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ACCEPTED 06-15-00032-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 6/25/2015 11:10:59 AM DEBBIE AUTREY CLERK No._________________________ FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS In the Court of Appeals 6/25/2015 11:10:59 AM DEBBIE AUTREY Sixth Judicial District Clerk Texarkana, Texas In re CARLTON SEWELL, Relator Original Proceeding from the County Court at Law of Hopkins County, Texas ______________________________________________________________________________ PETITION FOR WRIT OF MANDAMUS J. Brad McCampbell Attorney for Relator State Bar No. 13358000 CURTIS, ALEXANDER & McCAMPBELL, P.C. Number One Planters Street P.O. Box 38 Emory, Texas 75440 Telephone: (903)473-2297 Facsimile: (903)473-3069 bmccampbell@cammpclaw.com ORAL ARGUMENT REQUESTED Identity of Parties and Counsel The following is a list of all parties and all counsel in this matter: RELATOR in this matter is Carlton Sewell and he is a Proponent/Contestant in the underlying case. The attorney representing Relator is: J. Brad McCampbell CURTIS, ALEXANDER & McCAMPBELL, P.C. Number One Planters Street P.O. Box 38 Emory, Texas 75440 RESPONDENT in this matter is the Honorable Amy Smith, Judge of the County Court at Law of Hopkins County, Texas. THE REAL PARTIES IN INTEREST in this case are Janet Neal Stanley, Applicant, and Contestants, Truitt Sewell, Sue Neal, Melanie Wells, Robert Wells, Harold Wells, Tracy Wright, Cynthia Terrell, Nick Wells, Alleen Neal, Nicholas Maryol, Anita Counts, and Troy Sewell, and are represented by counsel as indicated: Mr. Chad Cable CHAD CABLE LAW OFFICE 323 Gilmer Street Sulphur Springs, Texas 75482 Tel: (903) 885-1500 Fax: (903) 885-7501 Page i Table of Contents IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page i INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page iii STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 1 STATEMENT OF THE JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2 ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2 ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 5 PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 12 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 14 APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 15 Page ii Index of Authorities CASES PAGE Employer’s Ins. of Wausau v. Halton,
792 S.W.2d 462(Tex.App. - Dallas 1990, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . 9 FDIC v. Prusia,
18 F.3d 637(8th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 In re Ford Motor Company,
165 S.W.3d 315(Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 In re Kellogg, Brown & Root, Inc.,
45 S.W.3d 772(Tex.App. - Tyler 2001, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 In re Rozelle,
229 S.W.3d 775(Tex.App. - San Antonio 2007, orig. proceeding) . . . . . . . . . . . . . . . 5, 7 Johnson v. Fourth Court of Appeals,
700 S.W.2d 916(Tex. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Mansfield State Bank v. Cohn,
573 S.W.2d 181(Tex. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Marino v. King,
355 S.W.3d 629(Tex. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 National Hockey
League, 427 U.S. at 642-643, 96 S.Ct. at 2780-81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Sanders v. Harder,
148 Tex. 593,
227 S.W.2d 206(1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Stelly v. Papania,
927 S.W.2d 620(Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10 Page iii Trans-American National Gas Corp.,
811 S.W.2d 913(Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10 U.S. Fid. & Guar. Co. v. Gundeau,
272 S.W.3d 603(Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Wheeler v. Green,
157 S.W.3d 439(Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,
11 Walker v. Packer,
827 S.W.2d 833, 840 (Tex. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6 Wal-Mart Stores, Inc. v. Deggs,
968 S.W.2d 354(Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 STATUTES, AND RULES TEX. GOV. CODE, § 22.221(b) (Vernon 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 TEX.R.CIV.P. 198.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10 Page iv Statement of the Case The underlying action is a will contest regarding the probate of the Last Will and Testament of Velma Ruth Fitzgerald. Velma Ruth Fitzgerald, Decedent, a resident of Hopkins County, Texas, died on December 31, 2007. On January 2, 2008, RELATOR (hereafter referred to as “C. SEWELL”) filed an Application to Probate Will of Decedent dated August 8, 2007 in the County Court of Hopkins County, Texas (Vol. 1, Tab 1). C. SEWELL’S Application was heard and the Will offered by C. SEWELL was admitted to probate as a Muniment of Title on January 15, 2008 (Vol. 1, Tab 2). The REAL PARTIES IN INTEREST, JANET NEAL STANLEY (hereafter referred to as “STANLEY”) and TRUITT SEWELL (hereafter referred to as “T. SEWELL”), respectively filed an Application to Probate a Last Will and Testament dated April 26, 1993 and an Opposition to C. SEWELL’s Application to Probate (Vol. 1, Tabs 3, 4 & 7). After a lengthy period, the case was set to proceed to trial with jury selection on January 12, 2015. On that date, just hours before the commencement of trial, STANLEY and T. SEWELL, by their attorney, Mr. Chad Cable, filed with the Court a “Certificate of Deemed Admissions” notifying the Court of the failure of C. SEWELL, who was representing himself pro se at the time, to respond to Request for Admissions delivered to C. SEWELL in 2010 (over 4½ years before trial) (Vol. 1, Tab 20). C. SEWELL’s subsequent attorneys of record, Mr. Frank Bauer (2nd counsel) and Mr. J. Brad McCampbell (3rd/present counsel) were totally unaware that their client had been served with Request for Admissions in 2010 (Vol. 2). As a result of Cable’s filing, at attorney McCampbell’s request, the Court canceled the jury setting and allowed C. SEWELL to file a Motion to Withdraw Deemed Admissions (Vol. 1, Tabs 21 & 23). STANLEY and T. SEWELL filed a Response to the Motion to Withdraw Deemed Admissions (Vol. 1, Tab 22). A hearing on the Motion was held on April 7, 2015 (Vol. 2). Respondent, The Honorable Amy Smith, denied the Motion to Withdraw Deemed Admissions as evidenced by Order entered on April 14, 2015 (Vol. 1, Tab 24). This Petition for Writ of Mandamus follows. Page -1- Statement of Jurisdiction The Court has jurisdiction over this Petition for Writ of Mandamus under Section 22.221(b) of the Texas Government Code. Issue Presented Issue: Did RESPONDENT abuse her discretion in denying RELATOR’s Motion to Withdraw Deemed Admissions? Statement of Facts This case was commenced on January 2, 2008 by C. SEWELL’s filing an “Application to Probate Will (of Velma Ruth Fitzgerald, dated August 8, 2007) as a Muniment of Title” (Vol. 1, Tab 1). Said Application was heard by the Judge of the County Court of Hopkins County, Texas on January 15, 2008 which resulted in said Will being admitted to probate as a muniment of title (Vol. 1, Tab 2). On January 30, 2008, Janet Neal Stanley (hereafter referred to as “STANLEY”) filed a competing Application to probate a Will executed on April 26, 1993 by Velma Ruth Fitzgerald (Vol. 1, Tabs 3 & 7). Both sides filed respective oppositions to the probate applications filed (Vol. 1, Tabs 4, 6, & 16). On February 14, 2008, the “Will contest” was transferred to the Hopkins County Court at Law by order of the County Judge of Hopkins County (Vol. 1, Tabs 5 & 11). 1 Page -2 1 Counsel for C. SEWELL does not know the reason for the two (2) transfer orders dated February 14, 2008 and May 20, 2010 respectively. Representing C. SEWELL in the “Will contest” was Mr. Eddie Northcutt. Representing STANLEY on her Application and T. SEWELL et al on their Opposition was Mr. Chad Cable. Mr. Northcutt filed an opposition to STANLEY’s application to probate on February 14, 2008 (Vol. 1, Tab 6). As part of the discovery performed in the case, the oral deposition of C. SEWELL was taken by Chad Cable on May 13, 2008. Eddie Northcutt was present during the deposition. Regarding discovery in the case, there was no Discovery Control Plan entered by the Court. That being the case, the applicable Discovery Control Plan for this probate matter is TRCP 190.3, where discovery is mandated to be completed no later than nine months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery. The deposition of C. SEWELL on May 13, 2008, was the commencement of the discovery period (Vol. 1, Tab 21; Vol. 2). On January 23, 2009, the Court signed an order allowing Eddie Northcutt’s withdrawal from the representation of C. SEWELL (Vol. 1, Tabs 8 & 9). On June 17, 2010, C. SEWELL retained the services of Mr. Frank Bauer to represent him in the “Will contest” (Vol. 1, Tab 13). In the interim between the withdrawal of Mr. Northcutt and the engagement of Mr. Bauer, it appears that on May 13, 2010, Mr. Cable served Requests for Admission on C. SEWELL, who, at the time, was acting pro se (Vol. 1, Tab 19). C. SEWELL did not respond to said Requests for Admission (Vol. 1, Tabs 21 & 23). The parties thereafter continued to engage in various forms of discovery, i.e., Requests for Disclosure, Interrogatories, Requests for Production, and additional depositions (Vol. 1, Tab 21 & 23; Vol. 2). Page -3- On April 22, 2013, Frank Bauer filed a motion to withdraw from the representation of C. SEWELL. An order allowing Mr. Bauer’s withdrawal was signed by this Court on April 23, 2013 (Vol. 1, Tab 17). In July, 2013, C. SEWELL retained the services of J. Brad McCampbell, attorney, to represent C. SEWELL in the matter. Mr. McCampbell’s representation continues to date (Vol. 1, Tab 19). Since being engaged by C. SEWELL, Mr. McCampbell began preparation to try this case in front of a jury. This case was set on various jury dockets only to be continued each time. On January 12, 2015, the case was finally set to commence with jury selection at 1:00 p.m. At 9:20 a.m. on January 12, Mr. Cable filed a document titled “Certificate of Deemed Admissions” notifying the Court of the failure of C. SEWELL to respond to the Requests for Admission submitted by Mr. Cable over 4½ years before (Vol. 1, Tab 20). Neither attorneys Bauer nor McCampbell knew of the existence of these requests for admission until the filing of the Certificate of Deemed Admissions by Mr. Cable literally hours before jury selection. Based on that filing, this Court excused the jury panel prior to commencement of trial and allowed Mr. McCampbell, on behalf of C. SEWELL, time to file a Motion for Withdrawal of Deemed Admissions (Vol. 1, Tabs 21 & 23; Vol. 2). On February 10, 2015, C. SEWELL filed his Motion to Withdraw Deemed Admissions with his attached Responses to the Requests for Admission (Vol. 1, Tabs 21 & 23). On April 6, 2015, T. SEWELL and STANLEY filed their Response to C. SEWELL’s Motion to Withdraw Deemed Admissions (Vol. 1, Tab 22). On April 7, 2015, a hearing was held on the Motion to Withdraw Deemed Admissions and after hearing, the Court entered an order denying the motion (Vol. 1, Tab 24). Page -4- Argument and Authorities A court of appeals may issue a writ of mandamus, “agreeable to the principles of law regulating those writs,” against a judge of a county court. TEX.GOV.CODE §22.221(b)(1) (Vernon 2004). No Adequate Remedy of Appeal A mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no adequate remedy by appeal. In re Ford Motor Co.,
165 S.W.3d 315, 317 (Tex. 2005). “A trial court clearly abuses its discretion if ‘it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law’ ” (quoting Johnson v. Fourth Court of Appeals,
700 S.W.2d 916, 917 (Tex. 1985). “A clear failure to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ.” Walker v. Packer,
827 S.W.2d 833, 840 (Tex. 1992). In Walker, the Texas Supreme Court held that an appeal will be inadequate where the relator’s . . . “ability to present a viable claim or defense at trial is vitiated or severely compromised by the trial court’s discovery error . . . The relator must establish the effective denial of a reasonable opportunity to develop the merits of his or her case, so that the trial would be a waste of judicial resources.”
