Preview
FILED
DALLAS COUNTY
1/2/2018 4:30 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-17-09658
DOLORES MEADORS WESSO and
HENRY WESSO
HENRYWESSO §
§ IN THE DISTRICT COURT
§
Plaintiff,
Plaintiff, §g
§
vs.
VS. §
g 134th
134th JUDICIAL DISTRICT
DISTRICT
§
ANDREW SAFFLES, §g
§
Defendant. §
g DALLASCOUNTY,TEXAS
DALLAS COUNTY, TEXAS
DEFENDANT/COUNTER-PLAINTIFF'S
DEFENDANT/COUNTER—PLAINTIFF’S VERIFIED UNOPPOSED
MOTION TO TRIKE THD
T0 STRIKE/WITHDRAW DEEMED W
EEM D ADMISSIONS
MISSION
T0 THE HONORABLE JUDGE OF SAID COURT:
TO
Defendant/Counter-Plaintiff Andrew Saffles
Defendant/Counter-PlaintiffAndrew Saffles makes this,
this, his
his verified
verified Unopposed Motion to
to
Strike/Withdraw
Strike/Withdraw Deemed Admissions and would respectfully
respectfillly show the
the following:
following:
I.
I. Pertinent
Pertinent Facts
Facts
On
0n August
August 8,
8, 2017,
201 7, Plaintiffs
Plaintiffs Henry
Henry and
and Dolores
Dolores Wesso ("Wesso") filed
filed suit
suit against
against Andrew
Saffles
Saffles ("Saffles")
("Saffles") because
because of
0f aa dispute
dispute involving
involving the
the repayment
repayment of
of a
a loan.
loan. On October
October 6,
6, 2017,
2017,
Saffles
Saffles timely
timely filed
filed his
his verified
verified Answer and aa Counterclaim.
Counterclaim. On
0n October
October 30,
30, 2017,
2017, Wesso served
served
discovery,
discovery, including
including Request
Request for
for Admissions,
Admissions, via
via email
email to
to Saffles's
Saffles's counsel,
counsel, Armando De Diego
("De
("De Diego").
Diego"), A true
true and correct
correct copy
copy of
of the
the Request
Request for
for Admissions,
Admissions, including
including the
the email
email by
by which
it
it was sent,
sent, is
is attached
attached to
to this
this Motion as
as Exhibit
Exhibit 1.
1.
At this
this time,
time, De Diego was deep
deep in
in preparation
preparation for
for a
a November 13,
13, 2017
201 7 jury
jury trial
triai in
in a
a case
case
styled Jimmy and Teresa Wagon v.
styled v. State
State Farm
Farm Lloyds,
Lloyds, Cause Number 2014-001838-3
201 4-00183 8-3 in
in the
the County
County
Court at Law Number 3,
3, Tarrant County,
County, Texas,
Texas, as
as well
well as
as preparing for Car
preparing for Car swell
swell v.
v. State
Stale Farm
Farm
Lloyds,
Llaya‘s, Cause Number 4:17-CV-00149-A
4:17-CV—00149-A in
in the
the United
United States
States District
District Court
Court for
for the
the Northern
Northern
DEFENDANT/COUNTER-PLAINTIFF'S VERIFIED UNOPPOSED
DEEM ED ADMISSIONS -- Page
MOTION TO STRIKE/WITHDRAW DEEMED Page I l
District of Texas Fort Worth Division (J. McBride).
Being used to the more traditional method of serving discovery requests by certified or
regular mail or by fax, Mr. De Diego was not aware of these discovery requests. Mr. De Diego has
an active legal practice and receives several hundred emails a day. This email slipped by and he was
not actually aware that discovery, including Requests for Admissions, had been served on him until
he received Plaintiff's Motion for Summary Judgment based upon the deemed admissions filed on
December 19, 2017.
Furthermore, the Request for Admissions are directed to a non-party to this case and not
Defendant Andrew Saffles. Rather, they are directed to the University of Texas Southwestern
Medical Center. Even more bizarre, they are allegedly sent by Clifton Rouse who is not the Plaintiff
in this case.
Despite the fact that the Request for Admissions appear on their face to be defective and
invalid, upon his actual awareness of their existence on December 19, 2017, Mr. De Diego
immediately set out to respond to this discovery, including the Request for Admission, and such have
now been responded to and answered. This was done under the assumption that Plaintiffs counsel
mistakenly took the beginning of the Request from another form and forgot to change the names.
