Robert Todd, Norman Talbott and Clear Water Pools v. Paul Heinrich

Opinion issued June 2, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00267-CV

———————————

Robert Todd, Norman TalbotT, and Clear Water Pools , Appellants

V.

Paul

Heinrich ,

Appellee

On Appeal from the County Court at Law No. 2

Fort Bend County, Texas

Trial Court Case No. 09-CCV-039608

MEMORANDUM OPINION

Paul

Heinrich sued appellants, Robert Todd, Norman Talbott, and Clear Water Pools

(collectively, “Clear Water”), for violations of the Deceptive Trade Practices Act,

breach of contract, and breach of warranty arising out of Clear Water’s

allegedly faulty construction of concrete decking surrounding a swimming

pool. After Clear Water failed to

respond to requests for admissions, Heinrich moved for summary judgment on his

own claims. Clear Water neither

responded to the motion nor appeared at the hearing, and the trial court

rendered summary judgment in Heinrich’s favor.

In two issues on appeal, Clear Water contends that the trial court (1) abused

its discretion by refusing either to withdraw the deemed admissions or to allow

a late summary judgment response, and (2) erroneously rendered summary

judgment because Heinrich failed to conclusively establish his entitlement to

relief on his claims.

We

affirm.

Background

On

May 1, 2008, Heinrich entered into a contract with Clear Water for the

construction of a swimming pool and concrete decking at his residence. The contract included the following written

“Guarantee/Warranty”: “DBA Clear Water

Pools hereinafter called ‘contractor’ guarantees its work to be free from

defects in material and workmanship for a period of one (1) year to the

original owner (non-transferable) from completion of pool, providing owner has

complied in full with the terms and payments and other conditions of this

contract.” Clear Water completed

construction of the pool and the decking on May 19, 2008. Heinrich fully paid the amount owed under the

contract on June 20, 2008.

That

same day, Heinrich began to discover cracks forming around the drain areas of

the concrete decking. Heinrich informed

Talbott of the cracks on July 24, 2008.

The parties “exchanged correspondence” regarding the cracks until

February 19, 2009, and although Clear Water “made multiple promises to fix and

repair the cracks in the spray decking,” it never attempted to fix the problem.

Heinrich

sued Clear Water for violations of the Deceptive Trade Practices Act (“DTPA”),

breach of contract, and breach of warranty.

Heinrich alleged that Clear Water violated the DTPA by representing that

the decking would last for one year without cracks and that any defects would

be warranted for one year. Heinrich

alleged that when cracks began to form in the decking, Clear Water promised to

fix the cracks, “but never intended to satisfy that promise.” Further, Heinrich claimed that Clear Water

breached an express warranty in violation of the DTPA because the contract

warranted “the structure and materials from all defects within a one year

period.” Heinrich alleged that Clear

Water represented to him that it would build a decking without cracks and that he

relied upon this representation to his detriment. Heinrich also asserted that Clear Water was

“actually aware, at the time of the conduct, of the falsity, deception, and

unfairness of the conduct about which [Heinrich] complains,” and Heinrich thus

claimed that he was entitled to treble damages.

In

the alternative, Heinrich asserted claims for breach of contract and breach of

warranty for services. Heinrich alleged

that he had a contractual relationship with Clear Water, “wherein [Clear Water]

agreed to build a spray decking without cracks that would appear within a short

period of building it and warranted for the spray decking for one year.” Clear Water breached the contract when the

decking began to crack within six weeks of installation, and it then “refused

to properly fix the decking.” Clear

Water also “made a representation to [Heinrich] about the quality of the

services that the spray decking and structures that were installed would be

free from all defects for one year or [Clear Water] would repair and fix such

defects.”

Todd

and Talbott answered the lawsuit pro se.

On August 13, 2009, Heinrich sent requests for admissions to Talbott via

certified and first-class mail. These

requests were returned unclaimed. On

September 7, 2009, Heinrich sent identical requests for admissions to Todd and

re-sent the requests to Talbott. The

cover letter for the admissions requests informed Talbott and Todd that they

had thirty days to respond to the requests and warned them that “[f]ailure to

respond to such discovery requests may attribute to deemed admissions.” Neither Talbott nor Todd ever responded to

these requests.

On

October 6, 2009, Heinrich’s attorney, Daniel Lee, received a phone call from

another attorney, Richard Muller, who called on behalf of Talbott to discuss

settlement options. Lee testified by

affidavit that he asked Muller if he was representing the Clear Water defendants,

and Muller responded that he was only calling “as a favor to a friend to facilitate

a settlement.” Muller also informed Lee

that he would not be representing Clear Water in the future. Muller never filed a pleading or other

document on behalf of Clear Water; he never made an appearance in court on

behalf of Clear Water; he never requested that any deadlines to respond to discovery

requests be postponed; and he never answered any outstanding discovery requests

on behalf of Clear Water.

Heinrich

filed his first amended petition, which was substantively identical to his

original petition, on October 23, 2009. Although

he served both Talbott and Todd, he did not serve this petition on Muller. On October 26, 2009, Heinrich served a second

set of admissions requests on both Talbott and Todd. Again, he did not provide a copy of these

requests to Muller. Neither Talbott nor

Todd responded to the second set of requests for admissions.

