Preview
CAUSE NO. 18-11-14921
DONNA KING, § IN THE DISTRICT COURT
Plaintiff, §
§
Vv. § 284" JUDICIAL DISTRICT
VIKING FLOOR ENTERPRISES, INC. d/b/a §
VIKING CARPET ONE FLOOR & HOME, §
1
Defendant. § MONTGOMERY COUNTY, TEXAS
DEFENDANT’S MOTION FOR WITHDRAWAL OF DEEMED ADMISSIONS
Pursuant to Rule 198.3 of the Texas Rules of Civil Procedure, Defendant moves the court
for withdrawal of deemed admissions. In support of this motion, Defendant submits the following
memorandum.
I. Procedural History/Undisputed Material Facts
1 On or about November 13, 2018, Donna King (“Plaintiff”) filed suit against Viking
Floors Enterprises, Inc. d/b/a Viking Carpet One Floor & Home (“Viking Floors”) for negligence
and gross negligence in Cause No. 18-11-14921 in the 284" Judicial District Court, Montgomery
County, Texas.
22 Attached in the body of Plaintiff’ s Original Petition (pages 8-9) were seven requests
for admission, five of which are merit-preclusive requests. Defendant was served with Plaintiff's
discovery-containing Original Petition on December 13, 2018.!
a
3 On December 28, 2018, Viking Floors filed an answer signed by V.P. Bernadette
Sanberg. The answer contained photographs and declarations of Defendant’s installer Isaac
Saldana and Defendant’s vice president Bernadette Sanberg in which Defendant meticulously set
forth Defendant’s defenses to Plaintiff's claims.
' Plaintiffs Original Petition also contained eight requests for production of documents and six interrogatories.
4 Defendant’s vice president Sanberg believed that this answer put all contested
matters at issue. She did not realize that the Texas Rules of Civil Procedure required a party to
prepare separate responses to each of the seven requests for admission. See the Affidavit Of
Bernadette Sanberg, attached as Exhibit A.
©
S Plaintiff's merit-preclusive requests for admission were automatically deemed
admitted fifty (50) days after service on February 1, 2019.
6 On October 4, 2019, Plaintiff's new counsel Travis Owens filed Plaintiffs First
Amended Petition which dropped Plaintiff s claims for negligence and gross negligence and added
entirely new causes of action for violations of the Texas Deceptive Trade Practices Act, breach of
contract and fraud. New counsel did not include the requests for admission in Plaintiffs First
Amended Petition.
7 Plaintiff never sent correspondence to Defendant alerting Defendant that it had not
responded to the requests for admission, interrogatories and requests for production served with
plaintiff's superseded original petition. Plaintiff never moved to compel answers to interrogatories
or requests for production served with plaintiff's superseded original petition.
8 On December 20, 2019, Plaintiff filed a motion for summary judgment on her
causes of action for breach of contract and DTPA violations. She did not refer to or rely on
Defendant’s deemed admissions in seeking summary judgment.
9. Fourteen days before trial on May 12, 2021, Plaintiff filed her required pre-trial
documents including Plaintiffs motion in imine. In Plaintiff's motion in limine, Plaintiff seeks to
preclude Defendant from offering testimony to contradict the merit-preclusive deemed admissions
that (1) the bathroom where Defendant installed the tile was flooded while Defendant was
installing tile; (2) on June 5, 2018, Defendant did not grout the tile Defendant installed in Plaintiff's
i
bathroom on June 4, 2018 because the bathroom was wet from a leak; and (3) Defendant broke the
angle valve which caused the leak in Plaintiffs residence.
10. Immediately upon being served with Plaintiffs motion in limine, when Defendant’s
counsel realized for the first time that Defendant had not answered requests for admission served
in Plaintiffs superseded original petition two and one-half years before trial, Defendant served
answers to Plaintiff's requests for admission. See the Affidavit of John Ghezzi, attached as Exhibit
B and a copy of Defendant’s Answers to Plaintiff's Requests For Admission, attached as Exhibit
Cc
ll. Plaintiff has designated as trial witnesses herself (Donna King) and plumber Darrin
McKinley, who both on information and belief will present testimony that Defendant broke the
angle valve on the toilet which caused the leak in Plaintiffs residence.
IL. Argument and Authoritie:
12. To obtain permission to withdraw deemed admissions, a party must ordinarily show
(1) good cause, (2) that the other party will not be unduly prejudiced, and (3) the presentation of
the merits of the lawsuit will be served by the withdrawal. See TEX. R. Civ. P. 198.3; Wheeler v.
