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NO. 2017-24836
GLENN M. SWISHER, Individually and IN THE DISTRICT COURT
as Independent Administrator of the
Estate of Darrell E. Swisher, Jr.,
Plaintiff/Counter Defendant,
V. 113TH JUDICIAL DISTRICT
DLA HOMES, LLC,
Defendant/Counter Plaintiff. OF HARRIS COUNTY, TEXAS
DEFENDANT’S MOTION TO WITHDRAW DEEMED ADMISSIONS
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant DLA HOMES, LLC, Movant, moves this Court to permit it to withdraw
deemed admissions and accept the responses tendered to Plaintiff, and in support thereof would
show the following:
I. Facts
Plaintiff filed the instant suit. On April 12, 2017.
On November 11, 2017, Plaintiff served upon Defendant discovery including
requests for admission, interrogatories, and request for production.
laintiff’s Counsel Alex Moheb did not see the email. He never open or saw
the discovery. Based on Mr. Moheb inadvertently overlooking the discovery, the admissions
were deemed admitted on December 10, 2017. See Affidavit of Alex Moheb, attached hereto as
Exhibit A.
Plaintiff did not inquire in any way of the late discovery response between
December 10, 2017, and February 9, 2018. Mr. Moheb did not learn of the admissions until
February 9, 2018, when Plaintiff filed for a Motion for Summary Judgment based mainly on the
deemed admissions.
On February 13, Mr. Moheb contacted Matthew Cire by phone, Counsel for
the Defendant, to determine if Mr. Cire would be willing to execute a rule 11 agreement
withdrawing the deemed admissions. Mr. Moheb believed that such a professional courtesy
would be forthcoming from Mr. Cire as Mr. Moheb had previously extended several discovery
extensions to Mr. Cire. However, Mr. Cire rejected Mr. Moheb requests stating that he had
precipitated his motion for summary judgment primarily on the deemed admissions and that he
had already billed the file
On February 13 Mr. Moheb discussed the case law that states that a Cour
refusing to undeem admission could constitute a death penalty sanction. However, Mr. Cire
still refused to undeem the admissions by agreement.
March 15, 2018, Mr. Moheb forwarded a copy of Defendant’s Responses to
Plaintiff’s Request for Admissions contemporaneously with this motionSee Defendant’s
Responses to Plaintiff’sRequest for Admission, attached hereto as Exhibit B.
Furthermore, Plaintiff’s attorney Mr. Cire already know Defendant’s positions on
the requests included in Plaintiff’s requests for admissions as Mr. Cire had a phone call with
Mr. Moheb and Attorney Ryan Marquez regarding the position of the case. The discussion
included referring the typed signature as an electronic signature and mutual promises as
consideration for the contract on the Premises.
Also, Defendant’s position was only known by Plaintiff as presented in
Defendant/Counter Plaintiff’s Original Counterclaim which gives Plaintiff knowledge of
Defendant position on the signature of DLA Homes.
II. Motion to Withdraw Deemed Admissions
Defendant requests the Court pursuant to Texas Rule of Civil Procedure 198.3 to
permit h to withdraw the admissions, so that he can provide responses to all the requests for
admission with the assistance of counsel. Parties are permitted to withdraw deemed admissions
upon a showing of (1) good cause, and 2) no undue prejudice to the party relying on the
responses and the deemed admissions and that the presentation of the merits of the action will
be subserved by permitting withdrawal IV Wheeler v. Green,
S.W.3d 439, 442 (Tex2005).
efendant Can how ood ausefor Withdrawal
Good cause is established by showing the failure to respond was an accident or
mistake, not intentional or the result of conscious indifference. Wheeler, 157 S.W.3d at 442.
Even a slight excuse will suffice, especially when delay or prejudice to the opposing party will
not result. In re Kellogg Brown & Root, Inc., 45 S.W.3d 772, 775 (Tex. App. Tyler 2001,
orig. proc.). On the good faith element, Mr. Moheb testified by affidavit that he inadvertently
failed to respond to Plaintiff’s discovery request. See Exhibit A. Following his mistake, Mr.
Moheb alerted Mr. Cire of his oversight and served Defendant’s Response to Plaintiff’s Request
for Admissions upon plaintiff’s attorney of record Matthew CireSee id. r. Moheb’s
inadvertence was an accident, and was neither intentional nor the result of conscious
indifference.
The First Court of Appeals has held that “a showing of clerical error has been
held sufficient to establish good cause for failure to timely respond to a request for admission,
even if a party is negligent, as long as the party’s negligence does not rise to the level of
conscious indifference.” Boulet v. State, 189 S.W.3d 833, 837 (Tex. App. Houston [1st Dist.]
