FRANCISCA ROBERSON AND PAMELA IBIDAPO, Appellant s v. GEORGE H. SAWELL AND TEXAS INDUSTRIAL DISPOSAL, Appellee s

Affirmed and Opinion filed November 20, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-89-00438-CV
............................
FRANCISCA ROBERSON AND PAMELA IBIDAPO, Appellant
s
 
V.
GEORGE H. SAWELL AND TEXAS INDUSTRIAL DISPOSAL, Appellee
s
 
 
.................................................................
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC87-18719-D
.................................................................
O P I N I O N
Before Justices Rowe, Whitham and Whittington
Opinion By Justice Whittington
        This is an appeal from a summary judgment. Appellants, Francisca Roberson and Pamela Ibidapo brought an action against appellees George H. Sawell and Texas Industrial Disposal to recover for alleged damages sustained in a motor vehicle accident. During the course of pre-trial discovery, appellees served appellant with a set of requests for admissions with additional discovery requests. Defendant failed to timely respond to the requests for admissions which were accordingly deemed admitted as a matter of law. Appellants filed motions to withdraw the deemed admissions. The trial court denied appellants' motions and, based principally on the deemed admissions, granted summary judgment in favor of appellees.
        In this appeal, appellants contend that the trial court abused its discretion in denying appellants' motions to withdraw the deemed admissions and in granting appellees summary judgment based on the deemed admissions. Appellants maintain that, under Rule 169 of the Texas Rules of Civil Procedure FN:1 , they showed "good cause" for the court to allow withdrawal of the deemed admissions. We disagree and affirm the judgment of the trial court.
I. FACTUAL BACKGROUND
        On August 6, 1988, appellees served appellants, by serving their then attorney of record, Gene Beaty, with discovery requests including a set of requests for admissions. During the prescribed thirty day period provided for responding to the requests for admissions, appellants filed a notice seeking substitution of counsel and on August 31, 1988, the court entered its order effecting the substitution of John Thomas as appellants' attorney of record. On August 31, 1988, appellants had approximately six days remaining to timely respond to appellees' outstanding requests for admissions. Appellants filed no motion to extend the time for making their responses and did not respond to the requests for admissions within thirty days of service, and accordingly, the requests for admissions were deemed admitted by operation of law. Thereafter, on September 22, 1988, approximately sixteen days after the statutory deadline, appellants served appellees with their responses to the requests for admissions.
        On January 3, 1989, appellees filed a motion for summary judgment based on the deemed admissions. On January 26, 1989, appellants filed motions to withdraw the deemed admissions. In their motions, appellants allege that substituted counsel, John Thomas, was not aware of the requests for admissions until August 24, 1988, that he contacted appellees' counsel by telephone prior to the thirty day discovery deadline and that an oral agreement was made to extend the time for the making of appellants' responses to on or about September 23, 1988. Thomas did not follow up and confirm in writing this alleged oral agreement for extension of time to respond.
        In support of their motion to withdraw the deemed admissions, appellants offered an affidavit by Gene Beaty, appellants' former counsel. The affidavit testimony states that:
            I was formerly the attorney of record for Plaintiffs FRANCISCA ROBERSON and PAMELA IBIDAPO until August 31, 1988. On or about July 1, 1988, I moved out of my former office located at 4308 N. Central Expwy., Ste. 300, Dallas, Texas to my present location at 8344 R. L. Thornton Frwy., No. 300, Dallas, Texas. On or about July 1, 1988, I had left Plaintiffs' file with Plaintiffs' present attorney, John B. Thomas, at the 4308 N. Central Expwy., Ste. 300, Dallas, Texas address, intending for attorney Thomas to take over Plaintiffs' case.
 
            On or about August 6, 1988, I was served with Defendants' Request for Production and Requests for Admissions to Plaintiff's FRANCISCA ROBERSON and PAMELA IBIDAPO at my 8344 R. L. Thornton Frwy., Ste. 300, Dallas, Texas address, which had been forwarded to me from my former office address at 4308 N. Central Expwy., Ste. 300, Dallas, Texas address by the U. S. Postal Service.
 