On

November 6, 2009, Heinrich moved for summary judgment on his DTPA and breach of

contract claims. In the motion, Heinrich

clearly stated the following: “On

September 9, 2009, Plaintiff served Defendants, Norman Talbott and Robert Todd,

Requests for Admissions via Certified and First Class Mail. Both Defendants have not responded to such

requests. These admissions are therefore

deemed.” Heinrich argued that summary

judgment was proper on his DTPA claim because (1) “Defendants stated and

represented to Plaintiff that the concrete used on the decking was of a

particular grade and quality, when the quality of materials used was of a poor

grade and quality,” in violation of the DTPA “laundry list,” and (2) Clear

Water expressly warranted that its work would be free from defects in materials

and workmanship for one year, and, after the decking began to crack, Clear

Water failed to complete repairs. Heinrich

contended that summary judgment was proper on his breach of contract claim

because (1) he had fully performed under the contract by paying all money owed

to Clear Water, (2) Clear Water breached the contract when cracks began to form

in the decking one month after installation, and (3) the cost to repair the

deck was approximately $23,207.

As summary

judgment evidence, Heinrich attached the following: (1) the contract between Clear Water and

himself; (2) photographs of the cracks in the concrete, taken on March 20, 2009;

(3) e-mail correspondence between Heinrich and Talbott; (4) the written warranty

included in the contract; (5) an affidavit concerning damages and a remodel

proposal; and (6) the deemed admissions. [1] The e-mail correspondence is a January 9,

2009 e-mail from Talbott informing Heinrich that one of Clear Water’s employees

would fix the defects by completely removing the deck and re-pouring it. Talbott also stated in the e-mail: “We are truly sorry for what happened to your

deck. We always try to do good work, but

it appears that we got a hold of some bad concrete. Who really knows????? Anyway, we stand by our work and we stand by

our warranties and we will fix this problem.”

The

summary judgment motion included a notice informing Clear Water that the motion

would be considered at a hearing on December 22, 2009, over a month-and-a-half from

the date Heinrich filed and served the motion.

Heinrich served Clear Water with the summary judgment motion and the

notice of hearing, but he did not serve the motion and the notice on Muller.

On

November 24, 2009, Muller mailed Lee a letter containing a proposal from

Talbott to remove the deck and replace it “no later than January 31st” in an

effort to resolve the controversy. This

letter did not state that Muller represented Talbott and the other

defendants. Lee allegedly “immediately

contacted” Muller’s firm and spoke with his assistant. When asked if Talbott or the other Clear

Water defendants were clients of the firm, Muller’s assistant checked the

firm’s files and stated that they were not clients. While he was on the phone with Muller’s

assistant, Lee did not inform her of either the pending summary judgment motion

or the outstanding discovery requests and deemed admissions.

Clear

Water did not file a response to Heinrich’s summary judgment motion, nor did it

appear at the December 22, 2009 hearing on the motion. The trial court rendered summary judgment in

favor of Heinrich on both his DTPA and breach of contract claims. The trial court specified that it found in

favor of Heinrich “[w]ith respect to the cause of action for Breach of Warranty

as a violation of the Texas [DTPA].” Heinrich

elected to recover under the DTPA, and the trial court ultimately awarded him a

total of $77,369.22.

Clear

Water obtained counsel and moved for a new trial, requesting that the trial

court withdraw the deemed admissions and allow a late summary judgment

response. Clear Water contended that it

was represented by counsel — Muller — at the time that Heinrich filed his summary

judgment motion and that it could establish good cause and no undue prejudice

to Heinrich. Clear Water contended that,

although it was represented by Muller, Heinrich never served discovery requests,

the summary judgment motion, or the notice of hearing on Muller, nor did

Heinrich inform Muller of the pending summary judgment motion or the deemed

admissions after Muller’s November 24, 2009 letter to Lee. Clear Water argued that Heinrich could not

obtain a judgment against it due to his failure to provide notice to its

counsel pursuant to Texas Rules of Civil Procedure 21 and 21a.

Clear

Water further argued that it was entitled to request the withdrawal of the

deemed admissions for the first time in its motion for new trial. Clear Water argued that it could demonstrate

“good cause” for its failure to timely respond to the admissions requests

because Talbott contacted Muller, and Muller discussed settlement options with Lee

before the response deadline. According

to Clear Water, neither Talbott nor Muller intended to ignore the admissions;

“[r]ather[,] they both mistakenly thought the parties were working towards some

type of settlement.” Clear Water further

contended that withdrawing the deemed admissions and allowing additional time

to respond to the summary judgment motion would not cause undue prejudice to

Heinrich because there was no current trial setting, the case was less than one

year old, and the discovery deadline was March 27, 2010.

In

support of its motion for new trial, Clear Water attached the affidavits of

Muller and Talbott. Muller averred that

he first spoke with Talbott regarding the case around the beginning of October

2009. Muller agreed to help the

defendants resolve the case without going to trial. According to Muller, Talbott gave him a copy

of Heinrich’s original petition, but Muller was not aware of whether Talbott

had answered. Muller averred that he

contacted Lee on October 6, 2009, to discuss settlement opportunities. Muller stated that he informed Lee that he

was representing Clear Water. After Lee said

that he would discuss settlement with Heinrich, Muller “attempted to contact

[Lee] numerous times by phone and email, but could never get him to return

[Muller’s] call.” Muller sent a

follow-up letter on November 24, and Lee left a message stating that the settlement

offer contained in the letter might be acceptable to Heinrich. Although Muller tried to contact Lee on

several occasions after this message, Lee never responded to Muller’s

calls. Based on his conversation with

Lee, Muller believed that the parties were going to attempt to settle the case

before proceeding to trial. Muller

averred that he did not respond to the admissions requests or the summary

judgment motion “because [Muller] did not know about either and [Lee] never

mentioned anything or informed [Muller] at all about either.” Muller stated that any failure to respond to

the admissions or summary judgment motion “was an accident and/or a mistake,”

because he thought the parties “were going to try and work to see if we could

settle the case.”

