Court of Appeals of Texas, Amarillo.

El-Ray KING, Appellant,

v.

WEYERHAEUSER PAPER COMPANY, Appellee.

No. 07-99-0420-CV.

|

April 12, 2000.

Before QUINN and REAVIS and JOHNSON, JJ.

OPINION

JOHNSON.

*1 Weyerhaeuser Paper Company filed suit for judicial review of the decision of an appeals panel of the Texas Workers’ Compensation Commission on a claim for workers’ compensation benefits filed by El-Ray King. The trial court granted summary judgment in favor of Weyerhaeuser and King appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant El-Ray King filed a worker’s compensation claim against appellee Weyerhaeuser Paper Company, which was both his employer and a certified self insurer under the Texas Workers’ Compensation Act.¹ Following a contested case hearing, the hearing officer found that (1) appellant sustained a compensable repetitive trauma injury on June 18, 1998; (2) appellant timely reported the injury to his employer; (3) appellant did not make a knowing election of remedies to receive benefits under a group health insurance plan; (4) appellant had disability resulting from the injury; and (5) appellant’s disability from the injury began on September 30, 1998. Appellee requested review of the hearing officer’s decision by a Texas Worker’s Compensation Commission Appeals Panel. The appeals panel did not issue a written decision within 30 days following appellant’s written response. Thus, the decision of the hearing officer became the final decision of the appeals panel. Labor Code § 410.204(c).

Appellee sought judicial review of the appeals panel decision by suit filed in the 47th District Court of Randall County. On May 31, 1999, appellee served appellant with requests for admissions, along with other discovery requests. Appellant did not file responses to the requests for admissions, and on August 9th, appellee filed a Motion for Summary Judgment which specified the deemed admissions as the bases for the motion. Hearing of the motion was scheduled for September 10, 1999. On August 26th, appellant filed a motion to extend time for discovery. On August 27th, appellant filed a response to appellee’s motion for summary judgment. In the response, appellant stated that he was not physically capable of timely responding to appellee’s requests for admissions due to significant pain, the effects of medication to relieve the pain, and spinal surgery which followed. Appellant alleged that he had surgery on June 30, 1999, and was homebound until August 1, 1999. Appellee filed objections to the receipt or consideration by the trial court of any evidence offered by appellant in contravention of his deemed admissions.

Following hearing, the trial court granted appellee’s motion for summary judgment and entered judgment that (1) appellant did not sustain a compensable injury, (2) appellant did not timely report an injury to his employer within 30 days of the date he knew or should have known of the alleged injury, (3) the carrier was relieved of liability under the Texas Workers’ Compensation Act because of appellant’s failure to timely notify his employer, (4) appellant is barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under a group health insurance policy, (5) appellant did not sustain any disability, as that term is used in the Texas Workers’ Compensation Act, as a result of the injury alleged, and (6) the findings, conclusions, and determinations of the hearing officer and appeals panel were reversed and set aside. Taxable court costs were assessed to appellant.

*2 By his sole issue, appellant asserts that the trial court erred in granting summary judgment. In his brief and at oral submission he advances two reasons² for his position that the trial court judgment should be reversed.

First, appellant asserts that the trial court abused its discretion by overruling appellant’s motion to extend time to respond to discovery. He claims that a request to withdraw his deemed admissions was implied by his motion to extend time and by his affidavit which states that he returned an essentially complete response to appellee’s attorney on August 26, 1999. Appellant refers us to case law demonstrating willingness of courts to allow withdrawal of deemed admissions for good cause.

Second, appellant asserts that granting a motion for summary judgment violates the policy of the “new” Texas Workers’ Compensation Act. Appellant argues that although summary judgment was proper under the old workers’ compensation law, the new law provides for judicial review to protect the worker. He posits that summary judgment based on deemed admissions provides a trap for the worker and offends the policy behind the law.

Appellee’s response is that summary judgment was proper based on appellant’s deemed admissions. Appellee asserts that because appellant failed to timely respond to appellee’s requests for admissions, the requests were admitted without court order. Appellee cites Marshall v. Vise, 767 S.W.2d 699, 700 (Tex.1989), for the proposition that once admissions are deemed admitted, a party may not introduce contradictory summary judgment evidence. In essence, appellee urges that the deemed admissions precluded consideration of any evidence in favor of appellant or in opposition to the matters admitted; there was, therefore, no evidence in favor of appellant or in opposition to the motion for summary judgment, and summary judgment was proper.

Appellee emphasizes that appellant (1) failed to respond to appellee’s request for admissions, (2) failed to file a motion for late filing on or before the deadline for responding to the requests for admissions, (3) failed to show good cause for failure to timely respond, (4) failed to file a motion to withdraw the deemed admissions or to request a hearing to have the deemed admissions withdrawn, (5) failed to show appellee would not be prejudiced by withdrawal of the deemed admissions, and (6) failed to seek a continuance on the summary judgment hearing. Appellee notes that although appellant filed a Motion to Extend Time for Discovery, he neither presented the motion to the trial court nor obtained a ruling on the motion. Without a timely motion for late filing of responses to requests for admissions or a motion to withdraw deemed admissions, appellee asserts appellant preserved nothing for appellate review.

Finally, appellee asserts that summary judgment based on deemed admissions does not violate appellant’s rights, and that appellant, as a pro se litigant in the trial court, should not be favored over parties with representation. See Ho v. University of Texas at Arlington, 984 S.W.2d 672, 679 (Tex.App.-Amarillo 1998, no pet .).

