Texas Thicc Tip - Discovery Issues - Is an Improper Response under Rule 198 a Deemed Admission?

Answer: Maybe.

Rule 198 dictates the contents of a response and the effect of inappropriate answer:

Content of response. Unless the responding party states an objection or asserts a privilege, the responding party must specifically admit or deny the request or explain in detail the reasons that the responding party cannot admit or deny the request. A response must fairly meet the substance of the request. The responding party 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 the responding party states that a reasonable inquiry was made but that the information known or easily obtainable is insufficient to enable the responding party to admit or deny. An assertion that the request presents an issue for trial is not a proper response.

Effect of failure to respond. 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(b) and Tex. R. Civ. P. 198.2(c).

So TRCP 198 says exactly what a "response" is to an RFA; if you do not make a "response" then it is "considered admitted" with no further order of the Court. That is a curious phrase and it might make one ask, "What order would I otherwise need for a timely response I don't like?"

The answer is Rule 215.4:

Motion. A party who has requested an admission under Rule 198 may move to determine the sufficiency of the answer or objection. For purposes of this subdivision an evasive or incomplete answer may be treated as a failure to answer. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of Rule 198, it may order either that the matter is admitted or that an amended answer be served. The provisions of Rule 215.1(d) apply to the award of expenses incurred in relation to the motion.

Tex. R. Civ. P. 215.4(a).

Thus, TRCP 215 says if you do not like the answer given, you can move for its determination: is this answer or objection "sufficient" or not for purposes of evading the penalty of a deemed admission? The Court can determine if the answer does not comply and either deem it or order a new answer. So the risk is on the requesting party: do I sit in the face of a bad answer and move for a sufficiency determination, or stick to my guns and insist it is deemed?

It's a tactical call. But a respondent runs a real risk that an answer like "unable to admit or deny" is so improper it might be automatically deemed without need for ruling. This is why:

Rule 198 defines an answer to an RFA. If you do not answer within its terms, what discretion exists to say otherwise? To move the Court to rule unnecessarily invites error. Recall that "deeming" happens automatically, without need for a ruling. It is well-established in the text of Rule 198.2 that an "unable to admit or deny" response requires explanation: you must "detail the reasons that [you] cannot admit or deny the request." TRCP 198.2(b).

Now if you want to hang your hat on an "unable to admit or deny" with nothing else, that's your call; it might pay to get a second opinion from a judge before doing so but you might have reason not to draw attention to the mistake. If the timing of the tactical use is pre-trial, then there may be no need to draw attention to the matter; the Rule 215.4 determination will happen implicitly if the admission's use is challenged by the respondent.

I know of a couple cases on the point. In Guerrero–McDonald v. Nassour, 516 S.W.3d 198 (Tex. App.—Eastland 2017, no pet.), the respondent said this:

Plaintiff objects to this request as vague and ambiguous. Specifically, the use of the term "insolvent" and the undefined phrase "that its debts exceed its assets." Plaintiff objects because the request seeks a legal conclusion. Based upon the forgoing, plaintiff is?unable?to?admit?or?deny?the request.

Id. at 212.

A Rule 215 hearing commenced; the objection portion was overruled and a chance for amendment given. The other side moved for sanctions and deemed admissions. Id. The judge then "clarified" that the remaining response after the objection vanished was "unable to admit or deny" and ruled the request deemed admitted. Id. at 213. Held: issue overruled because it was not an abuse of discretion to deem the admission since it was an "evasive and incomplete answer." Id. at 214.

*

Now, consider the following, related discussion between majority, dissent, and later reversal by the Supreme Court on Rule 198 admissions responses:

Majority: “Weaver's response to each request was: 'Defense: Texas Civil Practice Remedies (Section 16.004(a)(3)).' Plainly, this was an invocation of the four-year statute of limitations on a debt cause of action, and indulging every reasonable inference in Weaver's favor, as we must, this invocation is most reasonably construed as an objection to each request on the ground that the debt claim is barred by limitations. No hearing on Weaver's objections to the request for admissions was held.?See?TEX.R. CIV P. 193.4(a). Thus, not only are there no deemed admissions, there are no admissions at all to support the judgment."?Weaver v. Unifund CCR Partners, 231 S.W.3d 441, 443 n.1 (Tex. App.—Waco 2007), rev’d sub nom. Unifund CCR Partners v. Weaver, 262 S.W.3d 796 (Tex. 2008) (per curiam). So, a mere citation to a law in response to a request was NOT a deemed admission to these folks.

Dissent: "...[T]hose 'responses' are not proper, or even good faith, responses to the request for admissions. See TEX.R. CIV. P. 198.2(b). And a patently improper response to a request for admission is the same as no response. See TEX.R. CIV. P. 215.4(a). For this additional reason, therefore, the requests for admissions, even if Weaver had timely served his answers on Unifund, were properly deemed admitted." Weaver, 231 S.W.3d at 444 (Tex. App.—Waco 2007) (Gray. J, dissenting). So, the dissent says a completely "improper" response deserves nothing other than to be treated as a deemed admission.

The Supreme Court chimed in: “The second reason we reverse is that Weaver's responses, even if they could be considered, are not proper objections to the requests. The court of appeals held that Weaver's responses to the requests for admissions could, ‘indulging every reasonable inference in [his] favor,’ be construed as objections. We disagree.” Unifund CCR Partners, 262 S.W.3d at 798. The Court also stated the responses were "deemed admissions." Id. They may have done so only in the context of untimely service rather than taking up Justice Gray's view that they were "patently improper" but it bears noting.

There's not much there on this precise kind of response but I see it crop up a lot and sometimes it is worth making a stink. We know judges are loathe to close the docket on "deemed admissions" already, much less ones where the deeming occurs not because of untimeliness but because of a defective response with no second chance to fix it. But defective responses might best have a home in Rule 215 death penalty motions.