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Click here for the full text of this decision FACTS:On Jan. 25, 2007, Pete Rozelle Jr. filed a petition for writ of mandamus seeking relief from an order denying his motion to withdraw deemed admissions under Texas Rule of Civil Procedure 198.3. The dispute at issue involved the Boerne Farm, real property purportedly worth more than $2 million, and other properties that E. Edd Pritchett, trustee of the Rozelle Family Trust, allegedly conveyed wrongfully to Barbara Fellows and David Brock in payment for Pritchett’s personal debt. But the discrete issue before the 4th Court of Appeals stemmed from Rozelle’s failure to timely respond to requests for admission during a two-month period in which he was pro se while searching for new counsel to represent him. Attorneys from Haynes and Boone represented Rozelle in the underlying litigation. On Aug. 7, 2006, over Rozelle’s objection, Haynes and Boone withdrew from representing Rozelle because of a conflict of interest. Four days later, counsel for Fellows and Brock served Rozelle with requests for admission phrased almost exclusively as issue-preclusive legal conclusions; they also served requests for production and interrogatories and refiled a counterclaim seeking a declaratory judgment against Rozelle that they had previously nonsuited. Rozelle admitted receiving the requests for admission on Aug. 12, 2006, but failed to respond by the Sept. 13, 2006, deadline; therefore, the requests were deemed admitted in accordance with Texas Rule of Civil Procedure 198.2(c). On Oct. 6, 2006, Fellows and Brock filed a summary judgment motion that was substantially the same as a prior summary judgment motion earlier denied by the trial court, except that it relied on the deemed admissions. On Oct. 13, 2006, Rozelle retained new counsel, who subsequently discovered the pending discovery requests in the 12 boxes of documents delivered to her office. Rozelle’s new attorney filed “late responses and objections” and a motion to withdraw the deemed admissions on Oct. 24, 2006. Attached to the motion to withdraw was Rozelle’s affidavit detailing the reasons for his failure to timely respond to the requests for admission, which included: Rozelle’s mistaken belief that he had 50 days to respond to the discovery request; that Rozelle “was not sure what to do without the advi[c]e of [his] own attorney” due to the complexity of the case; and that he forgot about the deadline while he was in the process of diligently searching for new counsel and dealing with personal family issues, including his stepfather’s death and father’s serious injury. On Dec. 11, 2006, a hearing was held on the motion to withdraw the deemed admissions and on the summary judgment motion based in part on the admissions. At the conclusion of the hearing, the court verbally denied Rozelle’s motion to withdraw the deemed admissions, finding no evidence that his failure to timely respond was due to accident or mistake. The court stated it would hold the summary judgment motion in abeyance for at least 10 days to permit Rozelle to file a petition for a writ of mandamus on the issue of the deemed admissions. On Dec. 21, 2006, the trial court issued a signed general order granting summary judgment in favor of Fellows and Brock; their claim for attorneys’ fees remained pending. The trial court did not sign the written order denying the motion to withdraw deemed admissions until Dec. 24, 2006. Pritchett subsequently filed a summary judgment motion that was substantially the same as his prior summary judgment motion but includes the deemed admissions as a ground; it also remained pending. In his petition, Rozelle requested that the 4th Court issue a writ of mandamus instructing the trial court t 1. vacate its order denying his motion to withdraw the deemed admissions; 2. grant his motion to withdraw the deemed admissions and permit Rozelle to substitute his late responses and objections; and 3. reconsider its summary judgment order in favor of Fellows and Brock. HOLDING:The court conditionally granted the writ of mandamus and ordered the trial court to vacate its order denying withdrawal of Rozelle’s deemed admissions and to grant Rozelle’s motion to withdraw the deemed admissions. A clear abuse of discretion, the court stated, occurs when a trial judge acts arbitrarily or unreasonably, without reference to any guiding rules or principles. With respect to factual issues or matters committed to the trial court’s discretion, an abuse of discretion exists when the record establishes that the trial court could have reasonably reached only one decision. There is no adequate remedy by appeal for a merit-preclusive discovery sanction, the court stated, unless “the sanctions are imposed simultaneously with the rendition of a final, appealable judgment.” Because there was no final, appealable judgment, Rozelle lacked an adequate remedy by appeal to address the merits-preclusive effect of the trial court’s order denying the withdrawal of his deemed admissions. Rozelle, the court stated, asserted that due process bars the deemed admissions in this case, because the deemed admissions were a merits-preclusive sanction and the record did not establish “flagrant bad faith or callous disregard for the rules.” In this case, the court stated that Rozelle did not waive his due process concerns by failing to raise them at trial. Instead, due process was the law that the trial court failed to use in determining whether to permit the deemed admissions to be withdrawn. Due process, the court stated, is the guiding rule and principle that applies when requests for admissions are not used as intended and a party uses deemed admissions to preclude presentation of the merits of a case. Since a trial court, the court stated, lacks discretion in determining what the law is, Rozelle could not waive his due process rights in respect to the admissions at issue. Thus, the court concluded the trial court abused its discretion in denying Rozelle’s request to withdraw the deemed admissions, because the record contains no evidence of flagrant bad faith or callous disregard for the rules by Rozelle. In addition, the record contained nothing to justify a presumption that Rozelle’s case lacked merit. OPINION:Speedlin, J.; Stone, Angelini and Speedlin, J.J.

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