Preview
Electronically Filed
4/4/2023 5:33 PM
Hidalgo County District Clerks
Reviewed By: Krystal Hidalgo
CAUSE NO. C-2791-22-E
313 HACKBERRY LAND § IN THE DISTRICT COURT
Plaintiff, §
§
v. §
§ HIDALGO COUNTY, TEXAS
GREAT LAKES INSURANCE SE and §
UNDERWRITERS AT LLOYD’S, §
LONDON §
Defendant. § 275th JUDICIAL DISTRICT
MOTION FOR CONTINUANCE OF
MOTION FOR SUMMARY JUDGMENT HEARING
I.
INTRODUCTION
1. Plaintiff, 313 Hackberry Land sued Defendant Great Lakes Insurance SE, for breach of
contract, Texas Insurance Code Violations and other common law violations for the denial
of a claim made for property damage caused by Hurricane Hanna.
2. Discovery in this suit is governed by a Level 3 discovery plan.
3. Trial has not been set in this case.
4. Plaintiff asks the Court to Continue the Summary Judgment Hearing set for April 11 so the
Court may rule on Plaintiff’s Motion to Strike Deemed Admissions, filed concurrently
with this motion.
II.
BACKGROUND
5. On October 27, 2022 , Defendant, served its Request for Admissions on Plaintiff. Plaintiff
did not timely serve responses to the requests as Plaintiff’s counsel incorrectly calendared
the due date .
Electronically Filed
4/4/2023 5:33 PM
Hidalgo County District Clerks
Reviewed By: Krystal Hidalgo
6. Based on Plaintiff’s inadvertent failure to file timely responses, the requests were deemed
admitted. Some of Defendant’s requests were improper and have merits-preclusive effects as they
were used to establish controverted issues that make up fundamental legal issues in the case.
7. Defendant asked Plaintiff to admit controverted issues and then filed its Motion for Summary
judgment based on the deemed admissions.
8. Plaintiff has concurrently filed its Motion to Strike the Deemed Admissions and respectfully
requests that the hearing on Defendant's Motion for Traditional Summary Judgment be
continued until the Motion to Strike Deemed Admissions can be heard and ruled on by this
Court.
III. ARGUMENTS AND AUTHORITIES
9. In a summary judgment proceeding, it is movant's burden to establish that no issue of
material fact exists and that it is entitled to summary judgment as a matter of law. Tex. R.
Civ. P. 166a(c); SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840,841 (Tex.2005). The
movant's summary judgment burden is a heavy one, as a motion for summary judgment
and its supporting evidence must conclusively show that there is no genuine issue as to any
material facts and that, based on those undisputed facts, the movant is entitled to judgment
as a matter of law. See Tex. R. Civ. P. 166a (c); see e.g. Park Place Hosp. v. Estate of Milo,
909 S.W.2d 508, 51 (Tex. 1995); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.
1991). In addition, all evidence favorable to the nonmovant must be taken as true, every
reasonable inference must be indulged in favor of the nonmovant, and any doubt must be
resolved in the non-movant's favor. See Park place Hosp., 909 S.W.2d at 510; Nixon v.
Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985).
Electronically Filed
4/4/2023 5:33 PM
Hidalgo County District Clerks
Reviewed By: Krystal Hidalgo
10. Defendant cites the deemed admissions in support of its Motion For Summary Judgment.
Defendant’s Requests for Admissions were improper and had merits-preclusive effects as they
were used to establish controverted issues; specifically, controverted issues that were central to
Plaintiff’s claims, such as the absence of any damages.
11. Defendant asked Plaintiff to admit controverted issues and the filed its Motion for
Summary Judgment based on the deemed admissions.
12. Requests for Admission were never intended to be used as a demand to admit one has no
cause of action or grounds for defense, as Defendant attempts to do in the instant case. Marino v.
King, 355 S.W.3d 629, 632 (Tex. 2011); Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 208
(1950). Requests for admission are intended to simplify trials and are useful when “addressing
uncontroverted matters or evidentiary ones like the authenticity or admissibility of documents.”
Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005). When used as intended, deemed admissions
by default are unlikely to compromise presentation of the merits. “When admissions are deemed
as a discovery sanction to preclude a presentation of the merits, they implicate the same due
process concerns as other case-ending discovery sanctions.” Wheeler, 157 S.W.3d at 443 (citing
TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917-18 (Tex. 1991)). “Constitutional
imperatives favor the determination of cases on their merits rather than on harmless procedural
defaults.” Marino, 355 S.W.3d at 633-34.
IV. CONCLUSION
Electronically Filed
4/4/2023 5:33 PM
Hidalgo County District Clerks
Reviewed By: Krystal Hidalgo
13. As set forth above, Requests for Admission were never intended to be used as a method to
admit one has no cause of action or grounds for defense, as Defendant attempts to do in the instant
case. Marino, 355 S.W.3d at 632; Sanders, 227 S.W.2d at 208.
