TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00286-CV

Phillicia C. Lee, Appellant

v.

Unifund CCR Partners as Assignee of Texas Tech University, Appellee

FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY

NO. C-1-CV-06-002423, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant Phillicia C. Lee appeals the county court’s grant of summary judgment

against her, based in part on deemed admissions, arguing that summary judgment was improper

because there were disputed issues of material fact. We affirm the county court’s judgment.

On April 13, 2006, appellee, Unifund CCR Partners as Assignee of Texas Tech

University(Unifund), brought suit against Lee on unpaid credit card debt. Incorporated in Unifund’s

petition, which was entitled Plaintiff’s Original Petition, Request for Disclosures and Request for

Admissions, were requests for admissions. Lee filed her general denial on May 23, 2006, but neither

responded nor objected to the discovery requests. On January 22, 2007, Unifund filed its motion for

summary judgment based on deemed admissions and the affidavit of Angela Freckman, a Unifund

representative. After hearing the motion on March 29, 2007, the county court granted the motion

and entered judgment in favor of Unifund on April 5, 2007.
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In three issues, Lee argues that Unifund’s requests for admissions were improperly

served and, thus, could not support Unifund’s motion for summary judgment. In addition, Lee

argues that, even if the requests for admissions were properly served, Lee’s general and verified

denials amounted to a denial of Unifund’s requests. Finally, because summary judgment was

improper, Lee argues, the county court’s award of attorneys’ fees should also be reversed.

We review the county court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott,

128 S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper when there are no disputed issues

of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c).

When reviewing a summary judgment, we take as true all evidence favorable to the non-movant,

and we indulge every reasonable inference and resolve any doubts in the non-movant’s favor.

Valence Operating Co., 164 S.W.3d at 661; Knott, 128 S.W.3d at 215.

Texas Rule of Civil Procedure 198 governs the form and content of requests for

admissions. See Tex. R. Civ. P. 198. Lee complains of the form in which the requests for

admissions were served—she seems to concede that serving the requests simultaneously with the

petition was permissible, but argues that including the requests in a single document with the petition

was impermissible. Lee, however, raised no objection to the form of Unifund’s requests before the

county court, as required by the rules of civil procedure.

The rules require a party to make complete responses to written discovery requests:

A party must respond to written discovery in writing within the time provided by

court order or these rules. When responding to written discovery, a party must make

a complete response, based on all information reasonably available to the responding

party or its attorney at the time the response is made. The responding party’s
 Having found that Lee waived her objection to Unifund’s requests for admissions, we need

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not determine, as Lee contends, whether “Imbedding Requests for Admissions in a Petition

Violate[s] Texas Rules of Civil Procedure.”

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answers, objections, and other responses must be preceded by the request to which

they apply.

Id. 193.1. If a party is asserting an objection and refusing to respond, he must do so in writing:

Form and time for objections. A party must make any objection to written discovery

in writing - either in the response or in a separate document - within the time for

response. The party must state specifically the legal or factual basis for the objection

and the extent to which the party is refusing to comply with the request.

Id. 193.2(a). If the party fails to object, he waives his objection:

Waiver of objection. An objection that is not made within the time required, or that

is obscured by numerous unfounded objections, is waived unless the court excuses

the waiver for good cause shown.

Id. 193.2(e)

Lee’s argument rests on her assertion that Unifund’s requests for admissions were

improperly served as part of Unifund’s petition. Lee, however, never objected to Unifund’s requests

for admissions and never sought a ruling on such an objection. She simply failed to respond.

Under such circumstances, Lee’s complaint is waived. See id. Accordingly, Unifund’s requests

for admissions were properly deemed admitted, see id. 198.29(c), and we overrule

Lee’s first point of error.1
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Lee next contends that, even if Unifund’s requests for admissions were properly

served, Lee’s general denial had the effect of denying each of the admissions in Unifund’s requests.

While Lee is correct in her assertion that “[a] general denial puts at issue everything in the plaintiff’s

petition that is not required to be denied under oath or specifically denied,” see Shell Chem. Co.

v. Lamb, 493 S.W.2d 742, 744 (Tex. 1973), Lee cannot rely on such denial as a form of response to

written discovery requests. Specifically, when responding to requests for admissions, a party must:

specifically admit or deny the request or explain in detail the reasons that the

responding party cannot admit or deny the request. A response must fairly meet the

substance of the request. The responding party may qualify an answer, or deny a

request in part, only when good faith requires. Lack of information or knowledge is

not a proper response unless the responding party states that a reasonable inquiry was

made but that the information known or easily obtainable is insufficient to enable the

responding party to admit or deny. An assertion that the request presents an issue for

trial is not a proper response.

Tex. R. Civ. P. 198.2(b). Even if the subject of a request has been put “in issue” by a general denial,

that issue can—and must—later be determined in favor of one party or another—whether that

determination be made before trial, as here, through deemed admissions, through a pretrial

dispositive motion, or at trial. If this were otherwise, the merits of a lawsuit would be finally

determined the moment the defendant filed his general denial. Regardless, even if Lee’s answer put

the subject matter of the requests for admissions “in issue,” the general denial cannot and does not

constitute a proper response or objection as required by Rule 198.2(b). See id. Accordingly, we

hold that Lee’s general and verified denials were insufficient to constitute either objections or

responses to Unifund’s requests for admissions pursuant to Rule 198.2(b), and we overrule

Lee’s second point of error.
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In her third point of error, Lee contends that, because the county court’s granting of

summary judgment was improper, the county court’s award of attorneys’ fees in favor of Unifund

should be reversed. Having overruled Lee’s first two points of error, concluding that Unifund’s

deemed admissions were competent summary judgment evidence and that Lee’s general denial was

insufficient to controvert such evidence, we, likewise, overrule Lee’s third point of error.

Having found Unifund’s requests for admissions to be competent summary judgment

evidence, no disputed issue of fact remains, and we affirm the judgment of the county court.

__________________________________________

G. Alan Waldrop, Justice

Before Chief Justice Law, Justices Waldrop and Henson

Affirmed

Filed: August 15, 2008