Opinion issued April 7, 2016




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                               NO. 01-14-00881-CV
                           ———————————
EMERITA MEDINA, KIANNA PAZ, AND REMMY MATUTE, Appellants
                                       V.
                         GLORIA RAVEN, Appellee


            On Appeal from the County Civil Court at Law No. 4
                          Harris County, Texas
                      Trial Court Case No. 1025647


                                  OPINION

     This is an appeal from the denial of a motion for new trial and the denial of a

motion to withdraw deemed admissions. We reverse and remand.
                                BACKGROUND

      On January 3, 2013, Plaintiffs-appellants Emirita Medina, Kianna Paz, and

Remmy Matute sued defendant-appellee Gloria Raven, alleging they each suffered

injuries in a July 4, 2011 automobile collision. Plaintiffs’ petition alleged that

Raven struck their automobile and that plaintiffs suffered loss of earnings,

impaired future earing capacity, past and future medical expenses, property

damages, bodily impairment, and mental anguish. Their petition was filed by

counsel Brandon Hemingway with Karl, Oko, and Associates Law Firm at 7324

S.W. Freeway, Ste. 202.

      On February 25, 2013, Raven filed a pro se answer, stating, in its entirety,

“To whom it may concern. I have spoken to my insurance provider at the time of

the accident which occurred on July 4, 2011. They will be taking care of all the

expenses.”

      On August 23, 2013, counsel filed a First Amended Original Answer and

Jury Demand on Raven’s behalf. It contained a general denial, as well as alleging

(1) Plaintiffs’ failure to exercise reasonable care caused, or contributed to, the

accident and plaintiffs’ alleged damages, (2) alternatively, the accident was the

result of an unavoidable accident or sudden emergency, (3) plaintiffs failed to

mitigate damages, (4) plaintiffs’ injuries were the result of preexisting conditions

and did not result from the accident, (5) comparative fault should be applied, (6)


                                         2
recoverable medical expenses should be limited to amount actually paid or

incurred, and (7) any recovery of lost earning or earning capacity should be

reduced by income tax or unpaid tax liability.

      On May 25, 2014, James Okorafor filed a Notice of Appearance as retained

counsel for plaintiffs, listing an address of 10101 Fondren, Ste. 260.

      A. Summary Judgment Motion and Response

      On June 27, 2014, Raven filed a Motion for Final Summary Judgment. That

motion alleged that—on February 12, 2014—she had served Requests for

Admissions on plaintiffs through their attorney, Brandon Hemingway, at both (1)

Karl, Oko, and Associates at 7324 S.W. Freeway, ste. 202, and (2) Hemingway

Law Firm, 24044 Cinco Village Center Blvd., ste. 100 (which were both different

addresses than the address in Okorafor subsequent Notice of Appearance). Copies

of each were attached as exhibits to the motion.

      Raven’s motion also alleged that she re-served plaintiffs with the requests

for admission through counsel James Okorafor, at 10101 Fondren ste. 260, on May

29, 2014, four days after he made an appearance as counsel for plaintiffs. The

following transmittal letter was attached as summary judgment evidence as well:

      Dear Mr. Okorafor:

            Please find enclosed the discovery requests which were served
      upon your clients several months past which have not been responded
      to.


                                          3
            Please respond in full within fourteen days or we will file a
      Motion to Compel. Also, please note that the admissions are deemed
      admitted as a matter of law until such time as the court orders
      otherwise.

            Finally, I have received your unverified Motion for
      Continuance which was not set for hearing. As there will be no ruling
      without a hearing, I will be prepared to proceed to trial as currently
      set.

      Raven’s motion for summary judgment alleged that that none of the

plaintiffs responded to Requests for Admissions and argued that she was thus

entitled to summary judgment on deemed admissions establishing no liability.

