In Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005), although the pro se litigant, Wheeler, filed her responses to the requests for admissions two days after they were due because of a miscalculation involving the mailbox rule, they were filed six months before the motion for summary judgment based exclusively on the deemed admissions was heard. 157 S.W.3d at 441. The supreme court held that Wheeler did not waive her complaint regarding withdrawal of the deemed admissions by presenting it for the first time in her motion for new trial because "nothing in this record suggests that before summary judgment was granted, Wheeler realized that her responses were late, that she needed to move to withdraw deemed admissions, or that she needed to file a response to the summary judgment raising either argument." Id. at 442. The court observed that Wheeler's procedural failures were based on her mistaken understanding of when "service" occurred and of what a summary judgment "hearing" was and concluded, "On this record, the lower courts could have concluded that Wheeler was wrong on her dates and wrong on how to correct them, but not that either was the result of intent or conscious indifference." Id. The court noted, however, that "by contrast, if the same elementary mistakes had been made by a lawyer, such a conclusion might well be warranted." Id. at 442 n.1. In that cse, based on sixty-four deemed requests for admissions, the trial court granted summary judgment, terminating Sandra Wheeler as joint managing conservator of her daughter and taking other actions against her. Id. at 441. The attorney for the father of the child "neglected to point out in his summary judgment motion that Sandra--appearing pro se--actually had filed responses six months before the motion was heard, but two days after they were due." Id. "Sandra--still pro se--filed no response but attended the summary judgment hearing." Id. Sandra thereafter obtained an attorney who filed a motion for new trial that asserted the requests for admission should not have been deemed admitted, attached her responses to the request for admissions that she had sent to counsel, argued that her responses had been timely sent, and asked that the summary judgment be set aside. Id. at 441-42. Sandra's motion for new trial, however, did not include a response to the summary judgment, nor did she move for the court to allow her to file a late response to the motion for summary judgment, nor did she move to withdraw her deemed admissions. Id. at 442. The trial court denied the motion for new trial. Id. One reason the Wheeler court gave for ruling for Sandra concerned the timing of her late response to the summary judgment. See id. The court said Sandra did not waive the arguments she presented in her motion for new trial because she did not realize until after judgment was rendered against her that her responses were late, that she needed to move to withdraw deemed admissions, and that she needed to file a response to the summary judgment raising her arguments. Id. In Wheeler v. Green, sixty-four requests for admissions were deemed admitted because Wheeler, proceeding pro se, filed her response two days late due to a mistake regarding the "mailbox rule": Wheeler did not realize that the mailbox rule starts the clock running for her to respond to the requests on the day the requests are properly placed in the mail. Id. at 441; see TEX. R. CIV. P. 21a. Summary judgment was entered for Green based on the deemed admissions. Wheeler, 157 S.W.3d at 441. Green attached the requests for admission to his motion for summary judgment. Id. In his motion for summary judgment, "Green argued that Wheeler admitted every element of Green's claims against her by failing to timely respond to the requests for admission and, therefore, he was entitled to judgment as a matter of law." Wheeler v. Green, 119 S.W.3d 887, 889 (Tex. App.--Dallas 2003), rev'd, 157 S.W.3d at 444. Wheeler did not file a response or a motion to withdraw the deemed admissions, though she did attend both summary judgment hearings. Wheeler, 157 S.W.3d at 441; see TEX. R. CIV. P. 198.3 (providing for the amendment or withdrawal of deemed admissions upon a showing of good cause, no undue prejudice, and that the "merits of the action will be subserved by permitting the party to amend or withdraw the admission"). Subsequent to summary judgment, Wheeler hired an attorney and filed a motion for new trial, arguing that the responses were timely filed and attaching copies of the responses. Wheeler, 157 S.W.3d at 442. Addressing the waiver issue, the supreme court held that Wheeler's motion for new trial was sufficient to raise her complaints because "nothing in this record suggests that before summary judgment was granted, Wheeler realized that her responses were late, that she needed to move to withdraw deemed admissions, or that she needed to file a response to the summary judgment raising either argument." Id. The Texas Supreme Court held that the trial court should have granted a new trial and allowed the party suffering the admissions to withdraw them where (1) the record showed no evidence of flagrant disregard for the rules; (2) nothing indicated that the party's case, who suffered the deemed admissions, lacked merit; (3) nothing reflected that the opposing party was unable to prepare for trial without the admissions. Further, the party suffering the deemed admissions in Wheeler offered to pay the other party's expenses incurred because of the lateness of the admitting party's responses. Id. at 444. Wheeler does not hold that admissions on purely legal questions are incompetent summary judgment proof: instead, it requires that appellate courts evaluate a trial court's refusal to allow a party to withdraw an admission under an abuse of discretion standard. Id. In Wheeler v. Green, the trial court granted summary judgment based on deemed admissions. Id. at 441. It was uncontested that the appellant (Sandra) had filed responses to the requests for admissions 27 days after she received the requests, but 35 days after the "mailbox rule" deemed they were served, thus making the responses two days late under Texas Rule of Civil Procedure 21(a) (providing service occurs upon mailing and extending response time by three days). Id. Sandra did not file a response to the motion for summary judgment, but she did file a motion for new trial in which she argued her responses to the requests for admissions were timely, and therefore the summary judgment was improperly granted on deemed admissions. Id. at 441-42. The Supreme Court held that the effect of Sandra's argument in the motion for new trial was a request that the deemed admissions be withdrawn, stating: . . . although Sandra never filed a motion to withdraw deemed admissions or a motion to allow a late response to the summary judgment, the arguments and requests in her motion for new trial were sufficient to put the trial court on notice of exactly that complaint. See Tex. R. App. P. 33.1(a). (Id. at 442.)