Robert Todd, Norman Talbott and Clear Water Pools v. Paul Heinrich

Opinion issued June 2, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00267-CV

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Robert Todd, Norman TalbotT, and Clear Water Pools, Appellants

V.

Paul Heinrich, Appellee

On Appeal from the County Court at Law No. 2

Fort Bend County, Texas

Trial Court Case No. 09-CCV-039608

MEMORANDUM OPINION

          Paul Heinrich sued appellants, Robert Todd, Norman Talbott, and Clear Water Pools (collectively, “Clear Water”), for violations of the Deceptive Trade Practices Act, breach of contract, and breach of warranty arising out of Clear Water’s allegedly faulty construction of concrete decking surrounding a swimming pool.  After Clear Water failed to respond to requests for admissions, Heinrich moved for summary judgment on his own claims.  Clear Water neither responded to the motion nor appeared at the hearing, and the trial court rendered summary judgment in Heinrich’s favor. In two issues on appeal, Clear Water contends that the trial court (1) abused its discretion by refusing either to withdraw the deemed admissions or to allow a late summary judgment response, and (2) erroneously rendered summary judgment because Heinrich failed to conclusively establish his entitlement to relief on his claims.

          We affirm.

Background

          On May 1, 2008, Heinrich entered into a contract with Clear Water for the construction of a swimming pool and concrete decking at his residence.  The contract included the following written “Guarantee/Warranty”:  “DBA Clear Water Pools hereinafter called ‘contractor’ guarantees its work to be free from defects in material and workmanship for a period of one (1) year to the original owner (non-transferable) from completion of pool, providing owner has complied in full with the terms and payments and other conditions of this contract.”  Clear Water completed construction of the pool and the decking on May 19, 2008.  Heinrich fully paid the amount owed under the contract on June 20, 2008.

          That same day, Heinrich began to discover cracks forming around the drain areas of the concrete decking.  Heinrich informed Talbott of the cracks on July 24, 2008. The parties “exchanged correspondence” regarding the cracks until February 19, 2009, and although Clear Water “made multiple promises to fix and repair the cracks in the spray decking,” it never attempted to fix the problem.

          Heinrich sued Clear Water for violations of the Deceptive Trade Practices Act (“DTPA”), breach of contract, and breach of warranty. Heinrich alleged that Clear Water violated the DTPA by representing that the decking would last for one year without cracks and that any defects would be warranted for one year.  Heinrich alleged that when cracks began to form in the decking, Clear Water promised to fix the cracks, “but never intended to satisfy that promise.”  Further, Heinrich claimed that Clear Water breached an express warranty in violation of the DTPA because the contract warranted “the structure and materials from all defects within a one year period.”  Heinrich alleged that Clear Water represented to him that it would build a decking without cracks and that he relied upon this representation to his detriment.  Heinrich also asserted that Clear Water was “actually aware, at the time of the conduct, of the falsity, deception, and unfairness of the conduct about which [Heinrich] complains,” and Heinrich thus claimed that he was entitled to treble damages.

          In the alternative, Heinrich asserted claims for breach of contract and breach of warranty for services.  Heinrich alleged that he had a contractual relationship with Clear Water, “wherein [Clear Water] agreed to build a spray decking without cracks that would appear within a short period of building it and warranted for the spray decking for one year.”  Clear Water breached the contract when the decking began to crack within six weeks of installation, and it then “refused to properly fix the decking.”  Clear Water also “made a representation to [Heinrich] about the quality of the services that the spray decking and structures that were installed would be free from all defects for one year or [Clear Water] would repair and fix such defects.”

          Todd and Talbott answered the lawsuit pro se. On August 13, 2009, Heinrich sent requests for admissions to Talbott via certified and first-class mail.  These requests were returned unclaimed.  On September 7, 2009, Heinrich sent identical requests for admissions to Todd and re-sent the requests to Talbott.  The cover letter for the admissions requests informed Talbott and Todd that they had thirty days to respond to the requests and warned them that “[f]ailure to respond to such discovery requests may attribute to deemed admissions.”  Neither Talbott nor Todd ever responded to these requests.

          On October 6, 2009, Heinrich’s attorney, Daniel Lee, received a phone call from another attorney, Richard Muller, who called on behalf of Talbott to discuss settlement options.  Lee testified by affidavit that he asked Muller if he was representing the Clear Water defendants, and Muller responded that he was only calling “as a favor to a friend to facilitate a settlement.”  Muller also informed Lee that he would not be representing Clear Water in the future.  Muller never filed a pleading or other document on behalf of Clear Water; he never made an appearance in court on behalf of Clear Water; he never requested that any deadlines to respond to discovery requests be postponed; and he never answered any outstanding discovery requests on behalf of Clear Water.

          Heinrich filed his first amended petition, which was substantively identical to his original petition, on October 23, 2009.  Although he served both Talbott and Todd, he did not serve this petition on Muller.  On October 26, 2009, Heinrich served a second set of admissions requests on both Talbott and Todd.  Again, he did not provide a copy of these requests to Muller.  Neither Talbott nor Todd responded to the second set of requests for admissions.

