Robert Tyson, Carl and Kathy Taylor, Linda and Ron Tetrick, Jim and Nancy Wescott, and Paul and Ruthe Nilson v. Robert N. Freeman II, 04-15-00006-CV

Background

Plaintiffs (Tyson, Taylor, Tetrick, Wescott, Nilson) are elderly residents who paid lump-sum fees for purported "lifetime leases" in a senior community (Las Aves / El Viaje) and later were given termination notices after a bankruptcy proceeding held the arrangements to be tenancies at will.
Plaintiffs sued individual managers (Boren, Yeates), and Freeman (an attorney and prior owner/manager/entity principal) and corporate entities for DTPA, common-law and statutory fraud, fraudulent inducement, negligent misrepresentation, negligence, and gross negligence.
At the trial-court hearing, defendants moved for summary judgment and to exclude plaintiffs’ summary‑judgment evidence; the court excluded plaintiffs’ evidence, granted summary judgment for the individual defendants, and severed the individuals’ claims for appealability.
Plaintiffs moved to withdraw deemed admissions (some admissions had been treated as admitted because of late responses) and for rehearing/leave to cure defects; the court denied rehearing and granted withdrawal only for the second set of admissions, leaving the first set deemed admitted.
Plaintiffs contend the court relied on outdated authentication law, prematurely granted summary judgment before key discovery (notably Freeman’s deposition), abused discretion in denying remedy/rehearing, improperly severed the individuals to prejudice plaintiffs, and wrongly denied withdrawal of deemed admissions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Exclusion of plaintiffs’ summary‑judgment evidence	Evidence (deposition excerpts, bankruptcy transcript, letter, discovery responses) was admissible; exclusion was legal error based on outdated authority	Evidence was unauthenticated and inadmissible for summary‑judgment purposes	Trial court excluded plaintiffs’ summary‑judgment evidence (resulting in inability to oppose motions)
2) Summary judgment granted before completion of discovery	SJ was premature; Freeman’s deposition and other discovery were necessary and discovery period was not complete	Court implicitly found discovery was adequate; movants urged resolution now	Trial court granted summary judgment for individuals despite plaintiffs’ claim discovery was incomplete
3) Denial of motion for rehearing / opportunity to cure defects	Plaintiffs cited intervening authorities (e.g., McConathy) and moved to remedy form defects; rehearing should have been allowed	Defendants relied on court’s prior ruling and opposing counsel’s arguments; court declined rehearing	Trial court denied plaintiffs’ motion for rehearing and opportunity to cure evidence defects
4) Severance of individual defendants and withdrawal of deemed admissions	Severance was improper because claims are interwoven and it prejudices impecunious plaintiffs; deemed admissions should be withdrawn absent bad faith	Defendants sought severance to obtain immediate appeals and argued admissions were properly deemed	Trial court granted severance and allowed withdrawal only for second set of admissions; first set remained deemed admitted

Key Cases Cited

McConathy v. McConathy, 869 S.W.2d 341 (Tex. 1994) (authentication of deposition excerpts not strictly required for summary‑judgment evidence in the circumstances discussed)
Marino v. King, 355 S.W.3d 629 (Tex. 2011) (withdrawal of deemed admissions; merits preference and due‑process limits on merits‑preclusive discovery sanctions)
Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005) (deemed‑admissions sanctions implicate due‑process concerns; preference for disposition on merits)
TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) (standards and limits for case‑ending discovery sanctions)
Castleberry v. Branscum, 721 S.W.2d 270 (Tex. 1986) (agent/corporate liability principles and related tort doctrines)
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (abuse of discretion standard for trial‑court rulings)
Dubois v. Harris County, 866 S.W.2d 787 (Tex. App. — Houston [14th Dist.] 1993) (earlier authority on inadmissibility of unauthenticated deposition excerpts relied on by defendants)
Deerfield Land Joint Venture v. Southern Union Realty Co., 758 S.W.2d 608 (Tex. App. — Dallas 1988) (earlier deposition‑authentication authority discussed in the brief)