Preview
Filed
5/2/2022 3:57 PM
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
Gabriella Tomlinson
NO. 17-DCV-242799
MANUEL REYES § IN THE DISTRICT COURT
Plaintiff, §
§
v. § 328TH JUDICIAL DISTRICT
§
WENDY HERNANDEZ, DIANA M. §
CASTANO AND ALEXANDER VAIRAS) §
§
Defendants. § OF FORT BEND COUNTY, TEXAS
MOTION TO STRIKE DEEMED ADMISSIONS AND TO ALLOW FOR LATE FILING
OF RESPONSES TO REQUEST FOR ADMISSIONS
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES, Wendy Hernandez, Movant herein, and files this Motion to Strike
Deemed Admissions and to Allow for Late Filing of Responses to Requests for Admissions and
respectfully requests that the Honorable Court permit Movant to file correct responses thereto,
and in support thereof respectfully shows the Court the following:
BACKGROUND
1. On January 14, 2022 Diana Castano served discovery requests, including
Requests for Admissions to Wendy Hernandez through her attorney’s email. (exhibit A).
Responses to the requests were due on February 14, 2022. Counsel for Wendy Hernandez
appears to have inadvertently overlooked this discovery request, because he was not aware of
the existence of requests for admissions until they were brought to his attention during the
bill of review trial on April 27, 2022. (See Ex. B)
2. Defendant’s counsel cannot say for certain why the requests were overlooked,
counsel was moving offices at that time and had just had a paralegal quit, however
Defendant’s counsel can say for certain that his failure to answer requests for admission was
neither intentional nor the result of conscious indifference, as he was completely unaware ofthe requests for admissions until April 27, 2022 when brought to his attention by Castano’s
attorney. (Exhibit B).
3. Defendant did not become aware of the fact that the response to the requests for
admissions were late until the April 27, 2022 hearing. While investigating the situation,
Defendant’s attorney discovered that the admissions were in fact served on January 14, 2022,
and now files this motion to undeem them.
LEGAL STANDARD FOR STRIKING DEEMED ADMISSIONS
4. Rule 198.3 Provides that the Court may permit a party to withdraw or amend
admissions where, a) the party shows good cause for the withdrawal or amendment, b) the Party
relying on the admissions will not be unduly prejudiced, and the presentation of the action will
be subserved by permitting amendments or withdrawal of the admissions. Tex. R. Civ. Proc.
198.3
5. Good cause is established by showing that the failure to respond was an accident
or mistake, and not intentional or the result of conscious indifference. Wheeler v. Green, 157,
S.W.3d 439, 442 (Tex. 2005). It is an abuse of discretion to not allow deemed admissions to be
withdrawn when there has been no evidence offered of conscious indifference. In re Reagan,
2007 Tex. App. LEXIS 2783 (Tex. App. Beaumont Apr. 12, 2007).
6. Undue prejudice occurs when withdrawing an admission or filing a late response
will delay trial or significantly hamper the opposing party's ability to prepare for it. See Wheeler
at 443 (citing Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002); see also
Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354 (Tex. 1998). The Wheeler Court further noted
that whether the opposing party will be significantly hampered in the presentation of the merits is
a two part inquiry; the first being an assessment of whether the requesting party is precludedfrom being able to prepare for trial by virtue of withdrawal; and the second being an assessment
of whether the case would be decided on deemed but potentially untrue facts absent withdrawal.
See Wheeler at 443.
APPLICATION OF FACTS TO LAW.
Plaintiff Had Good Cause for Not Answering Requests for Admissions
7. The affidavit of Andrew Bayley set forth the factual basis for good cause as to
why Plaintiff's deemed admissions should be struck. Defendant’s and her attorney would have
fully answered the discovery by February 14, 2022 had Defendant been aware of their service
prior to February 14, 2022.
8. Defendant’s failure to answer discovery request timely was for good cause. Defendant
did answer the discovery albeit 77 days late, but had Defendant been aware that the discovery
deadline was much sooner he would have served them sooner. (Exhibit C). The failure to do so
was not intentional, and it was not because of conscious indifference. Once Defendant’s attorney
discovered the error, he promptly answered the discovery and filed this motion. Had Defendant
or her attorney known of the discovery prior to the deadline, discovery would have been served.
Plaintiff's Will Not be Prejudiced
9. Trial on this case is not set on this matter. Defendant is now in possession of her
responses, and has plenty of time to conduct more discovery if needed.
10. Further the admissions contained a number of matters which are outside the
proper scope of admissions. "When used as intended, admissions address uncontroverted matters
or evidentiary matters such as the authenticity of documents." See Selly v. Papania, 927 S.W.2d
620, 622 (Tex. 1996). The admissions propounded by Plaintiff which are at the very heart of thelitigation and which are hotly contested. If these admissions were to be deemed admitted,
Defendant would be robbed of their day in court on issues that are central to the case.
11. Plaintiff would not be unduly prejudiced by striking the deemed admissions as
the case is several months if not longer away from trial, and there is no indication that Plaintiff
cannot fully prepare for trial. The merits of the matter are unlikely to be compromised and
permitting the withdrawal would allow the case to be tried on accurate facts, which is always in
the interest of justice.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that:
A. the Court set this matter for hearing;
B. after notice and hearing, the Court strike the deemed admissions and permit Defendant
to file correct responses; and
C. Defendant be granted such other and further relief, special or general, legal or equitable, as
may be shown that Defendant is justly entitled to receive.
Respectfully submitted,
By:/s/ Andrew Bayley
Andrew Bayley
Texas Bar No. 24071501
1225 North Loop West, Suite 900
Houston, TX 77008
Tel. (713) 383-8887
Fax. (832) 415-0315
Attorney for Defendant Wendy HernandezCERTIFICATE OF SERVICE
This shall certify that a true and accurate copy of the foregoing instrument was served on all
counsel of record on this the 2nd day of May, 2022, in accordance with the applicable Texas Rules of
Civil Procedure.