Specifically, she relied upon the following three deemed admissions: “Admit that

Defendant was not at fault for the accident made the basis of this suit,” “Admit that

you were not injured as a result of the collision,” and “Admit that the driver of the

vehicle you occupied in the incident made the basis of this suit did not maintain a

proper lookout on the date of the collision.”

      On July 22, 2014, plaintiffs filed a Motion for Leave to File Late Response

and Plaintiffs’ Response to Defendant’s Motion for Summary Judgment. Plaintiffs

argued that defendant’s summary-judgment motion was not mailed to their

attorney until July 11, 2014, and was not received by plaintiffs’ counsel until July

13, 2014. As an exhibit, the filing contained a July 11, 2014 postmarked envelope

addressed to James Okorafor at a third address, PO Box 710182, with the copy of a

transmittal letter from Raven’s counsel stating “enclosed please find a courtesy


                                          4
copy of Defendant’s Motion for Final Summary Judgment, Order and Notice of

Oral Hearing, which was previously sent to you on June 27, 2014.” Plaintiffs

argued that they did not know about the June 22, 2014 summary judgment motion

until July 8—less than 21 days before the hearing—and, thus, should be allowed

additional time to respond. The trial court signed an order on July 23, 2014

granting plaintiffs’ request to file a late response.

      In plaintiffs’ response to Raven’s motion for summary judgment, plaintiffs

argued that they did in fact respond to discovery requests as documented by:

      •      “COPIES OF PLAINTIFFS’ RESPONSES to Requests for
             Admissions, which were served on [defense counsel] first by
             FAX and later by mail via USPS PRIORITY MAIL. These are
             herein incorporated as APPENDIX 4 to this Motion.”1

      •      “USPS RECORD OF APRIL 4, 2014: This shows that on April
             4, 2014, Plaintiffs Responses to Defendant Discovery including
             Request for Admission was mailed via US PRIORITY MAIL
             TO [defense counsel] via US TRACKING NO.42077056 9505
             5000 19864094 0000 65 and was received by [counsel]\her
             agent on April 8, 2014 at 3:10 p.m. See EXHIBITS 2 and 3 to
             Plaintiffs Response to Motion to Compel herein incorporated as
             APPENDIX 5 to this Motion”;
      •      “LETTER DATED JULY 9, 2014 resending to [defense
             counsel] on said date Plaintiffs Responses by US PRIORITY
             MAIL with Tracking Number 2307177000037188521, herein
             incorporated as APPENDIX 6 to this Motion”;

      •      “PRINT OUT FROM THE USPS showing that the July 9, 2014
             Letter was received by a D. MENDOYA at [defense counsel’s]


1
      Lui Akwuruoha, at 9894 Bissonnet, ste. 455, signing as “attorney for plaintiffs”
      served the responses to requests for admission on Raven’s counsel in April 2014.
                                            5
             on JULY 10, 2014 at 11:53 am herein incorporated as
             APPENDIX 7 to this Motion”; and

      •      “EMAIL DATED JULY 11, 2014 at 3:01 pm CONFIRMING
             her receipt of the package of July 2014 which contained
             Discovery Responses including Plaintiffs Responses to Request
             for Admissions and her alleged deficiencies of said responses.
             This is herein incorporated as APPENDIX 8 to this Motion.”

      B. Hearing on Motion for Summary Judgment

      On July 23, 2015, the trial court held a hearing on Raven’s summary-

judgment motion. Raven’s counsel admitted that plaintiffs had responded to her

requests for admissions, but argued that the responses were not timely, entitling her

to summary judgment. Specifically, Raven’s counsel stated that plaintiffs were

served requests for admissions in February 2014 that were not responded to until

April 2014. Because plaintiffs had not filed a motion to have their admissions

undeemed, Raven argued she was entitled to rely on the deemed admissions of no

liability as a ground for summary judgment in her favor.

      Plaintiffs’ counsel argued that no motion to undeem the admissions was

necessary because the responses to the Requests for Admissions were timely.