Id. at 843.In In re Kellogg, Brown & Root, Inc.,
45 S.W.3d 772(Tex.App. - Tyler 2001, no pet.), the Tyler Court held that the trial court abused its discretion in denying Brown & Root’s motion to strike, withdraw or amend its deemed admissions, and that Brown & Root lacked an adequate remedy by appeal. See Page 777. Likewise, in In re Rozelle,
229 S.W.3d 757(Tex. App - San Antonio 2007, orig. proceeding), the San Antonio Court held that the trial court abused its discretion in denying Rozelle’s request to withdraw deemed admissions received by Rozelle when he was acting pro se, and therefore conditionally granted a Writ of Mandamus. See Page 764; see also TransAmerican National Gas Corp. v. Powell,
811 S.W.3d 913, 919 (Tex. 1991) (orig. Page -5- proceeding) (“Whenever a trial court imposes sanctions which have the effect of adjudicating a dispute, but by striking pleadings, dismissing an action or rendering a default judgment, but which do not result in rendition of an appealable judgment, then the eventual remedy by appeal is inadequate.”) In Walker, the Court stated there is no adequate remedy by appeal for a merits-preclusive discovery sanction, unless “the sanctions are imposed simultaneously with the rendition of a final, appealable judgment.” Walker at 843. No such judgment has been rendered in our case. The Substance of TRCP Rule 198.3 The applicable Texas Rule of Civil Procedure (TRCP) regarding the effect of deemed admissions and their withdrawal is Rule 198.3. The pertinent language of Rule 198.3 is as follows: “ . . . a matter admitted under this rule is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission. The court may permit the party to withdraw or amend the admission if: (a) the party shows good cause for the withdrawal or amendment; and (b) the court finds 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 not be subserved by permitting the party to amend or withdraw the admission.” Breaking down the requirements of subsections (a) & (b) of 198.3, it is C. SEWELL’s position that in seeking withdrawal of deemed admissions he must show (1) good cause for the withdrawal; (2) that such withdrawal will not unduly prejudice the party relying on the deemed admissions; and (3) that the merits of the case will be benefitted or promoted by permitting the withdrawal. Good Cause Exists to Withdraw the Deemed Admissions “Good cause” is established by showing the failure involved was an accident or mistake, not intentional or the result of conscious indifference. Stelly v. Papania,
927 S.W.2d 620, 622 (Tex. 1996). While C. SEWELL recognizes that trial courts have broad discretion to permit or deny withdrawal of deemed admissions, but they cannot do so arbitrarily, unreasonably, or without reference to guiding principles.
Id. at 622.Page -6- There does exist good cause for withdrawal of the deemed admissions: (1) At the time of delivery of the requests for admission to C. SEWELL, he was representing himself pro se, (attorney Northcutt having withdrawn as counsel of record in January of 2009 and before attorney Bauer undertook his representation) (Vol. 1, Tabs 9 & 13; Vol. 2). (2) Representing himself, C. SEWELL did not have an understanding of the effect of admissions and the consequences of not responding to them (Vol. 1, Tabs 21 & 23; Vol. 2). As in the Rozelle case previously cited, and the Wheeler case hereafter discussed, the fact that the party receiving the Requests for Admission, not being a lawyer, is significant to the Court’s determination under Rule 198.3. (3) While C. SEWELL does not deny that his signature is affixed to the certified mailing’s return receipt card at the time of delivery of the Requests for Admission, he does not have recollection of the Requests for Admission and has not been able to locate said document (Vol. 1, Tabs 21 & 23; Vol. 2). (4) The deposition of C. SEWELL was taken in May 2008. In said deposition, C. SEWELL took a position entirely contrary to the substance of the requested admissions delivered to him in 2010 (Vol. 1, Tab 21, Page 4 & 5, Tab 23; Vol. 2). Upon taking this deposition, attorney Cable became acutely aware of C. SEWELL’s position in the case (Vol. 1, Tab 21, Page 4, Tab 23; Vol. 2). Additionally, attorney Cable was aware that C. SEWELL’s opposition filed by attorney Northcutt in February 2008, a date over two years before the Requests for Admission, denied allegations that Decedent lacked testamentary capacity and that C. SEWELL exerted undue influence over Decedent (Vol. 1, Tab 21, Page 5, Tab 23; Vol. 2). The subject Requests for Admission, as deemed, are in direct contradiction to S. SEWELL’s position in the case. Page -7- (5) Attorneys Bauer & McCampbell were never made aware of the delivery of Requests for Admission to C. SEWELL, either by C. SEWELL himself or by attorney Cable, until the morning of jury selection in January of 2015. Neither did the Court’s file contain any evidence that Requests for Admission had been sent to C. SEWELL.2 Had either attorney been made aware, one of two things would have happened: (1) Responses to the Request for Admissions would have been immediately prepared and submitted; or (2) a Motion to Withdraw Deemed Admissions would have been filed shortly after being made aware of them (Vol. 1, Tab 21, Page 4, Tab 23; Vol. 2). (6) Over 4½ years elapsed from the deadline for responding to the Requests for Admission and the filing of the Certificate of Deemed Admissions (Vol. 1, Tab 20). (7) While our rules do not mandate if or when a Certificate of Deemed Admissions should be filed in a given case, the effect of attorney Cable’s chosen course was to allow C. SEWELL to hire not one but two more attorneys, spending thousands of dollars in preparation for trial when attorney Cable knew all along that C. SEWELL’s case was effectively “gutted” by the deemed admissions (Vol. 1, Tabs 21 & 23; Vol. 2). Based on the foregoing, C. SEWELL’s failure to respond was not intentional or the result of conscious indifference, bad faith, or a callous disregard for the rules. Real Parties in Interest Will Not be Unduly Prejudiced by the Withdrawal of the Deemed Admissions (1) This case commenced in January of 2008. Approximately (7) seven years passed between that date and the trial setting of January 12, 2015. During that time, both Page -8- 2 At the time of delivery of the Requests for Admission by the attorney Cable, no Certificate of Written Discovery was filed with the Court (which is customarily done by attorneys) nor was any other type of notice filed with the Court that the Requests were being sent. This is significant because attorney McCampbell’s thorough review of the Court’s file and previous attorney Bauer’s file did not reveal any hint of the Requests for Admission (Vol. 1, Tab 21, Pages 2, 3, & 4). sides have conducted discovery, i.e., depositions, requests for disclosure, interrogatories and requests for production (Vol. 1, Tabs 21 & 23; Vol. 2). The position of the REAL PARTIES IN INTEREST is that they will be prejudiced if the admissions are withdrawn because they would have conducted and completed more discovery had they known. This position is not supported by case law. As already stated, over 4½ years have passed between the deadline to respond to the Requests for Admission and the trial setting, more than ample time for all discovery to be conducted. In Employer’s Ins. of Wausau v. Halton,
792 S.W.2d 462, 467 (Tex.App. - Dallas 1990, writ denied), the Dallas Court, in allowing the withdrawal of deemed admissions, stated that: “Defendant’s counsel pointed out that Plaintiff had almost a month before trial to conduct additional discovery the matters previously admitted. We reiterate that Plaintiff had known since early July. When Defendant filed its Original Answer, that Defendant contested almost all material issues in the case . . . It is hard to find prejudice where the parties had almost a month before the trial in which they could conduct additional discovery about the injury and the disputed fact issues. Moreover, as we have stressed, Plaintiff knew that Defendant contested the very ‘injury’ upon which Plaintiff’s Industrial Accident Board award was based. He cannot now claim prejudice by its ‘reliance’ on the deemed admissions when he knew that Defendant disputed almost every issue in the lawsuit.” See Page 467. (2) As already stated, STANLEY and T. SEWELL, by Attorney Cable, had previously deposed C. SEWELL in 2008. Their theories of the case were not dependent upon the deemed admissions. These facts are similar to those in Wal-Mart Stores, Inc. v. Deggs,
968 S.W.2d 354(Tex. 1998). In Deggs, the Court held that because Plaintiff Deggs had taken the deposition of Defendant Smith before the Requests for Admission to Smith were due, Deggs would not be unduly prejudiced if the deemed admissions were withdrawn.
Id. at 357.That Court further held that deemed admissions should be withdrawn if presentation of the merits of the action will be served thereby. Deggs at 356. Page -9- (3) During the pendency of this case, both sides either requested or agreed to several continuances regarding trial of the case (Vol. 2). (4) The term “prejudice” does not include the fact that, if the admissions were withdrawn, the party who obtained that admission would then have to convince the fact finder of its truth. See FDIC v. Prusia,
18 F.3d 637, 640 (8th Cir. 1994). Withdrawal of the Deemed Admissions Would Promote Presentation of the Merits of the Case TRCP 198.3 includes as part of the undue prejudice inquiry whether presentation of the merits will be served by permitting withdrawal of deemed admissions. “The discovery rules were not designed as traps for the unwary, nor should we construe them as preventing a litigant from presenting the truth.” See Stelly at 622; see also Marino v. King,
355 S.W.3d 629, 632 (Tex. 2011) (quoting U.S. Fid. & Guar. Co. v. Gundeau,
272 S.W.3d 603, 610 (Tex. 2008): “Requests for Admission should be used as a ‘tool not a trap door’ ”). “The primary purpose [of Rule 169 (now 198)] is to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to prove. Is was 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.” See Sanders v. Harder,
148 Tex. 593,
227 S.W.2d 206, 208 (1950). When a party uses deemed admissions to try to preclude presentation of the merits of a case, due process concerns should arise. See Trans-American National Gas Corp.,
811 S.W.2d 913, 918 (Tex. 1991) (quoting National Hockey
League, 427 U.S. at 642-643, 96 S.Ct. at 2780-81: “Sanctions which are so severe as to preclude presentation of the merits of the case should not be assessed absent a party’s flagrant bad faith or counsel’s callous disregard under the rules.”) In the case at bar, T. SEWELL alleges by his pleading that Decedent did not have testamentary capacity to execute the August 8, 2007 Will and that C. SEWELL unduly influenced Page -10- Decedent in her execution of that Will (Vol. 1, Tab 4). The deemed admissions, as a whole, have the effect of either precluding C. SEWELL’s presentation of the merits of his case or precluding his ability to present a ground of defense to the allegations (undue influence and lack of testamentary capacity) in his opponent’s pleadings (Vol. 1, Tab 22). Furthermore, several of the requests in question ask C. SEWELL to admit or deny a purely legal issue, i.e., that C. SEWELL exercised undue influence over Decedent; that the August 8, 2007 Will is invalid; and that C. SEWELL is liable for damages and attorney’s fees (Vol. 1, Tab 22). Similarly, in Wheeler v. Green,
157 S.W.3d 439(Tex. 2005), a custody modification case, the Court found that . . . “of the 64 deemed admissions, none sought to discover information: nine deemed circumstances changed so modification was proper, twenty-seven deemed modification in the child’s best interest, twenty-seven deemed Sandra liable for malicious prosecution, and three deemed her liable for child support, attorney’s fees, and exemplary damages.” Wheeler at 443. The Supreme Court in Wheeler held that there was good cause for withdrawing the deemed admissions and that withdrawal would not cause undue prejudice to the father.
