## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 15

- 00032

- CV

IN RE CARLTON SEWELL

Original Mandamus Proceeding

Before Morriss, C.J., Moseley and Burgess, JJ. Opinion by Justice Burgess2 

### O P I N I O N
Carlton Sewell, Relator , has filed a petition for a writ of mandamus seeking relief from an order denying his motion to withdraw deemed admissions. After considering Relator’s petition and the response by the real parties in interest (RPI) , 1 we hold that the trial court erred in denying Relator’s motion to withdraw his deemed admissions. We conditionally grant the writ of
mandamus and order the trial court to vacate its orders denying withdrawal of Relator’s deemed admissions and to grant his motion to withdraw the deemed admissions.
I. Background Facts On January 15, 2008, Relator obtained an order from the C ounty C ourt of Hopkins Cou nty probating as a muniment of title Velma Ruth Fitzgerald’s will dated August 8, 2007 (the Will)

. On January 30, 2008, the RPI filed an opposition to the probate of the Will alleging that Fitzgerald lacked testamentary capacity and that the W ill was the result of undue influence exerted by Relator. The RPI alleged that Relator systematically gained psychological control over Fitzgerald by sequestering her and preventing contact between her and other family members . The RPI further alleged that Relator u tilized the authority Fitzgerald granted to him through a power of attorney to convert certain of her assets to his benefit. The contested probate proceeding was then transferred to the County Court at Law of Hopkins County. The issue before the Court in this original

1 The real parties in interest named in the opposition to the probate of the W ill are Sue Neal, Melanie Wells, Robert Wells, Harold Wells, Tracy Wright, Cynthia Terrell, Nick Wells, Alleen Neal, Nicholas Maryol, Anita Counts, and Troy Sewell.3

proceeding arises from Relator’s failure to timely answer requests for admissions during a period in which he was not represented by counsel

. On May 13, 2008, the RPI deposed Relator. On January 23, 2009, Relator’s original attorney was a llowed to withdraw from his representation of Relator

. On May 13, 2010, which was during the period in which Relator was unrepresented by counsel, he was served with requests for admissions 2 by the RPI. Relator admitted that the signature on the certifie d mail return receipt was his, but he did not remember the document. Relator did not answer the requests for admissions by the deadline , and under Rule 198.2 of the Texas Rules of Civil Procedure , they were deemed admitted. See T EX
. R. C IV
. P. 198.2(c). Relator remained unrepresented by counsel until August 4, 2010, when Frank Bauer filed his notice of appearance on Relator’s behalf. When Bauer entered his appearance , less than three months after the requests were served, he requested that all notices
g iven and papers that had been served in the proceeding be served on him. The RPI did not serve the requests for admissions on Bauer. The parties agree that after the requests for admissions were served , they conducted additional discovery, including reque sts for disclosures, interrogatories, requests for production, and additional depositions. On April 22, 2013, Bauer was allowed to withdraw as counsel for Relator. On July 19, 2013, Relator retained the services of his current counsel, J. Brad McCampbell , to represent him in the suit.

2 Most of the deemed admissions are merit

- preclusive.4

The case was set for a jury trial on the afternoon of January 12, 2015. That morning, the RPI filed a certificate of deemed admissions, attaching the requests for admissions previously served on Relator

. Neither Bauer no r McCampbell had any knowledge of the requests for admissions before the certificate was filed on the morning the case was set for trial. The trial court continued the case , and on February 10, 2015, Relator filed a motion to withdraw the deemed admission s, along with responses denying each of the requests for admissions. On April 7, 2015, the trial court held a hearing on Relator’s motion to withdraw the deemed admissions. Shortly before the hearing, the RPI filed a motion for summary judgment based on the deemed admissions. By order dated April 14, 2015, the trial court denied Relator’s motion to withdraw the deemed admissions and set the RPI’s motion for summary judgment for a hearing

. After Relator filed his petition for a writ of mandamus in this Court, the RPI filed a notice withdrawing eight of the deemed admissions that they acknowledged were merit