Talbott

averred that he spoke with Muller in late September or early October, and

Muller agreed to represent the defendants.

Talbott gave Muller “all the papers [the defendants had received] from

the Plaintiff’s attorney at that time and [Muller] said he would take care of

it.” Talbott averred that he gave Muller

“settlement authority to try and resolve the case.” Talbott believed that Muller had

“communicated to [Lee] our settlement and [the defendants] were just waiting for

[Lee’s] response.” Talbott received

“more legal papers” from Heinrich in early November, and he spoke with Muller

about the case. Muller told him that he

had not received any documents from Heinrich.

Muller informed Talbott that he had not heard from Lee and that “[Muller]

thought the parties were going to work together to resolve the issues without

incurring significant legal fees and expenses.”

Talbott averred that he did not hear anything else about the case until

January 19, 2010, when Muller informed him that the trial court had entered a

judgment against the defendants in December.

Talbott further stated:

I learned later Plaintiff’s

attorney had filed some motion and we didn’t respond so the Judge signed a

judgment against us. I did not respond

to anything from the Plaintiff’s attorney because I thought [Muller] was taking

care of everything and he told Plaintiff’s counsel he was representing us. Any failure (by me or [Todd]) to respond to

the different legal papers sent us was not intentional. We both thought [Muller] was handling

everything and further that the case was going to get settled.

In

response, Heinrich argued that although Muller contacted Lee, he stated that he

was not representing Clear Water and he never indicated to Lee or the court,

prior to the motion for new trial, that he or his firm represented Clear Water. Heinrich contended that he had “no duty to

serve motions to non-existing counsel,” and stated that Clear Water had never

filed an appearance of counsel, moved to withdraw or substitute counsel, or

“supplied the Court with any documents indicating the existence of

counsel.” Heinrich argued that: “Defendants had ample amount of time and

notice to answer and respond to these pleadings and to obtain an attorney for

representation and just chose not to do so.

The fact that the Defendants neglected to obtain counsel until after the

judgment was rendered shows conscious indifference to the administration of

court proceedings.”

In

support of his response, Heinrich attached an affidavit from Lee. Lee averred:

[S]ome time in October 2009

I received a call from Richard Muller on behalf of Norman Talbott asking to

resolve this case. I asked him if he was

Talbott’s attorney and if he was going to enter in as attorney of record for

the defendants. He stated that he is not

the Defendants[’] attorney and is only calling as a favor to a friend to

facilitate a settlement. He also

reiterated that he would not be representing the defendants in the future.

Lee stated that he informed Heinrich of Clear

Water’s settlement offer, communicated by Muller, and, after Heinrich refused

the offer, Lee left a message for Muller stating Heinrich’s position. Lee further averred that the November 24,

2009 letter from Muller made “no mention of representing the defendants,” and

he immediately contacted Muller’s assistant upon receipt of the letter. She stated that neither Talbott nor the other

Clear Water defendants were clients of Muller or his firm. Lee concluded by stating that “[a]t no point

in time while [Lee] was working on the case and while speaking to Mr. Talbott

or Richard Muller was there any indication Mr. Talbott or any of the defendants

were represented by counsel.”

After

a hearing, the trial court denied Clear Water’s motion for new trial. This appeal followed.

Withdrawal of Deemed Admissions

In

its first issue, Clear Water contends that the trial court abused its

discretion by neither withdrawing the admissions deemed against it nor allowing

it to file a late summary judgment response.

Clear Water contends that its failure to respond to the admissions and

the summary judgment motion was not intentional or the result of conscious

indifference because Talbott believed that Muller was representing the

defendants and handling the case, and Muller believed that he was trying to

reach a settlement agreement. Clear

Water argues that Muller knew nothing about the outstanding admissions requests

or the pending summary judgment motion.

Once

an action is filed, a party may serve written requests for admissions. Tex.

R. Civ. P. 198.1; Boulet v. State ,

189 S.W.3d 833, 836 (Tex. App.—Houston [1st Dist.] 2006, no pet.). These requests can encompass “any matter

within the scope of discovery, including statements of opinion or of fact or of

the application of law to fact . . . .” Tex.

R. Civ. P. 198.1; see also

Maswoswe v. Nelson , 327 S.W.3d 889 , 896–97 (Tex. App.—Beaumont 2010, no

pet.) (“[A] party may ask another party to admit or deny issues of fact

relevant to the pending action or to apply the law to relevant issues of

fact . . . .”). If

the opposing party does not serve its responses to the admissions requests

within thirty days, the matters in the requests are deemed admitted against that

party without the necessity of a court order.

Tex. R. Civ. P. 198.2(c); Wal-Mart Stores, Inc. v. Deggs , 968

S.W.2d 354, 355 (Tex. 1998) (per curiam).