Specifically, counsel argued that his earlier filed response to a motion to compel

contained evidence indicating that the discovery requests were initially mailed to

the wrong address, were later remailed, and then received by plaintiffs on March 6,

2014—rendering the April 4, 2014 responses timely. Raven’s counsel responded

that they repeatedly got mail returned because the person who was listed as counsel

                                         6
of record for plaintiffs in February was not licensed to practice law, but that was

not Raven’s fault:

              If the Court would like to wait to rule on the Summary
      Judgment so that Counsel can file his Motion to Undeem and bring his
      witnesses to talk about who got what when and who was managing
      that file, that would be fine.

            I would rather the Court rule on the Motion for Summary
      Judgment. But as the Court is aware, the service was proper on this –
      the admissions at the address of record when they were sent that they
      weren’t received is something that we have no control over.

      C. The Trial Court’s Judgment

      On July 24, 2014, the day after the summary-judgment hearing, the trial

court entered a final summary judgment motion in Raven’s favor, ordering “that

the Plaintiffs suit is hereby dismissed with prejudice to the refiling of same.”

      D. Plaintiffs’ Motion for New Trial and Motion to Set Aside Deemed
         Admissions and Response
      On August 25, 2014, plaintiffs filed a verified Motion for New Trial and

Motion to Set Aside Deemed Admissions. They argued that, at the time summary

judgment was granted, there was conclusive evidence on file that the responses to

the requests were admissions were not untimely.

      Alternatively, plaintiffs argued that good cause exists for setting aside the

deemed admissions. Specifically, plaintiffs argued that Raven mailed the requests

“to the incorrect address and that it was NOT received” within three days of

mailing, rebutting the presumption of service. Plaintiffs also asserted that Raven

                                           7
would not be unduly prejudiced by setting aside the deemed admissions, as she has

judicially admitted to receiving the responses on April 4, 2014, more than 104 days

prior to the entry of final summary judgment on deemed admissions. Accordingly,

plaintiffs argued, withdrawing the deemed admissions would not delay the trial or

significantly hamper Raven’s ability to prepare for trial because there are no facts

in the deemed admissions not known to Raven since at least April 4, 2014.

Finally, plaintiffs argued that refusal to set aside the deemed admissions amounts

to a death penalty sanction depriving them of a trial on the merits of their claims.

      In support of their request for a new trial, the plaintiffs argued that the trial

court erroneously failed to resolve doubts and inferences in favor of the nonmovant

plaintiffs. Specifically, plaintiffs argue that they presented evidence rebutting the

presumption of February 2014 service of the requests for admissions, but that the

trial court did not require Raven to then put forth proof as to when the requests

were actually served and that she did not receive timely responses after proper

service.

      The plaintiffs’ prayer concluded with:

             Plaintiffs do not believe that Defendant has suffered or would
      suffer any harm as a result of the granting of this Motion for New
      TriaI\Motion to Set Aside. If Defendant proves otherwise and the
      court so finds, Plaintiffs are willing and ready to cure the harm
      including agreeing to an early and\or preferential trial date so that this
      matter may be quickly decided on its merits. Additionally and to the
      extent applicable, Plaintiff urges the court to grant their Motion for
      New Trial based on the Craddock factors. ln this respect, Plaintiffs
                                          8
      assert that their failure to timely respond to RFAs, if applicable, was
      not intentional, but accidental; that it has a meritorious lawsuit\claims
      and that they can proceed to trial on the merits without any delay or
      prejudice to defendant.

             Plaintiffs have rebutted the presumption of service, have shown
      diligence in responding to the RFAs within 33 days of receipt, and
      have shown good cause, no prejudice to Defendant and deprivation of
      their right to a trial on the merits. These are the factors which Courts
      have relied upon in setting aside deemed admissions.