- preclusive. Of the eight remaining non

- withdrawn deemed admissions, the RPI admit that two are merit

preclusive. In the same filing, the RPI repudi ated their motion for summary judgment. On July 7, 2015, t he trial court entered an order accepting the RPI’s withdrawal of eig ht deemed admissions, reaffirming its order denying Relator’s motion to withdraw the eight remaining deemed admissions , and f in ding that Relator did not have good cause to withdraw the admissions because he had acted with conscious indifference. The trial court accepted the RPI’s withdrawal of their motion for summary judgment.5

II. General Standard of Review Applicable to Petitions Seeking a Writ of Mandamus Mandamus issues only when the record shows (1) a clear abuse of discretion by the trial court or the failure of the trial court to perform a ministerial act or duty and (2) the absence of an adequate reme dy at law. Walker v. Packer , 827 S.W.2d 833, 839

– 40 (Tex. 1992) (orig. proceeding); In re Ingram , 433 S.W.3d 769, 771 (Tex. App.

— Texarkana 2014, orig. proceeding); In re Rozelle , 229 S.W.3d 757, 760 (Tex. App.

— San Antonio 2007, orig. proceeding). The tri al
court errs in this context when “‘ it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. ’” Walker , 827 S.W.2d at 839 (quoting Johnson v. Fourth Court of Appeals , 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding) ); Ingram , 433 S.W.3d at 771; see also Rozelle , 229 S.W.3d at 760 . Under this standard, when determining applicable law or applying the law to the facts, the trial court has no discretion. Walker , 827 S.W.2d at 840; Ingram , 433 S.W.3d at 771 . When the trial court clearly fails to correctly analyze or apply the law in this context , mandamus may issue. Walker , 827 S.W.2d at 840; Ingram , 433 S.W.3d at 771; Rozelle , 229 S.W.3d at 761. Thus, mandamus will issue when a trial court fails to apply the proper legal standard. See CNB Tex. Nat ’ l Bank v. Coker , 765 S.W.2d 398, 400 (Tex. 1986). Generally, a trial court’s orders relating to discovery can be corrected on appeal, and consequently, mandamus is typically not available with respect t o discovery issues

. Rozelle , 229 S.W.3d at 761. For this reason, a party seeking mandamus review of a trial court’s discovery order

must also show that an ordinary appeal is an inadequate remedy. Walker , 827 S.W.2d at 841

– 42; Rozelle , 229 S.W.3d at 761. If the trial court imposes discovery sanctions that effectively preclude a party from presenting his claims or defenses, such as striking pleadings, dismissing the action,6

or entering a default judgment, then an ordinary appeal is an inadequate remedy unless a final, appealable judgment is entered simultaneously

. Walker 827 S.W.2d at 843; Trans

- American Natural Gas Corp. v. Po w ell , 811 S.W.2d 913, 919 (Tex. 1991).
III. Burdens of Proof Applicable to Motions to Withdraw Deemed Admissions A. Rule 198 of the Texas Rules of Civil Procedure Under Rule 198 of the Texas Rules of Civil Procedure , if a party does not timely respond
to a request for admissions , “ the request is considered admitted without the necessity of a court order. ” T EX
. R. C IV
. P. 198.2(c). Further, any matter deemed admitted “ is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission. ” T EX
. R. C IV
. P

. 198.3. To obtain permission to withdr aw deemed admissions, a party must show (1) good cause, (2) that the other party will not be unduly prejudiced, and (3) that the presentation of the merits of the lawsuit will be served by the withdrawal. See id. ; Wheeler v.
Green , 157 S.W.3d 439, 44 3 n.2 (Tex. 2005) (per curiam) . Generally, a party demonstrates “ good

cause ” by showing that his failure to respond “ was accidental or the result of a mistake, rather than intentional or the result of conscious indifference. ” Stelly v. Papania , 927 S.W.2d 620, 622 (Tex. 1996) (per curiam). “U ndue 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 (c iting Carpenter v. Cimarron Hydrocarbons Corp. , 98 S.W.3d 682,
687 ( Tex. 2002) ) ; Stelly , 927 S.W.2d at 622 ; see also Wal

