law deemed admissions | What are deemed admissions under the Texas Rules of Civil Procedure? | effect of
failure to timely respond to requests for admissions | remedy for missing deadline to answer request for
admission | motion to strike, undeem deemed admissions, court permission or court's leave to late-file responses
to request for admissions RFA | amend discovery responses | discovery disputes |
DEEMED ADMISSIONS CASE LAW
If a party fails to timely serve a response to a request for admissions, the requests are
deemed admitted without a court order. TEX. R. CIV. P. 198.2(c). A matter admitted this
way is conclusively established as to the party making the admission unless the court
permits the party to withdraw or amend the admission. TEX. R. CIV. P. 198.3. Deemed
admissions are competent summary judgment evidence. Schafer v. Federal Servs. Corp.,
875 S.W.2d 455, 457 (Tex. App.—Houston [1st Dist.]1994, no writ) (holding that trial
court was free to consider deemed admissions, although not specifically referenced in
motion for summary judgment); TEX. R. CIV. P. 166a(c) Gellatly v. Unifund CCR Partners v. Gellatly (Tex.
App.- Houston [1st Dist.] July 3, 2008)(Nuchia) (credit card suit by assignee of card issuer against consumer, deemed
admissions, sufficiency of summary judgment proof, breach of contract and quantum meruit exclusive of each other)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia [pdf version here]
Before Justices Nuchia, Alcala and Hanks
01-07-00552-CV Unifund CCR Partners v. Sara Morgan Gellatly
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
Here, Unifund served Gellatly with requests for admission with its original petition, on December 14, 2006. Unifund filed its motion
for summary judgment on April 5, 2007, at which point no response to its requests for admissions was on file. Because no
response was timely filed, the requests for admissions were deemed admitted. See TEX. R. CIV. P. 198.2. However, Unifund did
argue to the trial court that these deemed admissions provided some summary judgment evidence in its favor.
Specifically, Unifund argued:
Plaintiff’s summary judgment evidence establishes that Defendant was given an extension of credit by Plaintiff’s predecessor in
interest, to purchase goods. The deemed admissions establish that Defendant entered into an agreement with Plaintiff/Plaintiff’s
predecessor in interest, that Defendant received the credit, that Plaintiff/Plaintiff’s predecessor in interest extended credit to
Defendant,and that Defendant made payments less than the total of the purchases.
The deemed admissions establish: (1) the existence of a contract between Gellatly and Unifund’s predecessor in interest; (2) that
Unifund’s predecessor in interest performed on the contract; (3) that Unifund now owns the debt; (4) that Gellatly breached the
contract by failing to make payments; and (5) that Unifund’s predecessor in interest and, therefore, Unifund were damaged by
Gellatly’s failure to pay. Gellatly presents no argument regarding the deemed admissions on appeal. The deemed admissions
supply conclusive proof of the elements of Unifund’s breach-ofcontract cause of action. 2 See TEX. R. CIV. P. 198.2; see Overstreet
v. Home Indemnity Co., 669 S.W.2d 825, 827–28 (Tex. App.—Dallas 1984) rev’d on other grounds by 678 S.W.2d 916 (Tex. 1984)
(holding that deemed admissions established right to summary judgment as matter of law.).
We hold that the deemed admissions and affidavits supply conclusive proof of the elements of Unifund’s cause of action. We
overrule Gellatly’s sole issue.
Unifund CCR Partners v. Weaver, No. 07-0682 (Tex. Aug. 29, 2008)(per curiam)
(credit card suit, deemed admissions, objections to discovery requests, limitations defense)
UNIFUND CCR PARTNERS v. KENNETH F. WEAVER; from McLennan County; 10th district
(10-06-00207-CV, 231 SW3d 441, 07-11-07, pet. granted)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and renders judgment.
DEEMED ADMISSIONS CASES FROM THE COURTS OF APPEALS IN
WHICH SUPREME COURT DENIED REVIEW
The Texas Supreme Court held in Wheeler that a party should have the opportunity to
withdraw deemed admissions "upon a showing of (1) good cause, and (2) no undue
prejudice," even if the issue is raised for the first time in a motion for new trial. Id. To
establish good cause, the party seeking to withdraw the deemed admissions must show that their failure to
respond was not intentional or the result of conscious indifference, but the result of accident
or mistake. Id.; see also Carpenter, 98 S.W.3d at 687-88. In Wheeler, the party seeking to withdraw
admissions was a pro se litigant who had miscalculated the deadline to file her responses and inadvertently filed
them two days after they were due. 157 S.W.3d at 441. The court held, "On this record, the lower courts could
have concluded that [Wheeler] was wrong on her dates and wrong on how to correct them, but not that either
was the result of intent or conscious indifference." Id. at 442.
09-0632
APRIL AND JOSHUA RAY VAN HOOSE v. VANDERBILT MORTGAGE AND FINANCE, INC.; from Milam County;
3rd district (03-08-00573-CV, ___ SW3d ___, 05-08-09, pet. denied Oct 2009)(deemed admissions, failure to
show good cause for withdrawal, pro se suit)
Appellants April and Joshua Van Hoose, appearing pro se, appeal from the trial court's grant of summary
judgment in favor of Vanderbilt Mortgage and Finance, Inc., on a breach of contract claim regarding a
manufactured home retail installment contract. We affirm the trial court's judgment.
