law deemed admissions

Deemed Admissions

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.

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)