II. Pertinent Law
The amendment or withdraw of request for admissions is governed by Texas Rule of Civil
Procedure 198.3. For our purposes, this Rule provides, in pertinent part: The court may permit the
party to withdraw or amend the admission if:
(a) the party shows good cause for the withdrawal or amendment; and
(b) the court finds that the parties relying upon the responses and deemed admissions
DEFENDANT/COUNTER-PLAINTIFF’S VERIFIED UNOPPOSED
MOTION TO STRIKE/WITHDRAW DEEMED ADMISSIONS - Page 2
will not be unduly prejudiced and that the presentation of the merits of the action will
be subserved by permitting the party to amend or withdraw the admission.
TEX. R. Cov. P 198.3(a) and (b).
The first prong is good cause. Good cause can be an accident or mistake, as long as it was
not intentional or the result of conscious indifference. Marino v. King, 355 S.W.3d 629, 633 (Tex.
2011); Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005). Even a slight excuse is sufficient to
establish good cause under Rule 198.3. Boule v. State, 189 S.W.3d 833, 836 (Tex. App.- Houston
[1st. Dist.] 2006, no pet.); In re Kellogg Brown & Root, Inc., 45 S.W.3d 772, 775 (Tex. App.- Tyler
2001, orig. proceeding).
Good cause has been established by this verified Motion and the Affidavit of Armando De
Diego attached to this Motion as Exhibit 2. Mr. De Diego did not intentionally fail to answer the
Request for Admissions of which he was unaware until Plaintiffs filed their Motion for Summary
Judgment based upon deemed admissions on December 19, 2017. As a result of his extensive trial
preparation, as well as the demands of his other cases, and since it was unusual in his practice to be
served with discovery via email, other than through the EService process, M. De Diego did not
realize he had been served with request for admissions.
Furthermore, case law establishes that when a party attempts to use requests for admissions
to compromise the other party’s right to present the merits of its case (i.e., essentially asking the
party to admit it has no cause of action or ground of defense) (as Plaintiffs are doing here by filing
a Motion for Summary Judgment based in part on deemed admissions), due process is implicated
and the burden shifts to the party opposing the Motion (although here the Motion is Unopposed) to
demonstrate that the moving party acted in flagrant bad faith or callous disregard for the Texas Rules
DEFENDANT/COUNTER-PLAINTIFF’S VERIFIED UNOPPOSED
MOTION TO STRIKE/WITHDRAW DEEMED ADMISSIONS - Page 3
of Civil Procedure. Marino, 634 S.W.3d at 634; Wheeler, 157 S.W.3d at 443-44; Time Warner Inc.
v. Gonzalez, 441 S.W.3d 661, 665-66 (Tex. App.- San Antonio 2014, pet. denied). If the opposing
party cannot show bad faith or callous disregard, the party moving to strike or withdraw the
admissions is presumed to have established good cause under Rule 198.3. Id.
The second and final prong is no undue prejudice. Undue prejudice depends on whether
withdrawing admissions will delay the trial or significantly hamper the other party’s ability to
prepare for trial. Marino, 355 S.W.3d at 633, Wheeler, 157 S.W.3d at 443; Wal-Mart Stores v.
Degas, 968 S.W.2d 354, 357 (Tex. 1998).
No undue prejudice exists. This case is only four (4) months old and the first trial setting is
not until July 30, 2018. There is plenty of time for all parties to develop their case without any delay
in this trial setting. Additionally, if these admissions are not struck/withdrawn, presentation of the
merits will suffer because the case will be decided on deemed, but untrue, facts. Wheeler, 157
S.W.3d at 443 n.2; Boule, 189 S.W.3d at 836-37; In re Kellogg Brown & Root, Inc., 45 S.W.3d at
777.
This verified Motion as well as the Affidavit of Armando De Diego, which includes attached
to it the answers Saffles would have served in response to the request for admissions had the
deadline not have been missed, establish that this Unopposed Motion to Strike/Withdraw Deemed
Admissions should be granted.
III. Conclusion and Prayer
For the reasons stated above, Defendant/Counter-Plaintiff Andrew Saffles respectfully prays
that his Unopposed Motion to Strike/Withdraw Deemed Admissions be granted.
DEFENDANT/COUNTER-PLAINTIFF’S VERIFIED UNOPPOSED
MOTION TO STRIKE/WITHDRAW DEEMED ADMISSIONS - Page 4
Respectfully submitted,
THE LAW OFFICE OF ARMANDO DE DIEGO , P.C.