Id. at 444.The Court in Wheeler, while agreeing that pro se litigants were not exempt from the rules of procedure (see Mansfield State Bank v. Cohn,
573 S.W.2d 181, 184-185 (Tex. 1978) ), stated that: “When a rule itself turns on an actor’s state of mind (as these do here), application may require a different result when the actor is not a lawyer. Recognizing that Sandra did not know what any lawyer would does not create a separate rule, but recognizes the differences the rule itself contains.” Wheeler at 444. The due process concern voiced in Wheeler arises here because of the very nature of the admissions requested in the case at bar, and the trial court’s subsequent denial of the Motion to Withdraw Deemed Admissions has a merits-preclusive effect on C. SEWELL’s case and the case as a whole. Page -11- Prayer RELATOR prays that this Court issue a Writ of Mandamus commanding RESPONDENT, the Honorable Amy Smith, to vacate her Order denying RELATOR’S Motion to Withdraw Deemed Admissions and to enter an order granting RELATOR’s Motion to Withdraw Deemed Admissions and permitting RELATOR to substitute his late responses, and for such other and further relief to which RELATOR may be entitled. Respectfully submitted, CURTIS, ALEXANDER & McCAMPBELL, P.C. Number One Planters Street P.O. Box 38 Emory, Texas 75440 Tel. (903) 473-2297 Fax. (903) 473-3069 //s// J. Brad McCampbell bmccampbell@cammpclaw.com Texas Bar No. 13358000 ATTORNEYS FOR CARLTON SEWELL Page -12- VERIFICATION STATE OF TEXAS X COUNTY OF RAINS X BEFORE ME, the undersigned notary public, on this day personally appeared J. Brad Mccampbell, Relator's attorney, who being duly sworn by me deposed and said: 1. "I am counsel of record for CARLTON SEWELL, Relator in this case. I am over 21 years of age and am competent to make this affidavit. I have read the Petition for Writ ofMandamus to which this Verification is attached, which is filed on behalf of CARLTON SEWELL and every factual statement contained in the petition is within my personal knowledge and is true and correct. 2. "The petition is accompanied by a two-volume record and an appendix. I have personal knowledge that the pleadings, motions, and orders contained in Volume 1 of the record and those contained in the appendix are true and correct copies. I also have personal knowledge that the reporter's transcript contained in Volume 2 of the record is a true and correct copy of the electronic recording of the hearing on CARLTON SEWELL's Motion to Withdraw Deemed Admissions that has been transcribed by Jana Atchison Rushing, CSR." Further Affiant sayeth not. SUBSCRIBED AND SWORN TO BEFOREMEonJune23, 2015, to certify which witness my hand and official seal. SUSAN PEREZ My Commission Expires August24,2018 Page -13- Certificate of Service I certify that a true copy of this Petition for Writ of Mandamus was served in accordance with Rule 9.5 of the Texas Rules of Appellate Procedure on each party or the attorney for such party indicated below by hand delivery on this 25th day of June, 2015. /s/ J. Brad McCampbell __________________ Attorney for Relator Honorable Amy Smith Presiding Judge of the Hopkins County Court at Law 118 Church Street Sulphur Springs, Texas 75482 By Hand Delivery Mr. Chad Cable CHAD CABLE LAW OFFICE 323 Gilmer Street Sulphur Springs, Texas 75482 Attorney for Applicant and Contestants By Hand Delivery Page -14- Appendix 1. Certified copy of the Trial Court’s Order dated April 14, 2015 2. Copy of TEX. GOV. CODE, § 22.221 (Vernon 2004) 3. Copy of TEX.R.CIV.P. 198.3 Page -15- NO. P08 - 13,106 7.015 1~PR I Lt P 2: ~-5 ESTATE OF § IN THE COUNTY GDERJ?~!r'·!-~Y t_,:JUfof f 'f L~f:R~{ § VELMA RUTH FITZGERALD, § By···••H. ·-·· ··-··--·---·-··-·-· 0E? uT'f DECEASED § HOPKINS COUNTY, TEXAS ORDER DENYING MOTION TO WITHDRAW DEEMED ADMISSIONS, SHEDULING SUMMARY JUDGMENT HEARING AND REQUIRING MEDIATION The Court considered Probate Applicant Carlton Sewell's Motion to Withdraw deemed Admissions and Contestant's response with argument of respective counsel on The Motion to Withdraw Deeded Admissions is hereby denied. Noting the Contestants have filed a Motion for Summary Judgment, a hearing on that motion is hereby scheduled for May 21 5\ 2015 at 9:00 a.m. Finally, the parties are Ordered to mediation, to be completed prior to May 21 5\ 2015 with a mediator to be agreed upon by the parties. Absent an agreement within five days the Court will name a mediator. The cost of the mediator shall be evenly divided between the parties. Signed this \ \..\ day of April, 2015. ORDER DENYING MO'I'IONTO WITHDRAW Judge DE~SifffeX z >' I ILUL!Ni JUDGMENT HEARING AND RE UIRING MEDIA'lf{ip 7 ·l~ COPY OF ORIGINAL ·\--\ ~* FILED IN 1--!0Pf GOVERNMENT CODE > TITLE 2. JUDICIAL BRANCH > SUBTITLE A. COURTS > CHAPTER 22. APPELLATE COURTS > SUBCHAPTER C. COURTS OF APPEALS § 22.221. Writ Power (a) Each court of appeals or a justice of a court of appeals may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court. (b) Each court of appeals for a court of appeals district may issue all writs of mandamus, agreeable to the principles of law regulating those writs, against a: (1) judge of a district or county court in the court of appeals district; or (2) judge of a district court who is acting as a magistrate at a court of inquiry under Chapter 52, Code of Criminal Procedure, in the court of appeals district. (c) [Repealed by Acts 1987, 70th Leg., ch. 148 (S.B. 895), § 2.03, effective September 1, 1987.] (d) Concurrently with the supreme court, the court of appeals of a court of appeals district in which a person is restrained in his liberty, or a justice of the court of appeals, may issue a writ of habeas corpus when it appears that the restraint of liberty is by virtue of an order, process, or commitment issued by a court or judge because of the violation of an order, judgment, or decree previously made, rendered, or entered by the court or judge in a civil case. Pending the hearing of an application for a writ of habeas corpus, the court of appeals or a justice of the court of appeals may admit to bail a person to whom the writ of habeas corpus may be granted. History Enacted by Acts 1985, 69th Leg., ch. 480 (S.B. 1228), § 1, effective September 1, 1985; am. Acts 1987, 70th Leg., ch. 69 (S.B. 151), § 1, effective May 6, 1987; am. Acts 1987, 70th Leg., ch. 148 (S.B. 895), §§ 1.35, 2.03, effective September 1, 1987; am. Acts 1991, 72nd Leg., ch. 58 (H.B. 596), § 1, effective May 2, 1991; am. Acts 1995, 74th Leg., ch. 839 (H.B. 3073), § 1, effective September 1, 1995. LexisNexis ® Texas Annotated Statutes Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved. Philip D. Alexander Tex. R. Civ. P. 198 This document is current through April 8, 2015 Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS > SECTION 9. Evidence and Discovery > B. DISCOVERY Rule 198 Requests for Admissions 198.1. Request for Admissions. --A party may serve on another party - no later than 30 days before the end of the discovery period - written requests that the other party admit the truth of any matter within the scope of discovery, including statements of opinion or of fact or of the application of law to fact, or the genuineness of any documents served with the request or otherwise made available for inspection and copying. Each matter for which an admission is requested must be stated separately. 198.2. Response to Requests for Admissions. (a) Time for Response. --The responding party must serve a written response on the requesting party within 30 days after service of the request, except that a defendant served with a request before the defendant’s answer is due need not respond until 50 days after service of the request. (b) Content of Response. --Unless the responding party states an objection or asserts a privilege, the responding party must specifically admit or deny the request or explain in detail the reasons that the responding party cannot admit or deny the request. A response must fairly meet the substance of the request. The responding party may qualify an answer, or deny a request in part, only when good faith requires. Lack of information or knowledge is not a proper response unless the responding party states that a reasonable inquiry was made but that the information known or easily obtainable is insufficient to enable the responding party to admit or deny. An assertion that the request presents an issue for trial is not a proper response. (c) Effect of Failure to Respond. --If a response is not timely served, the request is considered admitted without the necessity of a court order. 198.3. Effect of Admissions; Withdrawal or Amendment. --Any admission made by a party under this rule may be used solely in the pending action and not in any other proceeding. A matter admitted under this rule is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission. The court may permit the party to withdraw or amend the admission if: (a) the party shows good cause for the withdrawal or amendment; and (b) the court finds 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. Texas Rules Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Philip D. Alexander VOLUME 1 No. _____________________ In Re CARLTON SEWELL, Relator RECORD OF CERTIFIED COPIES OF PLEADINGS, MOTIONS AND ORDERS TRIAL COURT CAUSE NO. P08-13106 IN THE ESTATE OF * IN THE COUNTY COURT * VELMA RUTH FITZGERALD * AT LAW OF * DECEASED * HOPKINS COUNTY, TEXAS INDEX 1. Certified copy of Application to Probate Will as Muniment of Title. 2. Certified copy of Order Probating Will as Muniment of Title. 3. Certified copy of Application for Probate of Will and for Letters Testamentary. 4. Certified copy of Opposition to Probate of Will. 5. Certified copy of Order of Transfer. 6. Certified copy of Opposition to Application for Probate of Will and for Letters Testamentary and Answer to Opposition to Probate of Will. 7. Certified copy of Amended Application for Probate of Will and for Letters Testamentary. 8. Certified copy of Motion for Withdrawal of Counsel. 9. Certified copy of Order Granting Motion for Withdrawal of Counsel. 10. Certified copy of Motion for Appointment of Independent Executor. 11. Certified copy of Order on Motion to Transfer Contested Probate Matter. 12. Certified copy of Order Appointing Personal Representative (Temporary) Pending Contest. 13. Certified copy of Notice of Appearance and Request for Notices and Service of Papers. 14. Certified copy of Affidavit (with attachment) of Frank Bauer. 15. Certified copy of Certificate of Written Discovery Directed to Chad Cable. 16. Certified copy of Supplement to Opposition for Probate of Will and for Letters Testamentary and Answer to Opposition to Probate of Will. 17. Certified copy of Motion for Withdrawal of Counsel. 18. Certified copy of Order on Motion for Withdrawal of Counsel. 19. Certified copy of Appearance of Counsel. 20. Certified copy of Certificate of Deemed Admissions. 21. Certified copy of Motion to Withdraw Deemed Admissions. 22. Certified copy of Contestants’ Response to Carlton Sewell’s Motion to Withdraw Deemed Admissions. 