Is) Andrew Bayley
Andrew Bayley
NOTICE OF HEARING
The above and foregoing Defendant's Special Exceptions is set for hearing on May 5, 2022 at
8:30 AM, in the 328" District Court of Fort Bend County, Texas.
[sl Paden Gayle
Andrew BayleyNO. 17-DCV-242799
IN THE MATTER OF § IN THE DISTRICT COURT
THE MARRIAGE OF §
MANUEL REYES §
§
v § 328TH JUDICIAL DISTRICT
DIANA M. CASTANO §
§
§
§
§
§
Vv.
WENDY HERNANDEZ, ALEXANDER
VAIRAS, AND ALL OCCUPANTS OF
615 297 ST., SAN LEON, TEXAS 77539
FORT BEND COUNTY, TEXAS
Request for Admissions to WENDY HERNANDEZ
TO: WENDY HERNANDEZ, through her attorney of record ANDREW BAYLEY via efiling
manager and email to andrew@bayleylawfirm.com
Counterpetitioner, DIANA CASTANO requests Respondent, WENDY HERNANDEZ,
to admit the truth of the matters, including statements of opinion or of the application of law to
fact or the genuineness of any documents served with this request, as set forth in the attachment.
These requests for admissions are made under Rule 198.1 of the Texas Rules of Civil Procedure,
and each of the matters of which an admission is requested shall be deemed admitted unless a
response is delivered to KARLEANA L. FARIAS within 30 days after service of this request.
Unless Respondent states an objection or asserts a privilege, Respondent must specifically admit
or deny each request or explain in detail the reasons that Respondent cannot admit or deny the
request. A response must fairly meet the substance of the request. Respondent may qualify an
answer, or deny a request in part, only when good faith requires. Lack of information or
knowledge is not a proper response unless Respondent states that a reasonable inquiry was made
but that the information known or easily obtainable is insufficient to enable Respondent to admit
or deny. An assertion that the request presents an issue for trial is not a proper response.
Cause No. 17-DCV-242799; RFA 1
Movant's Exhibit ARespectfully Submitted by,
THE FARIAS LAW FIRM
641 Heights Blvd.
Houston, Texas 77007
Tel: (713) 226-7999
Fax: (713) 337-6050
By:/s/ Karleana £. Farias
KARLEANA L. FARIAS
State Bar No. 24074565
karleana@fariaslaw.com
Attorney for DIANA CASTANO
Certificate of Service
I certify that a true copy of the above was served on each attorney of record or party in
accordance with the Texas Rules of Civil Procedure on January 14, 2022:
Via E-Filing Manager:
ANDREW BAYLEY
Eric Rhodes
Roy Ewart
‘s/ Karleana £. Farias
KARLEANA L. FARIAS
Attorney for Diana Castano
Cause No. 17-DCV-242799; RFA 2
Movant's Exhibit ARequest for Admissions
RFA No. 1: Admit or deny that on or about January 18, 2018 you received a General Warranty
Deed from Charles J. Jardina, JR conveying all interest Jardina had on the property located at
615 29" Street San Leon, Texas 77539.
RFA No, 2: Admit or deny that you have testified under oath that you have been in possession of
a General Warranty Deed for the property located at 615 29"" Street San Leon, Texas 77539 from
Jardina to you since 2016.
RFA No. 3: Admit or deny that you were divorced in August 2018.
RFA No. 4: Admit or deny that you were married since 2015 and at the time you held this Deed
prepared and delivered to you in 2016 for the property located at 615 29" Street San Leon, Texas
77539 you hid this deed from your husband at the time.
RFA No. 5: Admit or deny that on or about January 18, 2018 when you received a General
Warranty Deed from Charles J. Jardina, JR, conveying all interest Jardina had on the property
located at 615 29" Street San Leon, Texas 77539, this conveyance was for an empty lot of land
and no improvements existed on said lot at that time.
RFA No. 6: Admit or deny that on or about July 31, 2018 you signed a General Warranty Deed
conveying your interest in the property located at 615 29" Street San Leon, Texas 77539 to
Manuel Reyes.
RFA No. 7: Admit or deny that the General Warranty Deed which you executed on July 31, 2018
was signed in front of a notary.
RFA No. 8: Admit or deny that the General Warranty Deed which you executed on July 31, 2018
was signed at an attorney’s office.
RFA No. 9: Admit or deny that Manuel Reyes signed a General Warranty Deed on January 11,
2019 conveying his interest in the property located at 615 29" Street San Leon, Texas 77539 to
you.
RFA No. 10: Admit or deny that in the General Warranty Deed executed on January 11, 2019
your mailing address was PO BOX 65 Fresno, Texas 77545.
RFA No. 11: Admit or deny that on January 11, 2019 you knew Manuel Reyes was in the
process of getting divorced.
RFA No. 12: Admit or deny that Manuel Reyes contacted you on July 1, 2019 to tell you he
finalized his divorce.
RFA No. 13: Admit or deny that on October 19, 2019 you were not living in the property located
at 615 29" Street San Leon, Texas 77539.
RFA No. 14: Admit or deny that on August 7, 2019 you sent a written communication via text to
DIANA CASTANO from your cellphone.
Cause No. 17-DCV-242799; RFA 3
Movant's Exhibit ARFA No. 15: Admit or deny that on August 7, 2019 in your written communication via text to
DIANA CASTANO you indicated that MANUEL REYES was sending you text messages.
