Deborah Hayward v. Socorro Gomez ( 2023 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00053-CV
DEBORAH HAYWARD, Appellant
V.
SOCORRO GOMEZ, Appellee
On Appeal from the 354th District Court
Hunt County, Texas
Trial Court No. 88034
Before Stevens, C.J., van Cleef and Rambin, JJ.
Opinion by Chief Justice Stevens
OPINION
Socorro Gomez sued Deborah Hayward for breach of a rent-to-own agreement. Gomez
filed a traditional motion for summary judgment based, in part, on deemed admissions. The trial
court granted Gomez’s motion and entered judgment against Hayward, who did not file a
response to the summary judgment motion but instead asked that she be allowed to withdraw her
deemed admissions. On appeal, Hayward argues that the trial court erred by granting summary
judgment based on the deemed admissions. Because the summary judgment is supported by
evidence independent of the deemed admissions and the circumstances of this case support the
trial court’s exercise of discretion to implicitly deny the motion to withdraw the deemed
admissions, we overrule Hayward’s sole point of error and affirm the trial court’s judgment.
I. Factual and Procedural Background
Gomez sued Hayward on October 8, 2019, for breach of contract involving a four-
bedroom home located at 2216 Wilson Hill, Neylandville, Texas (the Property). The contract,
signed by both Hayward and Gomez and titled “Rent to Own Agreement” (the Agreement),
required a $15,000.00 deposit, set a monthly payment of $650.00, and gave Gomez the exclusive
“option to purchase the [P]roperty . . . for a purchase price of $100,000.00.” The “OPTION TO
PURCHASE” section stated, “The Landlord shall credit towards the purchase price at closing the
sum of $650.00 from each monthly lease payment that the Tenant timely made.” Pursuant to the
Agreement, Hayward had “the responsibility to maintain the Premises in good repair at all times
and perform all repairs necessary to satisfy any implied warranty of habitability.” The
Agreement began on June 6, 2016, and was set to terminate on May 31, 2020, unless Gomez
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exercised the option to purchase. Hayward was also permitted to terminate the Agreement by
providing written notice. Gomez made payments pursuant to the Agreement.
Even so, Gomez alleged that Hayward filed an eviction suit against her on June 26, 2018,
“without cause and without following the procedures set forth in the contract.” After Hayward’s
lawsuit was dismissed, Gomez alleged that Hayward did not own the Property and had no
authority to sell or lease it. Hayward answered and filed her own breach of contract claim,
arguing that alterations were made to the Property without her consent.
Discovery disputes followed. On November 19, 2019, Gomez filed requests for
disclosures. Requests for production and interrogatories were served on Hayward on January 31,
2020. On March 11, Gomez’s counsel emailed Hayward’s counsel about the discovery
responses and, on April 15, informed her that they were “still waiting” for discovery responses
“that were due almost two months” prior to that time. The email warned of an impending motion
to compel the discovery. Hayward’s counsel replied that she was waiting on Hayward’s
responses and would reach out to her. On April 16, Gomez served Hayward with requests for
admissions.
On May 1, 2020, Gomez filed a motion to compel responses to the requests for
disclosures, requests for production, and interrogatories. Because they were not yet due, the
requests for admissions were not mentioned in Gomez’s motion. After a May 15, 2020, hearing,
the trial court granted Gomez’s motion to compel and ordered Hayward to respond to the
requests for disclosures, requests for production, and interrogatories within one week. Hayward
was also ordered to pay $1,150.00 in attorney fees.
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The May 18 deadline to respond to the requests for admissions passed without any
response from Hayward. Also, the record showed that Hayward did not comply with the trial
court’s May order compelling disclosures, production of documents, and responses to
interrogatories. Even so, Gomez’s counsel agreed to an extension to respond to the discovery
requests until June 1. When that deadline passed without any response, Gomez’s counsel
attempted to confer with Hayward’s counsel and again agreed to an extension until June 5.
On June 9, Gomez alleged that Hayward served “inadequate, incomplete and evasive
responses” to the interrogatories and requests for production. Gomez added that she had not
received any responses to the requests for disclosures or the payment of attorney fees awarded by
the May order. On June 18, 2020, Gomez filed another motion to compel responses to the
requests for disclosures, requests for production, and interrogatories and moved for sanctions.