          On November 6, 2009, Heinrich moved for summary judgment on his DTPA and breach of contract claims.  In the motion, Heinrich clearly stated the following:  “On September 9, 2009, Plaintiff served Defendants, Norman Talbott and Robert Todd, Requests for Admissions via Certified and First Class Mail.  Both Defendants have not responded to such requests.  These admissions are therefore deemed.”  Heinrich argued that summary judgment was proper on his DTPA claim because (1) “Defendants stated and represented to Plaintiff that the concrete used on the decking was of a particular grade and quality, when the quality of materials used was of a poor grade and quality,” in violation of the DTPA “laundry list,” and (2) Clear Water expressly warranted that its work would be free from defects in materials and workmanship for one year, and, after the decking began to crack, Clear Water failed to complete repairs.  Heinrich contended that summary judgment was proper on his breach of contract claim because (1) he had fully performed under the contract by paying all money owed to Clear Water, (2) Clear Water breached the contract when cracks began to form in the decking one month after installation, and (3) the cost to repair the deck was approximately $23,207.

          As summary judgment evidence, Heinrich attached the following:  (1) the contract between Clear Water and himself; (2) photographs of the cracks in the concrete, taken on March 20, 2009; (3) e-mail correspondence between Heinrich and Talbott; (4) the written warranty included in the contract; (5) an affidavit concerning damages and a remodel proposal; and (6) the deemed admissions.[1]  The e-mail correspondence is a January 9, 2009 e-mail from Talbott informing Heinrich that one of Clear Water’s employees would fix the defects by completely removing the deck and re-pouring it.  Talbott also stated in the e-mail:  “We are truly sorry for what happened to your deck.  We always try to do good work, but it appears that we got a hold of some bad concrete.  Who really knows?????  Anyway, we stand by our work and we stand by our warranties and we will fix this problem.”

          The summary judgment motion included a notice informing Clear Water that the motion would be considered at a hearing on December 22, 2009, over a month-and-a-half from the date Heinrich filed and served the motion. Heinrich served Clear Water with the summary judgment motion and the notice of hearing, but he did not serve the motion and the notice on Muller.

          On November 24, 2009, Muller mailed Lee a letter containing a proposal from Talbott to remove the deck and replace it “no later than January 31st” in an effort to resolve the controversy.  This letter did not state that Muller represented Talbott and the other defendants.  Lee allegedly “immediately contacted” Muller’s firm and spoke with his assistant.  When asked if Talbott or the other Clear Water defendants were clients of the firm, Muller’s assistant checked the firm’s files and stated that they were not clients.  While he was on the phone with Muller’s assistant, Lee did not inform her of either the pending summary judgment motion or the outstanding discovery requests and deemed admissions.

          Clear Water did not file a response to Heinrich’s summary judgment motion, nor did it appear at the December 22, 2009 hearing on the motion.  The trial court rendered summary judgment in favor of Heinrich on both his DTPA and breach of contract claims.  The trial court specified that it found in favor of Heinrich “[w]ith respect to the cause of action for Breach of Warranty as a violation of the Texas [DTPA].”  Heinrich elected to recover under the DTPA, and the trial court ultimately awarded him a total of $77,369.22.

          Clear Water obtained counsel and moved for a new trial, requesting that the trial court withdraw the deemed admissions and allow a late summary judgment response.  Clear Water contended that it was represented by counsel—Muller—at the time that Heinrich filed his summary judgment motion and that it could establish good cause and no undue prejudice to Heinrich.  Clear Water contended that, although it was represented by Muller, Heinrich never served discovery requests, the summary judgment motion, or the notice of hearing on Muller, nor did Heinrich inform Muller of the pending summary judgment motion or the deemed admissions after Muller’s November 24, 2009 letter to Lee.  Clear Water argued that Heinrich could not obtain a judgment against it due to his failure to provide notice to its counsel pursuant to Texas Rules of Civil Procedure 21 and 21a.

          Clear Water further argued that it was entitled to request the withdrawal of the deemed admissions for the first time in its motion for new trial.  Clear Water argued that it could demonstrate “good cause” for its failure to timely respond to the admissions requests because Talbott contacted Muller, and Muller discussed settlement options with Lee before the response deadline.  According to Clear Water, neither Talbott nor Muller intended to ignore the admissions; “[r]ather[,] they both mistakenly thought the parties were working towards some type of settlement.”  Clear Water further contended that withdrawing the deemed admissions and allowing additional time to respond to the summary judgment motion would not cause undue prejudice to Heinrich because there was no current trial setting, the case was less than one year old, and the discovery deadline was March 27, 2010.