      Raven filed a response in opposition. She asserted that her requests for

admission were properly addressed to plaintiffs’ counsel of record in the case on

February 12, 2014, the date the requests were mailed. Raven asserts that they were

sent certified mail and delivered March 6, 2014, rendering the service date

February 12, 2014 under Rule 21a of the Texas Rules of Civil Procedure. Raven’s

counsel noted that, because he was aware that a named partner in the firm

associated with counsel of record for plaintiffs had been disbarred, he also sent the

requests for admissions to the address that plaintiffs’ counsel had on record with

the State Bar of Texas, but those were returned.

      In addition to arguing that the requests for admissions were timely served

(regardless of when they were received), Raven argued that (1) the verification on

plaintiffs’ motion for new trial was defective, (2) plaintiffs’ evidence was

defective, and (3) plaintiffs offered no proper evidence in support of their motion

for new trial and to set aside deemed admissions.



                                         9
      On September 3, 2014, the trial court denied both plaintiffs’ motion to set

aside deemed admissions and motion for new trial. Plaintiffs timely appealed.

                                ISSUES ON APPEAL

       In this appeal, plaintiffs raise three issues:

      1.     “Whether the trial court erred in granting summary judgment
             based exclusively on the deemed admissions when at the
             relevant time, there was uncontroverted evidence in the record
             that the admissions had been twice responded to; the MSJ
             notice was not received 24 days prior to the date of hearing and
             genuine issues of material facts existed in the record, including
             the judicial admission of negligence by Appellee.”

      2.     “Whether the trial court erred in denying the Motion to Set
             Aside Deemed Admission\Motion for New Trial upon an
             uncontested showing of good cause, no prejudice to Appellee
             and a preclusive effect on the presentation of the merits of the
             case in violation of the constitutionally guaranteed due process
             rights of Appellants.”

      3.     “Whether Appellants timely responded to the Requests for
             Admissions based on the date of receipt of said Admissions.”

                              DEEMED ADMISSION

A.    Applicable Law

      The responding party must serve a written response to a post-answer request

for admission within 30 days after service of the request. TEX. R. CIV. P. 198.2(a).

Service of request for admissions by mail is deemed complete “upon deposit of the

document, postpaid and properly addressed, in the mail or with a commercial

delivery service.” TEX. R. CIV. P. 21a(b)(1). When service is effectuated by mail,

three days is added to the time the recipient has to respond. TEX. R. CIV. P. 21a(c).
                                           10
If a response to requests for admissions “is not timely served, the request is

considered admitted without the necessity of a court order.” TEX. R. CIV. P.

198.2(c).

      The supreme court has held that the standards for withdrawing deemed

admissions and for allowing a late summary-judgment response are the same.

Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687–88 (Tex. 2002).

“Either is proper upon a showing of (1) good cause, and (2) no undue prejudice.”

Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005) (per curiam) (citing

Carpenter, 157 S.W.3d at 687–88); see TEX. R. CIV. P. 166a(c), 198.3. “Good

cause is established by showing the failure involved was an accident or mistake,

not intentional or the result of conscious indifference.” Wheeler, 157 S.W.3d at

442 (citing Carpenter, 98 S.W.3d at 687–88; Stelly v. Papania, 927 S.W.2d 620,

622 (Tex. 1996) (per curiam)). “Undue prejudice depends on whether withdrawing

an admission or filing a late response will delay trial or significantly hamper the

opposing party’s ability to prepare for it.” Id. (citing Carpenter, 98 S.W.3d at 687;

Stelly, 927 S.W.2d at 622; see also Wal–Mart Stores, Inc. v. Deggs, 968 S.W.2d

354, 357 (Tex. 1998) (per curiam)).