The requests for admissions, which had already been deemed admitted, were not mentioned in
Gomez’s motion. See TEX. R. CIV. P. 198.2(c). After a June 22 hearing on the second motion to
compel, the trial court took the matter under advisement and said it would revisit the issue on
June 26. On June 26, the parties reported that the matter had been resolved.
Almost two years later, on May 18, 2022, Gomez filed a motion for summary judgment
based, in part, on Hayward’s deemed admissions. The motion for summary judgment attached
the Agreement, a deed showing that the Property was purchased by Willie L. Bush and Neita J.
Bush in 1975, and Gomez’s affidavit stating that (1) Hayward was not the true title holder of the
Property, (2) Hayward did not have authority to sell or lease the Property, and (3) Gomez had
“paid a total of $65,000 pursuant to the Contract with an expectation that [she] owned the house
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under the rent-to-own agreement.” The motion also attached Gomez’s counsel’s affidavit and
emails showing that Hayward’s counsel received and acknowledged the requests for admissions
due on May 18, 2020, and that Hayward had never paid the attorney fees ordered by the trial
court’s May 2020 order.
Hayward did not file a response to the summary judgment motion. Instead, on May 31,
2022, Hayward filed a motion to withdraw the deemed admissions. The motion acknowledged
that Gomez had served the requests for admissions on April 16, 2020. Even so, the motion
(1) stated that Hayward’s counsel did not realize that there were deemed admissions,
(2) generally referred to the COVID-19 pandemic’s “contribut[ion] to counsel’s inaction,”
(3) stated that counsel simply “forgot or overlooked that the responses had not been provided,”
(4) attached the long-overdue responses, and (5) asked the trial court for an additional five days
to respond to the motion for summary judgment. Tellingly, Hayward’s late response admitted
both that she did not have title to the Property at the time she entered into the Agreement and that
she did not own the Property in fee simple at that time.
In response to Hayward’s motion to withdraw the deemed admissions, Gomez argued
that Hayward should not receive any extension because the motion was filed on the day before
her response to the summary judgment motion was due. Gomez also argued that there was no
evidence of good cause attached to Hayward’s motion that would permit withdrawal of the
deemed admissions. Gomez represented that Hayward had a history of non-compliance with
discovery rules, that she had not paid the discovery sanctions ordered by the trial court two years
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earlier, and that it would prejudice Gomez if Hayward were allowed to withdraw deemed
admissions on the eve of summary judgment and forty-one days before trial.
Nothing shows that the trial court expressly ruled on Hayward’s motion to withdraw the
deemed admissions. On June 9, in the absence of any summary judgment response from
Hayward, the trial court granted summary judgment on Gomez’s breach of contract claim and
ordered that Hayward take nothing on her claims. Gomez was awarded $65,000.00 in actual
damages and $15,000.00 in attorney fees, interests, and court costs.1
II. There Was No Error in the Trial Court’s Implicit Denial of Hayward’s Motion to
Withdraw the Deemed Admissions
Hayward’s contention that the trial court erred by granting summary judgment is based
entirely on the argument that she should have been allowed to withdraw her deemed admissions
and file a late summary judgment response.
A. Standard of Review
We review the decision to permit or deny withdrawal of deemed admissions for an abuse
of discretion. Motor Car Classics, LLC v. Abbott, 316 S.W.3d 223, 236 (Tex. App.—Texarkana
2010, no pet.). As a result, “[a] ruling on whether to strike deemed admissions will only be set
aside upon a showing of clear abuse of discretion.” Id. “Although trial courts have broad
discretion to permit or deny withdrawal of deemed admissions, they cannot do so arbitrarily,
unreasonably, or without reference to guiding rules or principles.” Id. (citing Stelly v. Papania,
927 S.W.2d 620, 622 (Tex. 1996) (per curiam)).
1
This judgment was made final after Gomez nonsuited remaining causes of action.
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B. Applicable Law
Under Rule 198 of the Texas Rules of Civil Procedure, if a party does not timely respond
to a request for admissions, “the request is considered admitted without the necessity of a court
order.” TEX. R. CIV. P. 198.2(c). Any matter deemed admitted “is 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 the party to withdraw or amend
the admission if . . . the party shows good cause for the withdrawal or amendment” and the trial
court finds both “that the parties relying upon the responses and 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 amend or withdraw the admission.” Id.; see Wheeler v. Green, 157
S.W.3d 439, 443 n.2 (Tex. 2005) (per curiam). Good cause “is established by showing the
failure involved was an accident or mistake, not intentional or the result of conscious
indifference.” Marino v. King, 355 S.W.3d 629, 633 (Tex. 2011) (per curiam) (quoting Wheeler,
157 S.W.3d at 442). “‘Conscious indifference’ has been defined as ‘the failure to take some
action that would seem obvious to a reasonable person in the same circumstance.’” Todd v.