RFA No. 16: Admit or deny that you did not pay any money to Manuel Reyes for the property
located at 615 29" Street San Leon, Texas 77539.
RFA No. 17: Admit or deny that you did not pay any taxes on the property located at 615 29"
Street San Leon, Texas 77539 for any month during the 2020 year.
RFA No. 18: Admit or deny that you did not pay any taxes on the property located at 615 29"
Street San Leon, Texas 77539 for any month during the 2021 year.
RFA No. 19: Admit or deny that you did not pay any taxes on the property located at 615 29"
Street San Leon, Texas 77539 for any month during the 2022 year.
RFA No. 20: Admit or deny that you did not take possession of the property located at 615 29"
Street San Leon, Texas 77539 until December 2019.
RFA No. 21: Admit or deny that you met MANUEL REYES in 2014.
RFA No. 22: Admit or deny that you were married on January 11, 2019.
RFA No. 23: Admit or deny that when you began a relationship with MANUEL REYES you
knew that he was married.
RFA No. 24: Admit or deny that you told to your father that you moved into the property located
at 615 29" Street San Leon, Texas 77539 on November 29, 2019.
RFA No. 25: Admit or deny that you offered DIANA CASTANO $150,000 payment in
exchange for her not filing a court action relating to the transaction for the property located at
615 29" Street San Leon, Texas 77539
RFA No. 26: Admit or deny that you are currently unemployed.
RFA No. 27: Admit or deny that you received three titles total from MANUEL REYES to you
since 2014.
RFA No. 28: Admit or deny that you have conferred an interest in the property located at 615
29" Street San Leon, Texas 77539 to ANDREW BAYLEY by virtue of a contingency contract.
RFA No. 29: Admit or deny that you have not incurred any out of pocket expenses in the instant
suit.
RFA No. 30: Admit or deny that you have not incurred any out of pocket expenses in the instant
suit.
Cause No. 17-DCV-242799; RFA 4
Movant's Exhibit ANO. 17-DCV-242799
MANUEL REYES § IN THE DISTRICT COURT
Plaintiff, §
§
Vv. § 328TH JUDICIAL DISTRICT
§
WENDY HERNANDEZ, DIANA M. §
CASTANO AND ALEXANDER VAIRAS_—§
§
Defendants. § OF FORT BEND COUNTY, TEXAS
UNSWORN DECLARATION OF ANDREW BAYLEY
“My name is Andrew Bayley. I am above the age of eighteen years, and I am fully
competent to make this declaration. My date of birth iii: my address is 1225
North Loop West, Suite 900, Houston, TX 77008. I declare under penalty of perjury that the
facts stated in this declaration are within my personal knowledge and are true and correct.
“IT am the attorney of Wendy Hernandez. On April 27, 2022 during a court hearing I
learned that Mrs. Farias had served requests for admissions to Wendy Hernandez on January 14,
2022 via email. I was completely unaware of this email. I cannot explain exactly why the
discovery requests were overlooked, other than to point out that at that time we were moving
offices, we had a paralegal quit, and a few months before hand our email server changed their
format that has led to us missing several emails. I cannot say exactly why I failed to see to
requests for admissions, the only thing I can say with absolute certainty is that I was not aware of
the requests for admissions prior to April 27, 2022 and the failure to answer the discovery
requests was not intentional or a result of conscious indifference.
Executed in Harris County, Texas, on May 2, 2022
/s! Abudrew Bayley
Andrew Bayley, Declarant
Page 1 of 1
Movant's Exhibit BNO. 17-DCV-242799
MANUEL REYES § IN THE DISTRICT COURT
Plaintiff, §
§
V. § 328TH JUDICIAL DISTRICT
§
WENDY HERNANDEZ, DIANA M. §
CASTANO AND ALEXANDER VAIRAS_ §
§
Defendants. § OF FORT BEND COUNTY, TEXAS
DEFENDANT WENDY HERNANDEZ’S RESPONSE TO PLAINTIFF’S REQUEST FOR
DISCLOSURE
TO: Diana Castano by and through its attorney of record, Karleana Farias, 641
Heights, Houston, Texas 77007
Andrew Bayley, Attorney for the Defendant Wendy Hernandez, provides the attached
response to Respondent’s Request for Admissions.
The Bayley Law Firm
1225 North Loop West, Suite 900
Houston, TX 77008
Tel: (713) 383-8887
Fax: (832) 415-0385
By:/s/ Andrew Easley
Andrew Bayley
State Bar No. 240715011
andrew@bayleylawfirm.com
Attorney for Defendant Wendy Hernandez
Movant's Exhibit CCertificate of Service
I certify that a true copy of the above was served on each attorney of record or party in
accordance with the Texas Rules of Civil Procedure on May 2, 2022
|s/ Andree Bauke
Andrew Bayley
Attorney for Defendant
Movant's Exhibit CRequest for Admissions
RFA No. 1: Admit or deny that on or about January 18, 2018 you received a General Warranty
Deed from Charles J. Jardina, JR conveying all interest Jardina had on the property located at
615 29th Street San Leon, Texas 77539.
Response: Deny
RFA No. 2: Admit or deny that you have testified under oath that you have been in possession of
a General Warranty Deed for the property located at 615 29: Street San Leon, Texas 77539 from
Jardina to you since 2016.
Response: Admit
RFA No. 3: Admit or deny that you were divorced in August 2018.
Response: Deny
RFA No. 4: Admit or deny that you were married since 2015 and at the time you held this Deed
prepared and delivered to you in 2016 for the property located at 615 29tn Street San Leon, Texas
77539 you hid this deed from your husband at the time.