23. Certified copy of Affidavit in Support of Motion to Withdraw Deemed Admissions. 24. Certified copy of Order Denying Motion to Withdraw Deemed Admissions, Scheduling Summary Judgment Hearing and Requiring Mediation. ..--...... NO. tb~- /3 JQ/p ESTATE OF § IN THE COUNTY COURT OP.:: § VELMA RUTH FITZGERALD, § DECEASED § HOPKINS COUNTY, TEXAS:~' APPLICATION TO PROBATE WILL AS MUNIMENT OF TITLE TO THE HONORABLE JUDGE OF SAID COURT: Carlton N. Sewell applies to probate the Last Will and Testament of Velma Ruth Fitzgerald, deceased, as muniment of title, and shows the Court as follows: I. Applicant's domicile is in Hopkins County, Texas, where he resides at 107 Morris Drive, Sulphur Springs, Texas, 75482. He was the decedent's cousin. 11. Velma Ruth Fitzgerald died in Hopkins County, Texas, on December 31, 2007, at the age of eighty-six. At the time of her death, she was domiciled in Hopkins County, Texas, where she resided at 890 Camp Street, Sulphur Springs, Texas, 75482. 111. At the time of her death, the decedent owned real and personal property whose value applicant estimates to be less than $600,000.00. IV. The decedent died testate. Her Last Will and Testament was dated August 8, 2007. A copy of such Will is attached to this application and is incorporated herein for all purposes. The Will named Carlton N. Sewell as Independent Executor of the Will. The said Carlton N. Sewell resides in Hopkins County, Texas. The subscribing wit- nesses to the Will were Vicki Latimer, who is a resident of Hunt County, Texas, and Tiffamy Bassham, who is a resident of Hopkins County, Texas. TRUE AND CORRECT COPY OF ORIGINAL - :/· S CFFICE APPLICATION TO PROBATE WILL AS MUNIMENT OF TITLE - 1 V. The Will does not name the state or a governmental agency of the state as a de- vi see. VI. No child or children were born to or adopted by the decedent after she made the aforesaid Will. She was never divorced. VII. The only debts of the Estate remaining to be paid are current bills for which the funds of the Estate are more than adequate. There are no other debts of the Estate remaining unpaid, exclusive of debts secured by liens on real estate. The subject Will devises and bequeaths all of the decedent's Estate to her cousin, Carlton N. Sewell, who is the applicant, and contains no special provisions requiring administration. There is no necessity or reason, therefore, for administration of the decedent's Estate. WHEREFORE, applicant asks that citation be issued to all parties interested in this Estate as required by law, that the aforesaid Will be admitted to probate as muni- ment of title, and for such other and further orders as the Court may deem proper. Ra mond R. John on B r No. 107810 P. 0. Box 522 Sulphur Springs, Texas 75483-0522 Telephone 903-885-8691 Telefax 903-885-8692 Attorney for Applicant :968 S.W.2d 354, _,.;, __. . i .- : ,~)j COPY OF ORid;'JAl . FILED IN HOPKINS .!';`` '.'/~Of"\'<-.;; COUNTY CLERK'S OFFICE · .. , ... - APPLICATION TO PROBATE WILL AS MUNIMENT OF TITLE - 2 JLast WiU anb ~estament of '.lJelma l\utb jfit~geralb STATE OF TEXAS § COUNTY OF HOPKINS § KNOW ALL MEN BY THESE PRESENTS: That I, VELMA RUTH FITZGERALD,' a resident of Hopkins County, Texas, being of sound and disposing mind and memory and above the age of eighteen years, do hereby make, publish and declare this to be my Last Will and Testament, hereby revoking all prior Wills, if any, made by me. I. I direct that my just debts, funeral expenses and all taxes due as a result of my death, as well as the costs and expenses of the administration of my estate, be paid as soon as practicable without the unnecessary sacrifice of any of the properties of my estate. IL All of the rest, residue and remainder of my estate, real, personal and mixed, of whatever nature, wherever situated and however acquired, which I may own or have any interest in at the time of my death, I give, devise and bequeath unto my cousin, CARLTON N. SEWELL, in fee simple forever. III. lfmy cousin, CARLTON N. SEWELL, has predeceased me, or ifhe should die before the expiration of ninety days following the day of my death, then I give, devise and bequeath one-half of the rest, residue and remainder of my estate unto his wife, MARY J. SEWELL, and the other one-half unto my cousin, TRUITT L. SEWELL, the brother of CARLTON N. SEWELL, share and share alike, in fee simple forever. IV. In the event CARLTON N. SEWELL dies as set out above and in the event either the said MARY J. SEWELL or TRUITT L. SEWELL has predeceased me or dies before the expiration of ninety days following the day of my death, leaving a descendant or descendants who survive my death and her or his death, then I give, devise and bequeath unto such descendant or descendants per stirpes, in fee simple forever, the share which the decedent, MARY J. SEWELL or TRUITT L. SEWELL, would have otherwise received, the division of which shall be determined as if the deceased beneficiary had predeceased me. If.either the. said MARY J. SEWELL or TRUITT L. SEWELL has predeceased me or dies befQ_i:cpka: FebruMY" 200I _,:;,..:.ivot:1y, . TRUE AND CORR'E·CT 'V~o..,, - ·,,_J\~ ( \~ )co COPY . OF ORIGINAL , , /;\ · F!LED JN HOPK!f\JS }) ~:: .· F - day of May, 2010. 1L Certified mail/Return receipt requested Telecopier (fax) Federal Express Courier with Receipt Registered mail/Return receipt requested Regular Mail Personal Hand Delivery Date: Mai~ 2010. CHAD CABLE CONTESTANTS' FIRST REQUEST FOR ADMISSIONS REQUEST FOR ADMISSIONS 1 ADMIT or DENY That you exercised undue influence over Velma Ruth Fitzgerald to induce her to change her will. RESPONSE: 2. ADMIT or DENY That throughout the spring and summer of2007, Velma Ruth Fitzgerald was physically and mentally weak enough to be susceptible to undue influence. RESPONSE: 3. ADMIT or DENY That you influenced Velma Ruth Fitzgerald to the point of subverting and overpowering her mind so that she would execute a new will naming you as sole beneficiary which she would not have done but for your influence. RESPONSE: 4. ADMIT or DENY That you engaged in a campaign to keep other relatives of Velma Ruth Fitzgerald from having contact with her as part of your scheme to exert undue influence over her. RESPONSE: 5. ADMIT or DENY That one of your techniques for exerting undue influence was to feign romantic love for Velma Ruth Fitzgerald in a seducing manner by physical affection and full on the mouth kissing. RESPONSE: 6. ADMIT or DENY That you suggested to your brother Truitt Sewell, that the two of you get Velma Ruth Fitzgerald to change her will to benefit the two of you. RESPONSE: 7. ADMIT or DENY That you told the White brothers in Vernon that Velma Ruth Fitzgenlld was not competent when she signed their lease contract. RESPONSE: o~ +°-<> ur:s:-;:,Y..iY TRUE Af\JD CORRECT ~,,-g; "-' -t: COPY OF ORIGINAL FILED IN HOPf - I. FACTS 1. This case was commenced on January 2, 200 8 by Movant' s filing an "Application to Pro bate Will (of Velma Ruth Fitzgerald, dated August 8, 2007) as a Muniment of Title". 2. Said Application was heard by the Judge of the County Court of Hopkins County, Texas on January 15, 2008 which resulted in said Will being admitted to probate as a muniment of title. 3. On January 30, 2008, Janet Neal Stanley filed a competing Application to probate a Will executed on April 26, 1993 by Velma Ruth Fitzgerald. 4. Both sides filed respective oppositions to the probate applications filed. 5. On February 14, 2008, the "\iVill contest" was transferred to the Hopkins County Court at Law by order of the County Judge of Hopkins County. 6. Representing Carlton Sewell in the "Will contest" was the Honorable Eddie Northcutt and representing Janet Stariley et al was the Honorable Chad Cable. Mr. Northcutt filed an opposition to Janet Stanley's opposition to probate on February 14, 2008. 7. As part of the discovery performed in the case, the oral deposition of Carlton Sewell was taken by Chad Cable on May 13, :2008. Eddie Northcutt was present during the deposition. Regarding discovery in the case, there was no Discovery Control Plan entered by the Court. That being the case, the applicable Disdovery Control Plan for this probate matter is TRCP 190.3, where MOTION TO WITHDRAW DE~MED ADMISS~. TR. UE AND CORRECltage 1 of 9 . ' . ,:-'~ W. COPY OF ORIGINAL 1-"'\ /;,"1 FILED IN HOPKINS ,, . _;(:'./ ~;~.-' (°' ;..-, ; ! HT'J ('; c: C) V'S v ._J ;: \\ I 1 '-~ ;. - L_ • \I \.. !,_... c FFICE ,J - discovery is mandated to be completed no later than nine months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery. The deposition of Mr. Sewell on May 13, 2008, was the commencement of the discovery period. 8. On January 23, 2009, the Court signed an order allowing Eddie Northcutt' s withdrawal from the representation of Carlton Sewell. 9. On June 17, 2010, Carlton Sewell retained the services of the Honorable Frank Bauer to represent him in the "Will contest". 10. In the interim between the withdrawal of Eddie Northcutt and the engagement of Frank Bauer's services, it appears that on May 13, 2010, Chad Cable served Requests for Admissions on Mr. Sewell, who, at the time, was acting prose. A true copy of the Requests for Admissions are attached hereto as Exhibit "A". 11. Carlton Sewell did not respon~ to said Requests for Admissions. 12. The parties tqereafter continued to engage in various forms of discovery, i.e., Requests for Disclosure, Interrogatories, Requests for Production, and additional depositions. 13. On April 22, 2013, Frank Bauer filed a motion to withdraw from the representation of Carlton Sewell. An order allowing Mr. Bauer's withdrawal was signed by this Court on April 23, 2013. I 14. In July, 2013, Carlton Sewell retained the services of J. Brad McCampbell, attorney, to represent Mr. Sewell in the matter. Mr. McCampbell's representation continues to date. 15. Since being engaged by Mr. Sewell, Mr. Mccampbell began preparation to try this case in front of a jury. This case was set on various jury dockets only to be continued each time. 16. On January 12, 2015, the case was finally set to commence with jury selection at 1:00 p.m. At 9 :20 a.m. on January 12, Chad Cable filed a document titled "Certificate of Deemed Admissions" notifying the Court. of the failure of Carlton Sewell to respond to the Requests for Admissions submitted by Mr. Cable over 4Vz years before. . /:~:-:-~-~·~·~ UE AND CORr :.-- FILED IN HOPf\INS , COUNTY CLEHK'S CFFICE 17. Neither Frank Bauer nor J. Brad McCampbell knew of these existence of these request for admissions until the filing of the Certificate of Deemed Admissions by Mr. Cable literally hours before jury selection. Based on that filing, this Court excused the jury panel prior to commencement of trial and has allowed Mr. McCan1pbell time to file this Motion for Withdrawal of Deemed Admissions. II. ARGUMENT Rule 198.3 of Tex. R. Civ. P. states in part: ... A matter admitted under this rule is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission. The court may permit the party to withdraw or amend the admission if: '(a) the party shows good cause for the withdrawal or amendment; and (b) the court finds 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. See Tex. R. Civ. P. 198.3; see also Wal-mart Stores, Inc. v. Deggs, , 356 (Tex. 1998). Subsections (a) and.(b) of 198.3 provide the requirements for one seeking withdrawal of deemed admissions. Breaking those requirements down, one seeking withdrawal must show: (1) good cause for the withdrawal; (2) that such withdrawal will not unduly prejudice the party relying on the deemed admissions; and (3) that the merits of the case will be benefitted or promoted by permitting the withdrawal. In support ofMovant's request for withdrawal, Movant shows: 1. At the time of delivery of the requests for admissions, Mr. Sewell was not represented by counsel. Representing himself pro se, Mr. Sewell did not have (ill understanding ofthe consequences of not responding to the requests. Interestingly, during Eddie Northcutt's approxiinate one (1) year .. ·~:r:,-;-.. . MOTION TO WITHDRAW DEEMED ADMISSiO~,\ . .· '\ 7 )z; r~,_,op\J.·:EY Or-~.f\lfl.-:.:.·CC.'lHREC:ffage Oi~IGiNAL 3 of 9 · '·>·-~,;;~ FlLED.!NHOVi\!NS