2006, no pet.). In Boulet, the Court found that a calendaring error constituted good cause, and
that the trial court had abused its discretion by not permitting the deemed admissions to be
withdrawn. Id. at 838. Likewise, Mr. Moheb inadvertently overlooked the discovery and
therefore was unaware of the due date. SeeExhibit A.
Texas Courts of Appeal have found clerical errors and calendaring mistakes to
constitute “good cause” for withdrawing deemed admissions. See Boulet at 838 (deemed
admissions caused by an attorney calculating the response deadline from an incorrectly stamped
‘received’ date constituted good cause for withdrawal); In re Reagan, 2007 Tex. App. LEXIS
2783 (Tex. App. Beaumont 2010, no pet.) (defense counsel’s statements that she examined the
petition but failed to notice the requests for admissions, even though defendant recalled reading
and discussing the requests with counsel at their initial meeting, still constituted good cause
because no finding that defendant or counsel consciously failed to respond).
BecausMr. Moheb ’s failure to timely respond to admissions was an accident and
not intentional or the result of conscious indifference, the Court should permit the admissions to
be withdrawn.
No Undue Prejudice to Plaintiff and Presentation of the Merits of the Action Will be
Subserved
Undue prejudice depends on whether withdrawing an admission will delay trial or
significantly hamper the opposing party’s ability to prepare for trial. Wheeler, 157 S.W.3d at
443. The mere fact that a trialon the merits is necessary does not constitute undue prejudice.
City of Houston v. Riner, 896 S.W.2d 317, 320 (Tex. App. Houston [1st Dist.] 1995, writ
denied). The withdrawal of these admissions will not delay trial in this matter. Therefore,
Plaintiff will not be unduly prejudiced by allowing Defendant to withdraw admissions.
As a part of the undue prejudice analysis, Rule 198.3 further requires that
presentation of the merits of the action will be subserved by permitting withdrawal, i.e.,
“presentation of the merits will suffer (1) if the requesting party cannot prepare for trial, and
also (2) if the requestor canprepare but the case is decided on deemed (but perhaps untrue) facts
anyway.” Wheeler, 157 S.W.3d. at 443 n.2. Moreover, the Supreme Court has held that for
depositions, interrogatories, requests for production, and requests for disclosure “absent flagrant
bad faith or callous disregard for the rules, due process bars merits preclusive sanctions.” . at
443. Similarly, “when a party uses deemed admissions to try to preclude presentation of the
merits of a case, the same due process concerns arise.” The request for admission would
totally prevent Defendant/Counterplaintiff from prosecuting and defending its claims in total.
DLA Homes, LLC faces serious due process concerns should these deemed
admissions be permitted to stand. The Texas Supreme Court has recognized this problem and
has stated that “[r]equests for admission are a tool, not a trapdoor.” United States Fid. & Guar.
Co. v. Goudeau, 272 S.W.3d 603, 610 (Tex. 2008) (citing Wheeler v. Green, 157 S.W.3d 439,
443 (Tex. 2005)). Moreover, “The primary purposeof [request for admissions] is to simplify
trials by eliminating matters about which there is no real controversy, but which may be
difficult or expensive to prove. It was never intended to be used as a demand upon a plaintiff or
defendant to admit that he had no cause of action or ground of defense.” Stelly v. Papania
S.W.2d 620, 622 (Tex. 1996).
Given the absence of any evidence that Defendant has acted in bad faith or in
callous disregard for the rules, withdrawal of any merits preclusive admissions here should be
permitted.
III. rayer
WHEREFORE, Defendant prays that the Court grant leave for the withdrawal of any
deemed Admissio and to permit Defendant to serve his Responses, which are attached to this
motion,and for such and further relief to which Defendant may be entitled.
Respectfully submitted,
OHEB PLLC
Alex Moheb, J.D.,LL.M
SBN: 24076566
alexmoheb@gmail.com
Moheb Law, PLLC
8831 Long Point Rd., Suite 401
Houston, Texas 77055
Tel: (832) 659
Fax: (281) 715
Attorney for Defendant/Counter
Plaintiff DLA Homes, LLC
ERTIFICATE OF SERVICE
I certify that on March 15, a true and correct copy of Defendant’s Motion to
Withdraw Deemed Admissions was served by through the state e file system to Matthew Cire,
Attorney for Plaintiff
/s/ Alex Moheb
Alex Moheb
CERTIFICATE OF CONFERENCE
I certify that on _February 13 2018, I conferred with Matthew Cire, Attorney for
Plaintiff. He said that he was opposed to withdrawing the deemed admissions.