By: /s/ Armando De Diego
ARMANDO DE DIEGO
State Bar No. 05635400
Email: adediego@dediego.com
HARVEY G. JOSEPH
State Bar No. 11027850
Email: hjoseph@dediego.com
1201 Griffin Street W
Dallas, Texas 75215-1030
Telephone: (214) 426-1220
Facsimile: (214) 426-1246
ATTORNEYS FOR DEFENDANT/COUNTER-PLAINTIFF ,
ANDREW SAFFLES
CERTIFICATE OF CONFERENCE
On December 19, 2017, the undersigned conference with counsel for Plaintiffs who stated
this Motion is Unopposed.
/s/ Armando De Diego
ARMANDO DE DIEGO
DEFENDANT/COUNTER-PLAINTIFF’S VERIFIED UNOPPOSED
MOTION TO STRIKE/WITHDRAW DEEMED ADMISSIONS - Page 5
CERTIFICATE OF SERVICE
This is to certify that on the 2nd day of January, 2018, a true and correct copy of the foregoing
document has been personally served, as indicated below:
Mr. Andrew A. Dunlap U Via Electronic Service
6565 N. MacArthur Boulevard Via Certified Mail
Suite 140 Via Facsimile
Irving, Texas 75039-2478
______ Via Regular Mail
/s/ Armando De Diego
ARMANDO DE DIEGO
DEFENDANT/COUNTER-PLAINTIFF’S VERIFIED UNOPPOSED
MOTION TO STRIKE/WITHDRAW DEEMED ADMISSIONS - Page 6
VERIFICATION
Before
Before me the w1dersigned
me, the notary public
undersigned notary public, on thi day personall
this day appeared Armando
personally appeared
De Diego
Diego, who being by
by me first
first duly
duly sworn on his
his oath
oath, deposed and stated
tated that i the
that he is the
attorney for
attorney for Defendant/Counter-Plaintiff
Defendant/Counter-Plaintiff Andrew Saffles in this
Saffles in cause of
this cause of action, that he
action, that he has
ha
been rread
been ad th
the above and foregoing
foregoing Motion to
to Withdraw Deemed Admissions,
Admissions, and that the
that the
factual information contained
factual information contained in
in this
this Motion is true and
is true correct and iis within
and correct his per
within his nal
personal
knowledge.
knowledge.
O‘Mwflzflm
AKMANDO DE DIEGO
to
UBSCRIBED AND SWORN TO
SUBSCRIBED
to certify witne m
certify which witness my hand and
O BEFORE ME ON this
and official seal.
official seal.
@J/M/n
this 2
2""
Notary Publian and for the
State of
[06M
Printed
w
Texas
Ndme
W
nd day ofJanuary,
day of Januru-y 2018,
2018
K} 'H’én berrk/
of Notary Public /
My Commission Expir
M s:
Expires:
39
ID 6442619
DEFENDANT/COUNTER-PLAINTIFF’S
DEFENDA T/COUNTER-PLAI T IFF'S VERIFIED
VER! F! · D UNOPPOSED
OPPOS ED
MOTION
MOTIO TO STRJKE/WI
STRIKE/WITHDRAW ADMISSIO S-- Page
THDRAW DEEMED ADMISSIONS Page 77
EXHIBIT 001
CAUSE NO.
N0. DC-17-09658
DC-17—09658
DOLORES MEADORS WESSO and
HENRY WESSO
HENRYWESSO §§ IN
IN THE DISTRICT COURT
§
Plaintiff,
Plaintiff, §
g
§
vs.
VS. §
g 134th
134th JUDICIAL DISTRICT
§
ANDREW SAFFLES, §
g
§
Defendant.
Defendant. §
g DALLAS COUNTY, TEXAS
DALLASCOUNTY,TEXAS
0F ARMANDO DE DIEGO
AFFIDAVIT OF
THE STATE OF TEXAS §§
§§
COUNTY OF DALLAS §§
On this
this day
day personally
personally appeared
appeared Armando De Diego,
Diego, who,
who, after
after being
being duly
duly sworn,
sworn, deposed
deposed
and
and stated
stated as
as follows:
follows:
1.
1. "My name is is Armando De Diego.
Diego. I1 am over
over the
the age
age of
0f twenty-one
twenty-one (21)
(21) years,
years, have
have
never been
never been convicted
convicted of
ofaa felony
felony or
or other
other crime
crime of moral turpitude,
ofmoral rurpitude, and
and am otherwise
otherwise
fully
fully competent
competent to to make this
this Affidavit.
