Affirmed and Majority and Dissenting Opinions filed November 29, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00965-CV

IN RE SEIZURE OF GAMBLING PROCEEDS 

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 1226408

D I S S E N T I N G O P I N I O N

I respectfully dissent.

The uncontroverted, agreed-upon summary judgment evidence shows that (1) 

Worldwide received the State’s requests for admissions on June 11, 2010, and (2) the 

State received Worldwide’s responses to the requests for admissions 30 days later, on 

July 11, 2010. 

In response to the State’s motion for summary judgment based on deemed 

admissions, Worldwide argued that its responses to the requests for admissions were 

timely and therefore the requests should not be deemed admitted. Even though 

Worldwide did not file a motion to withdraw deemed admissions, the arguments 
2

presented to the trial court were sufficient to put the trial court on notice of exactly that 

complaint, and the trial court should have allowed the deemed admissions to be 

withdrawn in accordance with controlling Supreme Court authority. Thus, the summary 

judgment is not supported by deemed admissions. Accordingly, I dissent.

This case is controlled by Wheeler v. Green, 157 S.W.3d 439 (Tex 2005) (per

curiam).

1

In that case, the trial court granted summary judgment based on deemed 

admissions. Id. at 441. It was uncontested that the appellant (Sandra) had filed responses 

to the requests for admissions 27 days after she received the requests, but 35 days after 

the “mailbox rule” deemed they were served, thus making the responses two days late 

under Texas Rule of Civil Procedure 21(a) (providing service occurs upon mailing and 

extending response time by three days). Id. Sandra did not file a response to the motion 

for summary judgment, but she did file a motion for new trial in which she argued her 

responses to the requests for admissions were timely, and therefore the summary 

judgment was improperly granted on deemed admissions. Id. at 441–42. The Supreme 

Court held that the effect of Sandra’s argument in the motion for new trial was a request 

that the deemed admissions be withdrawn, stating:

. . . although Sandra never filed a motion to withdraw deemed admissions 

or a motion to allow a late response to the summary judgment, the 

arguments and requests in her motion for new trial were sufficient to put 

the trial court on notice of exactly that complaint. See Tex. R. App. P. 

33.1(a).

Id. at 442.

In the present case, Worldwide did not wait until the motion for new trial to argue 

that it had timely filed its responses to the requests for admissions; rather, it made that 

argument in its response to the motion for summary judgment, and thus put the trial court 

on notice that it sought the withdrawal of any deemed admissions. Withdrawal of 

 

1 Although Wheeler involved a pro se defendant, the analysis and due process considerations 

apply equally to the present case. 
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deemed admissions should be granted when there is a showing of (1) good cause, and (2) 

no undue prejudice. Id.

GOOD CAUSE

Good cause is established by showing the failure involved was an accident or 

mistake, not intentional or the result of conscious indifference. Id. In Wheeler, the 

Supreme Court noted:

While Sandra argued only that her responses were timely, the trial court 

could not have concluded otherwise without noting that she was mistaken 

as to when “service” occurs. . . . On this record, the lower courts could 

have concluded that Sandra 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. Likewise, in the present case, the record is clear that Worldwide did not intentionally 

ignore the deadline for filing the responses to the requests for admissions, nor did it act 

with conscious indifference to the rule of law.2 This case is similar to Cudd v. 

Hydrostatic Transmission, Inc., relied on by the Majority Opinion. 867 S.W.2d 101 

(Tex. App.—Corpus Christi 1993, no writ). There, the attorney for Cudd also had the 

mistaken belief that the time for filing the responses to the requests for admissions ran 

from the date of the receipt of the requests; the appellate court held that good cause was 

shown and the deemed admissions should have been withdrawn. Id. at 104–05.

