JACK R. HORTON, J.D. DRAPER,FROM A COUNTY COURT and SEVILLE FINANCIAL, INC., APPELLANTS, v. JIMMY E. ROSE, WILLIE FAYE ROSE, JONATHAN D. MORGENSTERN, ESQ., JACK JACKSON, and DWIGHT BOOKOUT, APPELLEES

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00757-CV
 
JACK R. HORTON, J.D. DRAPER,FROM A COUNTY COURT
and SEVILLE FINANCIAL, INC.,
 
        APPELLANTS,
 
v.
 
JIMMY E. ROSE, WILLIE FAYE ROSE,
JONATHAN D. MORGENSTERN, ESQ.,
JACK JACKSON, and DWIGHT BOOKOUT,
 
        APPELLEES.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES STEWART, ROWE AND OVARD
OPINION BY JUSTICE OVARD
JULY 31, 1989
 
        Appellants, Jack R. Horton, J.D. Draper, and Seville Financial, Inc., appeal from a final judgment entered in favor of appellees, Jimmy and Willie Rose, Jonathan Morgenstern, Jack Jackson, and Dwight Bookout. Appellants will be referred to collectively as Seville. Appellees will be referred to collectively as the Roses.
        In nine points of error, Seville complains that: there was no evidence or insufficient evidence to support the judgment; Seville was unable to obtain a statement of facts
of any hearing held regarding the default judgment; the judgment is not supported by the pleadings; the trial court erred in imposing personal liability because there was no evidence or insufficient evidence to support such an award, and, further, that such an award is not supported by the pleadings; the trial court abused its discretion in striking Seville's answer and in granting the Roses' motion to deem facts admitted. For the reasons discussed herein, we reverse the trial court's judgment and remand this case.
        The only statement of facts in this case is from a hearing on Seville's motion for new trial. Seville was unable to obtain a statement of facts regarding the default judgment. The record on appeal contains an affidavit by the court reporter which states that, except for the hearing on Seville's motion for new trial, no evidence or argument was presented in her presence with regard to this case. We derive the factual basis for this suit from the transcript.         This law suit arose from a home improvement construction contract between the Roses and Seville. The Roses obligated themselves to pay $71,157.60 pursuant to a "Mortgage Loan" dated November 8, l985. The funding was to be arranged by Seville. Difficulties with the work arose and the parties subsequently entered into settlement negotiations which were set forth on June l0, l986, in a document entitled "Agreement." The Agreement provided in part:
        Seville Financial, Inc., by and through Jack R. Horton, would execute a promissory note in the amount of $3,l00, payable on or before July 1, l986, to Jimmy Earl Rose and Willie Fay Rose, and Jonathan D. Morgenstern, and a promissory note to Jack Jackson, Dwight Bookout, and Jonathan Morgenstern in the amount of $1,500;
* * *
        Horton and Seville Financial, Inc. would execute a one-year satisfaction guarantee as to warranty of fitness with regard to the workmanship and materials provided to the Roses; and
 
