Summary Judgment Evidence – The Pleadings

January 7, 2012

Summary Judgment 101 teaches that pleadings, even sworn pleadings, are not competent summary judgment evidence.  All Texas lawyers learn early-on that they cannot rely on pleadings to prove a fact, raise a fact issue in dispute or otherwise provide evidentiary support for a summary judgment. 

While this is true as a general rule, it is not always so.  There are times when a summary judgment may be properly based upon the pleadings standing alone.  Whether a summary judgment can be based on pleadings depends in part on what cause of action is contained in the pleadings and whose pleadings are being considered.

Movant’s Pleadings

Generally speaking, a party moving for summary judgment cannot rely on statements of fact contained in its own pleadings, even if those pleadings are verified or sworn to.  However, if the plaintiff’s underlying cause of action requires a sworn response and if the defendant has failed to file a verified denial, then the plaintiff may move for summary judgment. 

The most common example of this is in cases involving suits on sworn accounts.  If a plaintiff properly pleads a suit on a sworn account and the defendant fails to file a verified denial of the account, then summary judgment may be granted based on the pleadings alone.  Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558 (Tex. App. — Dallas 2003) (“a defendant’s noncompliance with Rule 185 conclusively establishes that there is no defense to the suit on the sworn account).  Quite often, a respondent may be given an opportunity to cure the pleading defect prior to summary judgment, but failing that, a summary judgment would be appropriate.  In these cases, the movant’s pleadings are not considered summary judgment “evidence,” but absent a verified denial, movant’s pleadings do constitute prima facie proof sufficient to support the summary judgment. 

Non-Movant’s Pleadings

Likewise, a non-movant may not rely on its own pleadings to establish a fact necessary to defeat a summary judgment motion, even if the pleading is verified.  However, under certain circumstances, a movant may rely on the non-movant’s pleadings to establish its entitlement to summary judgment. 

Admissions:  The first way that this can occur is when a non-movant’s pleadings contain statements of fact or conclusions which are not pled in the alternative and which are directly contrary to its own theory of recovery or defense.  Statements of fact such as these contained in the non-movant’s pleadings are considered judicial admissions which are conclusively established without the necessity of other evidence.  For that reason, a non-movant’s pleadings of this nature may support a summary judgment for the moving party.  As with the rule on suits on sworn accounts, admissions contained in the non-movant’s pleadings are not considered summary judgment “evidence” per se, but may nevertheless support the judgment. Judicial admissions are not considered summary judgment proof, but rather a waiver of proof because of their binding effect as an admission.  Galvan v. Public Utilities Bd., 778 S.W.2d 580 (Tex. App. — Corpus Christi 1989) (defendant’s pleadings stating it was “an agency of the City of Brownsville, Texas” held sufficient proof to support plaintiff’s summary judgment on the issue of agency).

No Viable Cause of Action:  The second way that this can occur is when a party’s pleading contains no viable cause of action under the law.  This can occur in one of two ways:  (1) pleading a cause of action which is not recognized under Texas law, or (2) failing to plead any cause of action at all.  In either situation, a movant may support its motion for summary judgment on the non-movant’s pleadings alone.  Helena Lab. Corp. v. Snyder, 886 S.W.2d 767 (Tex. 1994).  Beware, however, that the Supreme Court expects that before a court grants a “no cause of action” summary judgment, the respondent be given an adequate opportunity to plead a viable cause of action.  Friesenhahn v. Ryan, 960 S.W.2d 656 (Tex. 1998) (holding that because the movant’s special exceptions were denied, the respondents were “never on notice that their pleadings may be deficient”; therefore, summary judgment was improper).

While in some cases summary judgment may be based upon pleadings alone, when the summary judgment motion is based on a pleading defect, such as a lack of verification required by law or failure to plead a viable cause of action, the movant should first file a special exception and have that matter heard sufficiently in advance of the summary judgment motion to allow respondent adequate opportunity to cure its pleading defects.  However, with regard to summary judgment motions based on admissions, an opportunity to cure is not required under the law.

In the next blog, we will explore issues regarding use of the more customary types of summary judgment evidence.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


Judicial Admissions Through Statements by Attorneys

August 2, 2011

Anything you say can and will be used against you in a court of law.  Although the importance of this warning in the criminal law context is well understood, lawyers who venture into the arena of civil litigation would do well to consider how that concept might apply to them.

The reality is that any statement, whether oral or in writing, made to the court by an attorney on behalf of his or her client could potentially be used against that client later in court.  And, unfortunately, the more articulate, lucid and straight-forward the statement, the more likely it is to get the client into trouble.