Any matter admitted or deemed admitted is conclusively established

unless the court, on motion, permits withdrawal or amendment of the

admission. Tex. R. Civ. P. 198.3; Boulet ,

189 S.W.3d at 836 (citing Marshall v.

Vise , 767 S.W.2d 699, 700 (Tex. 1989)).

Withdrawal

of deemed admissions is permitted upon a showing of good cause and a finding by

the trial court that (1) the party relying upon the deemed admissions will not

be unduly prejudiced, and (2) presentation of the merits of the action will be

served. Tex. R. Civ. P. 198.3; Wheeler

v. Green , 157 S.W.3d 439, 442 (Tex. 2005) (per curiam) (holding that

standard for withdrawal of deemed admissions — good cause and no undue prejudice — is same as standard for allowing late summary judgment response) (citing Carpenter v. Cimarron Hydrocarbons Corp. ,

98 S.W.3d 682 , 687–88 (Tex. 2002)). Good

cause is established by demonstrating that the failure involved was either an

accident or mistake, not intentional or the result of conscious

indifference. Wheeler , 157 S.W.3d at 442 ; Boulet ,

189 S.W.3d at 836 . The party seeking

withdrawal of the deemed admissions has the burden to establish good

cause. Boulet , 189 S.W.3d at 836 (citing Webb v. Ray , 944 S.W.2d 458, 461 (Tex. App.—Houston [14th Dist.]

1997, no writ)). “Undue prejudice

depends on whether withdrawing an admission or filing a late response will

delay trial or significantly hamper the opposing party’s ability to prepare for

it.” Wheeler ,

157 S.W.3d at 443 . As part of the undue

prejudice inquiry, the trial court must find that “presentation of the

merits . . . [is] subserved by permitting withdrawal.” Id.

at 443 n.2 (citing Tex. R. Civ. P.

198.3(b)). “Presentation of the merits

will suffer (1) if the requesting party cannot

prepare for trial, and also (2) if the requestor can prepare but the case is decided on deemed (but perhaps untrue)

facts anyway.” Id. ; Boulet , 189 S.W.3d

at 837 .

“Conscious

indifference” has been defined as “the failure to take some action that would

seem obvious to a reasonable person in the same circumstance.” In re

A.P.P. , 74 S.W.3d 570, 573 (Tex. App.—Corpus Christi 2002, no pet.) (citing

Norton v. Martinez , 935 S.W.2d 898,

901 (Tex. App.—San Antonio 1996, no writ) and Johnson v. Edmonds , 712 S.W.2d 651 , 652–53 (Tex. App.—Fort Worth

1986, no writ)). Conscious indifference

requires more than a showing of negligence.

See Levine v. Shackelford, Melton

& McKinley, L.L.P. , 248 S.W.3d 166, 168 (Tex. 2008) (per curiam). Some excuse for the failure to answer, not

necessarily a good excuse, will be sufficient to show that the failure was

accidental. See Craddock v. Sunshine Bus Lines, Inc. , 133 S.W.2d 124, 125 (Tex.

1939); In re A.P.P. , 74 S.W.3d at 573 . Uncontroverted factual allegations in a

motion for new trial and accompanying affidavits, if true, can negate intent or

conscious indifference. Jackson v. Mares , 802 S.W.2d 48, 50 (Tex.

App.—Corpus Christi 1990, writ denied).

If the nonmovant presents controverting evidence showing conscious

indifference, the issue becomes a fact question for the trial court. Id. ;

see also Moya v. Lozano , 921 S.W.2d

296, 299 (Tex. App.—Corpus Christi 1996, no writ) (holding that we review all

evidence in record to determine whether allegations are controverted). “The court, as fact-finder at a hearing on a

motion for new trial, has the duty of ascertaining the true

facts . . . and it is within the court’s province to judge

the credibility of the witnesses and to determine the weight to be given their

testimony.” Jackson , 802 S.W.2d at 51 .

We

will not set aside a trial court’s ruling denying the withdrawal of deemed

admissions unless we find that the trial court abused its discretion. Boulet ,

189 S.W.3d at 837 ; see also Wheeler ,

157 S.W.3d at 443 (“We recognize that trial courts have broad discretion to

permit or deny withdrawal of deemed

admissions . . . .”).

The trial court cannot deny the withdrawal of admissions arbitrarily,

unreasonably, or without reference to guiding rules or principles. Wheeler ,

157 S.W.3d at 443 (citing Stelly v.

Papania , 927 S.W.2d 620, 622 (Tex. 1996)); Boulet , 189 S.W.3d at 837 .

Heinrich

contends that Clear Water waived its challenge to the deemed admissions by

failing to move to withdraw the admissions until its motion for new trial. We agree.

In Wheeler , Wheeler, acting pro se, served her

responses to the admissions requests two days late due to her misunderstanding

of the mailbox rule. 157 S.W.3d at 441 . Green attached the admission requests to his

summary judgment motion, but he did not mention that he had received responses from

Wheeler, albeit two days late. Id.

Wheeler did not respond to the summary judgment motion, but she did

attend the summary judgment hearing. Id.