, (Deggs,,the party relying on the deemed admissions had deposed Smith, the party that failed to respond to admission requests. MOTION TO WITHDRAW DEElVIED ADMIS~iq:~s JE D CORRECT Page 4 of 9 ". ~ 7 J~J COPY OF ORiGlrJAL \, '.J.--':">fJ FILED IN :-:oPKINS : ., ·-t££:S" COUf'~TY CLcRK'S OFFICE The Court found that because Deggs was not dependent on the deemed admissions for developing her theory of the case, she would not be unduly prejudiced if the deemed admissions were withdrawn.) Sewell's position was in direction contradiction to the deemed admissions. The tenor of the requests for admissions was to seek admissions from Mr. Sewell that he unduly influenced Ms. Fitzgerald in her execution of the 2007 will and/or that Ms. Fitzgerald lacked testamentary capacity to execute the 2007 will. At the time of his deposition, Mr. Sewell' s testimony and Mr. Sewell's pleadings on file clearly put Mr. Cable's clients on notice that the requests for admissions were not uncontroverted matters, and that they could not reasonably rely on the admissions in lieu of other discovery. Of note, Mr. Sewell' s "Opposition to Application for Probate of Will and for Letters Testamentary and Answer to Opposition to Probate Will", filed by Eddie Northcutt on February 14, 2008, over two years before the requests for admissions, denies Mr. Cable's clients' allegations that Decedent lacked testamentary capacity and that Mr. Sewell exerted undue influence over Decedent. 5. It is interesting that after the deadline for Mr. Sewell's response to the requests for admissions, Mr. Cable did not file a motion for summary judgment based on the deemed admissions which, if allowed to stand, essentially "gut" Mr. Sewell' s case. In fairness, our rules do not mandate that a motion for summary judgment be filed in this instance. However, Mr. Cable, on behalf of his clients, engaged in more discovery and allowed Mr. Sewell's subsequent counsel to engage in more discovery and preparation for the jury trial in this case. In effect, Mr. Cable's chosen course allowed Mr. Sewell to hire not one but two more attorneys, spending thousands of dollars in preparation for trial only to be presented with "deemed" admissions on the morning of trial over 4llz years after the fact. 6. Movant's counsel respectfully submits that Mr. Cable's holding these deemed admissions "close to the vest" only to spring them on opposing counsel on the day oftrial is inequitable and constitutes ''trial by ambush". Movant is not asking the Court to co'ndone his failure to respond, but asks the Court consider in fairness allowing withdrawal of the admissions and letting this case proceed to trial on the merits. Based on the above, Movant believes he has presented a showing of "Good Cause". "Good cause" is established by showing the failure involved was an accident or mistake, not intentional or the result of conscious indifference. Stelly v. Papania,
927 S.W.2d 620, 622 (Tex. 1996). Since Mr. Sewell's position is and always has been so contrary to the deemed admissions, it is clear that the failure to respond to them was not intentional or the result of conscious indifference on his part. It is the position of Mr. Sewell that while the signature on the green card to the certified mailing of the Requests for Admissions appear to be his, he does not have recollection of the document nor has he been able to locate said document. 7. Furthermore, allowing withdrawal of the deemed admissions will not unduly prejudice Mr. Cable's clients for the following reasons: a. Regardless of the discovery deadline, Mr. Cable has conducted discovery, i.e., depositions, requests for disclosure, interrogatories, and requests for production, on behalf of his clients; b. If it is Mr. Cable's position that he would have conducted additional discovery but for the deemed admissions and based on any agreed or extended discovery deadline, he has had over 41;2 yeaFs to conduct same. SeeEmployer 's Ins. of Wausau v. Halton.
792 S.W.2d 462, 467 (Tex. App. - Dallas, writ denied) (finding lack of prejudice when the opposing party had almost a month to conduct additional discovery); c. This case has been pending with both sides either requesting or agreeing to the several continuances thus far in this case; d. Again, Mr. Cable did not seek to end the case by the usual method, motion for . summary judgment, based on the deemed admissions. The term "prejudice" does not include the fact that, if the admissions were withdrawn, the party who obtained that admission would then have to convince the factfinder of its truth. See FD.IC. v. Prusia,
18 F.3d 637, 640 (8 1h Cir. 1994). 8. Additionally, withdrawal of the admissions wcmld promote the presentation of the merits of the action. See Tex. R. Civ. P. 198.3(b). The plirpose of requests for admissions is predominantly to assist the trier of fact and to reduce trial time by facilitating proof with respect to issues that cannot be eliminated from the case and by narrowing the issues by eliminating those that can be. The discovery rules were not designed as traps for the unwary, nor should we construe them as preveriting a litigant from presenting the truth. Stelly v.
Papania, 927 S.W.2d at 622. Likewise, they surely were not designed to trap a rlage 6 of 9 layman, totally ignorant of the discove1y rules, and, in particular, the deadly import of the TRCP 198. The purpose of the Rules of Civil Procedure is to obtain a just, fair, equitable and impartial adjudication of the litigant's rights under established principles of substantive law. Stelly
at 927 S.W.2d at 622. In Stelly, the Supreme Court stated: The primary purpose of[Rule 198} is to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to prove. It was never rrztended to be used as a demand upon a plaintiffor defendant to admit that he had no cause of action or ground of defense. In Trans-American Nat. Gas Corp v. Powell, 811S.W.2d913, 918 (Tex. 1991), the Supreme Court said that "S'anctions which are so severe as to preclude presentation of the merits of the case should not be assessed absent a party's flagrant bad faith or counsel's callous disregard for the responsibilities of discovery and the rules." 9. Movant recognizes that trial courts have broad discretion to permit or deny withdrawal of deemed admissions, but that they cannot do so arbitrarily, unreasonably, or without reference to guiding principles.
Stelly, 927 S.W.2d at 622; see also Wheeler v. Green,
157 S.W.3d 439, 443 (Tex. 2005). When a party uses deemed admissions to try to preclude presentation of the merits of a case, due process concerns arise. See Trans-American National Gas
Corp., 811 S.W.2d at 917-18; see also US.CA. Const. Amend. 14. In Wheeler, a custody modification case, of the 64 deemed admissions, none sought to discover information: 9 deemed circumstances changed so modification was proper; 25 deemed modification in tre child's best interest; 27 deemed Sandra (the mother) liable for malicious prosecution; and 3 deemed her liable for child support, attorney's fees and exemplary damages. Wheeler 157 S.W.3qat443. The Supreme Court reversed the Appellate Courtholdingthattherewas good cause for withdrawing the deemed admissions and that withdrawal would not cause undue prejudice to the father. Id at 444. The Court in Wheeler, while agreeing that prose litigants were not exempt from the rules ofprocedure (see Mansfield State Bankv. Cohn, 573S.W.2d181, 184-185 ·`` CFFlCE (Tex. 1978) ), stated that: When a rule itself turns on an actor's state of mind (as these do here), application may require a different result when the actor is not a lawyer. Recognizing that Sandra did not know what any lawyer would does not create a separate rule, but recognizes the differences the rule itself contains. " Wheeler at 444. In the case at bar, the requests for admissions are couched in such a way as to preclude Mr. Sewell from disputing the allegations of undue influence exerted by him, the lack of testamentary capacity of Ms. Fitzgerald, his allegedly converting assets of Ms. Fitzgerald, and his alleged liability for damages and attorney's fees to contestants. Again, the effect of these deemed admissions amounts to a "gutting" of Movant' s case. The issues covered by these deemed admissions are at the core of this litigation; and that for justice to be done, these issues should be determined by the preponderance of the evidence. III. CONCLUSION Based on the above, Movant respectfully submits that he has met the requirements of Rule 198.3 by showing good cause for the withdrawal ofthe deemed admissions, that said withdrawal will not cause Contestants undue prejudice and will be subserved by (promote) presentation of the case on the merits. IV. PRAYER WHEREFORE, Movant requests that the Court, after hearing this motion, order the withdrawal of the admissions as set out above, order that Movant' s responses to the requests for admissions, attached hereto as Exhibit "B" and served with this Motion, be considered as Movant's responses to the requests for admissions, and afford Movant such other and,further relief to which Movant may be justly entitled. E ,Af,lur', ·" rn '.:;}r::crr'"'·Page 8 of 9 1 ,..,,,_,,,!>.C'v> COPY OF Oi~iGINAL FILED lf\1 ~-IOPKi!\1~.s ! ....•.·'~, \ ',-~< ·..__) '· .. i Fi CE Respectfully submitted, CURTIS, ALEXANDER, McCAMPBELL & MORRIS, P.C. Number One Planters Street P.O. Box 38 Emory, Texas 75440 Tel: (903) 473-2297 Fax: (903) 473-3069 1 /} 11 " ,1.1 { ,, By:. U-/~{//1-`` ,/iJ. Brad McCampbcl V State Bar No. 13358000 ATTORNEYS FOR MOV ANT Certificate of Service MOTION TO WITHDRAW DEEMED ADMI``~ TRUE AND CORREc-fage 9 of 9 .•·• -·~ 7 ", COPY ' ?