UNDUE PREJUDICE

Undue prejudice depends on whether withdrawing an admission will delay trial or 

significantly hamper the opposing party’s ability to prepare for it. Wheeler, 157 S.W.3d 

at 443. In Wheeler, where Sandra’s responses to requests for admissions were received 

two days late but six months before the summary judgment motion was heard, the 

 

2

In its response to the motion for summary judgment, Worldwide cited Payton v. Ashton, 29 

S.W.3d 896, 898 (Tex. App.—Amarillo 2000, no pet) in support of its position that the time for filing 

responses to requests for admissions begins to run from the date of receipt of the requests, quoting 

language from the opinion supporting that conclusion.
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Supreme Court concluded: “The lower courts could not have concluded on this record 

that Darrin would suffer any undue prejudice if the admissions were withdrawn.” Id. 

Similarly, in the present case, assuming Worldwide’s responses were late by five days, 

they were filed more than one year before the submission of the State’s motion for 

summary judgment; no undue prejudice would have been suffered by the State if the 

deemed admissions were withdrawn.

DUE PROCESS CONCERNS

The State served 49 requests for admissions on Worldwide aimed at obtaining 

Worldwide’s admissions that it had no valid claims, and no valid defenses to the State’s 

action. Before admissions are allowed to be deemed due to tardy responses, the courts 

are required to ensure that due process has been afforded the parties. The Supreme Court 

in Wheeler explained the due process concerns:

We recognize that trial courts have broad discretion to permit or deny 

withdrawal of deemed admissions, but they cannot do so arbitrarily, 

unreasonably, or without reference to guiding rules or principles. While 

requests for admissions were at one time unique in including an automatic 

sanction for untimely responses, failure to comply with any discovery 

requests now bears similar consequences. See Tex. R. Civ. P. 193.6(a). 

Nevertheless, we have held for all other forms of discovery that absent 

flagrant bad faith or callous disregard for the rules, due process bars meritspreclusive sanctions. . . .

When requests for admissions 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. But when a party uses deemed 

admissions to try to preclude presentation of the merits of a case, the same 

due-process concerns arise.

Id. at 443 (citations omitted). The Wheeler court concluded that the record contained no 

evidence of flagrant bad faith or callous disregard for the rules. Id. at 443–44. Similarly, 

in the present case, the record contains no evidence of flagrant bad faith or callous 

disregard for the rules; in fact, Worldwide’s construction of the rules is supported by 
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Payton, 29 S.W.3d at 898,3 which was cited with approval by this Court in Approximately

$14,980.00 v. State, 261 S.W.3d 182, 186 (Tex. App.—Houston [14th Dist.] 2008, no 

pet.). Due process bars the merits-preclusive sanction of summary judgment on deemed 

admissions in this case. If the Majority Opinion truly followed Cudd, it would hold, 

applying relevant principles, that withdrawal of the deemed admissions should have been 

allowed. See Cudd, 867 S.W.2d at 105.

The fact that Worldwide did not specifically ask the trial court to withdraw 

deemed admissions is not fatal to Worldwide’s right to due process. The Texas Supreme

Court has clearly held that a defendant’s argument in the trial court, that responses to 

requests for admissions were timely filed and therefore there are no deemed admissions, 

is sufficient to put the trial court on notice that the defendant is asking for withdrawal of 

deemed admissions. See Wheeler, 157 S.W.3d at 441–42. In its third issue on appeal to 

this Court, Worldwide specifically asserts the trial court erred in granting summary 

judgment based on deemed admissions. I would sustain Worldwide’s third issue. 

CONCLUSION

Worldwide’s deemed admissions should have been withdrawn, and therefore the 

State’s motion for summary judgment based on deemed admissions should have been 

denied. 

/s/ Margaret Garner Mirabal

Senior Justice

Panel consists of Justices Boyce, McCally, and Mirabal.4 (Boyce, J., majority).

 

3

In its response to the motion for summary judgment, Worldwide quoted the following language 

from Payton: “Next, upon combining our interpretation of Rule 21a with that of Rule 198.2(a), we are 

also compelled to hold that a party’s duty to respond to requests for admission is dependent upon receipt 

of those requests. And, because his duty does not ripen until service has been perfected (i.e. his receipt of 

them), the party cannot be made to suffer the effect of not answering or answering untimely.” 29 S.W.3d 

at 898.

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Senior Justice Margaret Garner Mirabal sitting by assignment.