– Mart Stores , Inc. v. Deggs , 968 S.W.2d 354, 357 ( Tex. 1 998) (per curiam) (finding no undue prejudice from withdraw al of deemed admissio ns where plaintiff had already deposed withdrawing party )

. Finally, “ [ t ]he burden of7

proof on all three requirements [of Rule 198.3] is on the party seeking withdrawal.” Morgan v. Timmers Chevrolet

, Inc ., 1 S.W.3d 803, 807 (Tex. App.

— Houston [1 st Dist.] 1999, pet. denied ).
B. Merit
- Preclusive Requests for Admissions
A different standard applies when the deemed admissions are merit

- preclusive. When admissions are used in an attempt to “ preclude the presentation of the merits of a case, ” due process is implicated since the deemed admissions compromise a party ’ s right to present the merits of his

case. See Wheeler , 157 S.W.3d at 443; Rozelle , 229 S.W.3d at 763. By denying a motion to withdraw merit

- preclusive admissions , the trial court effec tively enters a case

- ending discovery sanction. Marino v. King , 355 S.W.3d 629, 632 (Tex. 2011) (per curiam) (“ [W] hen admissions are deemed as a discovery sanction to preclude a presentation of the merits, they implicate the same due process concerns as o ther case

- ending discovery sanctions.”). The Texas Supreme Court has held that [ t ] he imposition of ve ry severe sanctions is limited . . . by constitutional due process. . . . When a trial court strikes a party ’ s pleadings and dismisses its action or rende rs a default judgment against it for abuse of the discovery process, the court adjudicates the party ’ s claims without regard to their merits but based instead upon the parties ’ conduct of discovery. “ [T]here are constitutional limitations upon the power o f courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause. ” Discovery sanctions cannot be used to adjudicate the merits of a party ’ s claims or defenses unles s a party ’ s hindrance of the discovery process justifies a presumption that it s claims or defenses lack merit. . . . 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 fa ith or counsel ’ s callous disregard for the responsibilities of discovery under the rules.
Po w ell , 811 S.W.2d at 91 8 (citations omitted) (quoting Wheeler , 157 S.W.3d at 443 ) ; see also
Marino , 355 S.W.3d at 633; Rozelle , 229 S.W.3d at 763

– 64. Moreover, “ [ a ] party seeking8

sanctions has the burden of establishing his right to relief.” GTE Comm c’ ns Sys

. Corp. v. Tanner , 856 S.W.2d 725, 729 (Tex. 1993). Accordingly, where a party moves to withdraw deemed admissions that are merit

preclusive, due

- process req uires the party opposing withdrawal to prove that the moving party’s failure to answer the admissions resulted from “ ‘ flagrant bad faith or callous disregard of the rules. ’ ” Time Warner

, Inc. v. Gonzalez , 441 S.W.3d 661, 66 6 (Tex. App.

— San Antonio 2014, pet. denied) (quoting Wheeler , 157 S.W.3d at 443)

. Thus, a lthough a party moving to withdraw admissions ordinarily must prove the requirements of Rule 198.3, when the deemed admissions

are merit

- preclusive, good cause exists absent bad faith or callous di sregard of the rules by the party seeking the withdrawal. Marino , 355 S.W.3d at 634; Gonzalez , 441 S.W.3d at 66 6

. Moreover, in such instances, it is presumed that presentation of the merits would be served by allowing withdrawal of the deemed admissions. See , e.g. , Marino , 355 S.W.3d at 634. 3 Nevertheless, this burden of proof applies only to motions to withdraw merit

- preclusive requests for admissions. If a motion to withdraw deemed admissions concerns non - merit

preclusive admissions, then the moving party must prove all of the requirements of Rule 198.3, and the trial court has broad discretion to grant or deny withdrawal. Stelly , 927 S.W.2d at 622. And, because non