          In support of its motion for new trial, Clear Water attached the affidavits of Muller and Talbott.  Muller averred that he first spoke with Talbott regarding the case around the beginning of October 2009.  Muller agreed to help the defendants resolve the case without going to trial.  According to Muller, Talbott gave him a copy of Heinrich’s original petition, but Muller was not aware of whether Talbott had answered.  Muller averred that he contacted Lee on October 6, 2009, to discuss settlement opportunities.  Muller stated that he informed Lee that he was representing Clear Water.  After Lee said that he would discuss settlement with Heinrich, Muller “attempted to contact [Lee] numerous times by phone and email, but could never get him to return [Muller’s] call.”  Muller sent a follow-up letter on November 24, and Lee left a message stating that the settlement offer contained in the letter might be acceptable to Heinrich.  Although Muller tried to contact Lee on several occasions after this message, Lee never responded to Muller’s calls.  Based on his conversation with Lee, Muller believed that the parties were going to attempt to settle the case before proceeding to trial.  Muller averred that he did not respond to the admissions requests or the summary judgment motion “because [Muller] did not know about either and [Lee] never mentioned anything or informed [Muller] at all about either.”  Muller stated that any failure to respond to the admissions or summary judgment motion “was an accident and/or a mistake,” because he thought the parties “were going to try and work to see if we could settle the case.”

          Talbott averred that he spoke with Muller in late September or early October, and Muller agreed to represent the defendants. Talbott gave Muller “all the papers [the defendants had received] from the Plaintiff’s attorney at that time and [Muller] said he would take care of it.”  Talbott averred that he gave Muller “settlement authority to try and resolve the case.”  Talbott believed that Muller had “communicated to [Lee] our settlement and [the defendants] were just waiting for [Lee’s] response.”  Talbott received “more legal papers” from Heinrich in early November, and he spoke with Muller about the case.  Muller told him that he had not received any documents from Heinrich. Muller informed Talbott that he had not heard from Lee and that “[Muller] thought the parties were going to work together to resolve the issues without incurring significant legal fees and expenses.” Talbott averred that he did not hear anything else about the case until January 19, 2010, when Muller informed him that the trial court had entered a judgment against the defendants in December. Talbott further stated:

I learned later Plaintiff’s attorney had filed some motion and we didn’t respond so the Judge signed a judgment against us.  I did not respond to anything from the Plaintiff’s attorney because I thought [Muller] was taking care of everything and he told Plaintiff’s counsel he was representing us.  Any failure (by me or [Todd]) to respond to the different legal papers sent us was not intentional.  We both thought [Muller] was handling everything and further that the case was going to get settled.

          In response, Heinrich argued that although Muller contacted Lee, he stated that he was not representing Clear Water and he never indicated to Lee or the court, prior to the motion for new trial, that he or his firm represented Clear Water.  Heinrich contended that he had “no duty to serve motions to non-existing counsel,” and stated that Clear Water had never filed an appearance of counsel, moved to withdraw or substitute counsel, or “supplied the Court with any documents indicating the existence of counsel.”  Heinrich argued that:  “Defendants had ample amount of time and notice to answer and respond to these pleadings and to obtain an attorney for representation and just chose not to do so. The fact that the Defendants neglected to obtain counsel until after the judgment was rendered shows conscious indifference to the administration of court proceedings.”

          In support of his response, Heinrich attached an affidavit from Lee.  Lee averred:

[S]ome time in October 2009 I received a call from Richard Muller on behalf of Norman Talbott asking to resolve this case.  I asked him if he was Talbott’s attorney and if he was going to enter in as attorney of record for the defendants.  He stated that he is not the Defendants[’] attorney and is only calling as a favor to a friend to facilitate a settlement.  He also reiterated that he would not be representing the defendants in the future.

Lee stated that he informed Heinrich of Clear Water’s settlement offer, communicated by Muller, and, after Heinrich refused the offer, Lee left a message for Muller stating Heinrich’s position.  Lee further averred that the November 24, 2009 letter from Muller made “no mention of representing the defendants,” and he immediately contacted Muller’s assistant upon receipt of the letter.  She stated that neither Talbott nor the other Clear Water defendants were clients of Muller or his firm.  Lee concluded by stating that “[a]t no point in time while [Lee] was working on the case and while speaking to Mr. Talbott or Richard Muller was there any indication Mr. Talbott or any of the defendants were represented by counsel.”

          After a hearing, the trial court denied Clear Water’s motion for new trial.  This appeal followed.

Withdrawal of Deemed Admissions

          In its first issue, Clear Water contends that the trial court abused its discretion by neither withdrawing the admissions deemed against it nor allowing it to file a late summary judgment response. Clear Water contends that its failure to respond to the admissions and the summary judgment motion was not intentional or the result of conscious indifference because Talbott believed that Muller was representing the defendants and handling the case, and Muller believed that he was trying to reach a settlement agreement.  Clear Water argues that Muller knew nothing about the outstanding admissions requests or the pending summary judgment motion.