B.    Standard of Review

       We review a trial court’s decision to permit or deny withdrawal of deemed

admissions for an abuse of discretion. Stelly, 927 S.W.2d at 622. “An abuse of


                                         11
discretion occurs when a court acts without reference to guiding rules or principles,

or acts arbitrarily or unreasonably.” Id. Texas Rule of Civil Procedure 198.3

provides the “guiding rules or principles” the trial court must follow when ruling

on a request to withdraw deemed admissions. See id. at 621. “Additionally, when

due process concerns are raised by deemed admissions which act as a merits-

preclusive sanction, the trial court must follow the guiding rules and principles

established by Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005) (per curiam).” Time

Warner, Inc. v. Gonzalez, 441 S.W.3d 661, 665 (Tex. App.—San Antonio 2014,

pet. denied).

C.    Analysis

      In plaintiffs’ second issue, they argue that the trial court erred in denying the

Motion to Set Aside Deemed Admission\Motion for New Trial upon showing of

good cause, no prejudice to Raven and a preclusive effect on the presentation of

the merits of the case in violation of their right to due process. We agree.

      Raven admits that she had plaintiffs’ responses in hand long before she

moved for summary judgment on the deemed admissions. Plaintiffs made clear at

the summary-judgment hearing that they were of the mistaken view that they had

timely responded to the requests. And the record as a whole reflects that there was

confusion at times about who represented plaintiffs and when.




                                          12
      Raven argues that the trial court did not abuse its discretion because the

“Motion to Undeem contained no affidavits, or verifications to support allegations

of good cause and no prejudice and failed to present the proposed responses to the

deemed admissions as required by law.” She contends that there is no good cause

supporting plaintiffs’ request to withdraw the deemed responses because plaintiffs

failed to prove that the requests were sent to an incorrect address. To the contrary,

Raven asserts, “the requests were properly served at the address of record on file

with the court AND the attorney of record’s address on file with the State Bar of

Texas on February 12, 2014.”

      Raven further argues that by waiting until after summary judgment was

entered to file a written motion to undeem admissions, plaintiffs waived that

request. In support, Raven relies on this Court’s opinion in Cleveland v. Taylor,

397 S.W.3d 683, 695 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) for the

proposition that “failure to seek to undeem admissions, when represented at all

relevant times by counsel, prior to a Motion for New Trial, constitutes a waiver of

the ability to challenge the same after judgment.” In Cleveland, we noted that the

non-movant for summary judgment—who was represented by counsel—refused to

respond to numerous discovery requests. Id. at 696. After the trial court rendered

judgment for the plaintiffs (in part based on deemed admissions and in part on

death penalty sanctions), a month later counsel for the defendants filed a motion


                                         13
for new trial and to undeem admissions. Id. at 693–94. Both defendants and their

counsel averred that counsel’s office received the request for admissions, but that

because of office staff issues, the requests were not forwarded to the defendants.

Id. Counsel also averred that “he did not intentionally fail to answer the requests

for admission, but that his failure was due to ‘oversight and mistake on my part, as

well as the disorganized situation in my office at that time.’” Id. at 692. The trial

court denied the motion for new trial, the motion to undeem admissions, and the

motion to set aside death penalty sanctions. Id. We affirmed, noting in part that

the defendants still had not answered requests for admissions, even after the

plaintiff moved for judgment on the deemed admissions. Id. at 695–96.

      The plaintiffs in turn cite the supreme court’s opinion in Wheeler, 157

S.W.3d at 442. In Wheeler, the trial court granted summary judgment on deemed

admissions, despite the fact that the opposing party—appearing pro se—“actually

had filed responses six months before the motion was heard, but two days after

they were due.” Id. at 441. The nonmovant then hired an attorney, who filed a

motion for new trial arguing that the admission responses were timely, and that the

trial court’s granting summary judgment on deemed admissions was erroneous. Id.

at 441–42. The trial court denied the motion, and the court of appeals affirmed.

The supreme court reversed, however, reasoning that the nonmovant did not waive

her requests to undeem by failing to file a motion to undeem, or by presenting her


                                         14
argument to undeem for the first time in a motion for new trial. Id. at 442. The

court noted that the nonmovant believed her responses were timely and that the

record does not reflect that she understood the need to file a motion to undeem

before the summary judgment was entered. Id.