Green, 157 S.W.3d 439, 443 and n.2 (Tex. 2005)(per curiam). Generally, a party demonstrates
good cause by showing the failure to respond “was accidental or the result of a mistake, rather than
intentional or the result of conscious indifference”. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex.
1996)(per curiam). “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.”
See Wheeler, 157 S.W.3d at 443 (citation omitted); Stelly, 927 S.W.2d at 622; see also Wal-Mart
Stores v. Deggs, 968 S.W.2d 354,357 (Tex. 1998)(trial court should have permitted withdrawal of
deemed admissions; plaintiff
did not depend on admissions to develop case).
13. The party seeking the withdrawal ordinarily bears the burden of proof. Morgan v.
Timmers Chevrolet, Inc., 1 S.W.3d 803,807 (Tex. App.—Houston [1* Dist.] 1999, pet. denied).
However, when the deemed admissions are merit-preclusive, they implicate due process by
compromising a party’s right to present the merits of its case. See Wheeler, 157 S.W.3d at 443.
Denial of a motion to withdraw merit-preclusive admissions effectively imposes a death-penalty
discovery sanction. Marino y. King, 355 S.W.3d 629,632 (Tex. 2011)(per curiam). A merit-
preclusive request is any request that essentially asks the party to concede the invalidity of its claim
or concede its defenses. See, e.g., Ramirez v. Noble Energy, Inc., 521 S.W.3d 851, 858-59 (Tex.
App—Houston [1% Dist.] 2017, no pet.).
14. Accordingly, where the motion seeks to withdraw merit-preclusive admissions, the
party opposing the withdrawal must prove the moving party’s failure to answer the admissions
resulted from “flagrant bad faith or callous disregard of the rules”. Time Warner, Inc. v. Gonzalez,
441 S.W.3d 661,666 (Tex. App San Antonio 2014, pet. denied) (citation and internal quotation
marks omitted). In that situation, good cause exists absent such proof of bad faith or callous
disregard of the rules. Marino, 355 8.W.3d at 634. The court also presumes that presentation of
the merits would be served by allowing withdrawal of the deemed admissions. See id.
15. In plaintiff's motion in limine in this case, the deemed admissions on which
Plaintiff seeks to rely and preclude contradictory testimony are clearly merit-preclusive. The
deemed admissions essentially concede Defendant’s defenses that it did not break the angle stop
valve on the toilet, that the leak did not occur while Defendant was installing tile in the bathroom,
that Defendant did not cause the leak in Plaintiff's residence, and that the reason Defendant did
not grout the tile on Plaintiff's bathroom floor on June 5, 2018 had nothing to do with alleged
water on the bathroom floor.
16. Thus, the burden of proof shifts to Plaintiff to prove Defendant’s bad faith or callous
disregard of the rules in failing to timely answer the requests for admission contained in Plaintiff's
superseded original petition. Because Plaintiff cannot prove such bad faith or callous disregard of
the rules, good cause to allow withdrawal of the deemed admissions exists and the court should
presume that presentation of the merits of Defendant’s defenses to Plaintiff's claims would be
served by allowing withdrawal of the deemed admissions.
17. Here, Defendant showed no bad faith in failing to answer the requests for admission
embedded in plaintiffs superseded original petition. Defendant’s vice president avers that she
believed she was preserving the company’s defenses and putting all contested matters at issue
when she filed the company’s answer with photographs and detailed declarations of its defenses
fifteen days after being served with the petition and embedded requests for admission. See Exhibit
A. She did not realize that the rules required a written response to each separate request for
admission. Jd. And Plaintiff cannot prove callous disregard of the rules. As Plaintiff never alerted
Defendant to outstanding discovery including the merit-preclusive requests for admission and did
not rely on such requests for admission in her motion for summary judgment filed on December
20, 2019, the first time Defendant or its counsel was alerted to the unanswered requests for
admission was in Plaintiff's motion in limine filed May 12, 2021. Defendant’s counsel
immediately served answers to plaintiff's requests for admission on May 12, 2021. See Exhibits B
and C,
18. Allowing withdrawal of the deemed admissions will not unduly prejudice Plaintiff.
The testimony in her affidavit attached to her December 20, 2019 motion for summary judgment
was sufficient to cause the court to enter judgment as a matter of law in Plaintiff's favor. And
Plaintiff advises that she and plumber Darrin McKinley will offer testimony to prove her claims
and refute Defendant’s defenses at trial.