          Once an action is filed, a party may serve written requests for admissions.  Tex. R. Civ. P. 198.1; Boulet v. State, 189 S.W.3d 833, 836 (Tex. App.—Houston [1st Dist.] 2006, no pet.).  These requests can encompass “any matter within the scope of discovery, including statements of opinion or of fact or of the application of law to fact . . . .”  Tex. R. Civ. P. 198.1; see also Maswoswe v. Nelson, 327 S.W.3d 889, 896–97 (Tex. App.—Beaumont 2010, no pet.) (“[A] party may ask another party to admit or deny issues of fact relevant to the pending action or to apply the law to relevant issues of fact . . . .”).  If the opposing party does not serve its responses to the admissions requests within thirty days, the matters in the requests are deemed admitted against that party without the necessity of a court order. Tex. R. Civ. P. 198.2(c); Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 355 (Tex. 1998) (per curiam). Any matter admitted or deemed admitted is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission.  Tex. R. Civ. P. 198.3; Boulet, 189 S.W.3d at 836 (citing Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989)).

          Withdrawal of deemed admissions is permitted upon a showing of good cause and a finding by the trial court that (1) the party relying upon the deemed admissions will not be unduly prejudiced, and (2) presentation of the merits of the action will be served.  Tex. R. Civ. P. 198.3; Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005) (per curiam) (holding that standard for withdrawal of deemed admissions—good cause and no undue prejudice—is same as standard for allowing late summary judgment response) (citing Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687–88 (Tex. 2002)).  Good cause is established by demonstrating that the failure involved was either an accident or mistake, not intentional or the result of conscious indifference.  Wheeler, 157 S.W.3d at 442; Boulet, 189 S.W.3d at 836.  The party seeking withdrawal of the deemed admissions has the burden to establish good cause.  Boulet, 189 S.W.3d at 836 (citing Webb v. Ray, 944 S.W.2d 458, 461 (Tex. App.—Houston [14th Dist.] 1997, no writ)).  “Undue prejudice depends on whether withdrawing an admission or filing a late response will delay trial or significantly hamper the opposing party’s ability to prepare for it.”  Wheeler, 157 S.W.3d at 443.  As part of the undue prejudice inquiry, the trial court must find that “presentation of the merits . . . [is] subserved by permitting withdrawal.”  Id. at 443 n.2 (citing Tex. R. Civ. P. 198.3(b)).  “Presentation of the merits will suffer (1) if the requesting party cannot prepare for trial, and also (2) if the requestor can prepare but the case is decided on deemed (but perhaps untrue) facts anyway.”  Id.; Boulet, 189 S.W.3d at 837.

          “Conscious indifference” has been defined as “the failure to take some action that would seem obvious to a reasonable person in the same circumstance.”  In re A.P.P., 74 S.W.3d 570, 573 (Tex. App.—Corpus Christi 2002, no pet.) (citing Norton v. Martinez, 935 S.W.2d 898, 901 (Tex. App.—San Antonio 1996, no writ) and Johnson v. Edmonds, 712 S.W.2d 651, 652–53 (Tex. App.—Fort Worth 1986, no writ)).  Conscious indifference requires more than a showing of negligence. See Levine v. Shackelford, Melton & McKinley, L.L.P., 248 S.W.3d 166, 168 (Tex. 2008) (per curiam).  Some excuse for the failure to answer, not necessarily a good excuse, will be sufficient to show that the failure was accidental.  See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 125 (Tex. 1939); In re A.P.P., 74 S.W.3d at 573.  Uncontroverted factual allegations in a motion for new trial and accompanying affidavits, if true, can negate intent or conscious indifference.  Jackson v. Mares, 802 S.W.2d 48, 50 (Tex. App.—Corpus Christi 1990, writ denied). If the nonmovant presents controverting evidence showing conscious indifference, the issue becomes a fact question for the trial court.  Id.; see also Moya v. Lozano, 921 S.W.2d 296, 299 (Tex. App.—Corpus Christi 1996, no writ) (holding that we review all evidence in record to determine whether allegations are controverted).  “The court, as fact-finder at a hearing on a motion for new trial, has the duty of ascertaining the true facts . . . and it is within the court’s province to judge the credibility of the witnesses and to determine the weight to be given their testimony.”  Jackson, 802 S.W.2d at 51.

          We will not set aside a trial court’s ruling denying the withdrawal of deemed admissions unless we find that the trial court abused its discretion.  Boulet, 189 S.W.3d at 837; see also Wheeler, 157 S.W.3d at 443 (“We recognize that trial courts have broad discretion to permit or deny withdrawal of deemed admissions . . . .”). The trial court cannot deny the withdrawal of admissions arbitrarily, unreasonably, or without reference to guiding rules or principles.  Wheeler, 157 S.W.3d at 443 (citing Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996)); Boulet, 189 S.W.3d at 837.

          Heinrich contends that Clear Water waived its challenge to the deemed admissions by failing to move to withdraw the admissions until its motion for new trial.  We agree.

