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 DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 2013-70906-431
----------
DISSENTING 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 persuaded 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.
which cites only to one case—CEBI—to support its conclusion that mirror-image
admissions “are useless because they create a fact issue.” To the extent that
this court in Luke v. Unifund CCR Partners, No. 02-06-00444-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 the deemed admissions in that case
precluded summary judgment because conflicting admissions raised material fact
issues, the facts of Luke are distinguishable from the facts of this case. In Luke,
the conflicting admissions in question were not mirror-image 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); Schulz 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 . . . the
2
Admission 11 admitted that Appellant “presently owes” Appellee the
amount of $23,596.60. Luke, 2007 WL 2460327, at *3. But Admission 12
admitted that an attached statement accurately stated the amount of money that
Appellant “owes” to Appellee, and the statement indicated that Appellant owed
$22,938.87. Id. at *3–4. The trial court awarded $22,938.87 “without
explanation.” Id. at *5.
2
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
obligations 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 affirmative 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 with 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
3