She did not request that the trial court withdraw the deemed admissions and

allow a late-filed summary judgment response until her motion for new

trial. Id. at 441–42. The Texas

Supreme Court held that, under these circumstances, Wheeler did not waive her

complaints by presenting them for the first time in her motion for new trial

because nothing in the record suggested that, before the trial court granted

summary judgment, she realized that her admissions responses were late, that

she needed to move to withdraw the deemed admissions, or that she needed to

file a response to the summary judgment motion to raise this argument. Id.

at 442 ; see also Cimarron , 98 S.W.3d

at 686 (holding that equitable principles allowing these arguments to be made

in motion for new trial do not apply if party realizes its mistake before

judgment and has other avenues of relief available).

In Unifund CCR Partners v. Weaver , the

Texas Supreme Court distinguished Wheeler

and held that when a summary judgment motion put the party seeking withdrawal

of deemed admissions on notice of his mistake before the trial court rendered

judgment, the party waived the right to raise the issue in a post-judgment filing. 262 S.W.3d 796, 798 (Tex. 2008) (per

curiam). Although Weaver, a pro se

litigant, filed a letter with his responses to the admissions requests

attached, the record did not indicate that he actually served Unifund with his

responses. Id. at 797 . In its summary

judgment motion, Unifund asserted that the facts presented in its requests for

admissions were deemed admitted due to Weaver’s failure to timely serve his

responses. Id. Weaver did not file a

summary judgment response, and he did not argue that he had properly served

Unifund with his responses until a post-judgment filing. Id. The supreme court construed Weaver’s

post-judgment filing as a motion for new trial and held that “Unifund’s motion

for summary judgment put [Weaver] on notice of the deficiency of his

response: that Unifund never received

the response because Weaver had not served, or attempted to serve, the response

on Unifund.” Id. at 798 . As a result,

unlike in Wheeler , Weaver knew of his

mistake regarding the admissions before the trial court rendered judgment, and

he could have responded to Unifund’s summary judgment motion or requested the

withdrawal of the deemed admissions. Id.

Because he did neither, “he waived his right to raise the issue

thereafter.” Id. ; see also Marino v. King ,

No. 10-09-00368-CV, 2010 WL 3434620, at *2 (Tex. App.—Waco Sept. 1, 2010, no

pet.) (mem. op.) (“Similar to Unifund ,

Marino was given notice of the late filing of her answers to the request for

admissions in King’s motion for summary judgment. Marino did not attempt to have the trial

court withdraw the admissions prior to the entry of judgment against her.”).

Here,

it is undisputed that Clear Water never responded to Heinrich’s requests for

admissions, it did not respond to Heinrich’s summary judgment motion, it did

not appear at the summary judgment hearing, and it did not request the

withdrawal of the deemed admissions until its motion for new trial. Heinrich’s requests for admissions clearly

informed Clear Water that it had thirty days to serve its responses or the

admissions would be deemed against it. In

his summary judgment motion, Heinrich stated:

On September 9, 2009,

Plaintiff served Defendants, Norman Talbott and Robert Todd, Requests for

Admissions via Certified and First Class Mail.

Both Defendants have not responded to such requests. These admissions are therefore deemed.

Heinrich attached a copy of the admissions requests

as summary judgment evidence, and he referenced the deemed admissions

throughout his summary judgment motion.

We

conclude that Heinrich’s summary judgment motion put Clear Water on notice of its

failure to respond to the admissions requests.

See Weaver , 262 S.W.3d at

798 . Thus, Clear Water knew of its

mistake before the trial court rendered summary judgment, and it could have

requested the withdrawal of the admissions in either a summary judgment

response or a separate motion seeking withdrawal. Because it did neither, we hold that Clear

Water waived its right to raise the issue and seek withdrawal in its motion for

new trial. See id.

Even

if Clear Water did not waive its challenge to the deemed admissions by failing

to raise the issue before its motion for new trial, we conclude that the trial

court did not abuse its discretion in denying Clear Water’s request to withdraw

the deemed admissions and allow a late-filed summary judgment response because the

trial court could have reasonably concluded that Clear Water did not establish

good cause for its failure to respond.

Clear

Water argues that the affidavits of Muller and Talbott, attached to its motion

for new trial, demonstrated that its failure to respond was “not intentional or

the result of conscious indifference” because Talbott believed that Muller was

handling the case and Muller, who was unaware of the outstanding admissions and

the pending summary judgment, believed that he was trying to settle the

case. According to Clear Water, Muller’s

mistake was “compounded” by the fact that Lee did not serve or otherwise inform

Muller of the deemed admissions or the summary judgment motion.

Texas

Rule of Civil Procedure 8 provides that, “[o]n the occasion of a party’s first

appearance through counsel, the attorney whose signature first appears on the

initial pleadings for any party shall be the attorney in

charge . . . .” Tex. R. Civ. P. 8. “All communications from the court or other

counsel with respect to a suit shall be sent to the attorney in charge.” Id. ;

see also Lester v. Capital Indus. Inc. ,

153 S.W.3d 93, 96 (Tex. App.—San Antonio 2004, no pet.) (“Once Lester’s

attorney made an appearance in the

case, all communications from opposing counsel with respect to the suit should

have been sent to him, including notice of the summary judgment motion and

hearing. Failure to send notice violated

Rules 8, 21a, and 166a(c) of the Texas Rules of Civil Procedure.”) (emphasis

added). An attorney may become “an

‘attorney of record’ by filing pleadings or appearing in open court on a party’s

behalf.” Smith v. Smith , 241 S.W.3d 904, 907 (Tex. App.—Beaumont 2007, no

pet.). If a party presents evidence that

an attorney “undertook a limited role in a matter,” such as evidence of an

agreement to provide advice or an agreement to facilitate a settlement, this

evidence does not constitute “the equivalent of making an appearance on the

client’s behalf.” See id. at 908 .

