IN THE
TENTH COURT OF APPEALS
No. 10-09-00368-CV
LYNDA MARINO,
Appellant
v.
CHARLES KING,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 08-002628-CV-361
MEMORANDUM OPINION
Lynda Marino appeals the granting of Charles King’s traditional motion for
summary judgment, which was based on a request for admissions that were deemed
admitted. Marino complains that the trial court erred by not withdrawing the deemed
admissions, that the deemed admissions served as an impermissible death penalty
sanction, and that King was not entitled to summary judgment as a matter of law even
with the deemed admissions because some of the admissions called for legal
conclusions. Because we find that the trial court did not err, we affirm the judgment of
the trial court.
Request for Admissions
Rule 198.2(c) of the rules of civil procedure states that the failure to file a timely
response to a request for admissions results in those requests being admitted. TEX. R.
CIV. P. 198.2(c). Rule 198.3 allows a trial court to permit a party to withdraw the
admissions if, (1) the party who failed to answer demonstrates good cause for the
withdrawal of the admissions, and (2) that the opposing party is not unduly prejudiced
by the withdrawal of the admissions. TEX. R. CIV. P. 198.3.
We review the trial court’s rulings on the withdrawal of deemed admissions for
an abuse of discretion. Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005) (per curiam)
(“[T]rial courts have broad discretion to permit or deny withdrawal of deemed
admissions, but they cannot do so arbitrarily, unreasonably, or without reference to
guiding rules or principles.”).
Procedural History
King served his discovery requests, including a request for admissions, by mail
on April 6, 2009. Marino signed for the discovery on April 27, 2009. On May 22, 2009,
Marino sent a letter to counsel for King stating that she would provide her responses on
June 2, 2009. She provided her answers on June 2 as stated. On June 12, 2009, King
filed a traditional motion for summary judgment on his theft claim based on Marino’s
deemed admissions because she did not timely respond to the request. The summary
judgment hearing was conducted on August 6, 2009.
In the interim, Marino propounded her own discovery requests on King, filed a
motion to compel based on incomplete responses to her requested discovery, filed a
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motion to dismiss the suit because of a claim that the wrong party had brought suit, and
filed a motion for mediation. She did not file a response to King’s motion for summary
judgment or a request to withdraw the deemed admissions.
Marino appeared at the hearing on the motion for summary judgment and
attempted to explain to the trial court the reasons for her failure to answer the
discovery. The trial court explained the need for Marino to have followed the rules of
civil procedure regarding extensions of time to respond to discovery and the effect of
her failure to timely answer the request for admissions. Marino requested the trial
court to delay the summary judgment, described her need for complete discovery from
King to aid in her defense to the trial court, and for the trial court to instead consider
her motion to dismiss. The trial court granted King’s motion for summary judgment
and entered judgment against Marino.
Marino filed a timely motion for new trial, which was never set for hearing, and
this appeal followed.
Withdrawal of Deemed Admissions
Marino complains in her first issue that the trial court abused its discretion in not
withdrawing the deemed admissions. Marino contends that the Texas Supreme Court’s
decision in Wheeler v. Green should be determinative of this issue. Wheeler v. Green, 157
S.W.3d 439 (Tex. 2005) (per curiam) (“[E]quitable principles allowing these arguments
to be raised in a motion for new trial do not apply if a party realizes its mistake before
judgment and has other avenues of relief available.”). Wheeler involved a pro se
respondent in a child custody action who filed her answers to a request for admissions
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two days past the deadline because of a misunderstanding of the “mailbox rule.” Id. at
441-42. The Court ultimately concluded that “nothing in [the] record suggest[ed] that
before summary judgment was granted, [the responding party] realized that her
responses were late, that she needed to move to withdraw deemed admissions, or that
she needed to file a response to the summary judgment raising either argument.” Id. at
442. As a result, the Court held that the responding party was entitled to raise the issue
of the mistake for the first time in a motion for new trial. Id.
King, however, contends that the Texas Supreme Court’s decision in Unifund
CCR Partners v. Weaver is applicable and distinguishes Marino’s claims from those in
Wheeler. Unifund CCR Partners v. Weaver, 262 S.W.3d 796 (Tex. 2008). In Unifund, the
Court held that in an instance when a party was made aware of his mistake in the
opposing party’s motion for summary judgment and did not attempt to rectify it, that
party could not complain for the first time about the trial court’s failure to withdraw the
deemed admissions in a motion for new trial. Unifund, 262 S.W.3d at 798 (“Weaver
knew of his mistake before judgment and could have responded to Unifund’s motion,
but because he did not, he waived his right to raise the issue thereafter.”).
We agree with King that Wheeler is distinguishable from the facts before us.
Similar to Unifund, Marino was given notice of the late filing of her answers to the
request for admissions in King’s motion for summary judgment. Marino did not
attempt to have the trial court withdraw the admissions prior to the entry of judgment
against her. Further, while Marino filed a motion for new trial, she did not request the
trial court to withdraw her deemed admissions in that motion either. In order to
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preserve an objection for appeal, the complaint must have been presented to the trial
court. TEX. R. APP. P. 33.1(a)(1). We find that Marino has waived her complaint
regarding the withdrawal of the deemed admissions against her by failing to raise the
issue in any manner, either before or after judgment, to the trial court. See TEX. R. APP.
