concurring.
I concur with the court’s opinion to reverse and remand the trial court’s judgment, but disagree with the court’s opinion to the extent it states that the deemed admissions, due to the form of the requests, were incompetent summary judgment proof. Instead, under the circumstances in this case, the trial court erred because it failed to grant Maswoswe’s motion to withdraw the deemed admissions. In my opinion, Maswoswe’s motion established the grounds required for the trial court to allow admissions to be withdrawn.
A trial court is required to allow admissions to be withdrawn upon a showing of “good cause” and that no undue prejudice will result from their withdrawal. See Tex.R. Civ. P. 198.3. “Good cause is established by showing the failure involved was an accident or mistake, not intentional or the result of conscious indifference.” Wheeler v. Green, 157 S.W.3d 439, 442 (Tex.2005). “Undue prejudice depends on whether withdrawing an admission or filing a late response will delay trial or significantly hamper the opposing party’s ability to prepare for it.” Id. at 443. Allowing Maswoswe to withdraw the admissions would not have delayed the resolution of the case, as nothing in the record suggests that a trial setting was imminent. Moreover, nothing in the record suggests that the plaintiffs were not capable of proving their damage claim with the parties’ testimony concerning the damages *898that Maswoswe’s alleged breach had caused.
With respect to good cause, Maswoswe’s motion established his receipt of the plaintiffs’ requests for admissions shortly after his attorney’s withdrawal and also proved he did not understand that he was required to file answers to them, nor was he aware of the consequences of failing to respond to them. This case is similar to Wheeler, as nothing in the record before us suggests that before summary judgment was granted, Maswoswe realized that he needed to move to withdraw the deemed admissions. See id. at 442. “[A]bsent flagrant bad faith or callous disregard for the rules, due process bars merits-preclusive sanctions[.j” Id. at 443. Due process concerns arise where admissions are used, as they were here, to attempt to preclude a party from presenting the merits of his case. See id.
Even though I believe the record supports a reversal of the judgment, which is the result the court reaches in the majority opinion, I disagree with the opinion to the extent it argues that the plaintiffs’ requests for admissions addressed matters beyond the scope of discovery. Requests for admissions can be and in this case were used to require Maswoswe to admit propositions applying law to fact, and are proper for the reasons discussed in my dissent in Cedyco Corp. v. Whitehead, 253 S.W.3d at 881-84 (Horton, J., dissenting) (noting that Tex.R. Civ. P. 198.1 allows written requests that seek to require the other party to “admit the truth of any matter within the scope of discovery, including statements of opinion or of fact or of the application of law to fact”). Because the plaintiffs’ requests sought applications of law to fact concerning the parties’ contractual dispute, the requests were not in an improper form. Therefore, Maswoswe’s admissions could be used as proper support for a motion for summary judgment, and his admissions do not constitute improper summary judgment evidence.
Nevertheless, a new trial is warranted because the trial court was required to allow Maswoswe to withdraw the deemed admissions even though he first requested to do so after the trial court had granted the plaintiffs’ motion for summary judgment. See Wheeler, 157 S.W.3d at 442 (determining that Wheeler did not waive her arguments seeking to withdraw deemed admissions because she presented them for the first time in her motion for new trial). Thus, I agree that Maswoswe is entitled to receive a new trial, but for reasons different than those upon which the majority relies in its opinion. Therefore, I concur in the remedy only, not the court’s reasoning.