/s/ Alex Moheb
Alex Moheb
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NO. 2017-24836 GLENN M. SWISHER, Individually and IN THE DISTRICT COURT as Independent Administrator of the Estate of Darrell E. Swisher, Jr., Plaintiff/Counter Defendant, V. 113TH JUDICIAL DISTRICT DLA HOMES, LLC, Defendant/Counter Plaintiff. OF HARRIS COUNTY, TEXAS DEFENDANT’S MOTION TO WITHDRAW DEEMED ADMISSIONS TO THE HONORABLE JUDGE OF SAID COURT: Defendant DLA HOMES, LLC, Movant, moves this Court to permit it to withdraw deemed admissions and accept the responses tendered to Plaintiff, and in support thereof would show the following: I. Facts Plaintiff filed the instant suit. On April 12, 2017. On November 11, 2017, Plaintiff served upon Defendant discovery including requests for admission, interrogatories, and request for production. laintiff’s Counsel Alex Moheb did not see the email. He never open or saw the discovery. Based on Mr. Moheb inadvertently overlooking the discovery, the admissions were deemed admitted on December 10, 2017. See Affidavit of Alex Moheb, attached hereto as Exhibit A. Plaintiff did not inquire in any way of the late discovery response between December 10, 2017, and February 9, 2018. Mr. Moheb did not learn of the admissions until February 9, 2018, when Plaintiff filed for a Motion for Summary Judgment based mainly on the deemed admissions. On February 13, Mr. Moheb contacted Matthew Cire by phone, Counsel for the Defendant, to determine if Mr. Cire would be willing to execute a rule 11 agreement withdrawing the deemed admissions. Mr. Moheb believed that such a professional courtesy would be forthcoming from Mr. Cire as Mr. Moheb had previously extended several discovery extensions to Mr. Cire. However, Mr. Cire rejected Mr. Moheb requests stating that he had precipitated his motion for summary judgment primarily on the deemed admissions and that he had already billed the file On February 13 Mr. Moheb discussed the case law that states that a Cour refusing to undeem admission could constitute a death penalty sanction. However, Mr. Cire still refused to undeem the admissions by agreement. March 15, 2018, Mr. Moheb forwarded a copy of Defendant’s Responses to Plaintiff’s Request for Admissions contemporaneously with this motionSee Defendant’s Responses to Plaintiff’sRequest for Admission, attached hereto as Exhibit B. Furthermore, Plaintiff’s attorney Mr. Cire already know Defendant’s positions on the requests included in Plaintiff’s requests for admissions as Mr. Cire had a phone call with Mr. Moheb and Attorney Ryan Marquez regarding the position of the case. The discussion included referring the typed signature as an electronic signature and mutual promises as consideration for the contract on the Premises. Also, Defendant’s position was only known by Plaintiff as presented in Defendant/Counter Plaintiff’s Original Counterclaim which gives Plaintiff knowledge of Defendant position on the signature of DLA Homes. II. Motion to Withdraw Deemed Admissions Defendant requests the Court pursuant to Texas Rule of Civil Procedure 198.3 to permit h to withdraw the admissions, so that he can provide responses to all the requests for admission with the assistance of counsel. Parties are permitted to withdraw deemed admissions upon a showing of (1) good cause, and 2) no undue prejudice to the party relying on the responses and the deemed admissions and that the presentation of the merits of the action will be subserved by permitting withdrawal IV Wheeler v. Green, S.W.3d 439, 442 (Tex2005). efendant Can how ood ausefor Withdrawal Good cause is established by showing the failure to respond was an accident or mistake, not intentional or the result of conscious indifference. Wheeler, 157 S.W.3d at 442. Even a slight excuse will suffice, especially when delay or prejudice to the opposing party will not result. In re Kellogg Brown & Root, Inc., 45 S.W.3d 772, 775 (Tex. App. Tyler 2001, orig. proc.). On the good faith element, Mr. Moheb testified by affidavit that he inadvertently failed to respond to Plaintiff’s discovery request. See Exhibit A. Following his mistake, Mr. Moheb alerted Mr. Cire of his oversight and served Defendant’s Response to Plaintiff’s Request for Admissions upon plaintiff’s attorney of record Matthew CireSee id. r. Moheb’s inadvertence was an accident, and was neither intentional nor the result of conscious indifference. The First Court of Appeals has held that “a showing of clerical error has been held sufficient to establish good cause for failure to timely respond to a request for admission, even if a party is negligent, as long as the party’s negligence does not rise