··. ·. '. o:= ORIGINA.L / /l~G; F'.;. ;:~,, ~::r; ~;. r. i~ r ~CHAD CABLE LAWYER 323 GILMER SULPHUR SPRINGS, TEXAS 75482 TELEPHONE: (903) 885-1500 TELECOPIER: (903) 885-7501 May 13, 2010 Via Certified Mail 7005 1820 0007 7656 6578 Return Receipt Requested & Regular Mail Mr. Carlton Sewell 107 Morris Drive Sulphur Springs, Texas 75482 RE: Cause No. P08-13l'06 Estate of Velma Ruth Fitzgerald, Deceased Hopkins County, Texas Dear Mr. Sewell: Enclosed is the following: 1. Request for Admissions Sincerely, Chad Cable CC/lar Enclosures U CLERK'S GFFICE NO. P08 - 13,106 IN THE ESTATE OF § IN THE COUNTY COURT § VELMA RUTH FITZGERALD, § OF § DECEASED § HOPKINS COUNTY, TEXAS CONTESTANTS, FIRST REQUEST FOR ADMISSIONS TO: Carlton Sewell, 107 Morris Drive, Sulphur Springs, Texas 75482. COMES NOW, Contestants of the will sponsored by Carlton Sewell, in the above styled and numbered cause, and pursuant to Rule 198 of the Texas Rules of Civil Procedure, makes the following Requests for Admissions of Fact. These requests are being served upon, Carlton Sewell, and you are notified that Contestants demand that within 30 days after the service of these requests, that Carlton Sewell specifically admit or deny the facts requested. A failure to specifically answer any request or an evasive answer to any request will be taken as an admission of truth of such request. Respectfully submitted, `` Chad Cable State Bar No. 03575300 323 Gilmer Sulphur Springs, Texas 75482 Telephone (903) 885-1500 Telecopier (903) 885-7501 COUNSEL FOR CONTESIANTS . \ \\ ,-"\ :~ .,:: - p J " '. ·' CONTESTANTS' FIRST REQUEST FOR ADM1SSJONS CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing instrument has beep.~rvedon Carlton Sewell in accordance with the Texas Rules of Civil Procedure, on this \ · ----+- day of May, 2010. iL Certified mail/Return receipt requested Telecopier (fax) Federal Express Courier with Receipt Registered mail/Return receipt requested Regular Mail Personal Hand Delivery Date: May~ 2010. CHAD CABLE E /-\ND CORP.ECT ' ``C)P~{ CJF OF~!Gl~A,L CONTESTANTS' FIRST REQUEST FOR ADMISSIONS REQUEST FOR ADMISSIONS 1 ADMIT or DENY That you exercised undue influence over Velma Ruth Fitzgerald to induce her to change her will. RESPONSE: 2. ADMIT or DENY That throughout the spring and summer of2007, Velma Ruth Fitzgerald was physically and mentally weak enough to be susceptible to undue influence. RESPONSE: 3. ADMIT or DENY That you influenced Velma Ruth Fitzgerald to the point of subverting and overpowering her mind so that she would execute a new will naming you as sole beneficiary which she would not have done but for your influence. RESPONSE: 4. ADMIT or DENY That you engaged in a campaign to keep other relatives of Velma Ruth Fitzgerald from having contact with her as part of your scheme to exert undue influence over her. RESPONSE: 5. ADMIT or DENY That one of your techniques for exerting undue influence was to feign romantic love for Velma Ruth Fitzgerald in a seducing manner by physical affection and full on the mouth kissing. RESPONSE: 6. ADMIT or DENY That you suggested to your brother Truitt Sewell, that the two of you get Velma Ruth Fitzgerald to change her will to benefit the two of you. RESPONSE: 7. ADMIT or DENY That you told the White brothers in Vernon that Velma RuthFitzgeraldwas not competent when she signed their lease contract. RESPONSE: CT CONTESTANTS' FIRST REQUEST FOR ADMISSIONS f "\ 8. ADMIT or DENY That you converted funds belonging to Velma Ruth Fitzgerald to your own benefit prior to her death. RESPONSE: 9. ADMIT or DENY That you breeched your fiduciary duty to Velma Ruth Fitzgerald by profiting from the use of her power of attorney prior to her death. RESPONSE: 10. ADMIT or DENY That you misrepresented the nature of Velma Ruth Fitzgerald's mental independence to Ray I ohnson and his staff. RESPONSE: 11. ADMIT or DENY That you had no contact with Velma Ruth Fitzgerald for years prior to accompanying Truitt and Laura Sewell to Dallas to visit her in a nursing home. RESPONSE: 12. ADMIT or DENY That you prevented Velma Ruth Fitzgerald from having telephone contact with her lifelong friend, Eurice Lee White. RESPONSE: 13. ADMIT or DENY That you habitually subjected Velma Ruth Fitzgerald to your control during the last year of her life. RESPONSE: 14. ADMIT or DENY That Velma Ruth Fitzgerald was mentally and physically incapable of resisting your undue influence by August of2007. RESPONSE: CONTESTANTS' FIRST REQUEST FOR ADMISSIONS ( 15. ADMIT or DENY That the August 8, 2007 will of Velma Ruth Fitzgerald is invalid and should be set aside. RESPONSE: 16. ADMIT or DENY That you are liable for damages and attorney fees to the contestants. RESPONSE: NO. POS-13106 IN THE ESTATE OF § IN THE COUNTY COURT § VELMA RUTH FITZGERALD, § AT LAW OF § DECEASED § HOPKINS COUNTY, TEXAS PROPONENT CARL TON SEWELL'S RESPONSES TO CONTESTANTS' FIRST REQUEST FOR ADMISSIONS TO: Contestants, by and through their attorney of record, Mr. Chad Cable, 323 Gilmer Street, Sulphur Springs, Texas 75482. NOW COMES, CARLTON SEWELL, Proponent, and makes this his Responses to Contestants' First Request for Admissions pursuant to the Texas Rules of Civil Procedure. Respectfully submitted, CURTIS, ALEXANDER, McCAMPBELL & MORRIS, P.C. Number One Planters Street P.O. Box 38 Emory, Texas 75440 Tel: (903) 473-2297 Fax: (903) 473-3069 ;f /)/} ( By:& ~(~,!///{ ~ ~ . Brad Mccampbell State Bar No. 13358000 ATTORNEYS FOR PROPONENT Certificate of Service I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on , 2015. ItJ d."'12A 2::'~t= McCampbe~ J. Brad _ RESPONSE TO ADMISSIONS 1. ADMIT or DENY That you exercised undue influence over Velma Ruth Fitzgerald to induce her to change her will. RESPONSE: DENY. 2. ADMIT or DENY That throughout the spring and summer of 2007, Velma Ruth Fitzgerald was physically and mentally weak enough to be susceptible to undue influence. RESPONSE: Carlton Sewell objects to this request because it calls for admission or denial of a statement concerning another person's state of mind. Without waiving the foregoing objection, DENY. 3. ADMIT or DENY That you influenced Velma Ruth Fitzgerald to th.e point of subverting and overpowering her mind so that she would execute a new will naming you as sole beneficiru.y which she would not have done but for your influence. RESPONSE: Carlton Sewell objects to this request because it calls for admission or denial of a statement concerning another person's state of mind. Without waiving the foregoing objection, DENY. . 4. ADMIT or DENY · That you engaged in a campaign to keep other relatives of Velma Ruth Fitzgerald from having contact with her as pait of your scheme to exert undue influence over her. RESPONSE: DENY. 5. ADMIT or DENY That one of your techniques for exerting undue influence was to feign romantic love for Velma Ruth Fitzgerald in a seducing manner by physical affection and full on the mouth kissing. RESPONSE: DENY. CARLTON SEWELL'S RESPONSES TO REQUEST FORADMISSIONS Page 2 of 4 6. ADMIT or DENY ·That you suggested to your brother Truitt Sewell, that the two of you get Velma Ruth Fitzgerald to change her will to benefit the two of you. RESPONSE: DENY. 7. ADMIT or DENY That you told the White brothers in Vernon that Velma Ruth Fitzgerald was not competent when she signed their lease contract. RESPONSE: DENY. 8. ADMIT or DENY That you converted funds belonging to Velma Ruth Fitzgerald to your own benefit prior to her death. RESPONSE: DENY. 9. ADMIT or DENY That you breeched your fiduciary duty to Velma Ruth Fitzgerald by profiting from the use of her power of attorney prior to her death. RESPONSE: Carlton Sewell objects to this request for the reason that it requests a response concerning a matter (breach of fiduciary duty) that is not a part of Contestants' pleadings. Without waiving the foregoing objection, DENY. 10. ADMIT or DENY That you misrepresented the nature of Velma Ruth Fitzgerald's mental independence to Ray Johnson and his staff. RESPONSE: DENY. 11. ADMIT or DENY That you had no contact with Velma Ruth Fitzgerald for years prior to accompanying Truitt and Laura Sewell to Dallas to visit her in a nursing home. RESPONSE: ADMIT Page 3 of 4 12. ADMIT or DENY That you prevented Velma Ruth Fitzgerald from having telephone contact with her lifelong friend, Eurice Lee White. RESPONSE: DENY. 13. ADMIT or DENY That you habitually subjected Velma Ruth Fitzgerald to your control during the last year of her life. RESPONSE: DENY. 14. ADMIT or DENY That Velma Ruth Fitzgerald was mentally and physically incapable of resisting your undue influence by August of 2007. RESPONSE: Carlton Sewell objects to this request for the reason that this request assumes that Sewell unduly influenced Velma Ruth Fitzgerald which he has denied in Request #1 above. Sewell also objects to this request because it calls for admission or denial of a statement concerning another person's state of mind. Without waiving the foregoing objection, Sewell DENIES that he exerted undue influence over Ms. Fitzgerald and DENIES that she was mentally or physically incapable by August of 2007. 15. ADMIT or DENY That the August 8, 2007 will of Velma Ruth Fitzgerald is invalid and should be set aside. RESPONSE: Carlton Sewell objects to this request for the reason that this request seeks Sewell's admission or denial of a conclusion of law. Without waiving this objection, DENY. 16. ADMIT or DENY That you are liable for damages and attorney fees to the contestants. RESPONSE: Carlton Sewell objects to this request for the reason that this request seeks Sewell's admission or denial of a conclusion oflaw. Furthermore, that the statement is vague and unclear. Without waiving this objection, DENY. CARLTON SEWELL'S RESPONSES TO REQUEST FOR ADMISSIONS Page4 of 4 CE CURTIS, A_..JXANDER, MCCAMPBELL & MOi..idS, P.C. ATTORNEYS AT LAW NO. I PLANTERS STREET HAROLD F. CURTIS, JR. (1931-2006) P.O. Box38 !VAN ALEXANDER, JR. (1932-2013) EMORY, TEXA3 75440-0038 J. BRAD MCCAMPBELL (903) 473-2297 LEAH CURTIS MORRIS (903) 473-3069 FAX GEORGE IVAN ALEXANDER PHILIP D. ALEXANDER EMORY• GREENVILLE February 2, 2015 County Clerk of Hopkins County P.O. Box 391 Sulphur Springs, Texas 75483 RE: Cause No. POB-13106; In the Estate of Velma Ruth Fitzgerald, Deceased In the County Court at Law of Hopkins County, Texas Our File No.: 7049-13 Dear Clerk: Enclosed please find the original and one copy of a Motion to Withdraw Deemed Admissions for filing in the above-referenced case. Please return the file-marked copy to our office in the enclosed self-addressed envelope. By copy of this letter, I am forwarding a true and correct copy of this Motion to opposing counsel. · Thank you for your assistance in this matter. cc: Mr. Chad Cable CHAD CABLE LAW OFFICE 323 Gilmer Street Sulphur Springs, Texas 75482 By CMRRR# 7012 3050 0000 7906 5115 Honorable Amy Smith Hopkins County Court at Law 119 Church Street Sulphur Springs, Texas 75482 :n--; ,",/)Q --l;; 1 I --were, therefore, deemed admitted on June 15, 2010, without the requirement of a court order. Carlton Sewell continued to engage in other discovery, including pro se Interrogatories and Request For Production, both dated June 7, 2010. Aff. of Chad Cable, para. 4. Carlton Sewell, by and through his attorney, Frank Bauer, also took two depositions on August 16, 2011, deposing Truitt Sewell and Laura Sewell.
Id. Contestants engagedin no other discovery except a Request For Disclosures dated October 8, 2012.