14. Plaintiff respectfully requests that the Court to continue the summary-judgment hearing set
for April 11 until after it rules on Plaintiff’s Motion to Strike Deemed Admissions and Plaintiff
has a reasonable opportunity to review the Court's rulings.
WHEREFORE, PREMISES CONSIDERED, Plaintiff asks that the Motion for Summary
Judgment Hearing set for April 11th be continued and to any other relief to which it may be
entitled. Respectfully submitted,
LAWRENCE LAW FIRM
3112 Windsor Rd., Suite A234
Austin, Texas 78703
Telephone: (956) 994-0057
Facsimile: (956) 507-4152
celesteguerralaw2017@gmail.com
By: /s/ Celeste Guerra
LARRY W. LAWRENCE, JR.
State Bar No. 007994145
MICHAEL A. LAWRENCE
State Bar No. 24055826
CELESTE GUERRA
State Bar No. 00795395
Electronically Filed
4/4/2023 5:33 PM
Hidalgo County District Clerks
Reviewed By: Krystal Hidalgo
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document was served on counsel for
Plaintiff in accordance with the Federal Rules of Civil Procedure on the 4th day of April, 2023.
Via Electronic Service
BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWITZ. P.C.
VALERIE HENDERSON
1301 McKinney Street, Suite 3700
Houston, Texas 77010
Telephone: (713) 650-9700
Facsimile: (713) 650-9701
By: /s/ Celeste Guerra
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.
Michael Lawrence on behalf of Celeste Guerra
Bar No. 795395
lawrencefirm@gmail.com
Envelope ID: 74339134
Filing Code Description: Motion for Continuance
Filing Description: OF MOTION FOR SUMMARY JUDGMENT HEARING
Status as of 4/5/2023 8:27 AM CST
Associated Case Party: Great Lakes Insurance Company SE
Name BarNumber Email TimestampSubmitted Status
Kirsten Vesel kvesel@bakerdonelson.com 4/4/2023 5:33:21 PM SENT
Valerie Henderson vhenderson@bakerdonelson.com 4/4/2023 5:33:21 PM SENT
Associated Case Party: 313 Hackberry Land
Name BarNumber Email TimestampSubmitted Status
Michael Lawrence 24055826 lawrencefirm@gmail.com 4/4/2023 5:33:21 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
C BRAVO cbravo@bakerdonelson.com 4/4/2023 5:33:21 PM SENT
Preview
Electronically Filed 4/4/2023 5:33 PM Hidalgo County District Clerks Reviewed By: Krystal Hidalgo CAUSE NO. C-2791-22-E 313 HACKBERRY LAND § IN THE DISTRICT COURT Plaintiff, § § v. § § HIDALGO COUNTY, TEXAS GREAT LAKES INSURANCE SE and § UNDERWRITERS AT LLOYD’S, § LONDON § Defendant. § 275th JUDICIAL DISTRICT MOTION FOR CONTINUANCE OF MOTION FOR SUMMARY JUDGMENT HEARING I. INTRODUCTION 1. Plaintiff, 313 Hackberry Land sued Defendant Great Lakes Insurance SE, for breach of contract, Texas Insurance Code Violations and other common law violations for the denial of a claim made for property damage caused by Hurricane Hanna. 2. Discovery in this suit is governed by a Level 3 discovery plan. 3. Trial has not been set in this case. 4. Plaintiff asks the Court to Continue the Summary Judgment Hearing set for April 11 so the Court may rule on Plaintiff’s Motion to Strike Deemed Admissions, filed concurrently with this motion. II. BACKGROUND 5. On October 27, 2022 , Defendant, served its Request for Admissions on Plaintiff. Plaintiff did not timely serve responses to the requests as Plaintiff’s counsel incorrectly calendared the due date . Electronically Filed 4/4/2023 5:33 PM Hidalgo County District Clerks Reviewed By: Krystal Hidalgo 6. Based on Plaintiff’s inadvertent failure to file timely responses, the requests were deemed admitted. Some of Defendant’s requests were improper and have merits-preclusive effects as they were used to establish controverted issues that make up fundamental legal issues in the case. 7. Defendant asked Plaintiff to admit controverted issues and then filed its Motion for Summary judgment based on the deemed admissions. 8. Plaintiff has concurrently filed its Motion to Strike the Deemed Admissions and respectfully requests that the hearing on Defendant's Motion for Traditional Summary Judgment be continued until the Motion to Strike Deemed Admissions can be heard and ruled on by this Court. III. ARGUMENTS AND AUTHORITIES 9. In a summary judgment proceeding, it is movant's burden to establish that no issue of material fact exists and that it is entitled to summary judgment as a matter of law. Tex. R. Civ. P. 166a(c); SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840,841 (Tex.2005). The movant's summary judgment burden is a heavy one, as a motion for summary judgment and its supporting evidence must conclusively show that there is no genuine issue as to any material facts and that, based on those undisputed facts, the movant is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a (c); see e.g. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 51 (Tex. 1995); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). In addition, all evidence favorable to the nonmovant must be taken as true, every reasonable inference must be indulged in favor of the nonmovant, and any doubt must be resolved in the non-movant's favor. See Park place Hosp., 909 S.W.2d at 510; Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). Electronically Filed 4/4/2023 5:33 PM Hidalgo County District Clerks Reviewed By: Krystal Hidalgo 10. Defendant cites the deemed admissions in support of its Motion For Summary Judgment. Defendant’s Requests for Admissions were improper and had merits-preclusive effects as they were used to establish controverted issues; specifically, controverted issues that were central to Plaintiff’s claims, such as the absence of any damages. 11. Defendant asked Plaintiff to admit controverted issues and the filed its Motion for Summary Judgment based on the deemed admissions. 12. Requests for Admission were never intended to be used as a demand to admit one has no cause of action or grounds for defense, as Defendant attempts to do in the instant case. Marino v. King, 355 S.W.3d 629, 632 (Tex. 2011); Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 208 (1950). Requests for admission are intended to simplify trials and are useful when “addressing uncontroverted matters or evidentiary ones like the authenticity or admissibility of documents.” Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005). When used as intended, deemed admissions by default are unlikely to compromise presentation of the merits. “When admissions are deemed as a discovery sanction to preclude a presentation of the merits, they implicate the same due process concerns as other case-ending discovery sanctions.” Wheeler, 157 S.W.3d at 443 (citing TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917-18 (Tex. 1991)). “Constitutional imperatives favor the determination of cases on their merits rather than on harmless procedural defaults.” Marino, 355 S.W.3d at 633-34. IV. CONCLUSION Electronically Filed 4/4/2023 5:33 PM Hidalgo County District Clerks Reviewed By: Krystal Hidalgo 13. As set forth above, Requests for Admission were never intended to be used as a method to admit one has no cause of action or grounds for defense, as Defendant attempts to do in the instant case. Marino, 355 S.W.3d at 632; Sanders, 227 S.W.2d at 208. 14. Plaintiff respectfully requests that the Court to continue the summary-judgment hearing set for April 11 until after it rules on Plaintiff’s Motion to Strike Deemed Admissions and Plaintiff has a reasonable opportunity to review the Court's rulings. WHEREFORE, PREMISES CONSIDERED, Plaintiff asks that the Motion for Summary Judgment Hearing set for April 11th be continued and to any other relief to which it may be entitled. Respectfully submitted, LAWRENCE LAW FIRM 3112 Windsor Rd., Suite A234 Austin, Texas 78703 Telephone: (956) 994-0057 Facsimile: (956) 507-4152 celesteguerralaw2017@gmail.com By: /s/ Celeste Guerra LARRY W. LAWRENCE, JR. State Bar No. 007994145 MICHAEL A. LAWRENCE State Bar No. 24055826 CELESTE GUERRA State Bar No. 00795395 Electronically Filed 4/4/2023 5:33 PM Hidalgo County District Clerks Reviewed By: Krystal Hidalgo CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was served on counsel for Plaintiff in accordance with the Federal Rules of Civil Procedure on the 4th day of April, 2023. Via Electronic Service BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ. P.C. VALERIE HENDERSON 1301 McKinney Street, Suite 3700 Houston, Texas 77010 Telephone: (713) 650-9700 Facsimile: (713) 650-9701 By: /s/ Celeste Guerra 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. Michael Lawrence on behalf of Celeste Guerra Bar No. 795395 lawrencefirm@gmail.com Envelope ID: 74339134 Filing Code Description: Motion for Continuance Filing Description: OF MOTION FOR SUMMARY JUDGMENT HEARING Status as of 4/5/2023 8:27 AM CST Associated Case Party: Great Lakes Insurance Company SE Name BarNumber Email TimestampSubmitted Status Kirsten Vesel kvesel@bakerdonelson.com 4/4/2023 5:33:21 PM SENT Valerie Henderson vhenderson@bakerdonelson.com 4/4/2023 5:33:21 PM SENT Associated Case Party: 313 Hackberry Land Name BarNumber Email TimestampSubmitted Status Michael Lawrence 24055826 lawrencefirm@gmail.com 4/4/2023 5:33:21 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status C BRAVO cbravo@bakerdonelson.com 4/4/2023 5:33:21 PM SENT