Response: Deny
RFA No. 5: Admit or deny that on or about January 18, 2018 when you received a General
Warranty Deed from Charles J. Jardina, JR, conveying all interest Jardina had on the property
located at 615 29tn Street San Leon, Texas 77539, this conveyance was for an empty lot of land
and no improvements existed on said lot at that time.
Response: Deny
RFA No. 6: Admit or deny that on or about July 31, 2018 you signed a General Warranty Deed
conveying your interest in the property located at 615 29t Street San Leon, Texas 77539 to
Manuel Reyes.
Response: Admit
RFA No. 7: Admit or deny that the General Warranty Deed which you executed on July 31, 2018
was signed in front of a notary.
Response: Admit
RFA No. 8: Admit or deny that the General Warranty Deed which you executed on July 31, 2018
was signed at an attorney’s office.
Response: Deny
Movant's Exhibit CRFA No. 9: Admit or deny that Manuel Reyes signed a General Warranty Deed on January 11,
2019 conveying his interest in the property located at 615 29t Street San Leon, Texas 77539 to
you.
Response: Admit
RFA No. 10: Admit or deny that in the General Warranty Deed executed on January 11, 2019
your mailing address was PO BOX 65 Fresno, Texas 77545.
Response: Admit
RFA No. 11: Admit or deny that on January 11, 2019 you knew Manuel Reyes was in the
process of getting divorced.
Response: Deny
RFA No. 12: Admit or deny that Manuel Reyes contacted you on July 1, 2019 to tell you he
finalized his divorce.
Response: Admit
RFA No. 13: Admit or deny that on October 19, 2019 you were not living in the property located
at 615 29m Street San Leon, Texas 77539.
Response: Admit
RFA No. 14: Admit or deny that on August 7, 2019 you sent a written communication via text to
DIANA CASTANO from your cellphone.
Response: Admit
RFA No. 15: Admit or deny that on August 7, 2019 in your written communication via text to
DIANA CASTANO you indicated that MANUEL REYES was sending you text messages.
Response: Admit
RFA No. 16: Admit or deny that you did not pay any money to Manuel Reyes for the property
located at 615 29n Street San Leon, Texas 77539.
Response: Admit
RFA No. 17: Admit or deny that you did not pay any taxes on the property located at 615 29th
Street San Leon, Texas 77539 for any month during the 2020 year.
Response: Admit
Movant's Exhibit CRFA No. 18: Admit or deny that you did not pay any taxes on the property located at 615 29th
Street San Leon, Texas 77539 for any month during the 2021 year.
Response: Deny
RFA No. 19: Admit or deny that you did not pay any taxes on the property located at 615 29m
Street San Leon, Texas 77539 for any month during the 2022 year.
Response: Deny
RFA No. 20: Admit or deny that you did not take possession of the property located at 615 29th
Street San Leon, Texas 77539 until December 2019.
Response: Deny
RFA No. 21: Admit or deny that you met MANUEL REYES in 2014.
Response: Admit
RFA No. 22: Admit or deny that you were married on January 11, 2019.
Response: Deny
RFA No. 23: Admit or deny that when you began a relationship with MANUEL REYES you
knew that he was married.
Response: Deny
RFA No. 24: Admit or deny that you told to your father that you moved into the property located
at 615 29n Street San Leon, Texas 77539 on November 29, 2019.
Response: Deny
RFA No. 25: Admit or deny that you offered DIANA CASTANO $150,000 payment in
exchange for her not filing a court action relating to the transaction for the property located at
615 29th Street San Leon, Texas 77539
Response: Deny
RFA No. 26: Admit or deny that you are currently unemployed.
Response: Admit
RFA No. 27: Admit or deny that you received three titles total from MANUEL REYES to you
since 2014.
Movant's Exhibit CResponse: Admit
RFA No. 28: Admit or deny that you have conferred an interest in the property located at 615
29tn Street San Leon, Texas 77539 to ANDREW BAYLEY by virtue of a contingency contract.
Response: Admit
RFA No. 29: Admit or deny that you have not incurred any out of pocket expenses in the instant
suit.
Response: Deny
RFA No. 30: Admit or deny that you have not incurred any out of pocket expenses in the instant
suit.