      The Wheeler court emphasized that “absent bad faith or callous disregard for

the rules, due process bars merits-preclusive sanctions.” 157 S.W.3d at 443. The

court noted that concept had been applied in a variety of other discovery contexts

and, in Wheeler, it expressly extended that concept to requests for admissions:

            When requests for admissions are used as intended—addressing
      uncontroverted matters or evidentiary ones like the authenticity or
      admissibility of documents—deeming admissions by default is
      unlikely to compromise presentation of the merits. See Stelly, 927
      S.W.2d at 622 (stating requests for admissions were intended to
      “eliminat[e] matters about which there is no real controversy” and
      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”) (quoting Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206,
      208 (1950)). But when a party uses deemed admissions to try to
      preclude presentation of the merits of a case, the same due-process
      concerns arise. See Trans American Natural Gas Corp., 811 S.W.2d
      at 917–18.

            ....
             This record contains no evidence of flagrant bad faith or callous
      disregard for the rules, nothing to justify a presumption that
      [plaintiff’s] case lacks merit, and nothing to suggest [defendant] was
      unable to prepare for trial without the admissions. See id. at 918; cf.
      Cire v. Cummings, 134 S.W.3d 835, 843 (Tex. 2004) (affirming
      dismissal based on destruction of tapes at heart of case). Further,
      Sandra offered to pay for any expenses Darrin incurred because her
      responses were late. See TEX. R. CIV. P. 215.4. We hold under the

                                         15
      facts presented here that the trial court should have granted a new trial
      and allowed the deemed admissions to be withdrawn upon learning
      that the summary judgment was solely because Sandra’s responses
      were two days late. See Spohn Hosp. [v. Mayer], 104 S.W.3d [878,]
      883 [Tex. 2003)] (holding late production of witness statements
      insufficient to justify deeming facts on merits).
Id. at 443.

      In Marino v. King, the supreme court again reversed a summary judgment

granted solely on deemed admissions; as in Wheeler, the requests for admissions

had been answered, but one day late. 355 S.W.3d 629, 630 (Tex. 2011). The pro

se appellant in Marino did not file a response to the movant’s summary judgment

motion, but had raised grounds in other pending motions and in argument at the

summary judgment hearing for continuing or denying the motion for summary

judgment. Id. at 632. In a motion for new trial, which the trial court denied, “she

asked for an opportunity to correct her mistake, if she had failed to meet a

procedural requirement or needed to supply additional information.” Id. at 633. In

reversing, the supreme court reiterated the concerns with merit-precluding

judgments based on deemed admissions:

             Requests for admission are intended to simplify trials. They are
      useful when “addressing uncontroverted matters or evidentiary ones
      like the authenticity or admissibility 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.
      [Plaintiff’s] requests here, however, asked essentially that [defendant]
      admit to the validity of his claims and concede her defenses—matters
      [plaintiff] knew to be in dispute. Requests for admission were never
      intended for this purpose. Stelly v. Papania, 927 S.W.2d 620, 622

                                         16
(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. & 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, 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”).

      ....
       Although trial courts have broad discretion to permit or deny
the withdrawal of deemed admissions, they cannot do so arbitrarily,
unreasonably, or without reference to guiding rules or principles.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985). The due process concern recognized in Wheeler is one
such principle that inheres to a request for merits-preclusive
admissions. See In re Rozelle, 229 S.W.3d 757, 763 (Tex. App.—San
Antonio 2007, orig. proceeding) (quoting Wheeler and observing that
this due process concern is a “guiding rule and principle that applies
‘[w]hen requests for admissions are [not] used as intended,’ and
‘when a party uses deemed admissions to try to preclude presentation
of the merits of a case’ ”). Constitutional imperatives favor the
determination of cases on their merits rather than on harmless
procedural defaults. 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 incorporates the
requirement as an element of the movant’s summary judgment
burden. See Wheeler, 157 S.W.3d at 443–44.
       Good cause for the withdrawal of the deemed admissions exists
in this case because there is no evidence of flagrant bad faith or
                                   17
      callous disregard for the rules and nothing to justify a presumption
      that [defendant’s] defense lacks merit. Id. Moreover, there is nothing
      to suggest that [defendant] was unable to prepare for trial without the
      admissions and thus no evidence that their withdrawal will cause him
      undue prejudice; rather, “the presentation of the merits of the action
      will be subserved by permitting [defendant] to withdraw the
      admission [s].” TEX. R. CIV. P. 198.3(b). The trial court accordingly
      erred in rendering summary judgment on deemed admissions, and the
      court of appeals erred in affirming that judgment because [defendant]
      did not waive the error.

