IN RE: LINDA JACKSON,

RELATOR

In this original mandamus proceeding, Relator, Linda Jackson ("Jackson"), complains of the trial court's denial of her Motion to Withdraw and Substitute Deemed Admissions. For the reasons stated below, we conditionally grant the writ of mandamus.

The lawsuit underlying this original proceeding concerns the death of Lucille Parrish ("Parrish"). According to Plaintiffs' ⁽¹⁾ Third Amended Original Petition, ⁽²⁾ Parrish was a resident of Westward Trails Manor ("Westward Trails") nursing home in May, 2000. Jackson was the administrator of Westward Trails at this time. Plaintiffs allege that on May 2, 2000, Parrish was attacked and pulled out of her bed by a fellow resident of Westward Trails, Claude Linthicum. As a result of this incident, Parrish suffered multiple injuries which eventually resulted in her death.

Plaintiffs brought a wrongful death and survival action against multiple defendants, ⁽³⁾ including Westward Trails and Jackson, contending that Parrish's death was proximately caused by the defendants' acts or omissions. Plaintiffs assert that the defendants had knowledge of Linthicum's wandering, agitation, confusion, and episodes of psychotic behavior and that defendants should have known that Linthicum could commit an assault, such as the one on Parrish. With regard to Jackson, Plaintiffs allege, among other things, that Jackson failed to (1) adhere to the standards of care required of a nursing home administrator, and (2) require and have sufficient staff to provide safety and protection to Parrish. Jackson has filed an answer containing a general denial.

On May 11, 2001, the attorney representing Jackson, Michael G. Dunahoo ("Dunahoo"), received a transmittal letter from Plaintiffs reflecting the enclosure of "Plaintiffs' First Set of Discovery, to Linda Jackson, Nacogdoches Nursing Center, and Nacogdoches Healthcare Partners, L.P." ⁽⁴⁾ Dunahoo's secretary calendared the due date for responses and objections to these discovery requests for June 11, 2001. According to Dunahoo's affidavit, ⁽⁵⁾ encompassed within these discovery requests were interrogatories, requests for production and requests for admission directed to Nacogdoches Nursing Center and Nacogdoches Healthcare Partners, L.P. However, he does not recall seeing interrogatories, requests for production or requests for admission directed to Jackson in this first set of discovery. At this point, according to Dunahoo, the only discovery directed to Jackson were requests for disclosure. ⁽⁶⁾ On May 28, 2001, Dunahoo instructed his secretary to prepare a Rule 11 agreement extending the deadline to respond to "Plaintiffs' First Discovery Sets to Defendants Linda Jackson, Westward Healthcare Partners, L.P., and Nacogdoches Nursing Center" to June 25, 2001. This Rule 11 agreement also extended the deadline for "Defendants Responses to Plaintiffs' Requests for Disclosure" to June 24, 2001.

Because Dunahoo had left on vacation, another attorney in his firm signed the Rule 11 agreement on his behalf and the agreement was faxed to Plaintiffs' attorney on May 29, 2001. Plaintiffs' attorney signed the agreement. On June 25, 2001, Dunahoo filed answers and objections to the discovery directed to Nacogdoches Nursing Center and Nacogdoches Healthcare Partners, L.P. and responded to the requests for disclosure to directed to Jackson as well. Because Dunahoo failed to file responses to the requests for admission directed to Jackson on June 25, 2001, these requests were deemed admitted. ⁽⁷⁾ Tex. R. Civ. P. 198(2). When Dunahoo went to clear the diary entry off his calendar, he noticed that the diary entry included a first set of discovery to Jackson. Unable to locate any such discovery in the file, Dunahoo called Plaintiffs' attorney on June 25 and asked if he had, in fact, sent interrogatories, requests for production and requests for admission to Jackson. Dunahoo told Plaintiffs' attorney that he could not find this discovery in the file. Plaintiffs' attorney responded that he believed these documents had been sent.