III. CONCLUSION
Because Defendant cannot prove Defendant’s bad faith or callous disregard of the rules in
failing to timely answer the requests for admission embedded in plaintiffs superseded original
petition, the court should find that good cause exists to allow withdrawal of the deemed
admissions, that withdrawal will not unduly prejudice Plaintiffin the presentation of her case, and
that presentation of the merits of Defendant’s defenses to Plaintiffs claims would be served by
allowing withdrawal of the deemed admissions.
IV. PRAYER
WHEREFORE, for these reasons, and in the interest of justice and fairness, Defendant
asks the Court to conduct a hearing with a court reporter and grant Defendant’s motion for
withdrawal of deemed admissions.
Respectfully submitted,
THE GHEZZI LAW FIRM, PLLC
py: > Dad 1s). -
John W. Ghezzi
-Yexas Bar No. 00792531
32731 Egypt Lane, Suite 704
Magnolia, TX 77354
Telephone: (281) 259-4993
Facsimile: (832) 645-7612
E-mail: john@ghezzilawfirm.com
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document has been forwarded in
accordance with the Texas Rules of Civil Procedure to the following counsel and parties of record
on this 17" day of May, 2021.
Travis Owens Via Eservice and Fax
Owens Law Group, PLLC (832) 327-9187
P.O. Box 8605
The Woodlands, TX 77387
—
John W. Ghi
\
CAUSE NO. 18-11-14921
DONNA KING, § IN THE DISTRICT COURT
Plaintiff, §
§
v § 284" JUDICIAL DISTRICT
VIKING FLOOR ENTERPRISES, INC. d/b/a §
VIKING CARPET ONE FLOOR & HOME, §
Defendant. § MONTGOMERY COUNTY, TEXAS
AFFIDAVIT OF BERNADETTE SANBERG
STATE OF TEXAS §
§
COUNTY OF MONTGOMERY §
BEFORE ME, the undersigned notary public, on this day personally appeared Bernadette
Sanberg, a person whose identity is known to me. After I administered an oath to her, upon her
oath she deposed and stated as follows:
1 “My name is Bernadette Sanberg. I am over 18 years of age, of sound mind, and
capable of making this affidavit. The facts stated in this affidavit are within my personal
knowledge and are true and correct.
4
2. Tam the Vice-President of Viking Floor Enterprises, Inc. d/b/a Viking Carpet
One Floor & Home, the defendant in Cause No. 18-11-14921,
3 On or about December 13, 2018, I was served with Plaintiff's Original Petition.
4 On December 28, 2018, in response to Plaintiff's Original Petition, I filed an answer
containing 13 photographs, a declaration of Isaac Saldana, and a declaration of Bernadette
Sanberg. In these declarations, Defendant denied Plaintiff’s allegations and meticulously detailed
its defenses to the claims asserted in Plaintiff's Original Petition.
4 T did not realize that Plaintiff's Original Petition contained discovery requests called
requests for production, interrogatories, and requests for admission. I was unaware that the rules
of civil procedure require a separate written response’ to each of the requests for admission. I
assumed that the detailed declarations I filed on December 28, 2018 put all contested matters at
issue and properly preserved Defendant's defenses to Plaintiff’s claims.
Eye
C
FURTHER AFFIANT SAYETH NOT.”
males
Bernadette Senbere
SUBSCRIBED AND SWORN TO, before me, on this_/7 They of Ley 2021
(seal)
uk
ote
MELINDA
G, MENDOZA.
meng omen KA 26
Notary Public in and for The State of Texas
a Ay Notary ID # 4128796204
Expltas November 16, 2022
ereramnipinast
My commission expires:
Notary ID#, /2.5 98 6
Navews WZ
2el
Ib, 2077
—__—.
CAUSE NO. 18-11-14921
DONNA KING, § IN THE DISTRICT COURT
Plaintiff, §
§
v § 284" JUDICIAL DISTRICT
VIKING FLOOR ENTERPRISES, INC. d/b/a §
VIKING CARPET ONE FLOOR & HOME, §
Defendant. § MONTGOMERY COUNTY, TEXAS
AFFIDAVIT OF JOHN W. GHEZZI
STATE OF TEXAS §
§
COUNTY OF MONTGOMERY §
BEFORE ME, the undersigned notary public, on this day personally appeared John W.
Ghezzi, a person whose identity is known to me. After I administered an oath to him, upon his
oath he deposed and stated as follows:
1 “My name is John W. Ghezzi. I am over 18 years of age, of sound mind, and
capable of making this affidavit. The facts stated in this affidavit are within my personal
knowledge and are true and correct.
