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Lynda Marino v. Charles King

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This is an appeal from a summary judgment based on deemed admissions. By rule, a request for admission is considered admitted if a response is not timely served. TEX. R. CIV. P. 198.3. The response in this case was a day late, and the requested admissions were deemed admitted under the rule. The trial court granted a subsequent motion for summary judgment, based on these admissions, after the pro se litigant did not file a written response to the motion asking for them to be withdrawn. The court of appeals likewise affirmed the summary judgment, concluding that the litigant had waived complaint by never formally asking the trial court to withdraw the deemed admissions on which the summary judgment was based. ___ S.W.3d ___, ___ (Tex. App.–Waco 2010) (mem. op.).

The litigant, no longer pro se, complains here that she adequately preserved error in the trial court under prior precedent. See Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005) (per curiam).

We agree. We further conclude that good cause existed for the trial court to allow the withdrawal of her deemed admissions and to deny the motion for summary judgment. Accordingly, we reverse the court of appeals’ judgment and remand the cause to the trial court for further proceedings.

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