Marino v. King, 355 S.W.3d 629

This is an appeal from a summary judgment based on deemed admissions under Tex.R. Civ. P. 198.3 because Marino’s response was one day late.
The trial court granted summary judgment after Marino did not file a written response requesting withdrawal of the deemed admissions; the court of appeals affirmed.
Marino, now represented and not pro se, argues she adequately preserved error under Wheeler and good cause existed to withdraw the deemed admissions.
King sued Marino for conversion, theft, and fraud, asserting liability based on admitted facts obtained through discovery including admissions requests.
At the August 7, 2009 hearing, the court concluded there were no timely admissions and granted summary judgment awarding $33,559.92 plus $5,000 in attorney’s fees.
The court of appeals affirmed, but the Texas Supreme Court reversed and remanded, holding good cause existed to withdraw the admissions and the trial court erred.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by granting summary judgment on deemed admissions	Marino argues Wheeler governs withdrawal for good cause.	King contends admissions were deemed timely and dispositive.	Yes; the trial court erred and the judgment should be reversed and remanded.

Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005) (requires good cause and lack of undue prejudice to withdraw deemed admissions)
Stelly v. Papania, 927 S.W.2d 620 (Tex. 1996) (pauses on admissions not intended to admit lack of action or defense)
U.S. Fid. and Guar. Co. v. Goudeau, 272 S.W.3d 603 (Tex. 2008) (requests for admissions should be a tool, not a trapdoor)
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (trial court discretion in withdrawal of admissions under due process)
In re Rozelle, 229 S.W.3d 757 (Tex. App.—San Antonio 2007) (due process concerns with merits-preclusive sanctions in admissions)
TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 918 (Tex. 1991) (due process concerns with case-ending discovery sanctions)
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (court may consider withdrawal of admissions under established standards)