Law

*3 A party may serve another party with a request for admissions, no later than 30 days before the end of the discovery period. Tex.R.Civ.P. 198.1.³ The responding party must serve a written response within 50 days after service of the request (if the request is filed before the responding party’s answer is due), and if the response is not timely, the request is considered admitted without the necessity of a court order. Rule 198.2(a), (c). A matter admitted under Rule 198 is conclusively established as to the party making the admissions unless the court permits the party to withdraw or amend the admissions. Rule 198.3. The court may permit the party to amend or withdraw the admissions if the party shows good cause for the withdrawal or amendment of the admissions and the court finds that the parties relying on the admissions will not be unduly prejudiced and that the preservation of the merits of the action will be subserved by permitting the party to withdraw or amend. Id.

Deemed admissions are competent summary judgment evidence. In re Herring, 970 S.W.2d 583, 587 (Tex.App.-Corpus Christi 1998, no pet.); Flores v. H.E.Butt Stores, Inc., 791 S.W.2d 160, 162 (Tex.App.-Corpus Christi 1990, writ denied). They may be used as summary judgment proof. Elkins v. Jones, 613 S.W.2d 533,534 (Tex.Civ.App.-Austin 1981, no writ). Deemed admissions provide uncontroverted proof of the elements of the requesting party’s case as a matter of law. Overstreet v. Home Indemnity Co., 669 S.W.2d 825, 827-28 (Tex.App.-Dallas 1984) rev’d on other grounds 678 S.W.2d 916 (Tex.1984).

Analysis

Appellee specified in its motion for summary judgment that the motion was based on appellant’s deemed admissions. Appellant does not contest appellee’s assertion that he failed to timely respond to the requests for admissions. He also failed to present a request to the trial court that the deemed admissions be withdrawn or amended, failed to obtain a finding by the trial court that withdrawal or amendment of the deemed admissions would not unduly prejudice appellee, and did not obtain a determination by the trial court that good cause existed for withdrawal or amendment of the deemed admissions. See Rule 198.3. Although appellant argued in his response to appellee’s motion for summary judgment, in his motion to extend time for discovery, and at the hearing on the motion for summary judgment that he was unable to timely answer the requests for admissions, appellant did not request a hearing on or request the trial court to rule on his request for extension of time to respond to the requests for admissions. Nor did he request or obtain a finding by the trial court that good cause existed for modification of the time for filing responses to appellee’s requests for admissions. See Rule 191.1. Appellant has failed to preserve the issue for appellate review. Tex.R.App.P. 33.1(a). Even if the issue had been preserved for review, the record does not support a conclusion that the trial court abused its discretion in failing to extend the time for filing discovery responses. Similarly, no motion for withdrawal or amendment of the deemed admissions was filed; no hearing on an implied motion to withdraw was requested or held; and no request for a ruling by the trial court was made on an allegedly “implied” motion when the court heard appellee’s motion for summary judgment. We do not construe appellant’s motion to extend time to file discovery responses to contain an implied motion to withdraw or amend deemed admissions. Even if we did so construe the motion, however, the trial court did not abuse its discretion in failing to allow withdrawal or amendment of the deemed admissions.

*4 Despite appellant’s claim that policies embodied in the new Act imply that summary judgments should not be available in judicial reviews of Commission rulings, the Texas Rules of Civil Procedure apply to suits for judicial review of compensability or eligibility for, or the amount of, income or death benefits unless in conflict with the provisions of Labor Code Chapter 410, Subchapter G. Labor Code § 410.305.(a). The Rules of Civil Procedure providing for summary judgments do not conflict with provisions of Chapter 410, Subchapter G of the Labor Code. Appellee was entitled to move for and receive grant of summary judgment in its suit for review of the Commission appeals panel decision on the same bases as any other litigant subject to the Texas Rules of Civil Procedure.

In the authority appellant cites for the proposition that courts have freely granted the withdrawal of deemed admissions, the parties filed motions to withdraw and/or had hearings on the issue. See Spiecker v. Petroff, 971 S.W.2d 536, 538 (Tex.App.-Dallas 1997, no writ); Webb v. Ray, 944 S.W.2d 458, 459 (Tex.App.-Houston [14th Dist.] 1997, no writ); Employers Ins. of Wausau v. Halton, 792 S.W.2d 462, 463 (Tex.App.-Dallas 1990, writ denied). We do not find the authorities cited by appellant to be applicable, given the facts and procedural history of this case.

The trial court did not err in granting summary judgment based upon the deemed admissions. The question of whether the court should have allowed withdrawal of the deemed admissions was not preserved for appellate review. We overrule appellant’s sole issue.

The judgment of the trial court is affirmed.

	Footnotes
1		Tex.Labor Code Ann. Title 5, (Vernon 1996). Hereinafter referred to as “the Act” or “the new Act.” Particular sections of the Labor Code will be referred to as “Labor Code § __.”
2		Appellant initially asserted four bases for his claim that the trial court erred in granting summary judgment. At oral submission counsel for appellant, with commendable candor, agreed with appellee’s position that two of the grounds set out in appellant’s brief were not presented to the trial court and that the issues were not preserved for appellate review. Therefore, we will not address such claims.
3		A Rule of Civil Procedure will hereafter be referred to as “Rule ____.”