Muller

and Talbott both averred that Muller had agreed to represent Clear Water, and

that he was working to facilitate a settlement agreement with Heinrich. Muller further averred that he informed Lee

during their October 6, 2009 phone conversation that he was representing Clear

Water. Talbott averred that, after

discussing the case with Muller, he gave Muller all of the documents that he

had received regarding the case and that he spoke with Muller about the case

after he received Heinrich’s summary judgment motion.

Lee

contradicted these allegations in his affidavit filed in response to Clear

Water’s motion for new trial. Lee

averred that when he first spoke to Muller, he asked him whether he was “going

to enter in as attorney of record for the defendants,” and Muller stated that

he was not Clear Water’s attorney, but, instead, he was merely “calling as a

favor to a friend to facilitate a settlement.”

During this conversation, Muller also “reiterated that he would not be

representing the defendants in the future.”

Lee further averred that after he received a letter from Muller in late

November communicating a settlement offer from Talbott, he spoke with Muller’s

assistant who confirmed that Clear Water was not a client of Muller or his

firm. Lee finally stated that, “[a]t no

point in time while I was working on the case and while speaking to Mr. Talbott

or Richard Muller was there any indication [that] Mr. Talbott or any of the

defendants were represented by counsel.”

It is

undisputed that Muller never filed a pleading or motion on behalf Clear Water,

never appeared on behalf of Clear Water in open court, never responded to any

discovery requests on behalf of Clear Water, and never filed any designation of

“attorney of record” for Clear Water. If,

in fact, Muller was Clear Water’s attorney as of October 6, 2009, as he now

avers, he had a professional responsibility to ascertain whether Talbott had

answered the petition Talbott gave him and to appear. He avers that he did not apprise himself of

the state of the proceedings against his client. Muller did not appear in the litigation, nor

did he take any of the actions required of an attorney representing a client in

litigation. We conclude that Muller was

not Clear Water’s attorney of record, and, thus, Heinrich was not obligated

under the Rules of Civil Procedure either to serve Muller with amended

pleadings, motions, and discovery requests or to inform Muller of the

outstanding discovery requests and pending summary judgment motion. See

Smith , 241 S.W.3d at 907–08; Tex. R.

Civ. P. 8.

In

its motion for new trial, in addition to arguing that it was represented by

counsel who failed to receive the discovery requests and summary judgment

motion, Clear Water also argued that both Talbott and Muller “mistakenly

thought the parties were working towards some type of settlement,” which

constitutes “good cause” for the failure to respond to the admissions requests

and the summary judgment motion. Clear

Water cites no authority for the proposition that believing that the parties were

working toward a settlement agreement suspends discovery and pretrial deadlines

and allows parties to ignore discovery requests, and, thus, constitutes an

excuse for failure to respond. Clear

Water presented no evidence that it ever entered into a Rule 11 agreement with

Heinrich to waive or postpone discovery deadlines while the parties tried to

reach a settlement. Clear Water also

presented no evidence that it moved the trial court for an extension of time to

respond either to the discovery requests or to the summary judgment motion. Instead, the record demonstrates a pattern of

ignoring discovery requests and failing to respond to requests and motions. [2] See

Levine , 248 S.W.3d at 169 (“This pattern of ignoring deadlines and warnings

from the opposing party amounts to conscious indifference.”).

When

the party seeking withdrawal of deemed admissions and permission to late-file a

summary judgment response presents evidence and allegations negating conscious

indifference and the nonmovant presents controverting evidence, the issue of

conscious indifference becomes a fact question for the trial court. See

Jackson , 802 S.W.2d at 50 . As the

fact-finder at a hearing on a motion for new trial, it is “within the court’s

province to judge the credibility of the witnesses and to determine the weight

to be given their testimony.” Id. at 51 ; see also Imkie v. Methodist Hosp. , 326 S.W.3d 339, 344 (Tex.

App.—Houston [1st Dist.] 2010, no pet.) (holding that, when reviewing denial of

motion for new trial, we view evidence in light most favorable to trial court’s

ruling, draw all legitimate inferences from evidence, and defer to trial

court’s resolution of conflicting evidence).

We conclude, based on this record, that the trial court did not err in

implicitly concluding that Clear Water did not establish good cause for its

failure to respond to the admissions requests and the summary judgment

motion. We therefore hold that the trial

court did not abuse its discretion in refusing either to withdraw the deemed

admissions or to allow a late-filed summary judgment response.

We

overrule Clear Water’s first issue.

Summary Judgment on Heinrich’s Claims

In

its second issue, Clear Water contends that the trial court erroneously

rendered summary judgment in favor of Heinrich because Heinrich failed to carry

his summary judgment burden and establish that there were no genuine issues of

material fact and that he was entitled to judgment as a matter of law.

A.

Standard of Review

We review

de novo the trial court’s ruling on a summary judgment motion. Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848

(Tex. 2009). To prevail on a traditional

summary judgment motion, the movant must establish that no genuine issues of

material fact exist and that he is entitled to judgment as a matter of

law. Tex.