Affidavit. II am familiar
familiar with
with all
all the
the facts
facts stated
stated herein,
herein,
and
and all
all of
0f the
the facts
facts herein
herein are
are true
tme and
and correct
correct based
based upon my personal
personal knowledge.
knowledge.
2. "I
"I am the
the attorney
attorney for
for Andrew Saffies
Safiles in
in the
the above-captioned
above-captioned matter.
matter.
3. "On August 8,
"On 8, 2017,
2017, Plaintiffs
Plaintiffs Henry
Henry and
and Dolores
Doiores Wesso ("Wesso")
("Wcsso") filed
filed suit
suit
against
against Andrew Saffies
Saffles ("Saffles")
(“Saffles”) regarding
regarding a
a dispute
dispute involving
involving the
the repayment
repayment of
of
aa loan.
loan. On October
October 6,
6, 2017,
2017, Saffles
Safiles timely
timely filed
filed his
his verified
verified Answer andand aa
Counterclaim.
Counterclaim.
4. "On October
"On October 30,
30, 2017,
2017, Wesso served
served discovery,
discovery, including
including Request
Request for
for Admissions,
Admissions,
via email to
to me. A true
true and correct
correct copy
copy of the
the Request
Request for
for Admissions,
Admissions, including
including
the
the email by
by which itit was sent,
sent, was attached
attached to
to the
the Motion
Motion to
to Withdraw
Withdraw Deemed
Admissions,
Admissions, as Exhibit 1.
as Exhibit l.
5. "At the
"At the time
time the
the written
written discovery
discovery was emailed
emailed toto me,
me, Il was deep
deep in
in preparation
preparation for
for
a November 13, 13, 2017
201 7 two-week jury trial
two-weekjury trial in
in a
a case
case styled
styled Jimmy
Jimmy and Teresa
Teresa Wagon
Wagon
v.
v. State
Stare Farm Lloyds,
Lloyds, Cause Number 2014-001838-3
2014-0018383 in in the
the County
County Court
Court at
at Law
Number 3, 3, Tarrant
Tarrant County,
County, Texas,
Texas, as
as well
well as
as preparing
preparing for
for Car
Car swell
swell v.
v. State
Stare Farm
Lloyds, Cause
Lloyds, Number4:17-CV-00149-A
Number 4:17-CV—00149—A inin the
the United States
States District Court for
District Court the
for the
Northern District of Texas Fort
Northern District Division (J.
Fort Worth Division (J. McBryde).
McBryde).
6.
6. "Being more accustomed to to the
the more traditional
traditional method of of serving discovery
serving discovery
requests by
requests by certified
certified or
or regular
regular mail or by
mail or by fax,
fax, and distracted
distracted by
by the extensive
the extensive trial
trial
preparation,
preparation, II did not see
did not see the
the email
email sent
sent by the secretary
by the secretary in Plaintiffs attorney’s
in Plaintiff’s attorney's
office entitled
office entitled "First
“First Set
Set of Written
Written Discovery ...
Discovery...” " which did
did not
not reference
reference the
the case
case in
in
the title.
the title. II have
have an
an active
active legal practice and receive
legal practice receive several
several hundred emails
emails aa day.
day.
This
This email
email slipped by me and II was not
slipped by not actually
actually aware that
that discovery,
discovery, including
including
Requests
Requests forfor Admissions,
Admissions, had been served on my client
served 0n client until
until II received
received Plaintiffs
Plaintiff's
Motion forfor Summary Judgment filed filed on December 19, 2017,
19, 20 17, based
based in
in part the
part upon the
deemed admissions.
admissions.
7.
7. "Despite the
the fact
fact the Request for
the Request for Admissions pmported
purported to
to be
be both
both sent by and
sent by and sent
sent
to
t0 non-parties in this
non-parties in this case,
case, upon my actual
actual awareness of the existence
ofthe existence of the Request
ofthe
for Admissions on December 19,
for 19, 2017,
2017, I
I immediately
immediately set
set out
out to
to respond
respond to the
to the
Request for
for Admissions,
Admissions, and such havehave now been
been responded toto and answered.
answered. II also
also
conferred with Plaintiffs'
conferred with Plaintiffs’ counsel,
counsel, advised
advised him of my
ofmy mistake
mistake and requested
requested he agree
agree
to the
to motion to
the motion to withdraw deemed admissions
admissions since
since the
the failure
failure to respond to
to respond to the
the
request
request for
for admissions
admissions was inadvertent.
inadvertent.