          In Wheeler, Wheeler, acting pro se, served her responses to the admissions requests two days late due to her misunderstanding of the mailbox rule.  157 S.W.3d at 441.  Green attached the admission requests to his summary judgment motion, but he did not mention that he had received responses from Wheeler, albeit two days late.  Id. Wheeler did not respond to the summary judgment motion, but she did attend the summary judgment hearing.  Id. She did not request that the trial court withdraw the deemed admissions and allow a late-filed summary judgment response until her motion for new trial.  Id. at 441–42.  The Texas Supreme Court held that, under these circumstances, Wheeler did not waive her complaints by presenting them for the first time in her motion for new trial because nothing in the record suggested that, before the trial court granted summary judgment, she realized that her admissions responses were late, that she needed to move to withdraw the deemed admissions, or that she needed to file a response to the summary judgment motion to raise this argument.  Id. at 442; see also Cimarron, 98 S.W.3d at 686 (holding that equitable principles allowing these arguments to be made in motion for new trial do not apply if party realizes its mistake before judgment and has other avenues of relief available).

          In Unifund CCR Partners v. Weaver, the Texas Supreme Court distinguished Wheeler and held that when a summary judgment motion put the party seeking withdrawal of deemed admissions on notice of his mistake before the trial court rendered judgment, the party waived the right to raise the issue in a post-judgment filing.  262 S.W.3d 796, 798 (Tex. 2008) (per curiam).  Although Weaver, a pro se litigant, filed a letter with his responses to the admissions requests attached, the record did not indicate that he actually served Unifund with his responses.  Id. at 797.  In its summary judgment motion, Unifund asserted that the facts presented in its requests for admissions were deemed admitted due to Weaver’s failure to timely serve his responses.  Id.  Weaver did not file a summary judgment response, and he did not argue that he had properly served Unifund with his responses until a post-judgment filing.  Id.  The supreme court construed Weaver’s post-judgment filing as a motion for new trial and held that “Unifund’s motion for summary judgment put [Weaver] on notice of the deficiency of his response:  that Unifund never received the response because Weaver had not served, or attempted to serve, the response on Unifund.”  Id. at 798.  As a result, unlike in Wheeler, Weaver knew of his mistake regarding the admissions before the trial court rendered judgment, and he could have responded to Unifund’s summary judgment motion or requested the withdrawal of the deemed admissions.  Id. Because he did neither, “he waived his right to raise the issue thereafter.”  Id.; see also Marino v. King, No. 10-09-00368-CV, 2010 WL 3434620, at *2 (Tex. App.—Waco Sept. 1, 2010, no pet.) (mem. op.) (“Similar to Unifund, Marino was given notice of the late filing of her answers to the request for admissions in King’s motion for summary judgment.  Marino did not attempt to have the trial court withdraw the admissions prior to the entry of judgment against her.”).

          Here, it is undisputed that Clear Water never responded to Heinrich’s requests for admissions, it did not respond to Heinrich’s summary judgment motion, it did not appear at the summary judgment hearing, and it did not request the withdrawal of the deemed admissions until its motion for new trial.  Heinrich’s requests for admissions clearly informed Clear Water that it had thirty days to serve its responses or the admissions would be deemed against it.  In his summary judgment motion, Heinrich stated:

On September 9, 2009, Plaintiff served Defendants, Norman Talbott and Robert Todd, Requests for Admissions via Certified and First Class Mail. Both Defendants have not responded to such requests.  These admissions are therefore deemed.

Heinrich attached a copy of the admissions requests as summary judgment evidence, and he referenced the deemed admissions throughout his summary judgment motion.

          We conclude that Heinrich’s summary judgment motion put Clear Water on notice of its failure to respond to the admissions requests. See Weaver, 262 S.W.3d at 798.  Thus, Clear Water knew of its mistake before the trial court rendered summary judgment, and it could have requested the withdrawal of the admissions in either a summary judgment response or a separate motion seeking withdrawal.  Because it did neither, we hold that Clear Water waived its right to raise the issue and seek withdrawal in its motion for new trial.  See id.

          Even if Clear Water did not waive its challenge to the deemed admissions by failing to raise the issue before its motion for new trial, we conclude that the trial court did not abuse its discretion in denying Clear Water’s request to withdraw the deemed admissions and allow a late-filed summary judgment response because the trial court could have reasonably concluded that Clear Water did not establish good cause for its failure to respond.

          Clear Water argues that the affidavits of Muller and Talbott, attached to its motion for new trial, demonstrated that its failure to respond was “not intentional or the result of conscious indifference” because Talbott believed that Muller was handling the case and Muller, who was unaware of the outstanding admissions and the pending summary judgment, believed that he was trying to settle the case.  According to Clear Water, Muller’s mistake was “compounded” by the fact that Lee did not serve or otherwise inform Muller of the deemed admissions or the summary judgment motion.