- merit

- preclusive requests do not in volve due process considerations, a trial

3 The Supreme Court has not decided whether a party moving to withdraw merit

- preclusive admissions must prove that withdrawal would not unduly prejudice the non

- moving party , or whether the non

- moving party must show that withdrawal would be unduly prejudicial

. Nevertheless , for the reasons stated below , we find that the RPI will not be unduly prejudiced regardless of which party bears that burden of proof . Therefore, we do not decide that issue here.9

court’s order relating to discovery , which is “merely incidental to the normal trial process , ” may be corrected on appeal, and mandamus is not available. Rozelle , 229 S.W.3d at 761.
IV. Application of the Standard o f Review to the Present Case A. Some of t he Deemed Admissions are Merit
- P reclusive RPI served sixteen requests for admissions on Relator. After Relator filed this action, the RPI filed their N otice of W ithdrawal and R epudiation of C ertain D eemed A dmissions, wherein they withdrew request number s 1, 3, 5, 8, 9, 14, 15, and 16. The trial court granted the RPI’s withdrawal. Thus, only the following eight request s for admissions are at issue in this case : 2. ADMIT OR DENY T hat throughout the spring and summer of 2007, Velma Ruth Fitzgerald was physically and mentally weak enough to be susceptible to undue influence.

. . . . 4. ADMIT OR DENY T hat you engaged in a campaign to keep other relatives of Velma Ruth Fitzgerald from having contact with her as part of y our scheme to exert undue influence over her.

. . . . 6. ADMIT OR DENY T hat 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.
7. ADMIT OR DENY T hat you told the Whi te brothers in Vernon that Velma Ruth Fitzgerald was not competent when she signed their lease contract.

. . . .10

10. ADMIT OR DENY T hat you misrepresented the nature of Velma Ruth Fitzgerald ’ s mental independence to Ray Johnson and his staff.
11. ADMIT OR DENY T hat 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.
12. ADMIT OR D ENY T hat you prevented Velma Ruth Fitzgerald from having telephone contact with her lifelong friend, Eurice Lee White.
13. ADMIT OR DENY T hat you habitually subjected Velma Ruth Fitzgerald to your control during the last year of her life. In their Reply to R elator’s Petition for Writ of Mandamus, the RPI admit that Requests 2 and 4 are
merit

- preclusive. Accordingly, the Motion to Withdraw Deemed Admissions involved merit

preclusive admissions.
B. There is no Evidence of Flagrant Bad Faith or Callous Disregard of the Discovery Rules by Relator The record shows that Relator was served with the requests for admissions while he was unrepresented. Although he admits that his signature appears on the certified mail return receipt, he does not remember the admission s requests . Neither of the two attorneys that subsequently represented Relator had any knowledge of the requests for admissions

. Further, the parties agree that after the request s for admissions w ere served , they conducted additional discovery, including serving and/or responding to requests for disclosures, interrogatories, requests for production, and additional depositions. Relator’s current attorney learned of the requests for admissions on the morning o f trial and, after learning of them, filed a motion to withdraw the admissions, along with11

belated responses. The RPI point to Relator’ s service of discovery on them while still unrepresented and after having been served with the request s for admissions a s evidence that Relator “ had some degree of legal sophistication. ” However, neither of Relator’s discovery requests was signed, and on neither was service properly certified. None of this is evidence of flagrant bad faith or callous disregard for the R ul es. C. Withdrawal of the Deemed Admissions Would Not Unduly Prejudice the RPI The record does not show that the RPI w ere unable to prepare for trial without the admissions. The RPI deposed Relator before serving the ir requests for admissions