Heinrich, No. 01-10-00267-CV, 2011 WL 2183881, at *6 (Tex. App.—Houston [1st Dist.]
June 2, 2011, no pet.) (mem. op.) (quoting In re A.P.P., 74 S.W.3d 570, 573 (Tex. App.—Corpus
Christi 2002, no pet.)). “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. (quoting Wheeler, 157 S.W.3d at 443).
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As to non-merit-preclusive admissions, “the party seeking withdrawal of the deemed
admissions has the burden to establish good cause.” Ramirez v. Noble Energy, Inc., 521 S.W.3d
851, 856 (Tex. App.—Houston [1st Dist.] 2017, no pet.); see Alvarado v. Farah Mfg. Co., 830
S.W.2d 911, 914–15 (Tex. 1992). Here, Gomez acknowledges that the deemed admissions
contained both non-merit-preclusive and merit-preclusive admissions. A different standard
applies when the deemed admissions are merit-preclusive.
“Requests for admission are intended to simplify trials.” Marino, 355 S.W.3d at 632.
“They are useful when ‘addressing uncontroverted matters or evidentiary ones like the
authenticity or admissibility of documents.’” Id. (quoting Wheeler, 157 S.W.3d at 443). They
are not 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.” Id. (quoting Sanders v. Harder, 227 S.W.2d 206, 208
(Tex. 1950)); see Medina v. Zuniga, 593 S.W.3d 238, 244 (Tex. 2019).
When there are merit-preclusive admissions, due process is implicated since the deemed
admissions compromise a party’s right to present the merits of her case. See Medina, 593
S.W.3d at 244; Wheeler, 157 S.W.3d at 443. By denying a motion to withdraw merit-preclusive
admissions, the trial court effectively enters a case-ending discovery sanction. Marino, 355
S.W.3d at 632 (“[W]hen 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.”). As a result, when a party moves to withdraw deemed admissions that are
merit-preclusive, due process requires the party opposing withdrawal to prove that the moving
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party’s failure to answer the admissions resulted from “flagrant bad faith or callous disregard of
the rules.” Id. at 633 (quoting Wheeler, 157 S.W.3d at 443).
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. Id. at 634. The
requirement to show bad faith or callous disregard becomes an element of the movant’s summary
judgment burden. Id. at 634 (citing Wheeler, 157 S.W.3d at 443–44).
C. Analysis
As for the non-merit-preclusive requests, Gomez’s summary judgment evidence showed
that she sent the requests for admissions to Hayward’s counsel, who acknowledged the receipt by
responding to the email attaching the requests. Hayward claimed in his brief that counsel did not
realize that any admissions were due until she received Gomez’s motion for summary judgment.
“Inadvertence of counsel is not good cause for failure to adhere to discovery deadlines.”
Pjetrovic v. Home Depot, 411 S.W.3d 639, 646 (Tex. App.—Texarkana 2013, no pet.); see
Cresson Int., LLC v. Rooster, No. 02-21-00366-CV, 2022 WL 3904968, at *6 (Tex. App.—Fort
Worth Aug. 31, 2022, no pet.) (mem. op.); Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915
(Tex. 1992) (“If inadvertence of counsel, by itself, were good cause, the exception would
swallow up the rule, for there would be few cases in which counsel would admit to making a
deliberate decision not to comply with the discovery rules.”). Hayward also generally refers to
the COVID-19 pandemic, but “[a]lthough COVID-19 unquestionably upended the normal course
of events across every aspect of life, ‘the fact of the pandemic, standing alone, is not a reasonable
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explanation’ for a missed deadline.” Cresson Int., LLC, 2022 WL 3904968, at *6 (citing Jones v.
White, No. 02-20-00198-CV, 2020 WL 5666564, at *1 (Tex. App.—Fort Worth Sept. 24, 2020,
no pet.) (mem. op.)).