On June 27, 2001, Dunahoo received a letter from a legal assistant with Plaintiffs' attorney's firm enclosing a copy of interrogatories, requests for production and requests for admission directed to Jackson. Dunahoo again searched the file, and still could not find these documents. He testified that at this time, he believed he had thirty days to respond to this discovery. On July 19, 2001, Plaintiffs' attorney sent the following letter to Dunahoo:

Dear Mr. Dunahoo:

Where are Linda Jackson's discovery responses? You had them on May 29th when you asked for a Rule 11 extending your client's time to respond to June 25th. (A copy of your May 29, 2001 letter is attached for your convenient reference). On June 25th you said you couldn't find them and I sent you another copy. No additional Rule 11 agreements have been discussed. Where are her answers and responses?

On July 20, 2001, Dunahoo filed Jackson's answers, objections and responses to Plaintiffs' interrogatories, requests for production and requests for admission.

In his affidavit, Dunahoo stated that if he received interrogatories, requests for production and requests for admission on May 11, 2001, he has no idea what happened to them. He testified that billing records do not indicate that he billed for reviewing this discovery until he received the set that arrived at his office on June 27, 2001. Further, he stated that if he did receive the discovery on May 11, 2001, this set was inadvertently misplaced and the failure to timely respond was not intentional or the result of conscious indifference. In addition, he asserted that when he received the discovery requests on June 27, 2001, he believed he had thirty days to respond, since he believed he had not received this discovery previously.

On August 6, 2001, Plaintiffs filed a "Motion for Order Finding Admissions Deemed Admitted." Jackson filed a "Response to Plaintiffs' Motion to Deem Admissions and, Alternatively, Motion to Withdraw and Substitute Deemed Admissions." After a hearing on August 14, 2001 and after taking the matter under advisement, the trial court signed an order on August 16, 2001 finding that Jackson had failed to show good cause for the withdrawal of the deemed admissions. Therefore, the trial court denied Jackson's motion. Jury selection in this case is set to begin on October 29, 2001, with trial beginning on November 5. In her petition for writ of mandamus, Jackson asks this Court to issue a writ of mandamus directing the trial court to (1) vacate its August 16, 2001, order denying Jackson's Motion to Withdraw and Substitute Deemed Admissions, and (2) enter an order allowing Jackson to withdraw and amend her deemed admissions.

Clear Abuse of Discretion

A writ of mandamus will issue "only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law." Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). "A trial court clearly abuses its discretion if 'it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.'" Id. (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)). Further, "[a] trial court has no 'discretion' in determining what the law is or applying the law to the facts. Thus, a clear failure to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ." Id. at 840.

Adequate Remedy by Appeal

Assuming the relator can establish that the trial court abused its discretion, the relator must also show that he has no other adequate remedy at law, such as an appeal. Id. In Walker, the Texas Supreme Court held that an appeal will be inadequate where the relator's

[A]bility to present a viable claim or defense at trial is vitiated or severely compromised by the trial court's discovery error... [T]he relator must establish the effective denial of a reasonable opportunity to develop the merits of his or her case, so that the trial would be a waste of judicial resources. We recently held that when a trial court imposes discovery sanctions which have the effect of precluding a decision on the merits of a party's claims--such as by striking pleadings, dismissing an action, or rendering default judgment--a party's remedy by eventual appeal is inadequate, unless the sanctions are imposed simultaneously with the rendition of a final, appealable judgment.

Id. (emphasis in original) (citing TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 919 (Tex. 1991)).

Applicable Law

"A trial court has broad discretion to permit or deny the withdrawal of deemed admissions." Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996). Withdrawal or amendment of an admission is permitted on a showing of good cause and a finding by the trial court that (1) the party relying on the deemed admission will not be unduly prejudiced, and (2) presentation of the merits of the action will be served thereby. Tex. R. Civ. P. 198.3; Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 356 (Tex. 1998); Stelly, 927 S.W.2d at 622. "'Good cause' is established when the failure to respond is accidental or the result of mistake, rather than intentional or the result of conscious indifference." Deggs, 968 S.W.2d at 356; Stelly, 927 S.W.2d at 622. "Even a slight excuse will suffice, especially when delay or prejudice to the opposing party will not result." Spiecker v. Petroff, 971 S.W.2d 536, 538 (Tex. App.- Dallas 1997, no writ); North River Ins. Co. of New Jersey v. Greene, 824 S.W.2d 697, 700 (Tex. App.- El Paso 1992, writ denied). The party seeking withdrawal of deemed admissions has the burden to establish good cause. Webb v. Ray, 944 S.W.2d 458, 461 (Tex. App.- Dallas 1997, no writ).