. Relator asserts that his deposition testimony contradicts the substance of the requests for admissions , and the RPI do not dispute this assertion in their brief. Therefore, the RPI w ere aware that the matters in their requests for admissions were contested. See Deggs , 968 S.W.2d at 357 (party relying on deemed admissions not unduly prejudiced by withdrawal of admissions when she had deposed withdrawing party). Although the RPI point to their decision not to depose certain third parties in reliance on the deemed admissions as evidence of undue prejudice, the RPI clearly chose to do so
at their own risk since they knew the matters were contested. The primary purpose of requests for admissions is “ ‘ to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to
prove. ’ ” Stelly , 927 S.W.2d at 622 (quoting Sanders v. Hander , 227 S.W. 2 d 206, 208 (Tex. 1950) ). When “ used to establish controverted issues that constitute the fundamental legal issues in a case, ” requests for admission s are improper. Gonzalez , 441 S.W.3d at 668. Since the RPI knew that many, if not all, of the dee med admissions were improper, they cannot now point to their reliance12

on them as evidence that they w ere unable to prepare for t rial. See M arino , 355 S.W.3d at 632

– 33; Gonzalez , 441 S.W.3d at 668

– 69. Further, any prejudice to the RPI was largely of their own making. The record shows that when Bauer entered his appearance as counsel for Relator less than three months after the r equests for admissions had been served, he requested that all notices that had been given and all papers that had been served in the lawsuit be served on him. Bauer’s request was made over four years before the scheduled trial of this case. Had the RPI s imply notified Bauer that they had served the requests for admissions on his client, the motion to withdraw the deemed admissions could have been filed and heard years before trial, allowing the RPI more than enough time to conduct any additional discovery they though t necessary. 4 We find that the RPI would not be unduly prejudiced by allowing Relator to withdraw the deemed admissions

. The present case is similar to Rozelle , where the court of appeals issued a writ of mandamus to the trial court directing the withdrawal of deemed admissions because the admissions in question were merit

- preclusive. Rozelle , 229 S.W.3d at 764. The court of appeals quoted counsel ’s argument to the trial court in support of its ruling:

These admissions served on Mr. Rozelle contained a lot of conclusions, questions that were in dispute and basically asked him to admit or deny he was

4 The RPI cite Morgan v Timmers Chevrolet, Inc. , 1 S.W.3d 803, 805

– 06 (Tex. App.

— Houston [1 st Dist.] 1999, pet. denied), and Boulet v. State , 189 S.W.3d 833, 838 (Tex. App.

— Houston [1 st Dist.] 2006, no pet.), in support of their argument that they would be unduly prejudiced. In Morgan , the proponent of the deemed admissions pointed out the admitting party’s failure to answer the requests for admissionss two years before trial, unlike here, where the RPI never notified Relator or his attorneys until the day of trial. See M organ , 1 S.W.3d at 805

– 06. The court of appeals found that the admitting party ’s failure to answer the requests for two years after the deficiency had been brought to his attent ion allowed the proponent of the admissions to rely on the deemed admissions in preparing its case. Id. In Boulet , the court of appeals held that the trial court abused its discretion in not allowing Boulet to withdraw merits

preclusive admissions when n o flagrant bad faith or callous d isregard for the R ules was shown. Boulet , 189 S.W.3d at 838

.13 not [a] beneficiary, admit or deny [the] trust, requested

— in oth er words, they went to the heart of the matter. They were not admissions for the genuineness of the document or [to] admit undisputed facts as contemplated by the Legislature.

. . . .

. . . and the request[s] for admissions, themselves, are not proper q uestions, Your Honor. Those are intended specifically for something like that, for a trap to be set, for a trap to be laid, and I don ’ t believe it ’ s proper. They already knew what the answers were going to be. They already deposed him.

. . . . I again assert that it is not the purpose of requests for admissions , to try the case on [the] merits when they already had those answers. They already deposed him, knew what his responses would be. They knew he was claiming an interest of the trust. That ’ s th e whole point or basis of quite a few suits. Id. at 763. As in Rozelle , t he admissions in this case went to the heart of the matter and occurred after Relator’s deposition wherein he placed those matters in issue. Therefore, Re lator was entitled
to withdraw the merit

- preclusive deemed admissions.
V. Mandamus Should Issue as to All Remaining Admissions and Not Just Those the RPI Admit are Merit
- Preclusive As noted, the RPI admit that Requests 2 and 4 are merit