          Texas Rule of Civil Procedure 8 provides that, “[o]n the occasion of a party’s first appearance through counsel, the attorney whose signature first appears on the initial pleadings for any party shall be the attorney in charge . . . .”  Tex. R. Civ. P. 8.  “All communications from the court or other counsel with respect to a suit shall be sent to the attorney in charge.”  Id.; see also Lester v. Capital Indus. Inc., 153 S.W.3d 93, 96 (Tex. App.—San Antonio 2004, no pet.) (“Once Lester’s attorney made an appearance in the case, all communications from opposing counsel with respect to the suit should have been sent to him, including notice of the summary judgment motion and hearing.  Failure to send notice violated Rules 8, 21a, and 166a(c) of the Texas Rules of Civil Procedure.”) (emphasis added).  An attorney may become “an ‘attorney of record’ by filing pleadings or appearing in open court on a party’s behalf.”  Smith v. Smith, 241 S.W.3d 904, 907 (Tex. App.—Beaumont 2007, no pet.).  If a party presents evidence that an attorney “undertook a limited role in a matter,” such as evidence of an agreement to provide advice or an agreement to facilitate a settlement, this evidence does not constitute “the equivalent of making an appearance on the client’s behalf.”  See id. at 908.

          Muller and Talbott both averred that Muller had agreed to represent Clear Water, and that he was working to facilitate a settlement agreement with Heinrich.  Muller further averred that he informed Lee during their October 6, 2009 phone conversation that he was representing Clear Water.  Talbott averred that, after discussing the case with Muller, he gave Muller all of the documents that he had received regarding the case and that he spoke with Muller about the case after he received Heinrich’s summary judgment motion.

          Lee contradicted these allegations in his affidavit filed in response to Clear Water’s motion for new trial.  Lee averred that when he first spoke to Muller, he asked him whether he was “going to enter in as attorney of record for the defendants,” and Muller stated that he was not Clear Water’s attorney, but, instead, he was merely “calling as a favor to a friend to facilitate a settlement.” During this conversation, Muller also “reiterated that he would not be representing the defendants in the future.” Lee further averred that after he received a letter from Muller in late November communicating a settlement offer from Talbott, he spoke with Muller’s assistant who confirmed that Clear Water was not a client of Muller or his firm.  Lee finally stated that, “[a]t no point in time while I was working on the case and while speaking to Mr. Talbott or Richard Muller was there any indication [that] Mr. Talbott or any of the defendants were represented by counsel.”

          It is undisputed that Muller never filed a pleading or motion on behalf Clear Water, never appeared on behalf of Clear Water in open court, never responded to any discovery requests on behalf of Clear Water, and never filed any designation of “attorney of record” for Clear Water.  If, in fact, Muller was Clear Water’s attorney as of October 6, 2009, as he now avers, he had a professional responsibility to ascertain whether Talbott had answered the petition Talbott gave him and to appear.  He avers that he did not apprise himself of the state of the proceedings against his client.  Muller did not appear in the litigation, nor did he take any of the actions required of an attorney representing a client in litigation.  We conclude that Muller was not Clear Water’s attorney of record, and, thus, Heinrich was not obligated under the Rules of Civil Procedure either to serve Muller with amended pleadings, motions, and discovery requests or to inform Muller of the outstanding discovery requests and pending summary judgment motion.  See Smith, 241 S.W.3d at 907–08; Tex. R. Civ. P. 8.

          In its motion for new trial, in addition to arguing that it was represented by counsel who failed to receive the discovery requests and summary judgment motion, Clear Water also argued that both Talbott and Muller “mistakenly thought the parties were working towards some type of settlement,” which constitutes “good cause” for the failure to respond to the admissions requests and the summary judgment motion.  Clear Water cites no authority for the proposition that believing that the parties were working toward a settlement agreement suspends discovery and pretrial deadlines and allows parties to ignore discovery requests, and, thus, constitutes an excuse for failure to respond.  Clear Water presented no evidence that it ever entered into a Rule 11 agreement with Heinrich to waive or postpone discovery deadlines while the parties tried to reach a settlement.  Clear Water also presented no evidence that it moved the trial court for an extension of time to respond either to the discovery requests or to the summary judgment motion.  Instead, the record demonstrates a pattern of ignoring discovery requests and failing to respond to requests and motions.[2]  See Levine, 248 S.W.3d at 169 (“This pattern of ignoring deadlines and warnings from the opposing party amounts to conscious indifference.”).

          When the party seeking withdrawal of deemed admissions and permission to late-file a summary judgment response presents evidence and allegations negating conscious indifference and the nonmovant presents controverting evidence, the issue of conscious indifference becomes a fact question for the trial court.  See Jackson, 802 S.W.2d at 50.  As the fact-finder at a hearing on a motion for new trial, it is “within the court’s province to judge the credibility of the witnesses and to determine the weight to be given their testimony.”  Id. at 51; see also Imkie v. Methodist Hosp., 326 S.W.3d 339, 344 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (holding that, when reviewing denial of motion for new trial, we view evidence in light most favorable to trial court’s ruling, draw all legitimate inferences from evidence, and defer to trial court’s resolution of conflicting evidence). We conclude, based on this record, that the trial court did not err in implicitly concluding that Clear Water did not establish good cause for its failure to respond to the admissions requests and the summary judgment motion.  We therefore hold that the trial court did not abuse its discretion in refusing either to withdraw the deemed admissions or to allow a late-filed summary judgment response.