Id. On January12, 2015, the day of trial and before jury selection, Contestants filed their Certificate of Deemed Admissions. Affidavit of Chad Cable, para. 7. At Carlton Sewell's request, the Court excused the jury panel and delayed the trial for purposes of permitting Carlton Sewell to prepare and file a motion to withdraw deemed admissions.
Id. III. MovantFails to Establish "Good Cause" A person moving for withdrawal of deemed admissions bears the burden of establishing I) good cause; and, 2) the absence of undue prejudice. Hewitt v. Roberts,
2013 WL 398940, *2 (Tex.App.- Corpus Christi 2013). Good cause exists where the failure to respond to the request for admissions was the result of an accident or mistake and was not intentional or the result of conscious indifference. Marino v. King
355 S.W.3d 629, 633 (Tex.2011). Movant's stark failure in this case is his failure to establish "good cause." Movant appears to rely exclusively on the fact that he was a pro se litigant as being, ipso facto, sufficient to establish "good cause." His status as a prose litigant is not, ipso facto, sufficient to establish "good cause." Two cases from the Fort Worth Court of Appeals make it plain that ''pro se" status is not sufficient to establish "good cause." In the case Vann v. Gaines,
2007 WL 865870, *2 (Tex.App.-Fort Woqh 2007) the court noted that, unlike the appellant in Wheeler, admissions, but went on to state that, In any event, while a lack of understanding of pre-trial procedure by a pro se litigant might be proof of good cause to withdraw deemed admissions, a conscious indifference is not. Here, appellant was given two separate requests for admissions by appellees ... Appellant ignored both requests ... Unlike the pro se litigant in Wheeler, appellant showed no good cause for not attempting to respond earlier. Again, in Jones v. Citibank (South Dakota), NA.,
235 S.W.3d 333(Tex.App. - Fort Worth 2007), the Fort Worth Court of Appeals stated: In any event, while a lack of understanding of pre-trial procedure by a pro se litigant might be proof of good cause to withdraw deemed admissions, a conscious indifference is not. Here, unlike the pro se litigant in Wheeler, appellant complied with the discovery rules by responding timely to the first request for admissions, but she showed no good cause for failing to even attempt to respond on time to the second request for admissions.
Id. It isMovant's burden to establish accident or mistake. In the instant case, Movant fails to establish that his failure to respond was due to accident or mistake and was not the result of conscious indifference. First of all, Movant was notified of the consequences of a failure to answer. On the face of the Contestants' First Request For Admissions it states, "A failure to specifically answer any request or an evasive answer to any request will be taken as an admission of truth of such request." If Carlton Sewell read this admonition and then decided not to answer, such decision would amount to conscious indifference. Carlton Sewell can find no footing in the case of Wheeler v. Green,
157 S.W.3d 439, 443 (Tex.2005)(per curiam). In that case, a pro se litigant tried to comply with the rules relating to requests for admissions, but because she was unfamiliar with the mail box rule, she served her responses 2 days late. There was nothing in that case showing any conscious indifference. In Wheeler, the result would likely have been different if the mailbox rule had been stated on the face of the Admissions Request document. to a conscious indifference. A decision not to read the document cannot be excused by the lack of legal knowledge. A person would know that the document was significant by the fact that it was sent certified mail, return receipt requested. Whether a pro se litigant or a seasoned attorney, a decision not to read a document is a decision to ignore it. A decision to ignore it is conscious indifference. See Gaines,
2007 WL 865870at *2. Therefore, Movant has failed to meet his burden of establishing "good cause," i.e., that the failure to answer was the result of accident or mistake and not the result of conscious indifference. IV. Movant Fails to Establish Absence of Undue Prejudice The absence of undue prejudice is established by showing that a withdrawal of deemed admissions will not delay trial nor significantly hamper the opposing party's ability to prepare for trial. Marino v. King
355 S.W.3d 629, 633 (fex.2011). There is considerable discovery that Contestants did not conduct in reliance on the deemed admissions. If not for the deemed admissions, Contestants would have sought to depose 1) Tiffany Bassham, who was the administrator of the assisted living facility Carlton Sewell had Mrs. Fitzgerald sequestered in; 2) Alice Davis, who was one of the paid sitters; and, 3) DeeAnn Landers, the bank officer familiar with the unusual facts involving Carlton Sewell's use of the power of attorney, executed by Mrs. Fitzgerald in his favor, to purchase a rural home on several acres with an $80K down payment and a similar sized note with the local bank. See Affidavit of Chad Cable, para. 5. Contestants would also seek to obtain the bank records pertaining to that transaction. Critical to Contestants' case is the anticipated testimony of Truitt Sewell, who is one of the Contestants and the brother of Carlton Sewell. His anticipated testirrioriy is the most probative evidence in the entire case. He would testify that Carlton Sewell asked. lrj.m to help Carlton get this information by live testimony. Truitt Sewell became sick with cancer in the Fall of 2014. Aff. of Chad Cable, para. 6. His health has deteriorated to the point that he probably will not have the capacity to testify at trial because of the delay of trial from January 12, 2015, to some undetermined point in the future.
Id. Thus, Contestants'case is highly prejudiced by the delay of trial. Additionally, the case of Morgan v. Timmers Chevrolet, Inc.,
1 S.W.3d 803, n. 5 (Tex.App.- Houston [1st Dist] 1999) is instructive. There, trial was commenced more than 2 years after the requests for admissions were deemed admitted. After trial began, and after 3 witnesses had testified and 10 exhibits had been admitted, plaintiffs sought to introduce the deemed omissions, which caught the defendant unaware, because the deemed admissions were the result of a clerical error by the staff of defendant's attorney, who was ignorant of the mistake until the day of trial. The trial court granted the defendant leave to withdraw the deemed admissions but offered plaintiffs a mistrial in order for plaintiffs to conduct the discovery plaintiffs had not conducted in reliance on the deemed admissions. The plaintiffs refused the mistrial. From an unfavorable result, plaintiffs appealed. The 1st District Court of Appeals reversed, holding that the plaintiffs were unduly prejudiced because there was considerable discovery that plaintiffs did not conduct in reliance on the deemed admissions. The court of appeals also noted that the plaintiffs "were not required to accept a mistrial - plaintiffs were entitled to rely on the guiding rules and principles set out in the Rules of Civil Procedure regarding deemed admissions." The court of appeals did not blame the plaintiffs, in the least, for waiting over two years, and not until the middle of trial, before asserting the deemed admissions. Like the plaintiffs in Morgan, the Contestants here have substantial discovery which they did not seek to conduct in reliance on the deemed admissions. Aff. of Chad Cable, para. 5. Contestants here, upon filing their Certificate of Deemed Admissions, "were entitled· to rely on the guiding rules and principles set out in the Rules of Civil Procedure regarding deemed admissions." In Morgan, the 51Page court permitted withdrawal of deemed admissions during the middle of trial. In the instant case, the Court delayed the trial of the case for the purpose of entertaining a motion for withdrawal of deemed admissions. Aff. of Chad, para. 7. Delay of trial is a quintessential form of undue prejudice. Twenty cases in Texas substantially state: "Undue prejudice depends on whether withdrawing an admission will delay trial or significantly hamper the opposing party's ability to prepare for it." Wheeler v. Green,
157 S.W.3d 439, 443 (Tex.2005)(per curiam)(emphasis added). In their reliance on the guiding rules and principles set out in the Rules of Civil Procedure, Contestants have been prejudiced by the delay of trial. Therefore, Movant has failed to establish an absence of undue prejudice, and the Motion to Withdraw Deemed Admissions should be denied. v. Movant Waived the Right to Complain of the Untimeliness of Contestants' Admissions Request By engaging in substantial discovery after Contestants request for admissions, Movant has waived any right to complain of the untimeliness of Contestants' request for admissions. The Request for Admissions was served on May 13, 2010. Subsequent to that time, Movant, acting pro se, served on Contestants a set of Written Interrogatories and a Request For Production, both dated June 7, 2010. Aff. of Chad Cable, para. 4. Subsequently, Movant, by and through his attorney, Frank Bauer, also conducted two depositions: the Deposition of Truitt Sewell on August 16, 2011, and the Deposition of Laura Sewell on the same date.