In keeping with the applicable standards for the withdrawal of deemed admissions, the Texas Supreme Court has concluded that "the purpose of the rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the litigants' rights under established principles of substantive law." Stelly, 927 S.W.2d at 622; see Tex. R. Civ. P. 1. Further, the Supreme Court has stated that "[t]he discovery rules were not designed as traps for the unwary, nor should we construe them to prevent a litigant from presenting the truth." Stelly, 927 S.W.2d at 622; see Deggs, 968 S.W.2d at 357. Application of Law to Facts

We recently dealt with the issue of good cause to withdraw deemed admissions in In re Kellogg-Brown & Root, Inc., 45 S.W.3d 772 (Tex. App.- Tyler 2001, orig. proceeding). In Kellogg, the relator's attorney testified that she did not receive a set of requests for admission purportedly delivered to her firm on January 22, 2001 and that after searching, she was unable to locate this set of discovery in her firm's files. She testified that she first learned of this discovery during a telephone conversation with the attorney for the real party in interest on March 14, 2001. When she received the requests for admission on March 15, 2001, she compiled responses and delivered then to the real party in interest's attorney on March 19, 2001, fifty-six days prior to trial and only twenty-six days after they were originally due. We concluded that the relator had established the failure to respond was an accident or a mistake, rather than intentional or the result of conscious indifference.

We perceive no meaningful difference between the facts of Kellogg and those presented here. Assuming Dunahoo received requests for admission directed to Jackson on May 11, 2001, nothing in the record shows that the failure to respond was intentional or the result of conscious indifference. Dunahoo testified that he does not recall receiving the requests for admission directed to Jackson on May 11 and that after searching, he was unable to locate such discovery in the file. Dunahoo obtained an extension until June 25 to file responses to the May 11 discovery. On June 25, he timely filed responses and, on that same day, contacted Plaintiffs' attorney to inquire whether he had sent a set of discovery to Jackson. On June 27, he received a set of discovery directed to Jackson. While Dunahoo may have incorrectly believed that he had thirty days to respond to this discovery, the record reflects that he filed responses on July 20, one day after Plaintiffs' attorney's letter concerning these responses. Just as we found in Kellogg, these facts are similar to those cases where accident or mistake, rather than intent or conscious indifference, has been established. See, e.g., Deggs, 968 S.W.2d at 357 (good cause shown when Wal-Mart did not receive requests directed to employee and immediately moved to withdraw the deemed admissions upon learning that employee had failed to respond); North River Ins. Co., 824 S.W. at 701 (good cause established where failure to respond resulted from an inadvertent calendar diary error and counsel immediately advised opposing counsel of the oversight and requested an extension); Employers Ins. of Wausau v. Halton, 792 S.W.2d 462, 466 (Tex. App.- Dallas 1990, writ denied) (finding good cause even though responses were fifty-five days late where counsel was diligent in filing answers immediately after the missed deadline came to his attention). Cf. Darr v. Altman, 20 S.W.3d 802, 808 (Tex. App.- Houston [14th Dist] 2000, no pet) (good cause not established when party waited three months after receiving motion for summary judgment to answer the requests or move to withdraw or amend the deemed admissions)

Plaintiffs attempt to distinguish Kellogg by arguing that unlike the relator's attorney in Kellogg, Dunahoo knew of both the existence of discovery to Jackson and the date the responses to this discovery were due. Plaintiffs base this argument primarily on (1) Dunahoo's acknowledgment that he received the transmittal letter along with two of the three sets of discovery on May 11, and (2) the May 29 Rule 11 agreement wherein Dunahoo asked for an extension to respond to discovery directed to all three defendants. ⁽⁸⁾ However, Dunahoo testified that he does not recall receiving discovery directed to Jackson on May 11 and that he was unable to find such discovery after twice searching the file. But even if Jackson did receive the discovery at issue on May 11, he testified that it was inadvertently misplaced. The fact that Dunahoo obtained an extension to respond to the discovery directed to Nacogdoches Nursing Center and Nacogdoches Healthcare Partners, L.P. and that he timely filed such discovery on June 25 tends to show that Dunahoo's failure to timely respond to the discovery sent to Jackson was not intentional or the result of conscious indifference. We conclude that Dunahoo's testimony established that the failure to respond was an accident or a mistake, especially in light of the fact that the responses were delivered to Plaintiffs 101 days prior to jury selection and only twenty-five days after they were due.

