Court of Appeals of Texas, Beaumont.

Cynthia Jean WILLIAMS, Appellant,

v.

SADLER DEVELOPMENT CORPORATION d/b/a Annie’s Country Store, Appellee.

No. 09-96-350 CV.

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Submitted on Feb. 26, 1998.

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Opinion Delivered Aug. 13, 1998.

Before WALKER, C.J., BURGESS and STOVER, JJ.

OPINION

PER CURIAM.

*1 Cynthia Jean Williams filed this appeal after summary judgment was granted by the trial court in favor of Sadler Development Corporation, d/b/a Annie’s Country Store (Sadler). The underlying case involves a suit for damages for personal injuries allegedly sustained by Williams while working at a convenience store owned by Sadler. Williams’ petition alleged causes of action against Sadler, as her employer, for negligence and wrongful discharge.¹

Along with other discovery requests, Sadler filed requests for admissions. The admissions were not timely responded to by Williams and were deemed admitted by operation of law. Following a denial of Williams’ motion to withdraw the deemed admissions, the trial court granted summary judgment in favor of Sadler. Williams subsequently perfected this appeal. In five points of error, Williams complains the trial court erred in not withdrawing the deemed admissions and in granting summary judgment in favor of Sadler.

DEEMED ADMISSIONS

In her first point of error, Williams argues the trial court erred in denying her motion to withdraw the deemed admissions and in denying her motion to rule and adjudge her answers to interrogatories and requests for production as timely.

As part of discovery requests, on September 8, 1995, Sadler submitted requests for admissions calling for responses within 30 days. Williams failed to timely respond to these requests for admissions; the responses were not sent to Sadler until December 12, 1995, and were not filed with the clerk until December 14, 1995.² Due to the untimely response, pursuant to Tex.R.Civ.P. 169, the admissions became deemed by operation of law.

On December 27, 1995, Williams filed a motion to withdraw the deemed admissions. The motion stated Williams’ attorney had sent the admissions to Williams for her responses; the answers were returned to the attorney and then inadvertently mislaid and lost in the attorney’s office. In response, Sadler moved to rule all requests for admissions as admitted and to exclude all evidence and experts identified by Williams in her pre-trial submission. A hearing on Williams’ motion and Sadler’s motion and response was scheduled for January 18, 1996; Williams, however, failed to appear. The court denied Williams’ motion to undeem the admissions and granted Sadler’s motion excluding all evidence and experts set forth in Williams’s answers to interrogatories.

When a party fails to return answers to a request for admissions within thirty days, the matters in the request are deemed admitted against that party. See Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 355 (Tex.1998). Rule 169(1) of the Texas Rules of Civil Procedure provides in relevant part:

Each matter of which an admission is requested shall be separately set forth. The matter is admitted without necessity of a court order unless, within thirty days after service of the request, or within such time as the court may allow, or as otherwise agreed by the parties, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection[.]

*2 TEX.R.CIV.P. 169(1) (emphasis added).

The consequence of “deemed admissions” is that the matters are conclusively established as to the admitting party unless the court, on motion, permits withdrawal or amendment of the admissions. A court may permit withdrawal of deemed admissions “upon a showing of good cause for such withdrawal … if the court finds that the parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will be subserved thereby.” Tex.R.Civ.P. 169(2).

A trial court possesses broad discretion to permit or deny the withdrawal of deemed admissions. “An appellate court should set aside the trial court’s ruling only if, after reviewing the entire record, it is clear the trial court abused its discretion.” Stelly v. Papania, 927 S.W.2d 620, 622 (Tex.1996). An abuse of discretion occurs when a court acts without reference to guiding rules or principles, or acts arbitrarily or unreasonably. See id.; Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997).

“Good cause” is the threshold standard for withdrawal of deemed admissions. See Stelly, 927 S.W.2d at 622. A party can establish good cause by showing the failure to answer was accidental or the result of mistake, rather than intentional or the result of conscious indifference. Id. The burden of proof is on the party seeking the withdrawal to establish good cause. Even a slight excuse will suffice, particularly where delay or prejudice will not result against the opposing party. See City of Houston v. Riner, 896 S.W.2d 317, 319 (Tex.App.-Houston [1st Dist.] 1995, writ denied).

The court must look to the knowledge and acts of the defaulting party to determine the existence of intentional disregard or conscious indifference. Id. Once an error is discovered, diligence in correcting the mistake has been looked upon favorably by appellate courts in deciding if “good cause” was shown, and, in most cases, courts liberally apply Rule 169, allowing the withdrawal of deemed admissions especially if there is no injustice to either party.³ See, e.g., Burden v. John Watson Landscape Illumination, Inc., 896 S.W.2d 253 (Tex.App.-Eastland 1995, writ denied) (where clerical oversight of deadline was discovered and counsel immediately filed responses, appellate court held party was diligent in rectifying the error and showed good cause for failure to timely file responses); Riner, 896 S.W.2d at 320 (party established its failure to answer request for admission was result of accident or mistake and not intentional or the result of conscious indifference; opposing party was not prejudiced by the withdrawal of deemed admissions).