to the level of conscious indifference.” Boulet v. State, 189 S.W.3d 833, 837 (Tex. App. Houston [1st Dist.] 2006, no pet.). In Boulet, the Court found that a calendaring error constituted good cause, and that the trial court had abused its discretion by not permitting the deemed admissions to be withdrawn. Id. at 838. Likewise, Mr. Moheb inadvertently overlooked the discovery and therefore was unaware of the due date. SeeExhibit A. Texas Courts of Appeal have found clerical errors and calendaring mistakes to constitute “good cause” for withdrawing deemed admissions. See Boulet at 838 (deemed admissions caused by an attorney calculating the response deadline from an incorrectly stamped ‘received’ date constituted good cause for withdrawal); In re Reagan, 2007 Tex. App. LEXIS 2783 (Tex. App. Beaumont 2010, no pet.) (defense counsel’s statements that she examined the petition but failed to notice the requests for admissions, even though defendant recalled reading and discussing the requests with counsel at their initial meeting, still constituted good cause because no finding that defendant or counsel consciously failed to respond). BecausMr. Moheb ’s failure to timely respond to admissions was an accident and not intentional or the result of conscious indifference, the Court should permit the admissions to be withdrawn. No Undue Prejudice to Plaintiff and Presentation of the Merits of the Action Will be Subserved Undue prejudice depends on whether withdrawing an admission will delay trial or significantly hamper the opposing party’s ability to prepare for trial. Wheeler, 157 S.W.3d at 443. The mere fact that a trialon the merits is necessary does not constitute undue prejudice. City of Houston v. Riner, 896 S.W.2d 317, 320 (Tex. App. Houston [1st Dist.] 1995, writ denied). The withdrawal of these admissions will not delay trial in this matter. Therefore, Plaintiff will not be unduly prejudiced by allowing Defendant to withdraw admissions. As a part of the undue prejudice analysis, Rule 198.3 further requires that presentation of the merits of the action will be subserved by permitting withdrawal, i.e., “presentation of the merits will suffer (1) if the requesting party cannot prepare for trial, and also (2) if the requestor canprepare but the case is decided on deemed (but perhaps untrue) facts anyway.” Wheeler, 157 S.W.3d. at 443 n.2. Moreover, the Supreme Court has held that for depositions, interrogatories, requests for production, and requests for disclosure “absent flagrant bad faith or callous disregard for the rules, due process bars merits preclusive sanctions.” . at 443. Similarly, “when a party uses deemed admissions to try to preclude presentation of the merits of a case, the same due process concerns arise.” The request for admission would totally prevent Defendant/Counterplaintiff from prosecuting and defending its claims in total. DLA Homes, LLC faces serious due process concerns should these deemed admissions be permitted to stand. The Texas Supreme Court has recognized this problem and has stated that “[r]equests for admission are a tool, not a trapdoor.” United States Fid. & Guar. Co. v. Goudeau, 272 S.W.3d 603, 610 (Tex. 2008) (citing Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005)). Moreover, “The primary purposeof [request for admissions] is to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to prove. It was never intended to be used as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of defense.” Stelly v. Papania S.W.2d 620, 622 (Tex. 1996). Given the absence of any evidence that Defendant has acted in bad faith or in callous disregard for the rules, withdrawal of any merits preclusive admissions here should be permitted. III. rayer WHEREFORE, Defendant prays that the Court grant leave for the withdrawal of any deemed Admissio and to permit Defendant to serve his Responses, which are attached to this motion,and for such and further relief to which Defendant may be entitled. Respectfully submitted, OHEB PLLC Alex Moheb, J.D.,LL.M SBN: 24076566 alexmoheb@gmail.com Moheb Law, PLLC 8831 Long Point Rd., Suite 401 Houston, Texas 77055 Tel: (832) 659 Fax: (281) 715 Attorney for Defendant/Counter Plaintiff DLA Homes, LLC ERTIFICATE OF SERVICE I certify that on March 15, a true and correct copy of Defendant’s Motion to Withdraw Deemed Admissions was served by through the state e file system to Matthew Cire, Attorney for Plaintiff /s/ Alex Moheb Alex Moheb CERTIFICATE OF CONFERENCE I certify that on _February 13 2018, I conferred with Matthew Cire, Attorney for Plaintiff. He said that he was opposed to withdrawing the deemed admissions. /s/ Alex Moheb Alex Moheb