R. Civ. P. 166a(c); Little v. Tex.

Dep’t of Criminal Justice , 148 S.W.3d 374, 381 (Tex. 2004). A party moving for summary judgment on his

own claim must conclusively prove all essential elements of the claim. See

Rhone-Poulenc, Inc. v. Steel , 997 S.W.2d 217, 223 (Tex. 1999); Tex. R. Civ. P. 166a(a) (“A party

seeking to recover upon a claim . . . may, at any time

after the adverse party has answered or appeared, move with or without

supporting affidavits for a summary judgment in his favor upon all or any part

thereof.”). A matter is conclusively

established if reasonable people could not differ as to the conclusion to be

drawn from the evidence. See City of Keller v. Wilson , 168 S.W.3d

802, 816 (Tex. 2005).

If

the movant meets his burden, the burden then shifts to the nonmovant to raise a

genuine issue of material fact precluding summary judgment. See

Centeq Realty, Inc. v. Siegler , 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of fact

if reasonable and fair-minded jurors could differ in their conclusions in light

of all of the summary judgment evidence.

Goodyear Tire & Rubber Co. v.

Mayes , 236 S.W.3d 754, 755 (Tex. 2007) (per curiam). To determine if the nonmovant has raised a

fact issue, we review the evidence in the light most favorable to the

nonmovant, crediting favorable evidence if reasonable jurors could do so, and

disregarding contrary evidence unless reasonable jurors could not. See

Fielding , 289 S.W.3d at 848 (citing City

of Keller , 168 S.W.3d at 827 ). We

indulge every reasonable inference and resolve any doubts in the nonmovant’s

favor. See Sw. Elec. Power Co. v. Grant , 73 S.W.3d 211, 215 (Tex. 2002)

(citing Sci. Spectrum, Inc. v. Martinez ,

941 S.W.2d 910, 911 (Tex. 1997)).

We

must affirm the summary judgment if any of the grounds presented to the trial

court are meritorious. Provident Life & Accident Ins. Co. v.

Knott , 128 S.W.3d 211, 216 (Tex. 2003); Pickett

v. Tex. Mut. Ins. Co. , 239 S.W.3d 826, 840 (Tex. App.—Austin 2007, no

pet.).

B.

Heinrich’s DTPA Claim

The trial court’s summary judgment

states that, “[w]ith respect to the cause of action for Breach of Warranty as a

violation of the Texas Deceptive Trade Practices Act as asserted by the

Plaintiffs, the Court finds in favor of said Plaintiff . . . .” Generally, to recover for breach of an

express warranty under the DTPA, a plaintiff must prove that (1) he is a

consumer, (2) a warranty was made, (3) the warranty was breached, and (4)

as a result of the breach, an injury resulted.

U.S. Tire-Tech, Inc. v. Boeran,

B.V. , 110 S.W.3d 194, 197 (Tex. App.—Houston [1st Dist.] 2003, pet.

denied); see also Head v. U.S. Inspect

DFW, Inc. , 159 S.W.3d 731, 746 (Tex. App.—Fort Worth 2005, no pet.); see also Tex. Bus. & Com. Code Ann. § 17.50(a)(2) (Vernon

2011) (“A consumer may maintain an action where any of the following constitute

a producing cause of economic damages or damages for mental anguish: breach of an express or implied warranty.”). The DTPA does not define or create any

warranties. U.S. Tire-Tech , 110 S.W.3d at 197 (citing Parkway Co. v. Woodruff , 901 S.W.2d 434, 438 (Tex. 1995)). Warranties actionable under the DTPA must

first be recognized by common law or created by statute. Id. An express warranty is created when “a seller

makes an affirmation of fact or a promise to the purchaser that relates to the

sale and warrants a conformity to the affirmation as promised.” Head ,

159 S.W.3d at 746 (citing Humble Nat’l

Bank v. DCV, Inc. , 933 S.W.3d 224 , 233 (Tex. App.—Houston [14th Dist.]

1996, writ denied)). Producing cause is

“a substantial factor which brings about the injury and without which the

injury would not have occurred.” Doe v. Boys Clubs of Greater Dallas, Inc. ,

907 S.W.2d 472, 481 (Tex. 1995). The

plaintiff need not establish that the harm was foreseeable. Id.

If the defendant’s conduct was

committed knowingly, the consumer may recover not more than three times the

amount of economic damages. Tex. Bus. & Com. Code Ann.

§ 17.50(b)(1) (Vernon 2011); see

also Brown & Brown of Tex., Inc. v. Omni Metals, Inc. , 317 S.W.3d 361 ,

395–96 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (holding evidence

legally and factually sufficient to support jury finding of “knowingly,” as

required for award of treble damages under DTPA). The DTPA defines “knowingly” as:

[I]n an action brought under

Subdivision (2) of Subsection (a) of Section 17.50, actual awareness of the

act, practice, condition, defect, or failure constituting the breach of

warranty . . . actual awareness may be inferred where

objective manifestations indicate that a person acted with actual awareness.

Tex. Bus. & Com. Code

Ann. § 17.45(a)(9) (Vernon 2011); see

also St. Paul Surplus Lines v. Dal-Worth Tank Co. , 974 S.W.2d 51 , 53–54

(Tex. 1998) (defining “actual awareness” as “a person knows that what he is

doing is false, deceptive, or unfair and does it anyway”).