          We overrule Clear Water’s first issue.

Summary Judgment on Heinrich’s Claims

          In its second issue, Clear Water contends that the trial court erroneously rendered summary judgment in favor of Heinrich because Heinrich failed to carry his summary judgment burden and establish that there were no genuine issues of material fact and that he was entitled to judgment as a matter of law.

A. Standard of Review

          We review de novo the trial court’s ruling on a summary judgment motion.  Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).  To prevail on a traditional summary judgment motion, the movant must establish that no genuine issues of material fact exist and that he is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004).  A party moving for summary judgment on his own claim must conclusively prove all essential elements of the claim.  See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Tex. R. Civ. P. 166a(a) (“A party seeking to recover upon a claim . . . may, at any time after the adverse party has answered or appeared, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.”).  A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence.  See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

          If the movant meets his burden, the burden then shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment.  See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).  The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).  To determine if the nonmovant has raised a fact issue, we review the evidence in the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not.  See Fielding, 289 S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827).  We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.  See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)).

          We must affirm the summary judgment if any of the grounds presented to the trial court are meritorious.  Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Pickett v. Tex. Mut. Ins. Co., 239 S.W.3d 826, 840 (Tex. App.—Austin 2007, no pet.).

B. Heinrich’s DTPA Claim

The trial court’s summary judgment states that, “[w]ith respect to the cause of action for Breach of Warranty as a violation of the Texas Deceptive Trade Practices Act as asserted by the Plaintiffs, the Court finds in favor of said Plaintiff . . . .”  Generally, to recover for breach of an express warranty under the DTPA, a plaintiff must prove that (1) he is a consumer, (2) a warranty was made, (3) the warranty was breached, and (4) as a result of the breach, an injury resulted. U.S. Tire-Tech, Inc. v. Boeran, B.V., 110 S.W.3d 194, 197 (Tex. App.—Houston [1st Dist.] 2003, pet. denied); see also Head v. U.S. Inspect DFW, Inc., 159 S.W.3d 731, 746 (Tex. App.—Fort Worth 2005, no pet.); see also Tex. Bus. & Com. Code Ann. § 17.50(a)(2) (Vernon 2011) (“A consumer may maintain an action where any of the following constitute a producing cause of economic damages or damages for mental anguish:  breach of an express or implied warranty.”).  The DTPA does not define or create any warranties.  U.S. Tire-Tech, 110 S.W.3d at 197 (citing Parkway Co. v. Woodruff, 901 S.W.2d 434, 438 (Tex. 1995)).  Warranties actionable under the DTPA must first be recognized by common law or created by statute.  Id.  An express warranty is created when “a seller makes an affirmation of fact or a promise to the purchaser that relates to the sale and warrants a conformity to the affirmation as promised.”  Head, 159 S.W.3d at 746 (citing Humble Nat’l Bank v. DCV, Inc., 933 S.W.3d 224, 233 (Tex. App.—Houston [14th Dist.] 1996, writ denied)).  Producing cause is “a substantial factor which brings about the injury and without which the injury would not have occurred.”  Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 481 (Tex. 1995).  The plaintiff need not establish that the harm was foreseeable.  Id.

If the defendant’s conduct was committed knowingly, the consumer may recover not more than three times the amount of economic damages.  Tex. Bus. & Com. Code Ann. § 17.50(b)(1) (Vernon 2011); see also Brown & Brown of Tex., Inc. v. Omni Metals, Inc., 317 S.W.3d 361, 395–96 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (holding evidence legally and factually sufficient to support jury finding of “knowingly,” as required for award of treble damages under DTPA).  The DTPA defines “knowingly” as:

[I]n an action brought under Subdivision (2) of Subsection (a) of Section 17.50, actual awareness of the act, practice, condition, defect, or failure constituting the breach of warranty . . . actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.

Tex. Bus. & Com. Code Ann. § 17.45(a)(9) (Vernon 2011); see also St. Paul Surplus Lines v. Dal-Worth Tank Co., 974 S.W.2d 51, 53–54 (Tex. 1998) (defining “actual awareness” as “a person knows that what he is doing is false, deceptive, or unfair and does it anyway”).

          Clear Water contends that, when the nonmovant has not engaged in “flagrant bad faith or callous disregard for the rules,” summary judgment is improper when the only evidence supporting summary judgment is merits-preclusive deemed admissions.  Clear Water further contends that Heinrich used only the deemed admissions to support his DTPA claim, and, without the deemed admissions, Heinrich has no evidence to support his claim that (1) Clear Water breached a warranty, (2) Clear Water’s actions were a producing cause of damages, and (3) Clear Water acted knowingly.