P. 33.1(a). We overrule issue one.
Death Penalty Sanctions
Marino complains in her second issue that the trial court’s granting of King’s
motion for summary judgment constituted a “death penalty sanction” for discovery
abuse and was an abuse of discretion. For purposes of this issue we will assume
without deciding that deeming a request for admissions that was not timely responded
to is a discovery sanction. However, like her first issue, Marino never presented this
complaint to the trial court or objected to the trial court on this basis. Therefore, Marino
has also waived this complaint by failing to raise it to the trial court. TEX. R. APP. P.
33.1. We overrule issue two.
Traditional Motion for Summary Judgment
Marino complains in issue three that even if the admissions were properly
deemed admitted, King was not entitled to judgment on his motion for summary
judgment as a matter of law because some of the requests sought legal conclusions
which are not proper summary judgment proof. Specifically, Marino complains of four
of the thirty-one requests.
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Standard of Review
We review a trial court’s decision to grant or to deny a motion for summary
judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d
184, 192, 199 (Tex. 2007). Under the traditional summary judgment standard, the
movant has the burden to show that no genuine issues of material fact exist and that it
is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop.
Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). In deciding whether there is a disputed
material fact issue precluding summary judgment, evidence favorable to the
nonmovant will be taken as true, and every reasonable inference must be indulged in
favor of the non-movant and any doubts resolved in its favor. Nixon, 690 S.W.2d at 548-
49.
The nonmovant has no burden to respond to a summary judgment motion
unless the movant conclusively establishes its cause of action or defense. Rhone-Poulenc,
Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999). When the movant’s summary judgment
proof is legally insufficient, “[t]he trial court may not grant summary judgment by
default because the nonmovant did not respond to the summary judgment motion.” Id.
at 223. “The movant must establish its right to summary judgment on the issues
expressly presented to the trial court by conclusively proving all elements of the
movant’s cause of action or defense as a matter of law.” Id.
Objections to Summary Judgment Evidence
While objections to the form of summary judgment evidence must be raised
before the trial court in order to be preserved for purposes of appeal, objections to the
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substance of the evidence may be raised for the first time on appeal. Choctaw Props.,
L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003, no pet.). An objection
that summary judgment evidence seeks a conclusion regarding a question of law is an
objection to the substance of the evidence. See Id. at 241-42.
King’s Motion for Summary Judgment
King’s motion for summary judgment sought judgment on his claim pursuant to
the Texas Theft Liability Act only.1 See TEX. CIV. PRAC. & REM. CODE ANN. Ch. 134
(Vernon 2005). Pursuant to the Texas Theft Liability Act, a person who commits theft is
liable for the damages resulting from the theft. TEX. CIV. PRAC. & REM. CODE ANN. §
134.003(a) (Vernon 2005). Theft is defined as “unlawfully appropriating property or
unlawfully obtaining services as described by Section 31.03, 31.04, 31.05, 31.06, 31.07,
31.11, 31.12, 31.13, 31.14” of the Texas Penal Code. Id. § 134.003(a); see also TEX. PEN.
CODE ANN. §§ 31.03-31.07, 31.11-31.14 (Vernon 2003 & Supp. 2008). Section 31.03(a) of
the Texas Penal Code provides that a person commits an offense if that person
unlawfully appropriates property with intent to deprive the owner of property. TEX.
PEN. CODE ANN. § 31.03(a). Appropriation of property is unlawful if it is without the
owner’s effective consent. Id. § 31.03(b)(1).
Objectionable Admissions
Marino complains of four of the admissions as seeking legal conclusions. The
first seeks an admission that the relationship between King and Marino “was one in
1 King’s original petition included claims for breach of fiduciary duty, conversion, money had and
received, fraud, negligent misrepresentation, and pursuant to the Texas Theft Liability Act. King sought
actual and punitive damages as well as attorney’s fees for these claims.
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which [King] placed special confidence in [Marino], and, as such, you [Marino] in
equity and good conscience were bound to act in good faith with due regard for the
interest of [King].” The second sought an admission that the money she withdrew from
King’s account was King’s personal property. The third sought an admission that the
money Marino withdrew belonged to King “in equity and good conscience.” The
fourth sought an admission that King was entitled to recover actual damages in a
certain amount.
Other Admissions
King contends that even if those admissions were improper, the other
admissions to which Marino did not object are sufficient to sustain the trial court’s
granting of the motion for summary judgment. We agree. The unobjected-to
admissions contained admissions that Marino had made withdrawals from King’s
account without King’s knowledge; that Marino had made unauthorized payments and
advances to herself; that Marino had withdrawn funds for Christmas bonuses; that
Marino had not attempted to repay the advances; that King owned, possessed, or had
the right to immediate possession of the $33,559.92 that was withdrawn by Marino; that
Marino exercised control over that money and that King suffered injury as a result; and
that she was in possession of the $33,559.92.
Analysis
Even if we assume without deciding that the admissions of which Marino
complains were improper and should not have been considered because they
constituted legal conclusions, the remaining admissions were sufficient to establish each
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element of theft as required by the Penal Code and the Theft Liability Act. We overrule
issue three.
Conclusion
We find that Marino has waived her complaints regarding the failure of the trial
court to withdraw the deemed admissions by failing to make her complaint to the trial
court. We find that even without the admissions of which Marino complains, the
evidence was sufficient to sustain the trial court’s granting of King’s motion for
summary judgment. We affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed September 1, 2010
[CV06]
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