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Click here for the full text of this decision FACTS:Based on 64 deemed requests for admissions, the trial court granted summary judgment terminating Sandra Wheeler as joint managing conservator of her daughter, appointing Darrin Green as sole managing conservator (with exclusive rights to determine the child’s residence, education, and medical care), and finding Sandra liable for maliciously prosecuting Darrin. Darrin’s attorney did not point out in his summary judgment motion that Sandra � appearing pro se � actually had filed responses six months before the motion was heard, but two days after they were due. Sandra appealed, asserting that summary judgment based on nothing but the deemed admissions was erroneous. The court of appeals affirmed, pointing out that Sandra never responded to the summary judgment and never moved to withdraw her deemed admissions, and that “even in custody cases, a complete failure to follow the rules of pleading and practice cannot be ignored.” HOLDING:Reversed and remanded. The court agrees that no one can ignore the rules but disagrees that the rules here require judgment against Sandra by default. First, Sandra was not required to file a summary judgment response, and the trial court could not grant Darrin’s motion because she failed to do so. Second, although Sandra never filed a motion to withdraw deemed admissions or a motion to allow a late response to the summary judgment, the arguments and requests in her motion for new trial were sufficient to put the trial court on notice of exactly that complaint. Third, Sandra did not waive these arguments by presenting them for the first time in her motion for new trial. The court held in Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002), that the equitable principles allowing these arguments to be raised in a motion for new trial do not apply if a party realizes its mistake before judgment and has other avenues of relief available. Nothing in the record suggests that, before summary judgment was granted, Sandra realized that her responses were late, that she needed to move to withdraw deemed admissions, or that she needed to file a response to the summary judgment raising either argument. The court holds she was entitled to raise them in her motion for new trial. The court also held in Carpenter that the standards for withdrawing deemed admissions and for allowing a late summary-judgment response are the same. Either is proper upon a showing of 1. good cause; and 2. no undue prejudice. The record contains no evidence of flagrant bad faith or callous disregard for the rules, nothing to justify a presumption that Sandra’s case lacks merit, and nothing to suggest Darrin was unable to prepare for trial without the admissions. “[W]hen a rule itself turns on an actor’s state of mind (as these do here), application may require a different result when the actor is not a lawyer. Recognizing that Sandra did not know what any lawyer would does not create a separate rule, but recognizes the differences the rule itself contains.” OPINION:Per curiam.

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