the trial court overruled. This

appeal followed.




      2
      … See Tex. R. Civ. P. 198.2(a) (a party must respond to requests for
admissions within thirty days), 198.2(c) (“If a response is not timely served, the
request is considered admitted without the necessity of a court order.”).

                                        2
      In a summary judgment case, the issue on appeal is whether the movant

established that no genuine issue of material fact exists and that the movant

is entitled to judgment as a matter of law.3 The burden of proof is on the

movant, and all doubts about the existence of a genuine issue of material fact

are resolved against the movant.4

      A plaintiff is entitled to summary judgment on a cause of action if she

conclusively proves all essential elements of the claim. 5 When reviewing a

summary judgment, we take as true all evidence favorable to the nonmovant,

and we indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor. 6 Evidence that favors the movant’s position will not be

considered unless it is uncontroverted.7




      3
      … Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d
211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d
671, 678 (Tex. 1979).
      4
          … Sw. Elec. Power Co., 73 S.W.3d at 215.
      5
      … See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59,
60 (Tex. 1986).
      6
     … IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143
S.W.3d 794, 798 (Tex. 2004).
      7
     … Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391
S.W.2d 41, 47 (Tex. 1965).

                                      3
      Stephenson complains on appeal that granting summary judgment based

solely on deemed admissions is impermissible and that the deemed admissions

were not competent summary judgment evidence because they involved

questions purely of law and not of fact. We disagree.

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

are deemed admitted without the necessity of a court order.8 Such admissions

are “conclusively established as to the party making the admission unless the

court permits the party to withdraw or amend the admission.” 9       Moreover,

admissions, once made or deemed by the court, may not be contradicted by

any evidence, whether in the form of live testimony or summary judgment

affidavits.10

      Admissions of fact on file at the time of a summary judgment hearing are

proper summary judgment proof and thus will support a motion for summary

judgment.11 While answers constituting admissions of law are not binding on




      8
       … Tex. R. Civ. P. 198.2(c); see Marshall v. Vise, 767 S.W.2d 699, 700
(Tex. 1989).
      9
          … Tex. R. Civ. P. 198.3.
      10
           … See Marshall, 767 S.W.2d at 700.
      11
        … Tex. R. Civ. P. 166a(c); see Acevedo v. Comm’n for Lawyer
Discipline, 131 S.W.3d 99, 105 (Tex. App.—San Antonio 2004, pet. denied).

                                       4
a court, the response to a request for admission that asks a party to apply the

law to a set of facts may be competent summary judgment evidence. 12

      Here, Perata supported her summary judgment motion with the following

deemed admissions:

•     Stephenson had an agreement with Perata to service Perata’s bi-weekly
      home mortgage payment plan with Countrywide Home Loans;

•     Stephenson withdrew funds from Perata’s bank account by electronic
      debit on a bi-weekly basis from January 13, 2005 to October 10, 2006;

•     Stephenson withdrew $80,789.40 by electronic transfer from Perata’s
      bank account and deposited those funds into a bank account controlled
      by Stephenson;

•     Stephenson paid $47,699.16 to Countrywide Home Loans on Perata’s
      behalf, leaving a balance of $32,820.24 held by Stephenson;

•     Stephenson failed to pay the $32,820.24 to Countrywide Home Loans
      on Perata’s behalf, in breach of Stephenson’s agreement with Perata;

•     as of August 5, 2007, Stephenson had failed to return the $32,820.24
      to Perata, despite Perata’s numerous demands for the same; and

•     between August 6, 2007 and November 8, 2007, Stephenson returned
      $11,500.00 to Perata, but as of January 21, 2008, Stephenson still
      owed Perata $21,320.24.

Although Perata’s summary judgment motion incorporated some deemed

admissions based upon pure issues of law and summary judgment could not be




      12
       … See Tex. R. Civ. P. 198.1; Duong v. Bank One, N.A., 169 S.W.3d
246, 251 (Tex. App.—Fort Worth 2005, no pet.).

                                      5
based on those admissions, these admissions of fact are competent summary

judgment evidence and conclusively establish Perata’s right to summary

judgment.13   Accordingly, the trial court did not err in granting summary

judgment based on deemed admissions. 14

      We, therefore, affirm the trial court’s summary judgment.




                                                 PER CURIAM

PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.

DELIVERED: May 7, 2009



      13
        … See Tex. R. Civ. P. 166a(c); Acevedo, 131 S.W.3d at 105; Schafer
v. Fed. Servs. Corp., 875 S.W.2d 455, 457 (Tex. App.—Houston [1st Dist.]
1994, no writ). Stephenson does not assert on appeal that these admissions,
if properly deemed, do not conclusively establish Perata’s right to summary
judgment.
      14
        … Stephenson’s reliance on Wheeler v. Green, 157 S.W.3d 439 (Tex.
2005), is misplaced. In Wheeler, a pro se litigant tried to timely answer
requests for admission but failed to because she was unaware of the mailbox
rule and, thus, her responses were two days late. Id. at 441. The supreme
court held that the trial court abused its discretion in deeming the admissions,
holding that courts should allow deemed admissions to be withdrawn if a party
can show (1) good cause and (2) no undue prejudice. Id. at 442. A party
demonstrates good cause “by showing the failure [to answer] was an accident
or mistake, not intentional or the result of conscious indifference.” Id. Here,
unlike the pro se litigant in Wheeler, Stephenson never responded to the
requests for admission (or any of the other written discovery propounded by
Perata), nor did she demonstrate that her failure to respond was an accident or
mistake. Under these circumstances, the trial court did not err in basing a
summary judgment on the deemed admissions. See id. at 442–44.

                                       6