2. I am the attorney of record for Viking Floor Enterprises, Inc. d/b/a Viking
Carpet One Floor & Home, the defendant in Cause No. 18-11-14921.
3 On or about February 7, 2020, Defendant retained me to file a motion for new trial
and further represent Defendant’s interests in this suit if the motion for new trial was granted.
4 On May 6, 2021, this case was assigned to start jury trial on May 26, 2021.
5 On May 12, 2021, Plaintiff filed her Pre-Trial documents including a motion in
limine. In her motion in limine, Plaintiff seeks to preclude Defendant from offering testimony to
contradict the merit-preclusive deemed admissions that (1) the bathroom where Defendant
installed the tile was flooded while Defendant was installing tile; (2) on June 5, 2018, Defendant
did not grout the tile Defendant installed in Plaintiffs bathroom on June 4, 2018 because the
bathroom was wet from a leak; and (3) Defendant broke the angle valve which caused the leak in
Plaintiffs residence.
6. Immediately upon being served with Plaintiff's motion in limine, when I realized
for the first time that Defendant had not answered requests for admission embedded in Plaintiff's
superseded original petition two and one-half years before trial, Defendant served answers to
Plaintiff's requests for admission. See Exhibit C to Defendant’s Motion To Withdraw Deemed
Admissions.
Edo iS
7 IT had no reason to review Plaintiff's superseded original petition when Defendant
retained me to file a motion for new trial because the court had granted summary judgment on the
claims asserted in Plaintiff's first amended petition filed October 4, 2019.
FURTHER AFFIANT SAYETH NOT.”
Ade OD f-
ohn W. Ghezzi
SUBSCRIBED AND SWORN TO, before me, on this /7” day of Mt , 2021.
(seal)
ee sa saa
a } /
3s it SHERRY LINDLEY Notary Public in af id ‘for The State of Texas
lotary Public, State of Texas My commission expires? f
22
20 2 >
comm. Expires 01-27-2023 Ss
M Notary ID 3843425
Notary ID#: 384343 >
Hi 1
CAUSE NO. 18-11-14921
DONNA KING, § IN THE DISTRICT COURT
Plaintiff, §
§
v. § 284" JUDICIAL DISTRICT
VIKING FLOOR ENTERPRISES, INC. d/b/a §
VIKING CARPET ONE FLOOR & HOME, §
Defendant. § MONTGOMERY COUNTY, TEXAS
DEFENDANT’S ANSWERS TO PLAINTIFF’S REQUESTS FOR ADMISSIONS
TO: Donna King, Plaintiff, by and through Plaintiffs attorney of record, Travis Owens,
Travis Owens, Owens Law Group, P.L.L.C., P.O. Box 8605, The Woodlands, TX 77387
Pursuant to the Texas Rules of Civil Procedure, Defendant hereby submits the following
answers to Plaintiffs requests for admissions.
Respectfully submitted,
THE GHEZZI LAW FIRM, PLLC
By: j Ns dx!) >-
0 W. Ghezzi
© Bar No. 00792531
32731 Egypt Lane, Suite 704
Magnolia, TX 77354
Telephone: (281) 259-4993
Facsimile: (832) 645-7612
E-mail: john@ghezzilawfirm.com
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document has been forwarded in
accordance with the Texas Rules of Civil Procedure to the following counsel and parties of record on
this 12" day of May, 2021.
Travis Owens Via Eservice and Fax
Owens Law Group, PLLC (832) 327-9187
P.O. Box 8605
The Woodlands, TX 77387
DEFENDANT’S ANSWERS TO PLAINTIFE?S REQUESTS FOR ADMISSIONS
1. You are not owed any monetary amount from Plaintiffs (sic).
RESPONSE:
Deny.
The bathroom where you installed the tile in Plaintiff's residence was flooded while you
were installing the tile.
RESPONSE:
Deny.
You were going to return on June 5 to grout the tile you installed in Plaintiff's residence on
June 4, 2018.
RESPONSE:
Admit that Defendant’s installers returned on June 5, 2018 to grout the tile but
Plaintiff declined those services.
4 You never grouted the tile you installed in Plaintiff's bathroom on June 4, 2018.
RESPONSE:
Admit that Plaintiff refused to let us return to grout the tile.
5 (misnumbered as 3 by Plaintiff). On June 5, 2018 you did not grout the tile you installed in
Plaintiff's bathroom on June 4, 2018 because said bathroom was wet from a leak.