          “Admissions of fact on file at the time of a summary judgment hearing are proper summary judgment proof and will, therefore, support a motion for summary judgment.”  Cedyco Corp. v. Whitehead, 253 S.W.3d 877, 880 (Tex. App.—Beaumont 2008, pet. denied) (emphasis in original); see also Tex. R. Civ. P. 166a(c) (allowing trial court to consider admissions on file with court at time of hearing when rendering summary judgment).  Although “[t]he rule regarding requests for admissions does not contemplate or authorize admissions to questions involving points of law,” and, thus, “responses to requests for admissions merely constituting admissions of law are not binding on the court,” Rule 198.1 does provide that admissions seeking to apply the law to a set of facts are permissible.[3]  Boulet, 189 S.W.3d at 838; see also Tex. R. Civ. P. 198.1; Maswoswe, 327 S.W.3d at 896–97.

          As we have already held, the trial court did not err in refusing to withdraw the deemed admissions.  Thus, the admissions of fact and admissions that applied the law to relevant facts are proper summary judgment evidence and may support summary judgment.  See Cedyco Corp., 253 S.W.3d at 880.  The deemed admissions contained admissions that Clear Water warranted its work on Heinrich’s decking for one year; that cracks began to form in the decking within one month after installation; that Clear Water “misrepresented the length and existence of a warranty because no attempts to fix the decking [have] been made”; that Heinrich fully performed his contractual obligations; that Clear Water knowingly used substandard materials; that Clear Water made promises to repair the decking but did not intend to repair it; that Clear Water knowingly promised to repair the decking to delay Heinrich from filing suit; that, to restore Heinrich’s decking, the entire deck needed to be removed and replaced; and that the total cost of restoring the deck is at least $23,207.

          Contrary to Clear Water’s assertion, Heinrich did not rely solely on the deemed admissions to establish his DTPA claim. In addition to the deemed admissions, Heinrich included the following as summary judgment evidence:  (1) the written contract between Clear Water and himself; (2) the written “guarantee/warranty” that explicitly stated that Clear Water “guarantees its work to be free from defects in material and workmanship for a period of one (1) year to the original owner (non-transferable) from completion of pool, providing owner has complied in full with the terms and payments and other conditions of this contract”; (3) photographs of the cracks in the concrete decking, taken within one year of installation; (4) an e-mail from Talbott, in which he opined that Clear Water had “got[ten] a hold of some bad concrete” and stated that Clear Water “stand[s] by [its] warranties” and will fix the damage; and (5) an affidavit that described the damages incurred and included a remodel proposal from another pool company.

          We conclude that, based on the summary judgment evidence presented to the trial court, Heinrich conclusively established each element of his DTPA cause of action for breach of an express warranty. Because Heinrich demonstrated that he is entitled to judgment as a matter of law, we hold that the trial court correctly rendered summary judgment in his favor on his DTPA claim.

          We overrule Clear Water’s second issue.[4]

Conclusion

          We affirm the judgment of the trial court.

                                                                   Evelyn V. Keyes

                                                                   Justice

Panel consists of Justices Keyes, Higley, and Hinde.[5]

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[1]           Neither the affidavit of damages nor the deemed admissions that were attached to Heinrich’s summary judgment motion are included in the clerk’s record. The clerk’s record does contain copies of the requests for admissions that Heinrich sent to both Talbott and Todd.

[2]           The record reflects that Heinrich served requests for disclosure pursuant to Texas Rule of Civil Procedure 194, requests for production, and two sets of requests for admissions.  Heinrich received no responses to any of these discovery requests.

[3]           Clear Water does not contend that any of the admissions requests relevant to establishing Heinrich’s DTPA claim seek admissions to questions involving points of law, and, thus, are not binding on the court and are not proper summary judgment evidence.  See, e.g., Marino v. King, No. 10-09-00368-CV, 2010 WL 3434620, at *4 (Tex. App.—Waco Sept. 1, 2010, no pet.) (mem. op.) (raising issue of whether four admissions relied upon for summary judgment sought legal conclusions).  Clear Water merely contends that, absent the alleged improperly deemed admissions, Heinrich presented no evidence to conclusively establish the elements of his DTPA claim.

[4]           On appeal, Clear Water additionally contends that Heinrich failed to conclusively establish the elements of his breach of contract claim and, thus, was not entitled to summary judgment on that claim.  Because we hold that Heinrich conclusively established the elements of his DTPA claim and because the final summary judgment reflects that Heinrich elected to recover under the DTPA instead of on his breach of contract claim, we do not address whether Heinrich conclusively established the elements of the breach of contract claim.

[5]           The Honorable Dan Hinde, Judge of the 269th District Court of Harris County, Texas, participating by assignment.  See Tex. Gov’t Code Ann. § 74.003(h) (Vernon 2005).