In RE EULESS PIZZA, LP; SF, GP, MANAGEMENT, LLC; AND STORY GLEN, INC. v. the State of Texas

Supreme Court of Texas
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No. 23-0830
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In re Euless Pizza, LP; SF, GP, Management, LLC; and
Story Glen, Inc.,
Relators

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On Petition for Writ of Mandamus
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PER CURIAM

This is a discovery dispute in a personal injury case. The issue is
whether the trial court abused its discretion by denying relators leave
to withdraw and amend their initial responses to two of the plaintiffs’
requests for admission (RFAs). We hold that it did and conditionally
grant relators’ petition for writ of mandamus.
Trevor Rivera worked as a pizza delivery driver at i Fratelli Pizza
in Grapevine, Texas. One evening in September 2021, while out on a
delivery route, Rivera and another delivery driver decided to race each
other in a 40-mph zone. Their cars accelerated toward an intersection
at 80 mph. An elderly couple, Nghia Vo and Hue Nguyen, drove into the
intersection from the opposite direction and started making a left turn.
Rivera crashed into the passenger side of their car, resulting in serious
injuries to the couple. Vo was left paralyzed. Rivera was arrested and
later indicted on two counts of second-degree felony racing causing
serious bodily injury.
In December 2021, Vo and Nguyen sued Rivera and three
corporate defendants: Euless Pizza, LP; Story Glen, Inc.; and SF, GP
Management, LLC. Plaintiffs pleaded claims of direct and vicarious
liability against these defendants, who responded with a general denial
and various affirmative defenses.
Three months later, in March 2022, plaintiffs served their first
set of written discovery on each corporate defendant. Each was asked
to admit that at the time of the incident Rivera was acting within the
scope of his employment “with i Fratelli Pizza”—RFA No. 6—and “with
You”—RFA No. 10. In their April 2022 responses, each defendant
admitted to RFA No. 6, while only Euless Pizza admitted to RFA No. 10.
In November 2022, defendants amended their responses to reflect
that each defendant denied both RFA No. 6 and RFA No. 10. Around
the same time, defendants amended other discovery responses to clarify
that Rivera was employed only by Euless Pizza and that defendants are
contesting that Rivera was acting within the scope of his employment
when the crash occurred. Discovery continued. After a dispute with
plaintiffs over their amended responses, defendants filed a motion for
leave to withdraw and amend their original admissions in January
2023. 1 Plaintiffs opposed the motion, and the trial court denied it after

1 Separately, defendants filed a hybrid motion for summary judgment

challenging plaintiffs’ allegation that Rivera was acting within the scope of his
employment when he crashed into plaintiffs. That motion has not been heard.

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a hearing. The court of appeals denied defendants’ request for
mandamus relief.
We start with some basic principles. RFAs are intended to
simplify trials by eliminating “uncontroverted matters or evidentiary
ones like the authenticity or admissibility of documents.” Wheeler v.
Green, 157 S.W.3d 439, 443 (Tex. 2005); see also Sanders v. Harder, 227
S.W.2d 206, 208 (Tex. 1950) (“The primary purpose of the rule [on RFAs]
is to simplify trials by eliminating matters about which there is no real
controversy, but which may be difficult or expensive to prove.”). RFAs
were “never intended to be used as a demand upon a plaintiff or
defendant to admit that he had no cause of action or ground of defense.”
Sanders, 227 S.W.2d at 208; accord Marino v. King, 355 S.W.3d 629, 632
(Tex. 2011) (citing Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996)).
RFAs “should be used as ‘a tool, not a trapdoor.’” Marino, 355 S.W.3d at
632 (quoting U.S. Fid. & Guar. Co. v. Goudeau, 272 S.W.3d 603, 610
(Tex. 2008)).
In keeping with these principles, the trial court should allow a
party to withdraw or amend an admission “upon a showing of (1) good
cause, and (2) no undue prejudice.” Wheeler, 157 S.W.3d at 442; accord
TEX. R. CIV. P. 198.3; Marino, 355 S.W.3d at 633; Stelly, 927 S.W.2d at
622. This is not a high bar. “Good cause is established by showing the
failure involved was an accident or mistake, not intentional or the result
of conscious indifference.” Wheeler, 157 S.W.3d at 442. We have also
equated the existence of good cause with the absence of “evidence of
flagrant bad faith or callous disregard for the rules.” Marino, 355
S.W.3d at 634; see also Wheeler, 157 S.W.3d at 443-44.

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There are two aspects to the undue-prejudice inquiry. One is
whether permitting withdrawal of an admission would “delay trial or
significantly hamper the opposing party’s ability to prepare for it.”
Wheeler, 157 S.W.3d at 443 (citing Carpenter v. Cimarron Hydrocarbons
Corp., 98 S.W.3d 682, 687 (Tex. 2002)). The second is whether
“presentation of the merits of the action will be subserved by permitting
the party to amend or withdraw the admission.” TEX. R. CIV. P. 198.3(b).
These “two are different sides of the same coin, as 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.” Wheeler, 157 S.W.3d at 443 n.2.
We have said that trial courts have “broad discretion” to permit
or deny a request to change an admission. Marino, 355 S.W.3d at 633;
Wheeler, 157 S.W.3d at 443; Stelly, 927 S.W.2d at 622. But broad is not
unlimited, 2 and the court’s discretion is narrowest when denying
permission to make the change would “compromise presentation of the
merits.” Wheeler, 157 S.W.3d at 443; cf. Marino, 355 S.W.3d at 634
(“Constitutional imperatives favor the determination of cases on their
merits rather than on harmless procedural defaults.”).
Applying these principles, the record shows that the trial court
abused its discretion by denying defendants’ motion to withdraw their
admissions to RFA Nos. 6 and 10. We start with good cause.

