dissenting.
I respectfully dissent. This summary judgment case turns on whether the requests for admissions were timely answered. If they were, the summary judgment was improper; if they were not, the requests were deemed admitted and the summary judgment was proper. The trial court found the answers were untimely and thus the admissions were binding against appellants.
The majority utilizes TEX.R.CIV.P. 21a, to extend the deadline for filing the an*883swers to the requests for admissions from March 2 to March 5 and consequently March 7. Rule 21a, however, only applies if the requests for admissions were served upon appellants by mail. The date of service and manner of service was a fact issue to be resolved by the trial judge. The trial judge had before him an affidavit stating the requests had been served by hand on February 2. He found the March 2 deadline was correct and the answers filed on March 7 were untimely. It would unnecessarily lengthen this dissent to cite all the cases where this court has acknowledged that the trial court is in a superior position to find facts and we cannot find facts nor should we substitute our judgment for that of the trial court. Yet the majority has done both.
The majority intertwines the factual issues concerning the requests for admissions and their answers with the summary judgment procedure. These are separate and distinct. The manner of service of the request for admissions may be a material fact in a procedural context, but it is not a material fact upon which the summary judgment movant would be entitled to a judgment. Therefore, the TEX.R.CIV.P. 166a(c) procedures are not applicable to the determination. Under TEX.R.CIV.P. 169, the requests for admissions are automatically deemed admitted after the expiration of thirty days after the date of service. Here, the trial court determined that thirty-day period had elapsed and the automatic provisions of the rule were appropriate. The court, however, went on to determine the carrier’s motion for leave to amend the admissions and denied that motion. The order specifically stated that this matter was considered prior to the motion for summary judgment. The court had the discretion to strike the deemed admissions and to grant additional time for filing a response to the requests, Curry v. Clayton, 715 S.W.2d 77 (Tex.App. — Dallas 1986, no writ). The standard of review in that instance is abuse of discretion. The majority does not analyze the matter in this context; they analyze it in a summary judgment context. I find no abuse of discretion.
The majority goes further and uses an alleged erroneous computation of benefits to justify their reversal. This error, if it was, can and should be cured by reformation rather than reversal. Because the majority reverses and orders a trial, this dissent is respectfully filed.