RESPONSE:
Deny.
(misnumbered as 4 by Plaintiff). You were correctly named in this lawsuit.
RESPONSE:
Admit.
7. (misnumbered as 5 by Plaintiff). You broke the angle valve which caused the leak in
Plaintiff's residence.
RESPONSE:
Deny.
Preview
CAUSE NO. 18-11-14921 DONNA KING, § IN THE DISTRICT COURT Plaintiff, § § Vv. § 284" JUDICIAL DISTRICT VIKING FLOOR ENTERPRISES, INC. d/b/a § VIKING CARPET ONE FLOOR & HOME, § 1 Defendant. § MONTGOMERY COUNTY, TEXAS DEFENDANT’S MOTION FOR WITHDRAWAL OF DEEMED ADMISSIONS Pursuant to Rule 198.3 of the Texas Rules of Civil Procedure, Defendant moves the court for withdrawal of deemed admissions. In support of this motion, Defendant submits the following memorandum. I. Procedural History/Undisputed Material Facts 1 On or about November 13, 2018, Donna King (“Plaintiff”) filed suit against Viking Floors Enterprises, Inc. d/b/a Viking Carpet One Floor & Home (“Viking Floors”) for negligence and gross negligence in Cause No. 18-11-14921 in the 284" Judicial District Court, Montgomery County, Texas. 22 Attached in the body of Plaintiff’ s Original Petition (pages 8-9) were seven requests for admission, five of which are merit-preclusive requests. Defendant was served with Plaintiff's discovery-containing Original Petition on December 13, 2018.! a 3 On December 28, 2018, Viking Floors filed an answer signed by V.P. Bernadette Sanberg. The answer contained photographs and declarations of Defendant’s installer Isaac Saldana and Defendant’s vice president Bernadette Sanberg in which Defendant meticulously set forth Defendant’s defenses to Plaintiff's claims. ' Plaintiffs Original Petition also contained eight requests for production of documents and six interrogatories. 4 Defendant’s vice president Sanberg believed that this answer put all contested matters at issue. She did not realize that the Texas Rules of Civil Procedure required a party to prepare separate responses to each of the seven requests for admission. See the Affidavit Of Bernadette Sanberg, attached as Exhibit A. © S Plaintiff's merit-preclusive requests for admission were automatically deemed admitted fifty (50) days after service on February 1, 2019. 6 On October 4, 2019, Plaintiff's new counsel Travis Owens filed Plaintiffs First Amended Petition which dropped Plaintiff s claims for negligence and gross negligence and added entirely new causes of action for violations of the Texas Deceptive Trade Practices Act, breach of contract and fraud. New counsel did not include the requests for admission in Plaintiffs First Amended Petition. 7 Plaintiff never sent correspondence to Defendant alerting Defendant that it had not responded to the requests for admission, interrogatories and requests for production served with plaintiff's superseded original petition. Plaintiff never moved to compel answers to interrogatories or requests for production served with plaintiff's superseded original petition. 8 On December 20, 2019, Plaintiff filed a motion for summary judgment on her causes of action for breach of contract and DTPA violations. She did not refer to or rely on Defendant’s deemed admissions in seeking summary judgment. 9. Fourteen days before trial on May 12, 2021, Plaintiff filed her required pre-trial documents including Plaintiffs motion in imine. In Plaintiff's motion in limine, Plaintiff seeks to preclude Defendant from offering testimony to contradict the merit-preclusive deemed admissions that (1) the bathroom where Defendant installed the tile was flooded while Defendant was installing tile; (2) on June 5, 2018, Defendant did not grout the tile Defendant installed in Plaintiff's i bathroom on June 4, 2018 because the bathroom was wet from a leak; and (3) Defendant broke the angle valve which caused the leak in Plaintiffs residence. 10. Immediately upon being served with Plaintiffs motion in limine, when Defendant’s counsel realized for the first time that Defendant had not answered requests for admission served in Plaintiffs superseded original petition two and one-half years before trial, Defendant served answers to Plaintiff's requests for admission. See the Affidavit of John Ghezzi, attached as Exhibit B and a copy of Defendant’s Answers to Plaintiff's Requests For Admission, attached as Exhibit Cc ll. Plaintiff has designated as trial witnesses herself (Donna King) and plumber Darrin McKinley, who both on information and belief will present testimony that Defendant broke the angle valve on the toilet which caused the leak in Plaintiffs residence. IL. Argument and Authoritie: 12. To obtain permission to withdraw deemed admissions, a party must ordinarily show (1) good cause, (2) that the other party will not be unduly prejudiced, and (3) the presentation of the merits of the lawsuit will be served by the withdrawal. See TEX. R. Civ. P. 198.3; Wheeler v. Green, 157 S.W.3d 439, 443 and n.2 (Tex. 2005)(per curiam). Generally, a party demonstrates good cause by showing the failure to respond “was accidental or the result of a mistake, rather than intentional or the result of conscious indifference”. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996)(per curiam). “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.” See Wheeler, 157 S.W.3d at 443 (citation omitted); Stelly, 927 S.W.2d at 622; see also Wal-Mart Stores v. Deggs, 968 S.W.2d 354,357 (Tex. 1998)(trial court should have permitted withdrawal of deemed admissions; plaintiff did not depend on admissions to develop case). 13. The party seeking the withdrawal ordinarily bears the burden of proof. Morgan v. Timmers Chevrolet, Inc., 1 S.W.3d 803,807 (Tex. App.—Houston [1* Dist.] 1999, pet. denied). However, when the deemed admissions are merit-preclusive, they implicate due process by compromising a party’s right to present the merits of its case. See Wheeler, 157 S.W.3d at 443. Denial of a motion to withdraw merit-preclusive admissions effectively imposes a death-penalty discovery sanction. Marino y. King, 355 S.W.3d 629,632 (Tex. 2011)(per curiam). A merit- preclusive request is any request that essentially asks the party to concede the invalidity of its claim or concede its defenses. See, e.g., Ramirez v. Noble Energy, Inc., 521 S.W.3d 851, 858-59 (Tex. App—Houston [1% Dist.] 2017, no pet.). 14. Accordingly, where the motion seeks to withdraw merit-preclusive admissions, the party opposing the withdrawal must prove the moving party’s failure to answer the admissions resulted from “flagrant bad faith or callous disregard of the rules”. Time Warner, Inc. v. Gonzalez, 441 S.W.3d 661,666 (Tex. App San Antonio 2014, pet. denied) (citation and internal quotation marks omitted). In that situation, good cause exists absent such proof of bad faith or callous disregard of the rules. Marino, 355 8.W.3d at 634. The court also presumes that presentation of the merits would be served by allowing withdrawal of the deemed admissions. See id. 15. In plaintiff's motion in limine in this case, the deemed admissions on which Plaintiff seeks to rely and preclude contradictory testimony are clearly merit-preclusive. The deemed admissions essentially concede Defendant’s defenses that it did not break the angle stop valve on the toilet, that the leak did not occur while Defendant was installing tile in the bathroom, that Defendant did not cause the leak in Plaintiff's residence, and that the reason Defendant did not grout the tile on Plaintiff's bathroom floor on June 5, 2018 had nothing to do with alleged water on the bathroom floor. 16. Thus, the burden of proof shifts to Plaintiff to prove Defendant’s bad faith or callous disregard of the rules in failing to timely answer the requests for admission contained in Plaintiff's superseded original petition. Because Plaintiff cannot prove such bad faith or callous disregard of the rules, good cause to allow withdrawal of the deemed admissions exists and the court should presume that presentation of the merits of Defendant’s defenses to Plaintiff's claims would be served by allowing withdrawal of the deemed admissions. 17. Here, Defendant showed no bad faith in failing to answer the requests for admission embedded in plaintiffs superseded original petition. Defendant’s vice president avers that she believed she was preserving the company’s defenses and putting all contested matters at issue when she filed the company’s answer with photographs and detailed declarations of its defenses fifteen days after being served with the petition and embedded requests for admission. See Exhibit A. She did not realize that the rules required a written response to each separate request for admission. Jd. And Plaintiff cannot prove callous disregard of the rules. As Plaintiff never alerted Defendant to outstanding discovery including the merit-preclusive requests for admission and did not rely on such requests for admission in her motion for summary