In the present case, however, the Van Hooses do not argue that their failure to respond to the requests for
admissions was a result of accident or mistake, but simply argue that it was due "in part," to Ms. Van Hoose's
medical condition, which required her to avoid the stress of court proceedings. Because a showing of good
cause requires a party to show that their failure to respond was a result of accident or mistake, we hold that the
Van Hooses have failed to establish good cause to support the withdrawal of their deemed admissions. See id.;
Carpenter, 98 S.W.3d at 687-88.
In addition, the "good cause" standard governing the withdrawal of admissions also applies to motions for
leave to file a late summary-judgment response. See Carpenter, 98 S.W.3d at 687-88 (holding that trial court did
not abuse its discretion in denying leave to file late response where party did not meet "good cause" standard).
In light of our determination that the Van Hooses have failed to establish good cause to withdraw their
admissions, we further hold that they have not shown good cause for failing to timely respond to the motion for
summary judgment and are therefore not entitled to file a late response. The Van Hooses' first issue on appeal is
overruled.
When Cedyco failed to timely respond to the requests for admissions, they were deemed
admitted by Cedyco. See Tex. R. Civ. P. 198.2(a) (a party must respond to requests for
admissions within thirty days); 198.2(c) ("If a response is not timely served, the request is
considered admitted without the necessity of a court order.").
ANDERSON MARTIN WHITEHEAD v. CEDYCO CORPORATION; from Jasper County;
9th district (09-07-00090-CV, 253 SW3d 877, 05-01-08, pet. denied Dec 2008)
Thereafter, Whitehead filed a motion for summary judgment supported primarily by the deemed admissions and
Cedyco's pleadings. On the day of the summary judgment hearing, Cedyco appeared and filed a motion for
leave to make late responses to Whitehead's request for admissions. The trial court denied Cedyco's motion for
leave and granted Whitehead's summary judgment motion, declaring him "rightful owner and holder" of the $1.3
million judgment. The summary judgment also awarded Whitehead attorney's fees in the amount of $25,000.
Regarding the deemed admissions, we noted above that when a party fails to timely respond to
request for admissions, the matters therein are deemed admitted. Tex. R. Civ. P. 198.2(c).
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. Tex. R. Civ. P. 166a(c); see e.g., Acevedo v. Comm'n for
Lawyer Discipline, 131 S.W.3d 99, 105 (Tex. App.--San Antonio 2004, pet. denied). However, a request for
admission asking a party to admit or deny a purely legal issue is improper, and a deemed admission
involving a purely legal issue is of no effect. See Boulet v. State, 189 S.W.3d 833, 838 (Tex. App.--
Houston [1st Dist.] 2006, no pet.); Fort Bend Cent. Appraisal Dist. v. Hines Wholesale Nurseries, 844 S.W.2d
857, 858-59 (Tex. App.--Texarkana 1992, writ denied). This is so because the primary purpose of
requests for admissions is to simplify trials by eliminating matters about which there is no
real controversy. See Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996). "It 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." Id.
(quoting Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 208 (1950)).
Whitehead's motion for summary judgment contains, inter alia, the following assertion:
12. Three admissions by Defendant Cedyco Corporation are sufficient to support a judgment for Plaintiff
Whitehead. . . . Those three admissions are quoted here in full:
NO. 8: The sole current legal owner of the Judgment is Anderson Martin Whitehead.
NO. 9: Defendant Cedyco Corporation is not the current legal owner of the Judgment.
No. [sic] 10: Reasonable and necessary legal fees of the plaintiff in this suit are $25,000.00.
The deemed admissions Numbers 8 and 9, as quoted above, are purely questions of law and, therefore,
are improper summary judgment evidence. See Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005) (equating
merits-preclusive discovery sanctions with merits-preclusive deemed admissions for due process purposes);
Boulet, 189 S.W.3d at 838 (summary judgment may not be sustained by deemed admissions that "embrace the
fundamental legal issues to be tried"); Gore v. Cunningham, 297 S.W.2d 287, 291 (Tex. Civ. App.--Beaumont
1956, writ ref'd n.r.e.) (requests for admissions exists "to eliminate in advance of the trial fact issues which would
not be in dispute, and . . . the rule does not contemplate or authorize admissions to questions
involving points of law").
ANDERSON MARTIN WHITEHEAD v. CEDYCO CORPORATION; from Jasper County;
9th district (09-07-00090-CV, 253 SW3d 877, 05-01-08, pet. denied Dec 2008)
Accordingly, we hold the trial court erred in granting summary judgment as Whitehead's summary judgment
motion and proper summary judgment evidence failed to prove all the elements of Whitehead's claims as a
matter of law. We find Whitehead's motion was entirely supported by improper summary judgment evidence in
the form of pleadings and merits-preclusive deemed admissions solely embracing the fundamental legal issues
of the case. We sustain Cedyco's first appellate issue.
In light of our analysis and holding on issue one, and because we are remanding this cause to the trial court, we
decline to address Cedyco's second issue. The trial court may wish to revisit its ruling on Cedyco's motion for
leave to make late responses regarding the previously deemed admissions in an effort to avoid compromising
the presentation of the merits of either party to the suit. See Wheeler, 157 S.W.3d at 443 (citing TransAmerican
Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917-18 (Tex. 1991)).
We reverse the summary judgment of the trial court and remand for further proceedings consistent with this
opinion.
07-1038
ALINDA FRANCINE CARTER-THOMAS v. RICKY LYNN SULLIVAN; from Collin County; 5th district
(05-06-00990-CV, ___ SW3d ___, 11-06-07, pet. denied Jun 2008) as redrafted
(PI-auto accident negligence, pro se suits, deemed admissions)