With respect to the merit-preclusive requests,
[a]lthough “a lack of care, simple bad judgment, or a mistaken belief that no
discovery had been served does not rise to the level of bad faith or callous
disregard for the rules,” evidence showing that “a party is mindful of pending
deadlines and nonetheless either consciously or flagrantly fails to comply with the
rules” satisfies the standard.
Est. of Campos, No. 04-19-00350-CV, 2020 WL 1866460, at *4 (Tex. App.—San Antonio
Apr. 15, 2020, no pet.) (mem. op.) (quoting Ramirez v. Noble Energy, Inc., 521 S.W.3d 851, 860
(Tex. App.—Houston [1st Dist.] 2017, no pet.)). “A failure to respond that is intentional or the
result of conscious indifference is the equivalent of a nonresponding party’s ‘flagrant bad faith or
callous disregard for the rules.’” Id. (quoting Carter v. Perry, 02-14-00185-CV, 2015 WL
4297586, at *3 (Tex. App.—Fort Worth July 9, 2015, no pet.) (mem. op.)).
Gomez’s counsel filed an affidavit showing that she served the requests for admissions
on April 16, 2020. Her attached email also showed that Hayward received the requests and
responded to the email, which demonstrated that she was aware of the deadline for filing the
responses. The affidavit and appellate record both showed that Hayward had repeatedly failed to
respond to discovery and was subjected to a second motion to compel the same discovery after
she responded with evasive and insufficient answers. The requests for admissions were deemed
admitted on May 18, 2020. One day later, Hayward was sanctioned for failing to respond to
requests for disclosures, requests for production, and interrogatories.
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Even though Hayward’s counsel was well aware of the consequences of failing to
respond to discovery because of the parties’ other discovery disputes, two years had passed when
Gomez’s attorney filed the motion for summary judgment on May 18, 2022.2 Gomez’s attorney
also swore that she had not received any satisfaction of the $1,150.00 sanction required by the
trial court’s May 2020 order. Also, instead of immediately filing a motion to withdraw the
deemed admissions, Hayward waited until the day before her summary judgment response was
due. We find that Gomez’s summary judgment evidence showed that Hayward’s counsel
engaged in a pattern of ignoring discovery requests and court sanctions related to discovery. See
Todd, 2011 WL 2183881, at *9 (citing Levine v. Shackelford, Melton & McKinley, L.L.P., 248
S.W.3d 166, 169 (Tex. 2008) (per curiam) (“This pattern of ignoring deadlines and warnings
from the opposing party amounts to conscious indifference.”)); Est. of Campos, 2020 WL
1866460, at *5.
Moreover, the trial court was required to find that “the presentation of the merits of the
action w[ould] be subserved by permitting the party to amend or withdraw the admission.” TEX.
R. CIV. P. 198.3. Even excluding the deemed admissions, Gomez’s summary judgment
evidence—which was never controverted since Hayward never responded to the summary
judgment motion3—showed that (1) she and Hayward entered into the Agreement, (2) Hayward
did not have the authority to sell or lease the Property because she did not have title to it when
2
The record shows that a hearing was scheduled on the motion for summary judgment on June 8.
3
Hayward argues on appeal that she had raised a claim that the Agreement “was not the actual agreement between
the parties.” There was no evidence supporting Hayward’s claim. Also, “a party who fails to expressly present to
the trial court any written response in opposition to a motion for summary judgment waives the right to raise any
arguments or issues post-judgment.” Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797–98 (Tex. 2008)
(per curiam).
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the Agreement was executed, (3) Hayward failed to make necessary repairs, (4) Hayward did not
provide notice of termination under the Agreement, and (4) Gomez was damaged in the amount
of $65,000.00. In her responses attached to the motion to withdraw the deemed admissions,
Hayward affirmatively admitted that she did not have title to the Property and did not own the
Property in fee simple when she entered into the Agreement. From this evidence and Hayward’s
failure to file any summary judgment response, the trial court could have concluded that
permitting the withdrawal of the deemed admissions would have no effect on the merits of the
case.
Based on the record before us, we find no abuse of discretion in the trial court’s decision
to deny Hayward’s motion to withdraw the deemed admissions.
III. Conclusion
We affirm the trial court’s judgment.
Scott E. Stevens
Chief Justice
Date Submitted: January 18, 2023
Date Decided: February 7, 2023
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