- preclusive. Nevertheless, the RPI assert that by virtue of their Notice of Withdrawal and Repudiation of Certain Deemed Admissions, they are free to use the remaining admissions at trial. In other words, the RPI contend that they have excised the merit

- preclusive admissions and that the remaining admissions are non

merit

- preclusive

. As a result, their reasoning continues, under Rule 198.3 ’s standard of review applicable to non

- merit

- preclusive admissions, Relato r’s conscious indifference negates good cause to withdraw those admissions. The trial court agreed with the RPI as evidenced by its July 7,14

2015 , Order Granting Contestants’ Notice of Withdrawal and Repudiation of Certain Deemed Admissions. In doing so, the trial court applied an incorrect legal standard. The Texas Supreme Court has stated that t he primary purpose of requests for admissions is “ ‘ to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to prove. ’ ” Stelly , 927 S.W.2d at 622 (quoting Sanders , 227 S.W.2 d
at 208 )

. “ When requests for admission s are used as intended

— addressing uncontroverted matters or evidentiary ones like the authenticity or admissibility of documents

— deeming admissions by default is unlikely to compromise presentation of the merits

. ” Wheeler , 157 S.W.3d at 443 (citing Stelly , 927 S.W.2d at 622). Thus, they were never intended to be a trap in which a party admits he has no cause of action or defense. Marino , 355 S.W.3d at 632 (citing Stelly , 927 S.W.2d at 622). Clearly, using admissions to prove authenticity or admissibility of documents does not require a party to admit he has no cause of action or defense. See i d . Likewise, an admission on an uncontroverted matter does not prevent a party from litigating the merits of his claim or defense. But whether an admission is one which precludes litigation of a claim or defense or merely seeks admission of an uncontrover ted matter may not always be apparent until the admission is evaluated in the context of the other evidence. For example, in the present case, the RPI challenged the W ill, alleging that Relator exercised undue influence over the testatrix. In In re Estat e of Reno , 443 S.W.3d 143 (Tex. App.

— Texarkana 2009 , no pet. ) , we stated the elements of a claim of undue influence as follows : To justify setting aside a will because of undue influence, a contestant must prove (1) the existence and exertion of an influen ce (2) that subverted or overpowered the mind of the testator at the time of execution of the instrument (3) so that the testator15

executed an instrument he or she would not otherwise have executed but for such influence. Id. at 150. Moreover, we also held that the general topics examined to prove an influence was undue are : the relationship existing between the testator and the parties, the opportunities for an exertion or deception, the circumstances surrounding the drafting and execution of the will, th e existence of a fraudulent motive, and any domination of the testator by another. Id

. at 151. Additionally, we held , E ven though none of the circumstances standing alone would be sufficient to satisfy the elements of undue influence, if when considered together the circumstances produce a reasonable belief that an influence was exerted that subverted or overpowered the mind of the testator and resulted in the execution of the testament in controversy, the evidence is sufficient to sustain such conclusion

. Id

. Clearly, an admission that one exercised undue influence over the testatrix would be merit

preclusive because undue influence is the ultimate issue in the case. But an admission that “ you habitually subjected Velma Ruth Fitzgerald to your control during the last year of her life” could
also be merit

- preclusive depending upon the nature and quantity of the other evidence presented. If Relator is prohibited from introducing evidence to controvert that he “ habitually subjected Velma Ruth Fitzgerald t o [his] control during the last year of her life” and that fact is all that remains to establish undue influence, then the request could be merit

- preclusive because it conclusively establishes the missing proof. Moreover, the cumulative effect of admitti ng (1) 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,” (2) that “ you told the White brothers in Vernon that Velma Ruth Fitzgerald was not16

competent when she sig ned their lease contract,” (3) t hat “ you misrepresented the nature of Velma Ruth Fitzgerald ’ s mental independen ce to Ray Johnson and his staff,” (4) 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 ,” (5) that “ you prevented Velma Ruth Fitzgerald from having telephone contact with her lifelong friend, Eurice Lee White ,” and (6) that “ you habitually subjected Velma Ruth Fitzgerald to your control during the las t year of her life ” could be merit