        The work to the Roses' residence would be completed by July 1, l986.
Horton, who was president of Seville, also executed a promissory note in which Seville agreed to pay the Roses and Morgenstern $3,l00 and to pay Jackson, Bookout, and Morgenstern $l,500. The Roses remained dissatisfied and ultimately filed suit seeking to recover the amounts specified in the promissory note and also unspecified damages for alleged Texas Deceptive Trade Practices Act violations.
        We first consider the trial court's action in granting the Roses' motion to deem facts admitted. A ruling by the trial court in denying or granting a motion to deem facts admitted will be set aside only upon a showing of a clear abuse of discretion. Schindler v. AG Aero Distrib. Inc., 502 S.W.2d 58l, 584 (Tex. Civ. App.--Corpus Christi l973, no writ).         
        Under rule 169, requested admissions are automatically deemed admitted when no answer or motion for additional time is filed by the day the answers are due. A failure to answer a request for admissions constitutes a judicial admission of the matter embraced by such request. 26 B. THOMAS MCELROY, TEXAS PRACTICE, CIVIL PRE-TRIAL PROCEDURE, § 1660 (Texas Practice l980). An admission of facts by a party opponent precludes the opponent from denying such facts at trial and serves as evidence in lieu of testimony. Agristor Credit Corp. v. Donahoe, 568 S.W.2d 422, 429 (Tex. Civ. App.--Waco l978, writ ref'd n.r.e.); 2 MCDONALD, TEXAS CIVIL PRACTICE IN DISTRICT AND COUNTY COURTS § l0.06 (rev. l970).
        The Roses served their requests for admission and filed them with the clerk of the court on September 22, l987. They filed their motion to deem facts admitted on February l2, l988, in which they stated that Seville had failed to respond to their requests. The Roses also filed a motion for summary judgment. Thereafter, Seville filed its response to the motion for summary judgment and attached thereto the affidavits of Horton and Draper. Horton and Draper each swore that their answers to the requests for admission were returned to the Roses' attorney within thirty days from the date they were served. One week later, the trial court entered its order deeming the answers "as if answered affirmatively" by Seville.
        At the hearing on its motion for new trial, Seville reiterated its position through Horton's testimony that the answers to the requested admissions were timely returned. Attached as an exhibit to its motion for new trial were the answers that Seville claimed it had timely returned to the Roses. This document was a photocopy of the Roses' requests which Horton had answered by handwriting "admit," "deny," and "N/A" next to the individual requests. The document was not signed by either Seville or its attorney. It did not contain a certificate of service; and it had not been filed with the clerk of the court.
        The provisions of rule l69 require that answers be "signed by the party or by his attorney" and, together with proof of service thereof, "filed promptly in the clerk's office." TEX. R. CIV. P. l69 (l). Service in accordance with rule 21a provides the means for avoiding controversy when there is a dispute concerning receipt. 2 McDONALD, TEXAS CIVIL PRACTICE IN DISTRICT AND COUNTY COURTS § 10.07 (rev. 1970). Under the facts of this case, we cannot say the trial court abused its discretion in deeming facts admitted. Point of error nine is overruled.
        We next address point of error eight, which concerns whether the trial court abused its discretion in striking Seville's answer. During the course of pretrial discovery, the Roses claimed their requests for admission were never answered by Seville. The trial court granted the Roses' motion to deem facts admitted and, sua sponte, also struck Seville's answer.
        Rule 169 FN:1 requires parties to timely respond to requests for admission. Subdivision 4 of rule 2l5 is a self-contained sanction provision that governs the wrongful failure to admit either the genuineness of a document or the truth of a factual matter. This subdivision, together with rule l69, provides a comprehensive procedural framework for requests for admission. The commentary which follows it states that rule 2l5 was designed to clarify the circumstances under which the most severe sanctions FN:2 are imposable and extends such sanctions "to cover all discovery requests, except requests for admissions." Comment, West's TEXAS RULES OF COURT, rule 2l5 (4) (l989) (emphasis added). While we recognize that such comments are not authoritative, they are consistent with our determination that the Supreme Court intended to treat requests for admission differently from other discovery.
        Subdivision 4 contains specific sanctions for failing to comply with rule l69. These sanctions include the automatic deemed admission of the matter inquired about and a requirement that the party who has improperly refused to admit a matter be required to pay the expense of proving it at trial. The sanctions for failing to properly respond to requests for admission differ significantly from the sanctions applicable to other pretrial discovery and are structured to effectuate the purpose of requests for admission. See Sales, Pretrial Discovery in Texas Under the Amended Rules: Analysis and Commentary, 27 S. TEX. L.J. 305, 377 (l986); Kilgarlin & Jackson, Sanctions for Discovery Abuse Under New Rule 2l5, l5 ST. MARY'S L.J. 767, 8l2 (l984).
        We conclude that the rules do not envision striking a litigant's pleadings as a sanction for failure to comply with rule l69. Rather, it is subdivision 4 which provides the means of redress when a party is guilty of abusing rule l69. Thus, we hold that the trial court abused its discretion in striking Seville's answer.
        The Roses contend that Seville's answer is immaterial to the outcome of this case because the deemed admissions establish its cause of action and support the trial court's judgment. We disagree. On direct review of a default judgment where no statement of facts is available, we may not presume that the trial court heard sufficient evidence to support the judgment. Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312, 3l5 (Tex. Civ. App.--Dallas 1975, writ ref'd). Seville Financial's stricken answer encompassed numerous defenses including failure of consideration, absence of a benefit, refusal of tender, lack of presentment, and standing as regards appellee Morgenstern. The effect of Seville Financial's answer was to require that the Roses controvert each of these defenses. See Frymire Eng'g Co. v. Grantham, 524 S.W.2d 680, 681 (Tex. l975); Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 744 (Tex. l973). While the deemed admissions may establish a prima facie case for plaintiffs, such admissions do not even address the bulk of the defenses raised by Seville Financial's answer. Point of error eight is sustained.
        In view of the foregoing, we conclude that the judgment of the trial court must be reversed. Where a case has not been fully developed, we are empowered to remand it so that the parties may have another opportunity to present their claims and defenses to the trial court. See Associated Oil Co. v. Hart, 277 S.W. 1043, 1045 (Tex. Comm'n App. 1925, holding approved); Paris & G.N.R. Co. v. Robinson, 104 Tex. 482, 492, 140 S.W.2d 434, 439 (1911); Gill Sav. Ass'n v. Int'l Supply Co. 759 S.W.2d 697, 706 (Tex. App.--Dallas 1988, writ denied). Because of our disposition of this case, we need not address the remaining points of error. Therefore, we reverse and remand this case for further proceedings consistent with this opinion.
                                                  
                                                  JOHN OVARD
                                                  JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00757.F
 
FN:1 All references are to the Texas Rules of Civil Procedure (Vernon Supp. 1989).
FN:2 These are found in subsection 2 of rule 215 and include striking out pleadings, dismissing the proceedings, or rendering a default judgment.
File Date[01-02-89]
File Name[880757F]