Response: Deny
Movant's Exhibit CAndrew Bayley
Bar No. 24071501
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
andrew@bayleylawfirm.com
Envelope ID: 64105019
Status as of 5/3/2022 8:18 AM CST
Case Contacts
Name BarNumber | Email TimestampSubmitted | Status
Lilian Audu 24094518 laudu@audulawfirm.com 5/2/2022 3:57:55 PM SENT
Roy K. Ewart 6752705 wmnacol@sbcglobal.net 5/2/2022 3:57:55 PM SENT
Robert Medina robert@robmedinalaw.com | 5/2/2022 3:57:55 PM SENT
Eric Rhodes 24025611 eric@rhodeslawwins.com | 5/2/2022 3:57:55 PM SENT
Juana Calvillo je@calvillosilvalaw.com 5/2/2022 3:57:55 PM SENT
Alexander Vairas Alex318ti@gmail.com 5/2/2022 3:57:55 PM SENT
Karleana Farias karleana@fariaslaw.com 5/2/2022 3:57:55 PM SENT
Associated Case Party: ManuelA.Reyes
Name BarNumber | Email TimestampSubmitted | Status
John M. McDermott jmcdermott306@sbcglobal.net | 5/2/2022 3:57:55 PM SENT
Veronica BDorsey vdorseylawfirm@gmail.com 5/2/2022 3:57:55 PM SENT
Allan A.Cease allancease@comcast.net 5/2/2022 3:57:55 PM SENT
Allan A.Cease notice@allanceaselaw.net 5/2/2022 3:57:55 PM | SENT
Associated Case Party: WendyElizabethHernandez
Name BarNumber
Email
TimestampSubmitted
Status
Mark Sanders
mark@msanderslaw.com
5/2/2022 3:57:55 PM
SENT
Name
Christopher Conry
Associated Case Party: DianaMCastanoAutomated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Andrew Bayley
Bar No. 24071501
andrew@bayleylawfirm.com
Envelope ID: 64105019
Status as of 5/3/2022 8:18 AM CST
Associated Case Party: DianaMCastano
Karleana L. Farias karleana@fariaslaw.com | 5/2/2022 3:57:55 PM SENT
Preview
Filed 5/2/2022 3:57 PM Beverley McGrew Walker District Clerk Fort Bend County, Texas Gabriella Tomlinson NO. 17-DCV-242799 MANUEL REYES § IN THE DISTRICT COURT Plaintiff, § § v. § 328TH JUDICIAL DISTRICT § WENDY HERNANDEZ, DIANA M. § CASTANO AND ALEXANDER VAIRAS) § § Defendants. § OF FORT BEND COUNTY, TEXAS MOTION TO STRIKE DEEMED ADMISSIONS AND TO ALLOW FOR LATE FILING OF RESPONSES TO REQUEST FOR ADMISSIONS TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES, Wendy Hernandez, Movant herein, and files this Motion to Strike Deemed Admissions and to Allow for Late Filing of Responses to Requests for Admissions and respectfully requests that the Honorable Court permit Movant to file correct responses thereto, and in support thereof respectfully shows the Court the following: BACKGROUND 1. On January 14, 2022 Diana Castano served discovery requests, including Requests for Admissions to Wendy Hernandez through her attorney’s email. (exhibit A). Responses to the requests were due on February 14, 2022. Counsel for Wendy Hernandez appears to have inadvertently overlooked this discovery request, because he was not aware of the existence of requests for admissions until they were brought to his attention during the bill of review trial on April 27, 2022. (See Ex. B) 2. Defendant’s counsel cannot say for certain why the requests were overlooked, counsel was moving offices at that time and had just had a paralegal quit, however Defendant’s counsel can say for certain that his failure to answer requests for admission was neither intentional nor the result of conscious indifference, as he was completely unaware ofthe requests for admissions until April 27, 2022 when brought to his attention by Castano’s attorney. (Exhibit B). 3. Defendant did not become aware of the fact that the response to the requests for admissions were late until the April 27, 2022 hearing. While investigating the situation, Defendant’s attorney discovered that the admissions were in fact served on January 14, 2022, and now files this motion to undeem them. LEGAL STANDARD FOR STRIKING DEEMED ADMISSIONS 4. Rule 198.3 Provides that the Court may permit a party to withdraw or amend admissions where, a) the party shows good cause for the withdrawal or amendment, b) the Party relying on the admissions will not be unduly prejudiced, and the presentation of the action will be subserved by permitting amendments or withdrawal of the admissions. Tex. R. Civ. Proc. 198.3 5. Good cause is established by showing that the failure to respond was an accident or mistake, and not intentional or the result of conscious indifference. Wheeler v. Green, 157, S.W.3d 439, 442 (Tex. 2005). It is an abuse of discretion to not allow deemed admissions to be withdrawn when there has been no evidence offered of conscious indifference. In re Reagan, 2007 Tex. App. LEXIS 2783 (Tex. App. Beaumont Apr. 12, 2007). 6. Undue prejudice occurs when withdrawing an admission or filing a late response will delay trial or significantly hamper the opposing party's ability to prepare for it. See Wheeler at 443 (citing Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002); see also Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354 (Tex. 1998). The Wheeler Court further noted that whether the opposing party will be significantly hampered in the presentation of the merits is a two part inquiry; the first being an assessment of whether the requesting party is precludedfrom being able to prepare for trial by virtue of withdrawal; and the second being an assessment of whether the case would be decided on deemed but potentially untrue facts absent withdrawal. See Wheeler at 443. APPLICATION OF FACTS TO LAW. Plaintiff Had Good Cause for Not Answering Requests for Admissions 7. The affidavit of Andrew Bayley set forth the factual basis for good cause as to why Plaintiff's deemed admissions should be struck. Defendant’s and her attorney would have fully answered the discovery by February 14, 2022 had Defendant been aware of their service prior to February 14, 2022. 8. Defendant’s failure to answer discovery request timely was for good cause. Defendant did answer the discovery albeit 77 days late, but had Defendant been aware that the discovery deadline was much sooner he would have served them sooner. (Exhibit C). The failure to do so was not intentional, and it was not because of conscious indifference. Once Defendant’s attorney discovered the error, he promptly answered the discovery and filed this motion. Had Defendant or her attorney known of the discovery prior to the deadline, discovery would have been served. Plaintiff's Will Not be Prejudiced 9. Trial on this case is not set on this matter. Defendant is now in possession of her responses, and has plenty of time to conduct more discovery if needed. 