*3 The court held an evidentiary hearing based on Williams’ motion to withdraw. At the hearing, it was Williams’ burden to show good cause for the delay in filing the admissions. Williams, however, failed to attend the hearing. Although Williams claimed in her motion that the delay was the result of a mistake, her failure to appear at the hearing resulted in a lack of evidence supporting that contention. As such, we have no record of that hearing upon which to judge the trial court’s considerations, and it is difficult to find evidence showing that a trial court abused its discretion when there is no record to review.

Therefore, after a thorough review of the record, we find that Williams’ actions show a consistent pattern of neglect and indifference. See, e.g., Webb v. Ray, 944 S.W.2d 458, 460-61 (Tex.App.-Houston [14th Dist.] 1997, no writ) (delay in filing admissions and failure to appear at hearing on motion to withdraw deemed admissions was evidence of conscious indifference). The trial court did not abuse its discretion in denying Williams’ motion. Point of error one is overruled.

In her second point of error, Williams complains the trial court’s order of January 18 was tantamount to a death penalty sanction. The sanctions imposed by the court were among those authorized for various discovery abuses under Rule 215 of the Texas Rules of Civil Procedure. In pertinent part, Rule 215(4)(a) provides:

Each matter of which an admission is requested shall be deemed admitted unless, within the time provided by Rule 169, the party to whom the request is directed serves upon the party requesting the admissions a sufficient written answer or objection in compliance with the requirements of Rule 169, addressed to each matter of which an admission is requested.

Tex.R.Civ.P. 215(4)(a) (emphasis added). The Supreme court has mandated that “courts must consider the availability of less stringent sanctions.” TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991). However, a less stringent sanction is not available in this case. Rules 169 and 215(4)(a) provide only one sanction-deeming the requested admissions as admitted. See, e.g., State v. Carrillo, 885 S.W.2d 212, 216 (Tex.App.-San Antonio 1994, no writ). Point of error two is overruled.

SUMMARY JUDGMENT

In her third point of error, Williams contends the trial court erred “in granting Summary Judgment based solely upon the Requests for Admissions which should not have been deemed admitted.” Williams also argues, in her fourth point, that the trial court “erred in granting Appellee’s Motion for Summary Judgment, for the reason that the record in this case reflects genuine issues of material fact exist.” Williams’ supporting arguments for these two points of error center entirely upon the allegation that the trial court’s denial of the motion to withdraw the deemed admissions was improper; absent the deemed admissions, she contends, genuine issues of material fact exist which preclude summary judgment.

*4 A party moving for summary judgment has the burden of establishing that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In deciding whether disputed material fact issues preclude summary judgment, evidence favorable to the nonmovant is taken as true, and every reasonable inference is indulged in favor of the nonmovant with any doubt resolved in his favor. Id.

As established in points of error one and two, the trial court did not abuse its discretion in denying the motion to withdraw the deemed admissions. Deemed admissions are competent summary judgment evidence. See Gonzales v. Surplus Ins. Serv., 863 S.W.2d 96, 99 (Tex.App.-Beaumont 1993, writ denied); Flores v. H.E. Butt Stores, Inc., 791 S.W.2d 160, 162 (Tex.App.-Corpus Christi 1990, writ denied). Moreover, deemed admissions may not be contradicted by other summary judgment evidence; an admission once admitted, deemed or otherwise, is a judicial admission, and a party may not then introduce testimony to controvert it. See Marshall v. Vise, 767 S.W.2d 699, 700 (Tex.1989); Standard Fire Ins. Co. v. Morgan, 745 S.W.2d 310, 312 (Tex.1987) (noting deemed admissions create incontestable facts). Therefore, the trial court did not err in relying on the deemed admissions in its grant of summary judgment. Points of error three and four are overruled.

In her fifth point of error, Williams directs our attention to evidence discovered subsequent to the perfection of this appeal which demonstrates that her attorney was suffering from the progression of cerebral vascular disease. She argues her attorney’s medical condition is demonstrative of the inadvertent character of his errors, and, in the interests of equity and justice, the summary judgment should be reversed and the cause remanded to the trial court. While we greatly sympathize with the attorney’s medical situation, we note that the appellate record is absolutely devoid of any mention of the attorney’s medical problems in general and, specifically, whether he was suffering from medical problems during the discovery delays.

In its review of a summary judgment, an appellate court is limited to the evidence before the trial court at the hearing on the motion for summary judgment. See Bell v. State Farm Ins. Cos., 940 S.W.2d 368, 372 (Tex.App.-San Antonio 1997, writ denied); Wieler v. United Sav. Ass’n of Texas, FSB, 887 S.W.2d 155, 157 (Tex.App.-Texarkana 1994, writ denied). “Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” Tex.R.Civ.P. 166a(c). Therefore, since the attorney’s medical condition was not before the trial court during its consideration of the motion for summary judgment, it can not be considered on appeal. Point of error five is overruled.

*5 The judgment of the trial court is affirmed.

AFFIRMED.

	Footnotes
1		The employer was not a subscriber of Workers’ Compensation insurance.
2		In addition to the untimely response to requests for admissions, the record reveals Williams was late on numerous other discovery requests.
3		The objective of the rules of civil procedure is to obtain a just, fair, equitable, and impartial adjudication of the rights of litigants. Tex.R.Civ.P. 1. “The discovery rules were not designed as traps for the unwary, nor should we construe them to prevent a litigant from presenting the truth.” Wal-Mart Stores, 968 S.W.2d at 357 (quoting Stelly, 927 S.W.2d at 622).