judgment filed on December 20, 2019, the first time Defendant or its counsel was alerted to the unanswered requests for admission was in Plaintiff's motion in limine filed May 12, 2021. Defendant’s counsel immediately served answers to plaintiff's requests for admission on May 12, 2021. See Exhibits B and C, 18. Allowing withdrawal of the deemed admissions will not unduly prejudice Plaintiff. The testimony in her affidavit attached to her December 20, 2019 motion for summary judgment was sufficient to cause the court to enter judgment as a matter of law in Plaintiff's favor. And Plaintiff advises that she and plumber Darrin McKinley will offer testimony to prove her claims and refute Defendant’s defenses at trial. III. CONCLUSION Because Defendant cannot prove Defendant’s bad faith or callous disregard of the rules in failing to timely answer the requests for admission embedded in plaintiffs superseded original petition, the court should find that good cause exists to allow withdrawal of the deemed admissions, that withdrawal will not unduly prejudice Plaintiffin the presentation of her case, and that presentation of the merits of Defendant’s defenses to Plaintiffs claims would be served by allowing withdrawal of the deemed admissions. IV. PRAYER WHEREFORE, for these reasons, and in the interest of justice and fairness, Defendant asks the Court to conduct a hearing with a court reporter and grant Defendant’s motion for withdrawal of deemed admissions. Respectfully submitted, THE GHEZZI LAW FIRM, PLLC py: > Dad 1s). - John W. Ghezzi -Yexas Bar No. 00792531 32731 Egypt Lane, Suite 704 Magnolia, TX 77354 Telephone: (281) 259-4993 Facsimile: (832) 645-7612 E-mail: john@ghezzilawfirm.com ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this document has been forwarded in accordance with the Texas Rules of Civil Procedure to the following counsel and parties of record on this 17" day of May, 2021. Travis Owens Via Eservice and Fax Owens Law Group, PLLC (832) 327-9187 P.O. Box 8605 The Woodlands, TX 77387 — John W. Ghi \ CAUSE NO. 18-11-14921 DONNA KING, § IN THE DISTRICT COURT Plaintiff, § § v § 284" JUDICIAL DISTRICT VIKING FLOOR ENTERPRISES, INC. d/b/a § VIKING CARPET ONE FLOOR & HOME, § Defendant. § MONTGOMERY COUNTY, TEXAS AFFIDAVIT OF BERNADETTE SANBERG STATE OF TEXAS § § COUNTY OF MONTGOMERY § BEFORE ME, the undersigned notary public, on this day personally appeared Bernadette Sanberg, a person whose identity is known to me. After I administered an oath to her, upon her oath she deposed and stated as follows: 1 “My name is Bernadette Sanberg. I am over 18 years of age, of sound mind, and capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct. 4 2. Tam the Vice-President of Viking Floor Enterprises, Inc. d/b/a Viking Carpet One Floor & Home, the defendant in Cause No. 18-11-14921, 3 On or about December 13, 2018, I was served with Plaintiff's Original Petition. 4 On December 28, 2018, in response to Plaintiff's Original Petition, I filed an answer containing 13 photographs, a declaration of Isaac Saldana, and a declaration of Bernadette Sanberg. In these declarations, Defendant denied Plaintiff’s allegations and meticulously detailed its defenses to the claims asserted in Plaintiff's Original Petition. 4 T did not realize that Plaintiff's Original Petition contained discovery requests called requests for production, interrogatories, and requests for admission. I was unaware that the rules of civil procedure require a separate written response’ to each of the requests for admission. I assumed that the detailed declarations I filed on December 28, 2018 put all contested matters at issue and properly preserved Defendant's defenses to Plaintiff’s claims. Eye C FURTHER AFFIANT SAYETH NOT.” males Bernadette Senbere SUBSCRIBED AND SWORN TO, before me, on this_/7 They of Ley 2021 (seal) uk ote MELINDA G, MENDOZA. meng omen KA 26 Notary Public in and for The State of Texas a Ay Notary ID # 4128796204 Expltas November 16, 2022 ereramnipinast My commission expires: Notary ID#, /2.5 98 6 Navews WZ 2el Ib, 2077 —__—. CAUSE NO. 18-11-14921 DONNA KING, § IN THE DISTRICT COURT Plaintiff, § § v § 284" JUDICIAL DISTRICT VIKING FLOOR ENTERPRISES, INC. d/b/a § VIKING CARPET ONE FLOOR & HOME, § Defendant. § MONTGOMERY COUNTY, TEXAS AFFIDAVIT OF JOHN W. GHEZZI STATE OF TEXAS § § COUNTY OF MONTGOMERY § BEFORE ME, the undersigned notary public, on this day personally appeared John W. Ghezzi, a person whose identity is known to me. After I administered an oath to him, upon his oath he deposed and stated as follows: 1 “My name is John W. Ghezzi. I am over 18 years of age, of sound mind, and capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct. 2. I am the attorney of record for Viking Floor Enterprises, Inc. d/b/a Viking Carpet One Floor & Home, the defendant in Cause No. 18-11-14921. 