Id. at 632–34.

      Raven argues that the trial court’s denial of plaintiffs’ motion to undeem

admissions was proper in part because the motion “attaches no affidavits or other

evidence to support good cause, no prejudice or presentation of merits.” But,

“although a party moving to withdraw admissions ordinarily must prove the

requirements of Rule 198.3, when the deemed admissions are merit-preclusive,

good cause exists absent bad faith or callous disregard of the rules by the party

seeking the withdrawal.”    In re Sewell, 472 S.W.3d 449, 456 (Tex. App.—

Texarkana, orig. proceeding) (citing Marino, 355 S.W.3d at 634). “Accordingly,

where a party moves to withdraw deemed admissions that are merit-preclusive,

due-process requires the party opposing withdrawal to prove that the moving

party’s failure to answer the admissions resulted from “‘flagrant bad faith or

callous disregard of the rules.’” Id. (citing Time Warner, Inc. v. Gonzalez, 441

S.W.3d 661, 666 (Tex. App.—San Antonio 2014, pet. denied) (quoting Wheeler,

157 S.W.3d at 443)). This showing of flagrant bad faith or callous disregard is “an

                                        18
element of the movant’s summary judgment burden.” Yacoub v. Sure Tec. Ins.

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

Dist.] April 28, 2015, no pet.) (mem. op.) (citing Marino, 355 S.W.3d at 634).

      Raven’s requests for admissions of “no liability” fall outside the intended

scope of requests for admissions. See, e.g., Stelly, 927 S.W.2d at 622 (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”)). Because the deeming of those admissions operated as merit-precluding

sanctions, Raven had the burden in response to the plaintiffs’ motion for new trial

and to undeem admissions, to demonstrate that—assuming the plaintiffs’ responses

were untimely—that untimeliness was the result of flagrant bad faith or callous

disregard for the rules. See Gonzalez, 441 S.W.3d at 666.

      Raven specifically moved for, and was granted, summary judgment on three

merits-dispositive deemed admissions. Raven’s trial-court filings focused on the

plaintiffs’ alleged failure to affirmatively demonstrate “good cause” for their

failure to timely respond to the requests for admissions. But Raven failed to argue

or present any evidence that the plaintiffs’ failures reflected flagrant bad faith or

callous disregard for the rules, as was her burden to obtain summary judgment and




                                         19
to oppose the motions to undeem admissions and for a new trial. See Marino, 355

S.W.3d at 634; Gonzalez, 441 S.W.3d at 666.

      Raven nonetheless insists that this case is distinguishable from Marino and

Wheeler because the parties there seeking new trials were pro se, in contrast with

Cleveland v. Taylor, 397 S.W.3d 683, 695 (Tex. App.—Houston [1st Dist.] 2012,

pet. denied) in which we held a post-judgment motion to undeem admissions was

waived in part because the party moving to undeem post-judgment was represented

by counsel throughout the entire proceedings. While we acknowledge that the

supreme court was concerned with the parties’ pro se status in Marino and

Wheeler, we do not consider that difference dispositive here.