8.
8. "It
"It was not
not my intent or desire
intent or desire to
to fail to respond
fail to respond to the Request for
to the for Admissions by
by
November 29, 2017.
29, 20 1 7. The sole
sole reason
reason II did not do
did not do so
so is because II was unaware
is because unaware of their
oftheir
existence until December 19,
existence until 2017."
19, 2017."
W
Further,
Further, Affiant
Affiant sayeth
sayeth not.
not.
wmmfiéfi
ARMANDO DE DIEGO
TO BEFORE ME on this
SUBSCRIBED AND SWORN T0 this 2"“
2 nd day
day of January,
January, 2018.
2018.
Q )J/VZ/Im/
tary
flaw
gate of Texas
Publicfi
>(—
Preview
FILED DALLAS COUNTY 1/2/2018 4:30 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-17-09658 DOLORES MEADORS WESSO and HENRY WESSO HENRYWESSO § § IN THE DISTRICT COURT § Plaintiff, Plaintiff, §g § vs. VS. § g 134th 134th JUDICIAL DISTRICT DISTRICT § ANDREW SAFFLES, §g § Defendant. § g DALLASCOUNTY,TEXAS DALLAS COUNTY, TEXAS DEFENDANT/COUNTER-PLAINTIFF'S DEFENDANT/COUNTER—PLAINTIFF’S VERIFIED UNOPPOSED MOTION TO TRIKE THD T0 STRIKE/WITHDRAW DEEMED W EEM D ADMISSIONS MISSION T0 THE HONORABLE JUDGE OF SAID COURT: TO Defendant/Counter-Plaintiff Andrew Saffles Defendant/Counter-PlaintiffAndrew Saffles makes this, this, his his verified verified Unopposed Motion to to Strike/Withdraw Strike/Withdraw Deemed Admissions and would respectfully respectfillly show the the following: following: I. I. Pertinent Pertinent Facts Facts On 0n August August 8, 8, 2017, 201 7, Plaintiffs Plaintiffs Henry Henry and and Dolores Dolores Wesso ("Wesso") filed filed suit suit against against Andrew Saffles Saffles ("Saffles") ("Saffles") because because of 0f aa dispute dispute involving involving the the repayment repayment of of a a loan. loan. On October October 6, 6, 2017, 2017, Saffles Saffles timely timely filed filed his his verified verified Answer and aa Counterclaim. Counterclaim. On 0n October October 30, 30, 2017, 2017, Wesso served served discovery, discovery, including including Request Request for for Admissions, Admissions, via via email email to to Saffles's Saffles's counsel, counsel, Armando De Diego ("De ("De Diego"). Diego"), A true true and correct correct copy copy of of the the Request Request for for Admissions, Admissions, including including the the email email by by which it it was sent, sent, is is attached attached to to this this Motion as as Exhibit Exhibit 1. 1. At this this time, time, De Diego was deep deep in in preparation preparation for for a a November 13, 13, 2017 201 7 jury jury trial triai in in a a case case styled Jimmy and Teresa Wagon v. styled v. State State Farm Farm Lloyds, Lloyds, Cause Number 2014-001838-3 201 4-00183 8-3 in in the the County County Court at Law Number 3, 3, Tarrant County, County, Texas, Texas, as as well well as as preparing for Car preparing for Car swell swell v. v. State Stale Farm Farm Lloyds, Llaya‘s, Cause Number 4:17-CV-00149-A 4:17-CV—00149-A in in the the United United States States District District Court Court for for the the Northern Northern DEFENDANT/COUNTER-PLAINTIFF'S VERIFIED UNOPPOSED DEEM ED ADMISSIONS -- Page MOTION TO STRIKE/WITHDRAW DEEMED Page I l District of Texas Fort Worth Division (J. McBride). Being used to the more traditional method of serving discovery requests by certified or regular mail or by fax, Mr. De Diego was not aware of these discovery requests. Mr. De Diego has an active legal practice and receives several hundred emails a day. This email slipped by and he was not actually aware that discovery, including Requests for Admissions, had been served on him until he received Plaintiff's Motion for Summary Judgment based upon the deemed admissions filed on December 19, 2017. Furthermore, the Request for Admissions are directed to a non-party to this case and not Defendant Andrew Saffles. Rather, they are directed to the University of Texas Southwestern Medical Center. Even more bizarre, they are allegedly sent by Clifton Rouse who is not the Plaintiff in this case. Despite the fact that the Request for Admissions appear on their face to be defective and invalid, upon his actual awareness of their existence on December 19, 2017, Mr. De Diego immediately set out to respond to this discovery, including the Request for Admission, and such have