3 On or about February 7, 2020, Defendant retained me to file a motion for new trial and further represent Defendant’s interests in this suit if the motion for new trial was granted. 4 On May 6, 2021, this case was assigned to start jury trial on May 26, 2021. 5 On May 12, 2021, Plaintiff filed her Pre-Trial documents including a motion in limine. In her motion in limine, Plaintiff seeks to preclude Defendant from offering testimony to contradict the merit-preclusive deemed admissions that (1) the bathroom where Defendant installed the tile was flooded while Defendant was installing tile; (2) on June 5, 2018, Defendant did not grout the tile Defendant installed in Plaintiffs bathroom on June 4, 2018 because the bathroom was wet from a leak; and (3) Defendant broke the angle valve which caused the leak in Plaintiffs residence. 6. Immediately upon being served with Plaintiff's motion in limine, when I realized for the first time that Defendant had not answered requests for admission embedded in Plaintiff's superseded original petition two and one-half years before trial, Defendant served answers to Plaintiff's requests for admission. See Exhibit C to Defendant’s Motion To Withdraw Deemed Admissions. Edo iS 7 IT had no reason to review Plaintiff's superseded original petition when Defendant retained me to file a motion for new trial because the court had granted summary judgment on the claims asserted in Plaintiff's first amended petition filed October 4, 2019. FURTHER AFFIANT SAYETH NOT.” Ade OD f- ohn W. Ghezzi SUBSCRIBED AND SWORN TO, before me, on this /7” day of Mt , 2021. (seal) ee sa saa a } / 3s it SHERRY LINDLEY Notary Public in af id ‘for The State of Texas lotary Public, State of Texas My commission expires? f 22 20 2 > comm. Expires 01-27-2023 Ss M Notary ID 3843425 Notary ID#: 384343 > Hi 1 CAUSE NO. 18-11-14921 DONNA KING, § IN THE DISTRICT COURT Plaintiff, § § v. § 284" JUDICIAL DISTRICT VIKING FLOOR ENTERPRISES, INC. d/b/a § VIKING CARPET ONE FLOOR & HOME, § Defendant. § MONTGOMERY COUNTY, TEXAS DEFENDANT’S ANSWERS TO PLAINTIFF’S REQUESTS FOR ADMISSIONS TO: Donna King, Plaintiff, by and through Plaintiffs attorney of record, Travis Owens, Travis Owens, Owens Law Group, P.L.L.C., P.O. Box 8605, The Woodlands, TX 77387 Pursuant to the Texas Rules of Civil Procedure, Defendant hereby submits the following answers to Plaintiffs requests for admissions. Respectfully submitted, THE GHEZZI LAW FIRM, PLLC By: j Ns dx!) >- 0 W. Ghezzi © Bar No. 00792531 32731 Egypt Lane, Suite 704 Magnolia, TX 77354 Telephone: (281) 259-4993 Facsimile: (832) 645-7612 E-mail: john@ghezzilawfirm.com ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this document has been forwarded in accordance with the Texas Rules of Civil Procedure to the following counsel and parties of record on this 12" day of May, 2021. Travis Owens Via Eservice and Fax Owens Law Group, PLLC (832) 327-9187 P.O. Box 8605 The Woodlands, TX 77387 DEFENDANT’S ANSWERS TO PLAINTIFE?S REQUESTS FOR ADMISSIONS 1. You are not owed any monetary amount from Plaintiffs (sic). RESPONSE: Deny. The bathroom where you installed the tile in Plaintiff's residence was flooded while you were installing the tile. RESPONSE: Deny. You were going to return on June 5 to grout the tile you installed in Plaintiff's residence on June 4, 2018. RESPONSE: Admit that Defendant’s installers returned on June 5, 2018 to grout the tile but Plaintiff declined those services. 4 You never grouted the tile you installed in Plaintiff's bathroom on June 4, 2018. RESPONSE: Admit that Plaintiff refused to let us return to grout the tile. 5 (misnumbered as 3 by Plaintiff). On June 5, 2018 you did not grout the tile you installed in Plaintiff's bathroom on June 4, 2018 because said bathroom was wet from a leak. RESPONSE: Deny. (misnumbered as 4 by Plaintiff). You were correctly named in this lawsuit. RESPONSE: Admit. 7. (misnumbered as 5 by Plaintiff). You broke the angle valve which caused the leak in Plaintiff's residence. RESPONSE: Deny.