10. Further the admissions contained a number of matters which are outside the proper scope of admissions. "When used as intended, admissions address uncontroverted matters or evidentiary matters such as the authenticity of documents." See Selly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996). The admissions propounded by Plaintiff which are at the very heart of thelitigation and which are hotly contested. If these admissions were to be deemed admitted, Defendant would be robbed of their day in court on issues that are central to the case. 11. Plaintiff would not be unduly prejudiced by striking the deemed admissions as the case is several months if not longer away from trial, and there is no indication that Plaintiff cannot fully prepare for trial. The merits of the matter are unlikely to be compromised and permitting the withdrawal would allow the case to be tried on accurate facts, which is always in the interest of justice. WHEREFORE, PREMISES CONSIDERED, Defendant prays that: A. the Court set this matter for hearing; B. after notice and hearing, the Court strike the deemed admissions and permit Defendant to file correct responses; and C. Defendant be granted such other and further relief, special or general, legal or equitable, as may be shown that Defendant is justly entitled to receive. Respectfully submitted, By:/s/ Andrew Bayley Andrew Bayley Texas Bar No. 24071501 1225 North Loop West, Suite 900 Houston, TX 77008 Tel. (713) 383-8887 Fax. (832) 415-0315 Attorney for Defendant Wendy HernandezCERTIFICATE OF SERVICE This shall certify that a true and accurate copy of the foregoing instrument was served on all counsel of record on this the 2nd day of May, 2022, in accordance with the applicable Texas Rules of Civil Procedure. Is) Andrew Bayley Andrew Bayley NOTICE OF HEARING The above and foregoing Defendant's Special Exceptions is set for hearing on May 5, 2022 at 8:30 AM, in the 328" District Court of Fort Bend County, Texas. [sl Paden Gayle Andrew BayleyNO. 17-DCV-242799 IN THE MATTER OF § IN THE DISTRICT COURT THE MARRIAGE OF § MANUEL REYES § § v § 328TH JUDICIAL DISTRICT DIANA M. CASTANO § § § § § § Vv. WENDY HERNANDEZ, ALEXANDER VAIRAS, AND ALL OCCUPANTS OF 615 297 ST., SAN LEON, TEXAS 77539 FORT BEND COUNTY, TEXAS Request for Admissions to WENDY HERNANDEZ TO: WENDY HERNANDEZ, through her attorney of record ANDREW BAYLEY via efiling manager and email to andrew@bayleylawfirm.com Counterpetitioner, DIANA CASTANO requests Respondent, WENDY HERNANDEZ, to admit the truth of the matters, including statements of opinion or of the application of law to fact or the genuineness of any documents served with this request, as set forth in the attachment. These requests for admissions are made under Rule 198.1 of the Texas Rules of Civil Procedure, and each of the matters of which an admission is requested shall be deemed admitted unless a response is delivered to KARLEANA L. FARIAS within 30 days after service of this request. Unless Respondent states an objection or asserts a privilege, Respondent must specifically admit or deny each request or explain in detail the reasons that Respondent cannot admit or deny the request. A response must fairly meet the substance of the request. Respondent may qualify an answer, or deny a request in part, only when good faith requires. Lack of information or knowledge is not a proper response unless Respondent states that a reasonable inquiry was made but that the information known or easily obtainable is insufficient to enable Respondent to admit or deny. An assertion that the request presents an issue for trial is not a proper response. Cause No. 17-DCV-242799; RFA 1 Movant's Exhibit ARespectfully Submitted by, THE FARIAS LAW FIRM 641 Heights Blvd. Houston, Texas 77007 Tel: (713) 226-7999 Fax: (713) 337-6050 By:/s/ Karleana £. Farias KARLEANA L. FARIAS State Bar No. 24074565 karleana@fariaslaw.com Attorney for DIANA CASTANO Certificate of Service I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on January 14, 2022: Via E-Filing Manager: ANDREW BAYLEY Eric Rhodes Roy Ewart ‘s/ Karleana £. Farias KARLEANA L. FARIAS Attorney for Diana Castano Cause No. 17-DCV-242799; RFA 2 Movant's Exhibit ARequest for Admissions RFA No. 1: Admit or deny that on or about January 18, 2018 you received a General Warranty Deed from Charles J. Jardina, JR conveying all interest Jardina had on the property located at 615 29" Street San Leon, Texas 77539. RFA No, 2: Admit or deny that you have testified under oath that you have been in possession of a General Warranty Deed for the property located at 615 29"" Street San Leon, Texas 77539 from Jardina to you since 2016. RFA No. 3: Admit or deny that you were divorced in August 2018. RFA No. 4: Admit or deny that you were married since 2015 and at the time you held this Deed prepared and delivered to you in 2016 for the property located at 615 29" Street San Leon, Texas 77539 you hid this deed from your husband at the time. RFA No. 5: Admit or deny that on or about January 18, 2018 when you received a General Warranty Deed from Charles J. Jardina, JR, conveying all interest Jardina had on the property located at 615 29" Street San Leon, Texas 77539, this conveyance was for an empty lot of land and no improvements existed on said lot at that time. RFA No. 6: Admit or deny that on or about July 31, 2018 you signed a General Warranty Deed conveying your interest in the property located at 615 29" Street San Leon, Texas 77539 to Manuel Reyes. RFA No. 7: Admit or deny that the General Warranty Deed which you executed on July 31, 2018 was signed in front of a notary. RFA No. 8: Admit or deny that the