Id. Therefore, Movanthas conducted substantial discovery since Contestants served on Movant the Request for Admissions and he has, therefore, waived any right to complain of the untimeliness of the Request for Admissions. VI. PRAYER For the foregoing reasons, Contestants pray the Court to deny Carlton Sewell's Motion to / /,
323 Gilmer i i Sulphur Springs, TX 7 5482 I { I ; . --·-· ----~-.! w 0 I:•;,._. ! CHAD CABLE LAWYER 323 GILMER SULPHUR SPRINGS, TEXAS 75482 TELEPHONE: (903) 885-1500 TEI.ECOPIER: (903) 885-7501 May 13, 2010 Via Cert~fied Mail 7005 1820 0007 7656 6578 Return Rece;pt Requested & Regular Mail Mr. Carlton Sewell 107 Morris Drive Sulphur Springs, Texas 75482 RE: CauseNo.POS-13106 Estate of Velma Ruth Fitzgerald, Deceased Hopkins County, Texas Dear Mr. Sewell: Enclosed are the following: l. Motion for Appointment of Independent Executor; and 2. Order Setting Hearing. Sincerely, Chad Cable CC/lar Enclosures {' " CHAD CABLE LAWYER 323 GILMER SULPHUR SPRINGS, TEXAS 75482 TELEPHONE: (903) 885-1500 TELECOPIER: (903) 885-7501 May 13, 2010 Via Certifi.ed Mail 7005 1820 0007 7656 6578 Return Receipt Requested & Regular Mail Mr. Carlton Sewell 107 Morris Drive Sulphur Springs, Texas 75482 RE: Cause No. P08-13l06 Estate of Velma Ruth Fitzgerald, Deceased Hopkins County, Texas Dear Mr. Sewell: Enclosed is the following: 1. Request for Admissions Sincerely, Chad Cable CC/lar Enclosures CC)LJ NO. P08 - 13,106 IN THE ESTATE OF § IN THE COUNTY COURT § VELMA RUTH FITZGERALD, § OF § DECEASED § HOPKINS COUNTY, TEXAS CONTESTANTS' FIRST REQUEST FOR ADMISSIONS TO: Carlton Sewell, 107 Morris Drive, Sulphur Springs, Texas 75482. COMES NOW, Contestants of the will sponsored by Carlton Sewell, in the above styled and numbered cause, and pursuant to Rule 198 of the Texas Rules of Civil Procedure, makes the following Requests for Admissions of Fact. These requests are being served upon, Carlton Sewell, and you are notified that Contestants demand that within 30 days after the service of these requests, that Carlton Sewell specifically admit or deny the facts requested. A failure to specifically answer any request or an evasive answer to any request will be taken as an admission of truth of such request. Respectfully submitted, `` Chad Cable State Bar No. 03575300 323 Gilmer Sulphur Springs, Texas 75482 Telephone (903) 885-1500 Telecopier (903) B8.5-7501 COUNSEL FOR CONTESTANTS CONTESTANTS' FIRST REQUEST FOR ADMISSIONS CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing instrument has beep.~ed on Carlton Sewell in accordance with the Texas Rules of Civil Procedure, on this __\--"~=q-_day of May, 2010. 1L Certified mail/Return receipt requested Telecopier (fax) Federal Express Courier with Receipt Registered mail/Return receipt requested Regular Mail Personal Hand Delivery Date: May~ 2010. CHAD CABLE • cou I ('·. E CONTESTANTS' FIRST REQUEST FOR ADMISSIONS 2 REQUEST FOR ADMISSIONS ADMIT or DENY That you exercised undue influence over Velma Ruth Fitzgerald to induce her to change her will. RESPONSE: 2. ADMIT or DENY That throughout the spring and summer of 2007, Velma Ruth Fitzgerald was physically and mentally weak enough to be susceptible to undue influence. RESPONSE: 3. ADMIT or DENY That you influenced Velma Ruth Fitzgerald to the point of subverting and overpowering her mind so that she would execute a new will naming you as sole beneficiary which she would not have done but for your influence. RESPONSE: 4. ADMIT or DENY That you engaged in a campaign to keep other relatives of Velma Ruth Fitzgerald from having contact with her as part of your scheme to exert undue influence over her. RESPONSE: 5. ADMIT or DENY That one of your techniques for exerting undue influence was to feign romantic love for Velma Ruth Fitzgerald in a seducing manner hy physical affection and full on the mouth kissing. RESPONSE: 6. ADMIT or DENY That you suggested to your brother Truitt Sewell, that the two of you get Velma Ruth Fitzgerald to change her will to benefit the two of you. RESPONSE: 7. ADMIT or DENY That you told the White brothers in Vernon that Velma Ruth Fitzgerald was not competent when she signed their lease contract. RESPONSE: CONTESTANTS' FIRST REQUEST FOR ADMISSIONS r. / ' 8. ADMIT or DENY That you converted funds belonging to Velma Ruth Fitzgerald to your own benefit prior to her death. RESPONSE: 9. ADMIT or DENY That you breeched your fiduciary duty to Velma Ruth Fitzgerald by profiting from the use of her power of attorney prior to her death. RESPONSE: 10. ADMITorDENY That you misrepresented the nature of Velma Ruth Fitzgerald's mental independence to Ray Johnson and his staff RESPONSE: 11. ADMIT or DENY That you had no contact with Velma Ruth Fitzgerald for years prior to accompanying Truitt and Laura Sewell to Dallas to visit her in a nursing home. RESPONSE: 12. ADMIT or DENY That you prevented Velma Ruth Fitzgerald from having telephone contact with her lifelong friend, Eurice Lee White. RESPONSE: 13. ADMIT or DENY That you habitually subjected Velma Ruth Fitzgerald to your control during the last year of her life. RESPONSE: 14. ADMITorDENY That Velma Ruth Fitzgerald was mentally and physically incapable ofresisting your undue influence by August of 2007. RESPONSE: I I: I . CONTESTANTS' FIRST REQUEST FOR ADMISSIONS 4 I . ; 15. ADMIT or DENY That the August 8, 2007 will of Velma Ruth Fitzgerald is invalid and should be set aside. RESPONSE: 16. ADMIT or DENY That you are liable for damages and attorney fees to the contestants. RESPONSE: ' < ':~ CONTESTANTS' FIRST REQUEST FOR ADMISSIONS NO. POS-13106 IN THE ESTATE OF ) IN THE COUNTY COURT ) VELMA RUTH FITZGERALD ) AT LAW OF ) DECEASED ) HOPKINS COUNTY, TEXAS AFFIDAVIT OF CHAD CABLE STATE OF TEXAS * * COUNTY OF HOPKINS * BEFORE ME, the undersigned authority, personally appeared Chad Cable, who, upon oath or solemn affirmation, deposed as follows: 1. My name is Chad Cable. I am over the age of eighteen and am, in all respects, competent to make this affidavit. The matters stated herein are within my personal knowledge and are true and correct. 2. I am an attorney licensed to practice law in the State of Texas. I have practiced law in Hopkins County for the past 35 years. I represent the Contestants in the above styled and numbered case, 3. Acting as attorney for the Contestants, I served on Carlton Sewell ("Carlton") Requests for Admissions dated May 13, 2010. Carlton failed to respond to such Request for Admissions. Therefore, according to Texas Rules of Civil Procedure, Rule 198.2(c), the matters are deemed admitted without the necessity of a court order. 4. Since serving the Requests for Admissions, Carlton has served on me a Set of Written Interrogatories (June.7, 2010); A Request For Production (June 7, 2010); and has conducted a Deposition of Truitt Sewell (August 16, 2011); and a Deposition of Laura Sewell (August 16, 2011. Since May 12, 2010, the only discovery conducted by me was a Request For Disclosures dated October 8, 2012. 5. In reliance on the deemed admissions, I did not seek to depose 1) Tiffany Bassham, head administrator of the assisted living center in which Velma Ruth Fitzgerald was sequestered by Carlton; 2) Alice Davis, the paid sitter of Velma Ruth Fitzgerald; and 3) Deeanna Landers, the bank officer involved in Carlton's purchase of a rural home on several acres for a down payment of $80,000.00, together with a like amount borrowed through the bank, which Carlton purchased under the power of attorney executed in his favor by Velma Ruth Fitzgerald. 6. Truitt Sewell was diagnosed with cancer in the Fall of 2014. ·His. health has rapidly deteriorated since that time to the extent that Truitt Sewell is likely incapacitated to such an extent that he will not be able to testify at trial. u 7. On January 12, 2015, the day of trial, I filed a Certificate of Deemed Admissions. At Carlton Sewell's request, the Court delayed the trial for the purpose of entertaining a motion to withdraw the deemed admissions. 8. FURTHERAFFIANT SAYETH NOT. CHAD CABLE SWORN TO, or solemnly affirmed, before me, the day of April, 2015. rsigned authority, on this the _h C.---=.-~\``~\````~·~·,) :-:_ ;~JE ;~'l~\~D COPY OF OR!G1Nf\L FiLED IN HOPK!NS COUNTY CLERK'S CFFICE NO. POS-13106 IN THE ESTATE OF § IN THE COUNTY COURT § VELMA RUTH FITZGERALD, § AT LAW OF § DECEASED § AFFIDAVIT IN SUPPORT OF ! (J-11 MOTION TO WITHDRAW DEEMED ADMISSIONS\ ":J{:::: ·``::D n ~- : ',::; :::o BEFORE ME, the undersigned Notary Public, on this day personally a~gear``~ -o .;'~;;_; Pl _.,., -< _ ,,_l 0 CARLTON SEWELL, who after being duly sworn, did depose and state as fol~ws: ;:`` -{ - J;> "My name is CARLTON SEWELL. I am the Movant/Proponent in the a'bove-referencedn cause. I have personal knowledge of the facts stated in the Motion to Withdraw Deemed Admissions and they are true and correct." Further Affiant sayeth not. SIGNED on April 1 '2015. CARLtTON SEWELL i. SUBSCRIBED AND SWORN TO BEFORE ME on this ~day of April, 2015, to certify which witness my hand and official seal. SUSAN PEREZ My Commission Expires August 24, 2018 TRUE AND CORRECT COPY OF ORIGINAL FILED IN HOPl355 S.W.3d 629 dated 25· ·October 21, 2011.··It's a good case.··It gives some Jana Atchison Rushing, CSR 903-268-2942 Page 38 FITZGERALD - VOLUME 1 OF 1 - 04/07/15 ·1· ·direction here and -- ·2· · · · · · · · ··MR. McCAMPBELL:··It is -- it's Texas ·3· ·Supreme Court? ·4· · · · · · · · ··THE COURT:··I'm sorry? ·5· · · · · · · · ··MR. McCAMPBELL:··Texas Supreme Court? ·6· · · · · · · · ··THE COURT:··Yeah. ·7· · · · · · · · ··MR. McCAMPBELL:··Okay. ·8· · · · · · · · ··THE COURT:··Supreme Court of Texas. ·9· · · · · · · · ··MR. CABLE:··I think it came out of 10· ·Fort Worth, didn't it? 11· · · · · · · · ··THE COURT:··Cause no undue influence 12· ·to the other side.··There are some very good catch 13· ·phrases in here that allow me to decide one way or 14· ·the other whether to allow these admissions. 15· · · · · · · · · · · ·Now, I am going to write you a 16· ·letter.··I do have an understanding of where I 17· ·believe I'm going to go at this time with this 18· ·particular issue, but I want to put it in a letter 19· ·form.··You two have helped me immensely.··I 20· ·appreciate it. 21· · · · · · · · · · · ·And it's an issue that absolutely 22· ·I assume the Court of Appeals -- the gentlemen up 23· ·there will probably hear this one way or another, and 24· ·I know they'll give us -- anybody don't get it right, 25· ·they'll give us the correct response.··So with that Jana Atchison Rushing, CSR 903-268-2942 Page 39 FITZGERALD - VOLUME 1 OF 1 - 04/07/15 ·1· ·in mind, thank you for your time. ·2· · · · · · · · ··MR. McCAMPBELL:··Thank you, Judge. ·3· · · · · · · · ··(Hearing adjourned.) ·4· · ·5· · ·6· · ·7· · ·8· · ·9· · 10· · 11· · 12· · 13· · 14· · 15· · 16· · 17· · 18· · 19· · 20· · 21· · 22· · 23· · 24· · 25· · Jana Atchison Rushing, CSR 903-268-2942 Page 40 FITZGERALD - VOLUME 1 OF 1 - 04/07/15 ·1· ·STATE OF TEXAS··) · ·· ·2· ·COUNTY OF DELTA ) · ·· ·3· · · ··I, Jana Atchison Rushing, Official Court · · ·4· ·Reporter in and for the State of Texas, do hereby · ·· ·5· ·certify that the above and foregoing contains a true · ·· ·6· ·and correct transcription of all portions of evidence · ·· ·7· ·and other proceedings requested in writing by counsel · ·· ·8· ·for the parties to be included in this volume of the · ·· ·9· ·Reporter's Record, in the above-styled and numbered · ·· 10· ·cause, all of which occurred in open court or in · ·· 11· ·chambers and were recorded electronically by BIS and · ·· 12· ·transcribed by me. · ·· 13· · · ··I further certify that this Reporter's Record of · ·· 14· ·the proceedings truly and correctly reflects the · ·· 15· ·exhibits, if any, admitted by the respective parties. · ·· 16· · · ··I further certify that the total cost for the · ·· 17· ·preparation of this reporter's Record is $285.00 and · ·· 18· ·will be paid by Mr. J. Brad McCampbell, Counsel for · ·· 19· ·Proponent. · ·· 20· · · ··WITNESS MY OFFICIAL HAND this the 26th day of · ·· 21· ·May, 2015. · ·· 22· · · · · · · · · · · ·/s/ Jana Atchison Rushing 23· · · · · · · · · ·JANA ATCHISON RUSHING, Texas CSR 4156 · ·· · · · · · · · ·Expiration Date:··12/31/15 24· · · · · · · · · ·P. O. Box 48 · ·· · · · · · · · ·Cooper, Texas··75432 25· · · · · · · · · ·903-268-2942 Jana Atchison Rushing, CSR 903-268-2942
Document Info
Docket Number： 06-15-00032-CV
Filed Date： 6/25/2015
Precedential Status： Precedential
Modified Date： 4/17/2021