$9,460.00 U.S. Currency and 1999 Lincoln Towncar LP J73PBJ v. The State of Texas--Appeal from 273rd District Court of San Augustine County

NO. 12-06-00096-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

$9,460.00 U.S. CURRENCY and APPEAL FROM THE 273RD

1999 LINCOLN TOWN CAR LP J73PBJ,

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SAN AUGUSTINE COUNTY, TEXAS

MEMORANDUM OPINION

This is an appeal from a civil forfeiture proceeding under Chapter 59 of the Texas Code of Criminal Procedure. The trial court ordered forfeited to the State $9,460.00 in currency and a 1999 Lincoln Town Car, which had been seized from Jerome Deion Cutwright. In a single issue, Cutwright contends the trial court erred in refusing to withdraw the deemed admissions upon which the State relied in support of its motion for summary judgment and in granting the State s motion for summary judgment. We reverse and remand.

Background

On March 21, 2005, in response to information from a confidential informant, law enforcement officers executed a search and arrest warrant at Cutwright s residence. Thereafter, the State filed a notice of seizure and intended forfeiture of items found during the search, $9,460.00 in United States currency and a 1999 Lincoln Town Car, alleging that the money and vehicle were contraband involved in the commission of several drug related offenses. Cutwright filed three separate responses.

On November 14, 2005, the State sent its request for admissions, interrogatories, and production of documents. Cutwright s attorney s secretary picked up the request from the post office on November 29. Cutwright responded to the State s request on January 3, 2006. On January 17, 2006, the State filed a motion for summary judgment arguing that Cutwright s late filed response entitled it to rely on deemed admissions which, in turn, entitled it to forfeiture as a matter of law.

Cutwright filed a response to the State s motion on February 3, 2006, asserting that a genuine issue of material fact exists as to Movant s claim of failure to properly answer Requests for admissions on time. He also asserted that he mailed the response and all requested admissions were answered. He attached affidavits of Bryan Laine, his attorney, and Stephanie Henry, Mr. Laine s secretary. The affidavits explain that Henry had been recently hired and was unfamiliar with the required procedures and their importance. She had not made written note of the date she picked up the State s request for admissions, but she told Laine she received them on December 2, 2005.

In his affidavit, Laine explained that Henry had no legal experience and began working for him at a time when it was very hard for him to teach her. He stated that, because of the storm, their local post office was not delivering mail regularly and he was not always at his office because he was at home making repairs to recover from the storm. Laine stated in his affidavit that he learned of the motion for summary judgment1 when the district attorney called to determine why he had not received the green card showing receipt of the document. He then stated that he waited a few more days and asked Henry to pick it up. Laine also stated that he had been very sick between Christmas and New Year s Day. He asserted that the response was timely if calculated from December 2, 2005. Further, any untimeliness was not intentional but a neglectful and accidental miscalculation. Finally, he asserted that the State had not been harmed in any way.

The motion was originally set to be heard on February 9, 2006. Cutwright obtained a continuance and the hearing was reset for February 16. Laine was late for the summary judgment hearing, and the trial court had already granted the motion by the time he arrived. He then filed a motion to dismiss the cause of action and a request that the deemed admissions be withdrawn for good cause. He attached the same two affidavits in support of the withdrawal request. Three months later, the trial court signed the summary judgment in favor of the State.

Deemed Admissions

In his sole issue, Cutwright contends the trial court improperly granted the State s motion for summary judgment, which was based on deemed admissions. He argues that the trial court abused its discretion in failing to withdraw the deemed admissions because his failure to timely file a response was an accident or mistake, not intentional or the result of conscious indifference. He further contends that withdrawal of the deemed admissions would not result in undue prejudice to the State. He argues that it would not delay trial or significantly hamper the State s ability to prepare for trial. Finally, Cutwright asserts that the deemed admissions should be stricken based on the principles of equity because the discovery rules should not be used to prevent a litigant from presenting the truth.

Applicable Law

Although they relate to criminal proceedings, forfeiture proceedings involving seized property are civil in nature, and the rules of civil procedure apply. See Tex. Code Crim. Proc. Ann. art. 59.05 (Vernon 2006). Within thirty days after service of a request for admissions, the responding party must serve a written response on the requesting party. Tex. R. Civ. P. 198.2(a). If a response is not timely served, the request is considered admitted without the necessity of a court order. Tex. R. Civ. P. 198.2(c).

A party may withdraw a deemed admission upon a showing of good cause for such withdrawal if the court finds that the parties relying upon the responses will not be unduly prejudiced and that the presentation of the merits of the action will be subserved thereby. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996). A party can establish good cause by showing that its failure to answer was accidental or the result of a mistake, rather than intentional or the result of conscious indifference. Id. 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 v. Green, 157 S.W.3d 439, 443 (Tex. 2005).

A trial court has broad discretion to permit or deny the withdrawal of deemed admissions. Stelly, 927 S.W.2d at 622. An abuse of discretion occurs when a court acts without reference to guiding rules or principles, or acts arbitrarily or unreasonably. Id.

Discussion

Cutwright s response to the request for admissions was not filed within thirty days of November 29, the day Henry retrieved the request from the post office. However, the affidavit testimony shows that during this time period his attorney had a new, inexperienced secretary and the aftermath of a major storm, Hurricane Rita, disrupted mail delivery as well as his attorney s schedule. Further, the response was timely filed if calculated from December 2, the date Henry told Laine she picked up the request. While it appears that Laine neither adequately trained his new secretary to keep track of deadlines nor adequately tracked deadlines or monitored mail himself, this record does not indicate that his failure to respond timely was intentional or the result of conscious indifference.

Among the deemed admissions are matters that go to the heart of the controversy. While their existence makes the State s case easily disposable on summary judgment, there is nothing in the record to suggest that the State was unable to prepare for trial without the admissions. See Wheeler, 157 S.W.3d at 443-44. Moreover, the response was already on file prior to the summary judgment hearing. Therefore, the State already knew what the substituted responses were. The State would have suffered no prejudice by withdrawal of the deemed admissions other than having to prove its case rather than rely on deemed admissions. See Cudd v. Hydrostatic Transmission, 867 S.W.2d 101, 105 (Tex. App. Corpus Christi 1993, no writ). Accordingly, the trial court abused its discretion in failing to grant the motion to withdraw deemed admissions. See Stelly, 927 S.W.2d at 622. Further, because the motion for summary judgment was entirely dependent on the deemed admissions, granting that motion was also improper. See Cudd, 867 S.W.2d at 105. We sustain Cutwright s sole issue.

Disposition

We reverse the trial court s judgment and remand the cause to the trial court for further proceedings.

SAM GRIFFITH

Justice

Opinion delivered July 11, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

1 It is clear from the context that Laine actually referred to the State s request for admissions.