      In Cleveland, not only were the parties seeking to undeem admissions

represented by counsel throughout the entire proceedings, they refused to respond

to multiple requests for production and interrogatories, no-showed for depositions,

and were sanctioned for refusing to participate in discovery. 397 S.W.3d at 688–

89. After the trial court granted a motion to compel, the parties still would not

participate in their properly noticed depositions nor comply with the trial court’s

previous order compelling responses to discovery. Id.     In holding that the party

seeking to undeem admissions had waived that relief by first requesting it post-

judgment, we noted the numerous times the parties were put on notice that the




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opposing party sought judgment on their deemed admissions, but still the parties

seeking to undeem the admissions post-judgment never responded to the requests:

      The Investors served the Cleveland parties, through their attorney . . .
      with requests for admissions on December 21, 2010, and the
      Cleveland parties failed to respond. Prior to the trial court’s rendition
      of judgment, the Investors (1) filed a notice of the Cleveland parties’
      deemed admissions on January 27, 2011; (2) filed two motions for
      summary judgment—one on January 31, 2011, and one on April 4,
      2011—based, in part, on the Cleveland parties’ deemed admissions;
      (3) filed a trial exhibit list including the deemed admissions as an
      exhibit; and (4) stated on the record at the time of the original trial
      setting, February 15, 2011, in the presence of both James and Paul
      Cleveland and their attorney, the fact that the Investors “sent requests
      for admissions that were never responded to” by any of the Cleveland
      parties, in addition to pointing out several other discovery and
      pleading abuses. The notice of deemed admissions, two motions for
      summary judgment, trial exhibit list, and discussion on the record in
      the presence of two of the Cleveland parties and their attorney
      demonstrate that the Cleveland parties had notice of their mistake
      before the trial court rendered judgment and that they had other
      avenues of relief available, but that they failed to take action until
      after the trial court’s judgment. Thus, we conclude that the Cleveland
      parties waived their right to challenge the deemed admissions.

397 S.W.3d at 694–95.

      Here, although the plaintiffs were represented by various counsel throughout

the proceedings and did not file a formal, written motion to undeem admission

until after the trial court granted summary judgment, the plaintiffs answered the

request for admissions long before the summary judgment hearing and attached the

discovery responses to their summary judgment response. And, given the flux of

lawyers representing plaintiffs at various stages, it is not clear that they had


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continuous representation throughout the proceedings. It appears that they were

pro se at least a portion of the time, despite what appears to be an exercise of

diligence on their part to find and maintain attorney representation to prosecute

their claims. The plaintiffs put the trial court and Raven on notice that they

disputed liability and that they believed that they timely responded to the requests

for admissions.

      The supreme court in Wheeler held that “the trial court should have granted

a new trial and allowed the deemed admissions to be withdrawn upon learning that

the summary judgment was solely because [the] responses were two days late.”

157 S.W.3d at 444. In Marino, it stated “result should be no different here.” 355

S.W.3d at 633. Given that the plaintiffs in this case had answered the requests for

admissions long before the summary-judgment hearing, there was confusion about

when (and by who) plaintiffs were represented by counsel, and Raven presented no

evidence that she was prejudiced in her preparation for trial,2 we hold that the trial

court should have granted plaintiffs’ motion for new trial and allowed the merits-

precluding admissions be undeemed. Without a showing of flagrant bad faith and

callous disregard for the rules, the trial court’s failure to do so implicates


2
      In addition to Raven articulating no prejudice flowing from allowing the deemed
      responses to be withdrawn, plaintiffs offered to mitigate any inconvenience by
      agreeing to a preferential trial setting. Raven cannot argue that preparation of a
      trial defense was compromised because she had the responses long before the
      summary-judgment hearing.
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constitutional concerns. 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.”).

      Because we sustain plaintiffs’ second issue and reverse and remand for a

new trial, we need not address plaintiffs’ first and third issues.

                                   CONCLUSION

      We reverse the trial court’s judgment and remand the case to the trial court

for further proceedings.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Massengale and Brown.




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