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TEXAS COURT OF APPEALS, = THIRD=20 DISTRICT, AT AUSTIN
NO. 03-08-00
v. Vanderbilt Mortgage and = Finance,=20 Inc., Appellee
FROM THE = DISTRICT=20 COURT OF MILAM COUNTY, 20TH = JUDICIAL=20 DISTRICT NO.
Appellants April and Joshua Van Hoose, appearing pro se, appeal = from=20 the trial court's grant of summary judgment in favor of Vanderbilt = Mortgage and Finance, Inc., on a breach of contract claim = regarding a=20 manufactured home retail installment contract. We affirm the trial = court's=20 judgment. BACKGROUND Vanderbilt was the holder of a manufactured home retail = installment=20 contract signed by the Van Hooses in connection with their = purchase of a=20 manufactured home in August 1999. In October 2007, Vanderbilt = filed suit=20 against the Van Hooses for breach of contract on the grounds that = they had=20 defaulted on their mortgage payments. Vanderbilt sought = foreclosure and=20 repossession of the manufactured home, judgment on the unpaid = balance=20 under the contract, and attorney's fees. Vanderbilt subsequently = served=20 the Van Hooses with requests for admissions regarding each element = of its=20 breach of contract claim. These requests went unanswered by the = Van Hooses=20 and were deemed admitted. See Tex. R. Civ. P. 198.2(c). = In March=20 2008, Vanderbilt filed a motion for summary judgment, attaching = the deemed=20 admissions, as well as copies of the contract, the notice of = default sent=20 to the Van Hooses by Vanderbilt, the notice of acceleration and = demand for=20 full payment, and the affidavit of a Vanderbilt representative = attesting=20 to the default, the deficiency amount, and the supporting = documents. The=20 Van Hooses did not respond to the motion, and after a hearing in = which=20 Joshua Van Hoose represented the appellants, the trial court = granted=20 summary judgment, stating that in light of the deemed admissions, = "the=20 Court has no choice but to grant the motion for summary judgment." = The Van=20 Hooses then filed a "Motion to Set Aside Summary Judgment, or = Notice of=20 Appeal," which was forwarded to this Court as a notice of = appeal. DISCUSSION The Van Hooses' brief on appeal does not contain a list of =
issues=20
presented for review. See Tex. R. App. P. 38.1(f) =
(requiring=20
appellant's brief to "state concisely all issues or points =
presented for=20
review"). However, the Van Hooses appear to be making two =
arguments on=20
appeal--that the summary judgment should be reversed because their =
failure=20
to respond to the motion or answer Vanderbilt's requests for =
admissions=20
was not intentional or due to conscious indifference, and that =
summary=20
judgment was improper because Vanderbilt failed to properly apply =
payments=20
to their account, improperly charged them for insurance coverage, =
and=20
"modified the due dates of the contract." A party is not required to respond to a traditional motion for = summary=20 judgment. Carpenter v. Cimarron Hydrocarbons Corp., 98 = S.W.3d=20 682, 687 (Tex. 2002). In the present case, however, the Van Hooses = not=20 only failed to respond to the motion for summary judgment, but = failed to=20 respond to Vanderbilt's discovery requests, leading the trial = court to=20 grant summary judgment based on deemed admissions. If a party = fails to=20 respond to a request for admissions, the request is considered = admitted.=20 Tex. R. Civ. P. 198.2(c). "A matter admitted under this rule is=20 conclusively established as to the party making the admission = unless the=20 court permits the party to withdraw or amend the admission." Tex. = R. Civ.=20 P. 198.3. This rule applies equally to pro se litigants and to = those=20 represented by counsel. See Mansfield State Bank v. Cohn, = 573=20 S.W.3d 181, 184-85 (Tex. 1978) ("There cannot be two sets of=20 procedural rules, one for litigants with counsel and the other for = litigants representing themselves. Litigants who represent = themselves must=20 comply with the applicable procedural rules, or else they would be = given=20 an unfair advantage over litigants represented by counsel."). A = trial=20 court may permit the withdrawal or amendment of an admission if = the party=20 shows good cause and the court finds that the opposing parties = will not be=20 unduly prejudiced and that presentation of the merits will be = subserved.=20 Tex. R. Civ. P. 198.3. In the present case, the Van Hooses do not dispute their =
receipt of the=20
requests for admissions and did not seek to withdraw or amend the =
deemed=20