- preclusive depending upon the nature and quantity of other evidence presented to the fact

- finder. If the remaining evidence is scant, then by deeming those facts admitted and prohibiting Relator from litigating the truth of those facts at trial, Relator will be precluded from contesting the merits of the claims of the RPI . Accordingly, it is not possible to determine that the remaining requests for admissions are not merit

- preclusive without seeing the remainder of the e vidence. 5
Because merit

- preclusive admissions operate as a sanction that implicates due process concerns, whereas non

- merit

- preclusive admissions do not, then it is not enough to show that the admissions do not conclusively establish the ultimate issue i n the case to escape withdrawal. Rather, the record must affirmatively show that the requests are not merit

- preclusive, either by showing that they seek to authenticate or prove the admissibility of documents or by showing that they involve uncontroverted facts. 6 Moreover, because merit

- preclusive admissions implicate due

5 The RPI also alleged that the testatrix lacked testamentary capacity and that Relator converted e state assets through his use of the authority granted him by th e testatrix through a power of attorney. For the same reasons discussed above, it is not possible to determine on this record that the remaining admissions are not merit

- preclusive as to those causes of action as well.

6 For example, if a plaintiff in a personal injury suit testified in his deposition that one of his injuries was not caused or aggravated by the defendant’s actions at issue and the defendant followed up the deposition with a request for17

process concerns, when the record does not affirmatively establish that the admissions are no n merit

- preclusive, we must presume that they are merit preclusive

. T he mandamus record befo re us does not affirmatively show that the requests for admissions are no n - merit preclusive ; consequently, if the RPI cannot establish that the deemed admissions resulted from Relator’s flagrant bad faith or callous disregard of the discovery rules and if the trial court’s denial of Relator’s motion to withdraw the deemed admissions wa s not accompanied by a simultaneous ly entered, final, appealable judgment, then mandamus will issue as to all of the requests for admissions. In the present case, the RPI conc ede that Requests 2 and 4 are merit

- preclusive, and the record does not show tha t the remaining requests are non

- merit preclusive. As a result, we must presume that they are. Therefore, Relator’s Motion to Withdraw Deemed Admissions must be granted as to all of the requests f or admissions

—

request numbers 2, 4, 6, 7, 10, 11, 12, and 13.
VI. Conclusion Based on the foregoing, we conclude that the trial court erred in denying Relator’ s M otion
to W ithdraw D eemed A dmissions because it applied an incorrect legal standard

. By ruling that Relator had not established good cause for withdrawal because his failure to answer the requests resulted from conscious indifference, the trial court applied the legal standard applicable to non merit

- preclusive admissions. Because the RPI admit that two of the admissions in question are merit

- preclusive and because the record does not affirmatively show that the remaining requests

admission that the defendant did not cause or aggrav ate the particular injury, the deposition testimony would be some evidence affirmatively showing that the request for admission concerned an uncontroverted issue.18

are non - merit preclusive, then the trial court should have a pplied the standard applicable to merit

preclusive admissions. Under that standard, withdrawal is required because the RPI failed to prove that Relator’s admissions resulted from flagrant bad faith or callous disregard of the discovery rules, and withdraw al will not unduly prejudice the RPI. Finally, because the trial court’s order denying withdrawal was not accompanied by a simultaneous ly entered, final, appealable judgment , Relator has no adequate remedy at law by appeal. Accordingly, we conditionally g rant the writ of mandamus. Because we are confident that the trial court will act promptly to (1) vacate its order s of April 14, 2015 , and July 7, 2015 , insofar as they deny Relator’ s M otion to W ithdraw D eemed A dmissions, and (2) enter an order allowing
R elator to withdraw all of his deemed admissions, the writ will not issue unless the trial court fails to do so within ten days of the date of this opinion.

Ralph K. Burgess Justice Date Submitted: August 24 , 2015 Date Decided: August 25 , 2015