General Warranty Deed which you executed on July 31, 2018 was signed at an attorney’s office. RFA No. 9: Admit or deny that Manuel Reyes signed a General Warranty Deed on January 11, 2019 conveying his interest in the property located at 615 29" Street San Leon, Texas 77539 to you. RFA No. 10: Admit or deny that in the General Warranty Deed executed on January 11, 2019 your mailing address was PO BOX 65 Fresno, Texas 77545. RFA No. 11: Admit or deny that on January 11, 2019 you knew Manuel Reyes was in the process of getting divorced. RFA No. 12: Admit or deny that Manuel Reyes contacted you on July 1, 2019 to tell you he finalized his divorce. RFA No. 13: Admit or deny that on October 19, 2019 you were not living in the property located at 615 29" Street San Leon, Texas 77539. RFA No. 14: Admit or deny that on August 7, 2019 you sent a written communication via text to DIANA CASTANO from your cellphone. Cause No. 17-DCV-242799; RFA 3 Movant's Exhibit ARFA No. 15: Admit or deny that on August 7, 2019 in your written communication via text to DIANA CASTANO you indicated that MANUEL REYES was sending you text messages. RFA No. 16: Admit or deny that you did not pay any money to Manuel Reyes for the property located at 615 29" Street San Leon, Texas 77539. RFA No. 17: Admit or deny that you did not pay any taxes on the property located at 615 29" Street San Leon, Texas 77539 for any month during the 2020 year. RFA No. 18: Admit or deny that you did not pay any taxes on the property located at 615 29" Street San Leon, Texas 77539 for any month during the 2021 year. RFA No. 19: Admit or deny that you did not pay any taxes on the property located at 615 29" Street San Leon, Texas 77539 for any month during the 2022 year. RFA No. 20: Admit or deny that you did not take possession of the property located at 615 29" Street San Leon, Texas 77539 until December 2019. RFA No. 21: Admit or deny that you met MANUEL REYES in 2014. RFA No. 22: Admit or deny that you were married on January 11, 2019. RFA No. 23: Admit or deny that when you began a relationship with MANUEL REYES you knew that he was married. RFA No. 24: Admit or deny that you told to your father that you moved into the property located at 615 29" Street San Leon, Texas 77539 on November 29, 2019. RFA No. 25: Admit or deny that you offered DIANA CASTANO $150,000 payment in exchange for her not filing a court action relating to the transaction for the property located at 615 29" Street San Leon, Texas 77539 RFA No. 26: Admit or deny that you are currently unemployed. RFA No. 27: Admit or deny that you received three titles total from MANUEL REYES to you since 2014. RFA No. 28: Admit or deny that you have conferred an interest in the property located at 615 29" Street San Leon, Texas 77539 to ANDREW BAYLEY by virtue of a contingency contract. RFA No. 29: Admit or deny that you have not incurred any out of pocket expenses in the instant suit. RFA No. 30: Admit or deny that you have not incurred any out of pocket expenses in the instant suit. Cause No. 17-DCV-242799; RFA 4 Movant's Exhibit ANO. 17-DCV-242799 MANUEL REYES § IN THE DISTRICT COURT Plaintiff, § § Vv. § 328TH JUDICIAL DISTRICT § WENDY HERNANDEZ, DIANA M. § CASTANO AND ALEXANDER VAIRAS_—§ § Defendants. § OF FORT BEND COUNTY, TEXAS UNSWORN DECLARATION OF ANDREW BAYLEY “My name is Andrew Bayley. I am above the age of eighteen years, and I am fully competent to make this declaration. My date of birth iii: my address is 1225 North Loop West, Suite 900, Houston, TX 77008. I declare under penalty of perjury that the facts stated in this declaration are within my personal knowledge and are true and correct. “IT am the attorney of Wendy Hernandez. On April 27, 2022 during a court hearing I learned that Mrs. Farias had served requests for admissions to Wendy Hernandez on January 14, 2022 via email. I was completely unaware of this email. I cannot explain exactly why the discovery requests were overlooked, other than to point out that at that time we were moving offices, we had a paralegal quit, and a few months before hand our email server changed their format that has led to us missing several emails. I cannot say exactly why I failed to see to requests for admissions, the only thing I can say with absolute certainty is that I was not aware of the requests for admissions prior to April 27, 2022 and the failure to answer the discovery requests was not intentional or a result of conscious indifference. Executed in Harris County, Texas, on May 2, 2022 /s! Abudrew Bayley Andrew Bayley, Declarant Page 1 of 1 Movant's Exhibit BNO. 17-DCV-242799 MANUEL REYES § IN THE DISTRICT COURT Plaintiff, § § V. § 328TH JUDICIAL DISTRICT § WENDY HERNANDEZ, DIANA M. § CASTANO AND ALEXANDER VAIRAS_ § § Defendants. § OF FORT BEND COUNTY, TEXAS DEFENDANT WENDY HERNANDEZ’S RESPONSE TO PLAINTIFF’S REQUEST FOR DISCLOSURE TO: Diana Castano by and through its attorney of record, Karleana Farias, 641 Heights, Houston, Texas 77007 Andrew Bayley, Attorney for the Defendant Wendy Hernandez, provides the attached response to Respondent’s Request for Admissions. The Bayley Law Firm 1225 North Loop West, Suite 900 Houston, TX 77008 Tel: (713) 383-8887 Fax: (832) 415-0385 By:/s/ Andrew Easley Andrew Bayley State Bar No. 240715011 andrew@bayleylawfirm.com Attorney for Defendant Wendy Hernandez Movant's Exhibit CCertificate of Service I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on May 2, 2022 |s/ Andree Bauke Andrew Bayley Attorney for Defendant Movant's Exhibit CRequest for Admissions RFA No. 1: Admit or deny that on or about January 18, 2018 you received a General Warranty Deed from Charles J. Jardina, JR conveying all interest Jardina had on the property located at 615 29th Street San Leon, Texas 77539. Response: Deny RFA No. 2: Admit or deny that you have testified under oath that you have been in possession of a General Warranty Deed for the property located at 615 29: Street San Leon, Texas 77539 from Jardina to you since 2016. Response: Admit RFA