admissions at any point during the proceedings. The Texas Supreme Court held in Wheeler that a party = should=20 have the opportunity to withdraw deemed admissions "upon a showing = of (1)=20 good cause, and (2) no undue prejudice," even if the issue is = raised for=20 the first time in a motion for new trial. Id. To = establish good=20 cause, the party seeking to withdraw the deemed admissions must = show that=20 their failure to respond was not intentional or the result of = conscious=20 indifference, but the result of accident or mistake. Id.; = see=20 also Carpenter, 98 S.W.3d at 687-88. In Wheeler, the = party=20 seeking to withdraw admissions was a pro se litigant who had = miscalculated=20 the deadline to file her responses and inadvertently filed them = two days=20 after they were due. 157 S.W.3d at 441. The court held, "On this = record,=20 the lower courts could have concluded that [Wheeler] was wrong on = her=20 dates and wrong on how to correct them, but not that either was = the result=20 of intent or conscious indifference." Id. at 442. In the present case, however, the Van Hooses do not argue that = their=20 failure to respond to the requests for admissions was a result of = accident=20 or mistake, but simply argue that it was due "in part," to Ms. Van = Hoose's=20 medical condition, which required her to avoid the stress of court = proceedings. Because a showing of good cause requires a party to = show that=20 their failure to respond was a result of accident or mistake, we = hold that=20 the Van Hooses have failed to establish good cause to support the=20 withdrawal of their deemed admissions. See id.;=20 Carpenter, 98 S.W.3d at 687-88. In addition, the "good cause" standard governing the withdrawal = of=20 admissions also applies to motions for leave to file a late=20 summary-judgment response. See Carpenter, 98 S.W.3d at = 687-88=20 (holding that trial court did not abuse its discretion in denying = leave to=20 file late response where party did not meet "good cause" = standard). In=20 light of our determination that the Van Hooses have failed to = establish=20 good cause to withdraw their admissions, we further hold that they = have=20 not shown good cause for failing to timely respond to the motion = for=20 summary judgment and are therefore not entitled to file a late = response.=20 The Van Hooses' first issue on appeal is overruled. In their second issue on appeal, the Van Hooses assert that = summary=20 judgment was improper because they would not have defaulted on the = contract if Vanderbilt had not improperly credited payments to = their=20 account, "improperly modified the due dates of the contract," and=20 improperly charged them for insurance coverage. In addition to=20 contradicting the deemed admissions presented to the trial court = at the=20 summary-judgment hearing, these assertions in the Van Hooses' = brief on=20 appeal are unaccompanied by citations to the record or supporting = legal=20 authority. As a result, we consider this issue to be inadequately = briefed=20 and decline to address it. See Tex. R. App. P. 38.1(i) = (requiring=20 "appropriate citations to authorities and to the record"). CONCLUSION In light of our determination that the trial court did not err = in=20 granting summary judgment in favor of Vanderbilt, we affirm the = trial=20 court's order. __________________________________________ Diane M. Henson, Justice Before Chief Justice Jones, Justices Puryear and Henson Affirmed Filed: May 8, 2009 1. While the Van Hooses do not actually = reference the=20 requests for admissions in their brief on appeal, we will assume = that=20 their statement regarding their failure to "timely and correctly = respond=20 to Summary Judgment" includes the failure to respond to = Vanderbilt's=20 requests for admissions, as summary judgment was predicated, at = least in=20 part, on the deemed admissions.=20 2. At the summary-judgment hearing, in = response to the=20 court's statement that the unanswered requests for admissions were = deemed=20 admitted, Mr. Van Hoose responded, "I'm not arguing that, Your = Honor."=20 When the court later explained, "But you've admitted already that = what=20 he's suing you for is true," Mr. Van Hoose stated, "I'm admitting = that=20 what he's filing under is true, but if you actually look at the = dates,=20 there's a discrepancy." This statement, referring to the Van = Hooses'=20 argument that Vanderbilt imposed an incorrect due date on their = mortgage=20 payments, appears to be a concession regarding the deemed = admissions.=20 3. The Van Hooses state, "Responses were not = filed=20 correctly by the Defendant[s] is in part [sic] due to April Van = Hoose's=20 medical conditions (Systemic Lupus and Pulmonary Hypertension) = which her=20 doctor states that [sic] the additional stress of court is an = immediate=20 threat to her health and life." We note that Joshua Van Hoose = participated=20 in the summary-judgment hearing and filed multiple pro se = pleadings=20 throughout the course of the litigation, including a counterclaim = for=20 breach of fiduciary duty. = |