            I gave attorney Thomas Defendants' Request for Production and Requests for Admissions for answering on or about August 24, 1988, when I signed the Notice of substitution of Counsel substituting attorney Thomas for myself as Plaintiffs' attorney of record.
On February 17, 1989, the trial court conducted a hearing on appellants' motions to withdraw deemed admissions and on appellees' motion for summary judgment. The court denied appellants' motions and granted summary judgment in favor of appellees based on the deemed admissions.
II. REQUIREMENTS OF RULE 169
        Rule 169 of the Texas Rules of Civil Procedure provides in pertinent part:
 
            Each matter of which an admission is requested shall be separately set forth. The matter is admitted, without necessity of a court order unless, within thirty (30) days after service of the request, or within such time as the court may allow, 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(a) (Vernon Supp. 1989). The consequence of "deemed admissions" is that the matters are conclusively established against the admitting party unless the court, on motion, permits withdrawal or amendment of the admissions. The rule states:
 
            [T]he court may permit withdrawal or amendment of responses and deemed admissions upon a showing of good cause for such withdrawal or amendment if the court finds that the parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will be subserved thereby.
Tex. R. Civ. P. 169(b). The threshold standard for withdrawal of deemed admissions is a showing of "good cause." See Eckman v. Centennial Sav. Bank, 757 S.W.2d 392, 396 (Tex. App.--Dallas 1988, writ filed); Curry v. Clayton, 715 S.W.2d 77, 79 (Tex. App.--Dallas 1986, no writ). The "good cause" language was added to the rule by amendment taking effect January 1, 1988. The remaining language has been part of the rule since 1973.
        The trial court possesses broad discretion to permit or deny withdrawal of deemed admissions. Eckman, 757 S.W.2d at 396; Rosenthal v. National Terrazzo Tile & Marble, Inc., 742 S.W.2d 55, 57 (Tex. App.--Houston [14th Dist.] 1987, no writ). The court's ruling on withdrawal will be set aside only upon a clear showing of abuse. Crime Control, Inc. v. RMH-Oxford Joint Venture, 712 S.W.2d 550, 552 (Tex. App.--Houston [14th Dist.] 1986, no writ); Texas Employers Ins. Ass'n v. Bragg, 670 S.W.2d 712, 715 (Tex. App.--Corpus Christi 1984, writ ref'd n.r.e.). An abuse of discretion occurs when a court acts without reference to guiding rules or principles or acts arbitrarily or unreasonably. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985).
III. REQUIREMENTS OF RULE 11
         In the present case, appellants rely on an alleged oral agreement between counsel for extension of time to respond as good cause for withdrawal of the deemed admissions. Oral agreements concerning suits are very liable to be misconstrued or forgotten and to beget misunderstanding and controversies. See Kennedy v. Hyde, 682 S.W.2d 525, 526 (Tex. 1984). Agreements of counsel in the course of a judicial proceeding which affect the interests of their clients should not be left to the fallibility of human recollection. Kennedy, 682 S.W.2d at 530, quoting Wyss v. Bookman, 235 S.W. 567, 569 Tex. Comm'n App. 1921, holding approved). With regard to oral agreements, Rule 11 provides that:
 
            Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.
The rationale underlying Rule 11 is sensible and contributes to efficient court administration. Agreements and stipulations are welcomed by courts because they limit the matters in controversy and expedite trial proceedings. Rule 11 insures that such agreements do not themselves become sources of controversy impeding resolution of suits. Kennedy, 682 S.W.2d at 530.
IV. CONCLUSION
        As previously noted, appellants rely on the alleged oral agreement to show good cause for withdrawal of the deemed admissions. However, the existence of an oral agreement is in dispute. Appellees maintain that no such agreement for an extension of time was ever made. Appellants allege in their motions, that the oral agreement was made prior to the date on which the responses were due. We note that appellants' motions are unsworn, and appellants tendered no affidavits in support of their allegations. The alleged oral agreement was not thereafter memorialized as mandated by Rule 11. The affidavit of Gene Beaty merely acknowledges that the requests for admissions were received on August 6, 1988, and that the requests were given to John Thomas for answering on August 24, 1988, which was twelve days before answers were then due. Appellants have not offered sworn testimony detailing the events that transpired after August 24, 1988, that would show good cause for withdrawal of the deemed admissions. In absence of such proof, we hold that the trial court did not abuse its discretion in overruling appellants' motions and in granting summary judgment in favor of appellees.
        The judgment of the trial court is affirmed.
 
 
                                                          
                                                          JOHN WHITTINGTON
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
890438.U05
 
FN:1 All references to rules shall be to the Texas Rules of Civil Procedure, unless otherwise stated.
File Date[11-17-89]
File Name[890438F]