Clear

Water contends that, when the nonmovant has not engaged in “flagrant bad faith

or callous disregard for the rules,” summary judgment is improper when the only

evidence supporting summary judgment is merits-preclusive deemed

admissions. Clear Water further contends

that Heinrich used only the deemed admissions to support his DTPA claim, and,

without the deemed admissions, Heinrich has no evidence to support his claim

that (1) Clear Water breached a warranty, (2) Clear Water’s actions were a

producing cause of damages, and (3) Clear Water acted knowingly.

“Admissions

of fact on file at the time of a

summary judgment hearing are proper summary judgment proof and will, therefore,

support a motion for summary judgment.” Cedyco Corp. v. Whitehead , 253 S.W.3d

877, 880 (Tex. App.—Beaumont 2008, pet. denied) (emphasis in original); see also Tex. R. Civ. P. 166a(c) (allowing trial court to consider

admissions on file with court at time of hearing when rendering summary

judgment). Although “[t]he rule

regarding requests for admissions does not contemplate or authorize admissions

to questions involving points of law,” and, thus, “responses to requests for

admissions merely constituting admissions of law are not binding on the court,”

Rule 198.1 does provide that admissions seeking to apply the law to a set of

facts are permissible. [3] Boulet ,

189 S.W.3d at 838 ; see also Tex. R. Civ. P. 198.1; Maswoswe , 327 S.W.3d at 896–97.

As we

have already held, the trial court did not err in refusing to withdraw the

deemed admissions. Thus, the admissions

of fact and admissions that applied the law to relevant facts are proper

summary judgment evidence and may support summary judgment. See

Cedyco Corp. , 253 S.W.3d at 880 . The

deemed admissions contained admissions that Clear Water warranted its work on

Heinrich’s decking for one year; that cracks began to form in the decking

within one month after installation; that Clear Water “misrepresented the

length and existence of a warranty because no attempts to fix the decking

[have] been made”; that Heinrich fully performed his contractual obligations;

that Clear Water knowingly used substandard materials; that Clear Water made

promises to repair the decking but did not intend to repair it; that Clear

Water knowingly promised to repair the decking to delay Heinrich from filing

suit; that, to restore Heinrich’s decking, the entire deck needed to be removed

and replaced; and that the total cost of restoring the deck is at least

$23,207.

Contrary

to Clear Water’s assertion, Heinrich did not rely solely on the deemed

admissions to establish his DTPA claim.

In addition to the deemed admissions, Heinrich included the following as

summary judgment evidence: (1) the

written contract between Clear Water and himself; (2) the written

“guarantee/warranty” that explicitly stated that Clear Water “guarantees its

work to be free from defects in material and workmanship for a period of one

(1) year to the original owner (non-transferable) from completion of pool,

providing owner has complied in full with the terms and payments and other

conditions of this contract”; (3) photographs of the cracks in the concrete

decking, taken within one year of installation; (4) an e-mail from Talbott, in

which he opined that Clear Water had “got[ten] a hold of some bad concrete” and

stated that Clear Water “stand[s] by [its] warranties” and will fix the damage;

and (5) an affidavit that described the damages incurred and included a remodel

proposal from another pool company.

We

conclude that, based on the summary judgment evidence presented to the trial

court, Heinrich conclusively established each element of his DTPA cause of

action for breach of an express warranty.

Because Heinrich demonstrated that he is entitled to judgment as a

matter of law, we hold that the trial court correctly rendered summary judgment

in his favor on his DTPA claim.

We

overrule Clear Water’s second issue. [4]

Conclusion

We

affirm the judgment of the trial court.

Evelyn

V. Keyes

Justice

Panel

consists of Justices Keyes, Higley, and Hinde. [5]

[1]

Neither the affidavit of damages

nor the deemed admissions that were attached to Heinrich’s summary judgment

motion are included in the clerk’s record.

The clerk’s record does contain copies of the requests for admissions

that Heinrich sent to both Talbott and Todd.

[2]

The record reflects that

Heinrich served requests for disclosure pursuant to Texas Rule of Civil

Procedure 194, requests for production, and two sets of requests for

admissions. Heinrich received no

responses to any of these discovery requests.

[3]

Clear Water does not contend

that any of the admissions requests relevant to establishing Heinrich’s DTPA

claim seek admissions to questions involving points of law, and, thus, are not

binding on the court and are not proper summary judgment evidence. See,

e.g. , Marino v. King , No. 10-09-00368-CV,

2010 WL 3434620, at *4 (Tex. App.—Waco Sept. 1, 2010, no pet.) (mem. op.)

(raising issue of whether four admissions relied upon for summary judgment

sought legal conclusions). Clear Water

merely contends that, absent the alleged improperly deemed admissions, Heinrich

presented no evidence to conclusively establish the elements of his DTPA claim.

[4]

On appeal, Clear Water

additionally contends that Heinrich failed to conclusively establish the

elements of his breach of contract claim and, thus, was not entitled to summary

judgment on that claim. Because we hold

that Heinrich conclusively established the elements of his DTPA claim and

because the final summary judgment reflects that Heinrich elected to recover

under the DTPA instead of on his breach of contract claim, we do not address

whether Heinrich conclusively established the elements of the breach of

contract claim.

[5]

The Honorable Dan Hinde, Judge

of the 269th District Court of Harris County, Texas, participating by

assignment. See Tex. Gov’t Code Ann.

§ 74.003(h) (Vernon 2005).