## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 14 - 00185 - CV

STANWYN J. CARTER APPELLANT V. TAMMIE J. PERRY APPELLEE

---------- FROM THE 431ST DISTR ICT COURT OF DENTON COUNTY TRIAL COURT NO. 2013

- 70906

- 431

---------- 

### DISSEN TING MEMORANDUM OPINION 1

---------- I respectfully dissent and would not follow the holding of our sister court in CEBI Metal Sanayi Ve Ticaret A.S. v. Garcia , 108 S.W.3d 464, 466 (Tex. App.

— Houston [14th Dist.] 2003, no pet.). Likewise, I am not persuad ed by Robert K. Wise et al., A Guide to Properly Using and Responding to Requests for Admission Under the Texas Discovery Rules , 45 St. Mary’s L.J. 655, 668 (2014) ,

1 See Tex. R. App. P. 47.4.2 which cites only to one case

— CEBI

— to support its conclusion that mirror

- image admissions “a re useless because they create a fact issue

. ” To the extent that this court in Luke v. Unifund CCR Partners , No. 0 2

- 06

- 00 444

- CV, 2007 WL 2460327, at *2

– 4 (Tex. App.

— Fort Worth Aug. 31, 2007, no pet.) (mem. op.) , cited to CEBI to support its holding that t he deemed admissions in that case precluded summary judgment because conflicting admissions raised material fact issues, the facts of Luke are distinguish able from the facts of this case. In Luke , the conflicting admissions in question were not mirror

- ima ge questions but were admissions properly used against the nonmoving party on the issue of liability that raised a fact issue only as to the exact amount owed

. 2 Answers to requests for admissions and deemed admissions are admissible only against the party to whom the requests for admissions were addressed. See Americana Motel, Inc. v. Johnson , 610 S.W.2d 143, 143 (Tex. 1980) (holding that a party cannot use its own denials to requests for admissions to raise a fact issue to preclude summary judgment); Sch ulz v. State Farm Mut. Auto. Ins. , 930 S.W.2d 872, 876 (Tex. App.

— Houston [1st Dist.] 1996, no writ) (holding that “[a]nswers to interrogatories and discovery responses may only be used against the party who answered them,” and a party’s “reliance upon

. . . t he

2 Admission 11 ad mitted that Appellant “presently owes” Appellee the amount of $23,596.60

. Luke , 2007 WL 2460327 , at *3. B ut Admission 12 admitted that an attached statement accurately stated the amount of money that Appellant “owes” to Appellee , and th e statement indica ted that Appellant owed $22,938.87. Id. at *3

– 4. The trial court awarded $22,938.87 “without explanation.” Id . at *5.3 answers she provided to discovery

. . . did not provide competent summary judgment evidence”) (emphasis added ). The majority is correct that the deemed admissions in this case conclusively proved that (1) Carter entered into a contract with Perry under which he agreed to pay Perry $121,864.25; (2) Carter signed a promissory note reflecting this obligation owed to Perry; (3) the note attached to the requests was a true and correct copy of the note Carter signed; (4) Perry performed all of her oblig ations under the note; (5) Carter failed to pay the principal amount owed; (6) Carter’s failure to pay was a breach of the terms of the note; (7) because of his breach, Carter owed Perry $121,864.25; and (8) Perry’s claims were not barred by any affirmati ve defenses. But because Carter may not use his own self

- serving responses to Perry’s request for admissions

— or , as in this case, the failure to respond resulting in deemed “admissions”

— as evidence at trial or summary judgment, I respectfully disagree wit h the majority’s holding that the converse of some of the above facts were also conclusively established through other deemed admissions. I would affirm.

/s/ Bonnie Sudderth BONNIE SUDDERTH JUSTICE

DELIVERED: July 9, 2015