2 See Wheeler, 157 S.W.3d at 443 (stating that a trial court cannot deny

the withdrawal of an admission “arbitrarily, unreasonably, or without
reference to guiding rules or principles” (citing Stelly, 927 S.W.2d at 622)).

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In their motion and at the hearing thereon, defendants explained
why their responses to RFA No. 6 must be changed. They say that their
initial responses were based on a misunderstanding that Rivera was
employed by i Fratelli and Euless Pizza both but that it has since
become undisputed that Rivera was employed by Euless Pizza alone. It
became clear only after the initial admissions were made “that there is
no entity named i Fratelli, but rather it’s a brand name only.” And
complicating matters further, one of the definitions written by plaintiffs
to govern the RFA defined “i Fratelli Pizza” as synonymous with
“defendant,” “you,” “your,” and “Euless Pizza.” Thus, the initial
admissions by defendant Story Glen and defendant SF, GP,
Management that Rivera was acting within the scope of his employment
with i Fratelli could be taken as admissions that Rivera was acting in
the scope of his employment with each of them. “So that was clearly a
mistake to have admitted an admission that would indicate that he was
an employee of anyone else other than Euless Pizza at the time of the
accident,” defendants’ counsel explained.
Regarding RFA No. 10, defendants contend that after making the
initial admissions, they continued to investigate, which “included taking
numerous depositions, witnesses, and receiv[ing] the voluminous police
file from the Euless Police Department that contained about 500 pages
of records.” Based on information learned in the investigation,
defendants now take the position that Rivera’s “felonious racing” was
outside the scope of his employment because it was a serious criminal
act that was unforeseeable to Euless Pizza, even though Rivera was on

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the clock at the time of the incident. 3 Defendants’ counsel represented
to the court that the initial admissions were made “on accident and
mistake” and that “the amended admissions are based on good faith
belief through developed discovery.”
Plaintiffs argue that defendants had all the information they
needed to respond accurately in April 2022 and that they now just regret
their initial answers. It may be that defendants should have put more
thought into their initial responses, but insufficient attention to detail
when answering discovery, especially at the outset of litigation, does not
foreclose the ability to amend it. Defendants repeatedly explained that
their initial responses—made only four months into the case—were
based on information that turned out to be inaccurate or incomplete.
There is no evidence in the record of conscious indifference, flagrant bad
faith, or callous disregard for the rules. Thus, good cause is established.
See Marino, 355 S.W.3d at 634 (“Good cause for withdrawal of the
deemed admissions exists in this case because there is no evidence of
flagrant bad faith or callous disregard for the rules and nothing to justify
a presumption that Marino’s defense lacks merit.”).
We turn to the undue-prejudice inquiry. In March 2022, before
defendants made their initial RFA responses in April, the trial court
entered an agreed scheduling order that set a discovery-completion date
in December 2022 and a trial date in March 2023. But plaintiffs concede
that discovery continued well past the original December 2022

3 In their motion for summary judgment, defendants cite Zarzana v.

Ashley, 218 S.W.3d 152, 160 (Tex. App.—Houston [14th Dist.] 2007, no pet.),
for the proposition that “employers are generally not liable for serious criminal
acts of employees that are unforeseeable considering the employee’s duties.”

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completion date. Then the day before the original, March 7, 2023, trial
setting, the court sua sponte cancelled all trials set for that day. When
defendants’ motion was heard in May 2023, discovery was still ongoing,
and the case had not yet been reset for trial. 4 Thus, granting the motion
would not have delayed trial or significantly hampered plaintiffs’ ability
to prepare for it. See Wheeler, 157 S.W.3d at 443.
The other side of the coin also favors defendants. “An admission
once admitted . . . is a judicial admission, and a party may not then
introduce testimony to controvert it.” Marshall v. Vise, 767 S.W.2d 699,
700 (Tex. 1989). The trial court’s denial of defendants’ motion thus
compromises the presentation of the merits by eliminating defendants’
ability to controvert plaintiffs’ scope-of-employment allegations. See
TEX. R. CIV. P. 198.3(b); Wheeler, 157 S.W.3d at 443 n.2. Defendants
have established a lack of undue prejudice to plaintiffs.
Mandamus relief is appropriate where a “party’s ability to present
a viable claim or defense—or reasonable opportunity to develop the
merits of the case—[would be] severely compromised” were the
erroneous ruling not corrected before trial. In re K & L Auto Crushers,
LLC, 627 S.W.3d 239, 256 (Tex. 2021) (quotation marks omitted); see
Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992) (“[A]n appeal will not
be an adequate remedy where the party’s ability to present a viable
claim or defense at trial is vitiated or severely compromised by the trial

4 In August 2023, three months after the court denied defendants’
motion, it signed an amended scheduling order that reset the discovery
deadline to December 2023 and the trial to February 2024. But in October
2023, we stayed all proceedings in the case pending further order of this Court.
That stay is being lifted with the issuance of this opinion.

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court’s discovery error.”). Accordingly, without hearing oral argument,
see TEX. R. APP. P. 52.8(c), we conditionally grant defendants’ petition
for writ of mandamus. We direct the trial court to vacate its order
denying defendants’ motion to withdraw and amend their responses to
RFA Nos. 6 and 10 and then to grant that motion. We are confident the
court will comply. The writ will issue only if it does not.

OPINION DELIVERED: December 6, 2024

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