now been responded to and answered. This was done under the assumption that Plaintiffs counsel mistakenly took the beginning of the Request from another form and forgot to change the names. II. Pertinent Law The amendment or withdraw of request for admissions is governed by Texas Rule of Civil Procedure 198.3. For our purposes, this Rule provides, in pertinent part: The court may permit the party to withdraw or amend the admission if: (a) the party shows good cause for the withdrawal or amendment; and (b) the court finds that the parties relying upon the responses and deemed admissions DEFENDANT/COUNTER-PLAINTIFF’S VERIFIED UNOPPOSED MOTION TO STRIKE/WITHDRAW DEEMED ADMISSIONS - Page 2 will not be unduly prejudiced and that the presentation of the merits of the action will be subserved by permitting the party to amend or withdraw the admission. TEX. R. Cov. P 198.3(a) and (b). The first prong is good cause. Good cause can be an accident or mistake, as long as it was not intentional or the result of conscious indifference. Marino v. King, 355 S.W.3d 629, 633 (Tex. 2011); Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005). Even a slight excuse is sufficient to establish good cause under Rule 198.3. Boule v. State, 189 S.W.3d 833, 836 (Tex. App.- Houston [1st. Dist.] 2006, no pet.); In re Kellogg Brown & Root, Inc., 45 S.W.3d 772, 775 (Tex. App.- Tyler 2001, orig. proceeding). Good cause has been established by this verified Motion and the Affidavit of Armando De Diego attached to this Motion as Exhibit 2. Mr. De Diego did not intentionally fail to answer the Request for Admissions of which he was unaware until Plaintiffs filed their Motion for Summary Judgment based upon deemed admissions on December 19, 2017. As a result of his extensive trial preparation, as well as the demands of his other cases, and since it was unusual in his practice to be served with discovery via email, other than through the EService process, M. De Diego did not realize he had been served with request for admissions. Furthermore, case law establishes that when a party attempts to use requests for admissions to compromise the other party’s right to present the merits of its case (i.e., essentially asking the party to admit it has no cause of action or ground of defense) (as Plaintiffs are doing here by filing a Motion for Summary Judgment based in part on deemed admissions), due process is implicated and the burden shifts to the party opposing the Motion (although here the Motion is Unopposed) to demonstrate that the moving party acted in flagrant bad faith or callous disregard for the Texas Rules DEFENDANT/COUNTER-PLAINTIFF’S VERIFIED UNOPPOSED MOTION TO STRIKE/WITHDRAW DEEMED ADMISSIONS - Page 3 of Civil Procedure. Marino, 634 S.W.3d at 634; Wheeler, 157 S.W.3d at 443-44; Time Warner Inc. v. Gonzalez, 441 S.W.3d 661, 665-66 (Tex. App.- San Antonio 2014, pet. denied). If the opposing party cannot show bad faith or callous disregard, the party moving to strike or withdraw the admissions is presumed to have established good cause under Rule 198.3. Id. The second and final prong is no undue prejudice. Undue prejudice depends on whether withdrawing admissions will delay the trial or significantly hamper the other party’s ability to prepare for trial. Marino, 355 S.W.3d at 633, Wheeler, 157 S.W.3d at 443; Wal-Mart Stores v. Degas, 968 S.W.2d 354, 357 (Tex. 1998). No undue prejudice exists. This case is only four (4) months old and the first trial setting is not until July 30, 2018. There is plenty of time for all parties to develop their case without any delay in this trial setting. Additionally, if these admissions are not struck/withdrawn, presentation of the merits will suffer because the case will be decided on deemed, but untrue, facts. Wheeler, 157 S.W.3d at 443 n.2; Boule, 189 S.W.3d at 836-37; In re Kellogg Brown & Root, Inc., 45 S.W.3d at 777. This verified Motion as well as the Affidavit of Armando De Diego, which includes attached to it the answers Saffles would have served in response to the request for admissions had the deadline not have been missed, establish that this Unopposed Motion to Strike/Withdraw Deemed Admissions should be granted. III. Conclusion and Prayer For the reasons stated above, Defendant/Counter-Plaintiff Andrew