Concerning prejudice to the opposing party, as noted above, the responses to the requests for admission were delivered over three months prior to trial. In light of the time Plaintiffs had to assess the responses and to take any appropriate action, we hold that they would not be unduly prejudiced by the withdrawal of the deemed admissions. Compare Halton, 762 S.W.2d at 467 (finding a lack of prejudice when the opposing party had almost a month to conduct additional discovery) with Morgan v. Timmers Chevrolet, Inc., 1 S.W.3d 803, 807 (Tex. App.- Houston [1st Dist.] 1999, pet. denied) (finding undue prejudice where party waited two years, until after the trial began, to try to withdraw deemed admissions).

With regard to whether the presentation of the merits would be served by amendment of the deemed admissions, Jackson argues that the trial court's denial of her motion to withdraw deemed admissions eliminated its ability to present any viable defense at trial and acted as a death penalty sanction. We agree. By way of example, request numbers two, four and twelve asked Jackson to admit:

. . .

• On May 2, 2000, you failed to provide services by sufficient number of direct care staff to provide care to Lucille Parrish.
  
  

. . .

• On May2, 2000, you failed to provide adequate supervision to prevent accidents to Lucille Parrish.

. . .

• Prior to May 2, 2000, it was forseeable to you that Claude Linthicum could commit an assualt, such as that experienced by Lucille Parrish.

. . .

A matter that is "deemed admitted" is conclusively established against the admitting party unless the court permits withdrawal or amendment of the admission. Tex. R. Civ. P. 198.3. Having reviewed Plaintiffs' allegations, we conclude that the deemed admissions at issue here would vitiate any substantive defense Jackson might have. In Stelly, the Supreme Court stated:

The primary purpose of [Rule 198] 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, 927 S.W.2d at 622 (quoting Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 208 (1950)).

Because the "ultimate purpose of discovery is to seek the truth," Stelly, 927 S.W.2d at 622, we conclude that the presentation of the merits of the case would be served by withdrawal or amendment of Jackson's deemed admissions. Halton, 792 S.W.2d at 467; see also Powell, 811 S.W.2d at 918 ("Sanctions which are so severe as to preclude presentation of the merits of the case should not be assessed absent a party's flagrant bad faith or counsel's callous disregard for the responsibilities of discovery under the rules").

Plaintiffs contend that Jackson is not prevented from presenting a defense because the matters deemed admitted are also contained in a report compiled by the Texas Department of Human Services after investigating the injuries sustained by Parrish. While it may be true that some of the findings in the Department's report overlap with the deemed admissions, we note that a matter that is "deemed admitted" is conclusively established against the admitting party unless the court permits withdrawal or amendment of the admission. We also note that the primary purpose of Rule 198 is to eliminate matters "about which there is no controversy." Stelly, 927 S.W.2d at 622. In her petition, Jackson points out that she has filed a general denial and that she contests almost all of the issues encompassed within the requests for admission.

Based on the foregoing, we conclude that the trial court abused its discretion in denying Jackson's Motion to Withdraw and Substitute Deemed Admissions and that Jackson lacks an adequate remedy by law. Accordingly, we conditionally grant the writ of mandamus. Because we are confident that the trial court will act promptly to (1) vacate its order of August 16, 2001 denying Jackson's Motion to Withdraw and Substitute Deemed Admissions, and (2) enter an order allowing Jackson to withdraw and amend her deemed admissions, the writ will not issue unless the trial court fails to act accordingly within five days herefrom.

Opinion delivered September 21, 2001.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.