# Roark v. STALLWORTH OIL AND GAS, INC > Texas Supreme Court · September 11, 1991 · 813 S.W.2d 492 URL: https://www.frixlaw.com/law-library/cases/9649318 ## Case - **Full name:** Gordon L. ROARK, Jr., Petitioner, v. STALLWORTH OIL AND GAS, INC., Melissa Swinton Melville, Administrator With Will Annexed of Robert B. Stallworth, Jr. and Fossil Fuels, Inc., Respondents - **Court:** Texas Supreme Court - **Decided:** September 11, 1991 - **Citations:** 813 S.W.2d 492; 1991 WL 105546 - **Precedential status:** Published - **Opinion:** Dissent by Gonzalez - **Judges:** Cornyn, Gonzalez - **Cited by:** 574 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9649318 ## How later opinions describe it (automated extraction) - holding that "an unpleaded affirmative defense may also serve as the basis for a summary judgment when it is raised in the summary judgment motion, and the opposing party does not object to the lack of a rule 94 pleading in either its written response or before the rendition o… - holding that unplead affirmative defense may serve as basis for summary judgment when raised in summary-judgment motion and opposing party does not object because unplead claims or defenses tried by express or implied consent of parties are treated as if they had been raised i… - holding that an unpleaded affirmative defense of payment may serve as the basis for a trial court’s order granting summary judgment when the issue is raised in a summary judgment motion and the opposing party does not object to litigating the defense prior to rendition of judg… - holding that “[i]f the non-movant does not object to a variance between the motion for summary judgment and the movant’s pleadings, it would advance no compelling interest of the parties or of our legal system to reverse a summary judgment simply because of a pleading defect” ## Opinion text *497 GONZALEZ, Justice, dissenting. I dissent from that part of the majority’s opinion which holds that Respondents’ deemed admissions do not conclusively establish their affirmative defense of no consideration. I believe the court of appeals was correct in affirming the summary judgment for Respondents based on these admissions. According to Rule 169, “a matter is admitted without necessity of a court order unless, within thirty days after the request ... the party to whom the request is directed serves upon the party requesting the admission a written answer or objection ...” Tex.R.Civ.P. 169(1). When Roark failed to respond to Respondents’ request for admissions they were deemed admitted. The effect of admissions is that “any matter admitted under this rule is conclusively established as to the party making the admission unless on motion the court permits withdrawal or amendment of admission.” Tex.R.Civ.P. 169(2). Roark did not file a motion to extend his time to respond to the request for admissions until after the deadline had passed and the court overruled his motion. Thus the following admissions conclusively prove that: (1) Before the May 19, 1979 letter agreement, Roark worked for Respondents, receiving $150 per day and expenses as compensation. (2) Respondents’ promise in the letter agreement was a mere gratuitous promise to grant Roark a five percent interest. (3) After the letter agreement was created, the nature and extent of Roark’s work for Respondents was substantially the same as it was before the agreement. (4) After the creation of the letter agreement, Roark did not perform any additional duties for Respondents that would merit any additional consideration from Respondents. (5) Respondents’ promise in the letter agreement did not induce Roark to perform any additional work for Respondents. In other words, these deemed admissions conclusively establish that Respondents’ promise is a mere gratuitous promise and that Roark gave past consideration for Respondents’ promise. Consequently, Roark could not controvert this evidence with his summary judgment evidence. See, e.g., Cherry v. North Am. Lloyds, 770 S.W.2d 4, 6 (Tex.App.—Houston [1st Dist.] 1989, writ denied) (holding that trial court could not consider affidavit which non-movant contended would controvert movant’s proof consisting of admissions deemed against non-movant). I agree with the court of appeals that “these deemed admissions conclusively establish that the letter was without consideration and not enforceable by Roark against [Respondents] as a contract,” 811 5.W.2d 630, because courts do not enforce gratuitous promises, see Fleck v. Baldwin, 172 S.W.2d 975, 978 (Tex.1943), and because past consideration does not constitute legally sufficient consideration to support a contract. See Mason v. Babin, 474 S.W.2d 809, 812 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ ref d n.r.e.) (holding employees past work for employer insufficient consideration for employer’s subsequent promise to pay debt); Stone v. Morrison & Powers, 298 S.W. 538, 539 (Tex.Comm’n App.—1927, holding approved) (past performance under construction contract not consideration for subsequent obligation). For these reasons I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9649318. Public record. Not legal advice.