Saffles respectfully prays that his Unopposed Motion to Strike/Withdraw Deemed Admissions be granted. DEFENDANT/COUNTER-PLAINTIFF’S VERIFIED UNOPPOSED MOTION TO STRIKE/WITHDRAW DEEMED ADMISSIONS - Page 4 Respectfully submitted, THE LAW OFFICE OF ARMANDO DE DIEGO , P.C. By: /s/ Armando De Diego ARMANDO DE DIEGO State Bar No. 05635400 Email: adediego@dediego.com HARVEY G. JOSEPH State Bar No. 11027850 Email: hjoseph@dediego.com 1201 Griffin Street W Dallas, Texas 75215-1030 Telephone: (214) 426-1220 Facsimile: (214) 426-1246 ATTORNEYS FOR DEFENDANT/COUNTER-PLAINTIFF , ANDREW SAFFLES CERTIFICATE OF CONFERENCE On December 19, 2017, the undersigned conference with counsel for Plaintiffs who stated this Motion is Unopposed. /s/ Armando De Diego ARMANDO DE DIEGO DEFENDANT/COUNTER-PLAINTIFF’S VERIFIED UNOPPOSED MOTION TO STRIKE/WITHDRAW DEEMED ADMISSIONS - Page 5 CERTIFICATE OF SERVICE This is to certify that on the 2nd day of January, 2018, a true and correct copy of the foregoing document has been personally served, as indicated below: Mr. Andrew A. Dunlap U Via Electronic Service 6565 N. MacArthur Boulevard Via Certified Mail Suite 140 Via Facsimile Irving, Texas 75039-2478 ______ Via Regular Mail /s/ Armando De Diego ARMANDO DE DIEGO DEFENDANT/COUNTER-PLAINTIFF’S VERIFIED UNOPPOSED MOTION TO STRIKE/WITHDRAW DEEMED ADMISSIONS - Page 6 VERIFICATION Before Before me the w1dersigned me, the notary public undersigned notary public, on thi day personall this day appeared Armando personally appeared De Diego Diego, who being by by me first first duly duly sworn on his his oath oath, deposed and stated tated that i the that he is the attorney for attorney for Defendant/Counter-Plaintiff Defendant/Counter-Plaintiff Andrew Saffles in this Saffles in cause of this cause of action, that he action, that he has ha been rread been ad th the above and foregoing foregoing Motion to to Withdraw Deemed Admissions, Admissions, and that the that the factual information contained factual information contained in in this this Motion is true and is true correct and iis within and correct his per within his nal personal knowledge. knowledge. O‘Mwflzflm AKMANDO DE DIEGO to UBSCRIBED AND SWORN TO SUBSCRIBED to certify witne m certify which witness my hand and O BEFORE ME ON this and official seal. official seal. @J/M/n this 2 2"" Notary Publian and for the State of [06M Printed w Texas Ndme W nd day ofJanuary, day of Januru-y 2018, 2018 K} 'H’én berrk/ of Notary Public / My Commission Expir M s: Expires: 39 ID 6442619 DEFENDANT/COUNTER-PLAINTIFF’S DEFENDA T/COUNTER-PLAI T IFF'S VERIFIED VER! F! · D UNOPPOSED OPPOS ED MOTION MOTIO TO STRJKE/WI STRIKE/WITHDRAW ADMISSIO S-- Page THDRAW DEEMED ADMISSIONS Page 77 EXHIBIT 001 CAUSE NO. N0. DC-17-09658 DC-17—09658 DOLORES MEADORS WESSO and HENRY WESSO HENRYWESSO §§ IN IN THE DISTRICT COURT § Plaintiff, Plaintiff, § g § vs. VS. § g 134th 134th JUDICIAL DISTRICT § ANDREW SAFFLES, § g § Defendant. Defendant. § g DALLAS COUNTY, TEXAS DALLASCOUNTY,TEXAS 0F ARMANDO DE DIEGO AFFIDAVIT OF THE STATE OF TEXAS §§ §§ COUNTY OF DALLAS §§ On this this day day personally personally appeared appeared Armando De Diego, Diego, who, who, after after being being duly duly sworn, sworn, deposed deposed and and stated stated as as follows: follows: 1. 1. "My name is is Armando De Diego. Diego. I1 am over over the the age age of 0f twenty-one twenty-one (21) (21) years, years, have have never been never been convicted convicted of ofaa felony felony or or other other crime crime of moral turpitude, ofmoral rurpitude, and and am otherwise otherwise fully fully competent competent to to make this this Affidavit. Affidavit. II am familiar familiar with with all all the the facts facts stated stated herein, herein, and and all all of 0f the the facts facts herein herein are are true tme and and correct correct based based upon my personal personal knowledge. knowledge. 2. "I "I am the the attorney attorney for for Andrew Saffies Safiles in in the the above-captioned above-captioned matter. matter. 3. "On August 8, "On 8, 2017, 2017, Plaintiffs Plaintiffs Henry Henry and and Dolores Doiores Wesso ("Wesso") ("Wcsso") filed filed suit suit against against Andrew Saffies Saffles ("Saffles") (“Saffles”) regarding regarding a a dispute dispute involving involving the the repayment repayment of of aa loan. loan. On October October 6, 6, 2017, 2017, Saffles Safiles timely timely filed filed his his verified verified Answer andand aa Counterclaim. Counterclaim. 