dissenting.
I dissent from that part of the majority’s opinion which holds that Respondents’ deemed admissions do not conclusively establish their affirmative defense of no consideration. I believe the court of appeals was correct in affirming the summary judgment for Respondents based on these admissions.
According to Rule 169, “a matter is admitted without necessity of a court order unless, within thirty days after the request ... the party to whom the request is directed serves upon the party requesting the admission a written answer or objection ...” Tex.R.Civ.P. 169(1). When Roark failed to respond to Respondents’ request for admissions they were deemed admitted. The effect of admissions is that “any matter admitted under this rule is conclusively established as to the party making the admission unless on motion the court permits withdrawal or amendment of admission.” Tex.R.Civ.P. 169(2). Roark did not file a motion to extend his time to respond to the request for admissions until after the deadline had passed and the court overruled his motion. Thus the following admissions conclusively prove that:
(1) Before the May 19, 1979 letter agreement, Roark worked for Respondents, receiving $150 per day and expenses as compensation.
(2) Respondents’ promise in the letter agreement was a mere gratuitous promise to grant Roark a five percent interest.
(3) After the letter agreement was created, the nature and extent of Roark’s work for Respondents was substantially the same as it was before the agreement.
(4) After the creation of the letter agreement, Roark did not perform any additional duties for Respondents that would merit any additional consideration from Respondents.
(5) Respondents’ promise in the letter agreement did not induce Roark to perform any additional work for Respondents.
In other words, these deemed admissions conclusively establish that Respondents’ promise is a mere gratuitous promise and that Roark gave past consideration for Respondents’ promise. Consequently, Roark could not controvert this evidence with his summary judgment evidence. See, e.g., Cherry v. North Am. Lloyds, 770 S.W.2d 4, 6 (Tex.App.—Houston [1st Dist.] 1989, writ denied) (holding that trial court could not consider affidavit which non-movant contended would controvert movant’s proof consisting of admissions deemed against non-movant).
I agree with the court of appeals that “these deemed admissions conclusively establish that the letter was without consideration and not enforceable by Roark against [Respondents] as a contract,” 811 5.W.2d 630, because courts do not enforce gratuitous promises, see Fleck v. Baldwin, 172 S.W.2d 975, 978 (Tex.1943), and because past consideration does not constitute legally sufficient consideration to support a contract. See Mason v. Babin, 474 S.W.2d 809, 812 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ ref d n.r.e.) (holding employees past work for employer insufficient consideration for employer’s subsequent promise to pay debt); Stone v. Morrison & Powers, 298 S.W. 538, 539 (Tex.Comm’n App.—1927, holding approved) (past performance under construction contract not consideration for subsequent obligation).
For these reasons I dissent.