No. 3: Admit or deny that you were divorced in August 2018. Response: Deny RFA No. 4: Admit or deny that you were married since 2015 and at the time you held this Deed prepared and delivered to you in 2016 for the property located at 615 29tn Street San Leon, Texas 77539 you hid this deed from your husband at the time. Response: Deny RFA No. 5: Admit or deny that on or about January 18, 2018 when you received a General Warranty Deed from Charles J. Jardina, JR, conveying all interest Jardina had on the property located at 615 29tn Street San Leon, Texas 77539, this conveyance was for an empty lot of land and no improvements existed on said lot at that time. Response: Deny RFA No. 6: Admit or deny that on or about July 31, 2018 you signed a General Warranty Deed conveying your interest in the property located at 615 29t Street San Leon, Texas 77539 to Manuel Reyes. Response: Admit RFA No. 7: Admit or deny that the General Warranty Deed which you executed on July 31, 2018 was signed in front of a notary. Response: Admit RFA No. 8: Admit or deny that the General Warranty Deed which you executed on July 31, 2018 was signed at an attorney’s office. Response: Deny Movant's Exhibit CRFA No. 9: Admit or deny that Manuel Reyes signed a General Warranty Deed on January 11, 2019 conveying his interest in the property located at 615 29t Street San Leon, Texas 77539 to you. Response: Admit RFA No. 10: Admit or deny that in the General Warranty Deed executed on January 11, 2019 your mailing address was PO BOX 65 Fresno, Texas 77545. Response: Admit RFA No. 11: Admit or deny that on January 11, 2019 you knew Manuel Reyes was in the process of getting divorced. Response: Deny RFA No. 12: Admit or deny that Manuel Reyes contacted you on July 1, 2019 to tell you he finalized his divorce. Response: Admit RFA No. 13: Admit or deny that on October 19, 2019 you were not living in the property located at 615 29m Street San Leon, Texas 77539. Response: Admit RFA No. 14: Admit or deny that on August 7, 2019 you sent a written communication via text to DIANA CASTANO from your cellphone. Response: Admit RFA No. 15: Admit or deny that on August 7, 2019 in your written communication via text to DIANA CASTANO you indicated that MANUEL REYES was sending you text messages. Response: Admit RFA No. 16: Admit or deny that you did not pay any money to Manuel Reyes for the property located at 615 29n Street San Leon, Texas 77539. Response: Admit RFA No. 17: Admit or deny that you did not pay any taxes on the property located at 615 29th Street San Leon, Texas 77539 for any month during the 2020 year. Response: Admit Movant's Exhibit CRFA No. 18: Admit or deny that you did not pay any taxes on the property located at 615 29th Street San Leon, Texas 77539 for any month during the 2021 year. Response: Deny RFA No. 19: Admit or deny that you did not pay any taxes on the property located at 615 29m Street San Leon, Texas 77539 for any month during the 2022 year. Response: Deny RFA No. 20: Admit or deny that you did not take possession of the property located at 615 29th Street San Leon, Texas 77539 until December 2019. Response: Deny RFA No. 21: Admit or deny that you met MANUEL REYES in 2014. Response: Admit RFA No. 22: Admit or deny that you were married on January 11, 2019. Response: Deny RFA No. 23: Admit or deny that when you began a relationship with MANUEL REYES you knew that he was married. Response: Deny RFA No. 24: Admit or deny that you told to your father that you moved into the property located at 615 29n Street San Leon, Texas 77539 on November 29, 2019. Response: Deny RFA No. 25: Admit or deny that you offered DIANA CASTANO $150,000 payment in exchange for her not filing a court action relating to the transaction for the property located at 615 29th Street San Leon, Texas 77539 Response: Deny RFA No. 26: Admit or deny that you are currently unemployed. Response: Admit RFA No. 27: Admit or deny that you received three titles total from MANUEL REYES to you since 2014. Movant's Exhibit CResponse: Admit RFA No. 28: Admit or deny that you have conferred an interest in the property located at 615 29tn Street San Leon, Texas 77539 to ANDREW BAYLEY by virtue of a contingency contract. Response: Admit RFA No. 29: Admit or deny that you have not incurred any out of pocket expenses in the instant suit. Response: Deny RFA No. 30: Admit or deny that you have not incurred any out of pocket expenses in the instant suit. Response: Deny Movant's Exhibit CAndrew Bayley Bar No. 24071501 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. andrew@bayleylawfirm.com Envelope ID: 64105019 Status as of 5/3/2022 8:18 AM CST Case Contacts Name BarNumber | Email TimestampSubmitted | Status Lilian Audu 24094518 laudu@audulawfirm.com 5/2/2022 3:57:55 PM SENT Roy K. Ewart 6752705 wmnacol@sbcglobal.net 5/2/2022 3:57:55 PM SENT Robert Medina robert@robmedinalaw.com | 5/2/2022 3:57:55 PM SENT Eric Rhodes 24025611 eric@rhodeslawwins.com | 5/2/2022 3:57:55 PM SENT Juana Calvillo je@calvillosilvalaw.com 5/2/2022 3:57:55 PM SENT Alexander Vairas Alex318ti@gmail.com 5/2/2022 3:57:55 PM SENT Karleana Farias karleana@fariaslaw.com 5/2/2022 3:57:55 PM SENT Associated Case Party: ManuelA.Reyes Name BarNumber | Email TimestampSubmitted | Status John M. McDermott jmcdermott306@sbcglobal.net | 5/2/2022 3:57:55 PM SENT Veronica BDorsey vdorseylawfirm@gmail.com 5/2/2022 3:57:55 PM SENT Allan A.Cease allancease@comcast.net 5/2/2022 3:57:55 PM SENT Allan A.Cease notice@allanceaselaw.net 5/2/2022 3:57:55 PM | SENT Associated Case Party: WendyElizabethHernandez Name BarNumber Email TimestampSubmitted Status Mark Sanders mark@msanderslaw.com 5/2/2022 3:57:55 PM SENT Name Christopher Conry Associated Case Party: DianaMCastanoAutomated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Andrew Bayley Bar No. 24071501 andrew@bayleylawfirm.com Envelope ID: 64105019 Status as of 5/3/2022 8:18 AM CST Associated Case Party: DianaMCastano Karleana L. Farias karleana@fariaslaw.com | 5/2/2022 3:57:55 PM SENT