4. "On October "On October 30, 30, 2017, 2017, Wesso served served discovery, discovery, including including Request Request for for Admissions, Admissions, via email to to me. A true true and correct correct copy copy of the the Request Request for for Admissions, Admissions, including including the the email by by which itit was sent, sent, was attached attached to to the the Motion Motion to to Withdraw Withdraw Deemed Admissions, Admissions, as Exhibit 1. as Exhibit l. 5. "At the "At the time time the the written written discovery discovery was emailed emailed toto me, me, Il was deep deep in in preparation preparation for for a November 13, 13, 2017 201 7 two-week jury trial two-weekjury trial in in a a case case styled styled Jimmy Jimmy and Teresa Teresa Wagon Wagon v. v. State Stare Farm Lloyds, Lloyds, Cause Number 2014-001838-3 2014-0018383 in in the the County County Court Court at at Law Number 3, 3, Tarrant Tarrant County, County, Texas, Texas, as as well well as as preparing preparing for for Car Car swell swell v. v. State Stare Farm Lloyds, Cause Lloyds, Number4:17-CV-00149-A Number 4:17-CV—00149—A inin the the United States States District Court for District Court the for the Northern District of Texas Fort Northern District Division (J. Fort Worth Division (J. McBryde). McBryde). 6. 6. "Being more accustomed to to the the more traditional traditional method of of serving discovery serving discovery requests by requests by certified certified or or regular regular mail or by mail or by fax, fax, and distracted distracted by by the extensive the extensive trial trial preparation, preparation, II did not see did not see the the email email sent sent by the secretary by the secretary in Plaintiffs attorney’s in Plaintiff’s attorney's office entitled office entitled "First “First Set Set of Written Written Discovery ... Discovery...” " which did did not not reference reference the the case case in in the title. the title. II have have an an active active legal practice and receive legal practice receive several several hundred emails emails aa day. day. This This email email slipped by me and II was not slipped by not actually actually aware that that discovery, discovery, including including Requests Requests forfor Admissions, Admissions, had been served on my client served 0n client until until II received received Plaintiffs Plaintiff's Motion forfor Summary Judgment filed filed on December 19, 2017, 19, 20 17, based based in in part the part upon the deemed admissions. admissions. 7. 7. "Despite the the fact fact the Request for the Request for Admissions pmported purported to to be be both both sent by and sent by and sent sent to t0 non-parties in this non-parties in this case, case, upon my actual actual awareness of the existence ofthe existence of the Request ofthe for Admissions on December 19, for 19, 2017, 2017, I I immediately immediately set set out out to to respond respond to the to the Request for for Admissions, Admissions, and such havehave now been been responded toto and answered. answered. II also also conferred with Plaintiffs' conferred with Plaintiffs’ counsel, counsel, advised advised him of my ofmy mistake mistake and requested requested he agree agree to the to motion to the motion to withdraw deemed admissions admissions since since the the failure failure to respond to to respond to the the request request for for admissions admissions was inadvertent. inadvertent. 8. 8. "It "It was not not my intent or desire intent or desire to to fail to respond fail to respond to the Request for to the for Admissions by by November 29, 2017. 29, 20 1 7. The sole sole reason reason II did not do did not do so so is because II was unaware is because unaware of their oftheir existence until December 19, existence until 2017." 19, 2017." W Further, Further, Affiant Affiant sayeth sayeth not. not. wmmfiéfi ARMANDO DE DIEGO TO BEFORE ME on this SUBSCRIBED AND SWORN T0 this 2"“ 2 nd day day of January, January, 2018. 2018. Q )J/VZ/Im/ tary flaw gate of Texas Publicfi >(—