It is well-settled in Texas law that any assertion of fact not pleaded in the alternative which appears in a party’s live pleadings will be regarded as a formal judicial admission.  Houston First American Savings v. Musick, 650 S.W.2d 764 (Tex. 1983).  As long as the admission stands unretracted, the fact admitted is accepted as true.  Texas Processed Plastics, Inc. v. Gray Enterprises, Inc., 592 S.W.2d 412 (Tex. App. – Tyler 1979).  As with other types of judicial admissions, the statement must be deliberate, clear and unequivocal.  Id.  

Over the years, this rule has expanded beyond live pleadings, to statements made in briefs and other motions, as well as arguments made by attorneys during hearings and at trial, including:

  • Remarks at Charge Conferences:  Attorney’s stated rationale for not lodging an objection to the omission of a separate damage question – that he agreed that the damages already sought under a different legal theory would be the same – was held sufficient to bind his client to that position.  American National Petroleum Co. v. TransContinental Gas Pipeline Corp., 798 S.W.2d 274 (Tex. 1990).
  • Argument at Trial:  Urging the statement-by-agent hearsay exception as one ground for admissibility of declarant’s statement was an admission establishing that the declarant was his client’s agent as a matter of law.  Carroll Instrument Co., Inc. v BWB Controls Inc., 677 S.W.2d 654 (Tex. App. – Houston [1st Dist.] 1984).  
  • Stipulations:  Stipulation by a party that he signed an instrument in the capacity of guarantor is a judicial admission requiring no written evidence of guaranty status, notwithstanding the Statute of Frauds.  Menendez v. Texas Commerce Bank, 730 S.W.2d 14 (Tex. App. – Corpus Christi 1987).

Perhaps the biggest trap for the unwary is in summary judgment proceedings.  While it is elementary that pleadings do not constitute summary judgment proof, an exception is made for the admissions contained therein.  Judicial admissions contained in pleadings may be used to support a summary judgment.  Underhill v. Jefferson County Appraisal District, 725 S.W.2d 301 (Tex. App. – Beaumont 1987).

The easiest trap to avoid is typographical errors.  In De La Fuente v. Home Savings Assn., what appeared to be a typographical error as to a particular date in a live pleading was held to conclusively prove that a note was assigned to a third party on the very same day that it was executed, rendering it void and unenforceable by law.  669 S.W.2d 137 (Tex. App. – Corpus Christi 1984) (providing yet another reason to avoid over-reliance on spell-check).

Fortunately, there are some safe harbors: 

  • Law vs. Fact:  An attorney can’t judicially admit what the law is or a legal conclusion to be drawn from facts pleaded.  Barstow v. Texas, 742 S.W.2d 495 (Tex. App. – Austin 1988); J.A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728 (Tex. App. – Amarillo 1967).  Keep in mind, however, that while the law itself cannot be judicially admitted, judicial error can. Flores v. Texas Department of Health, 835 S.W.2d 807 (Tex. App. – Austin 1992) (holding that the defendant’s assertion that he agreed with plaintiff that a particular finding of fact was not supported by the evidence was not “mere acquiescence to appellant’s argument” but a judicial admission “amounting to a confession of error.”) 
  • Impressions vs. Facts:  Statements which are merely impressions may not be sufficiently clear and unequivocal to be considered a judicial admission.  National Savings Insurance Co. v Gaskins, 572 S.W.2d 573 (Tex. App. – Ft. Worth 1978).
  • References:  Simple reference to another party’s affidavit will not constitute an admission that the facts contained therein are true.  American Casualty Co. v. Conn, 741 S.W.2d 536 (Tex. App. – Austin 1987).  Take care, however, when you assume for purposes of argument that your opponent’s position is true, to clearly demonstrate the conditional nature of your argument.  Hill v. Steinberger, 827 S.W.2d 58 (Tex. App. – Houston [1st Dist.] 1992) (wherein movant “accepted as true” all the factual allegations contained in his opponent’s original petition, thereby defeating his own summary judgment motion).
  • Damage Control:  By amending, withdrawing or retracting, you can at least eliminate the binding effect of an admission.  However, the pleading will still remain a statement “seriously made” and can be introduced in evidence as an admission against interest.  Kirk v. Head, 152 S.W.2d 726 (Tex. 1941).  This is very tricky business, however.  While a request made in final argument for a court to “overlook” an erroneously pleaded fact will not undo the admission, De La Fuente at 145, pleading the opposite or an inconsistent fact in the same document will.  Texas Processed Plastics at 416.

Finally, in an elegant twist of irony that could find its place only in the law, simple ineptitude may be the one sure thing to keep an attorney out of trouble.  Canales v. Canales, 683 S.W.2d 77 (Tex. App. – San Antonio 1984) (The transcript of the hearing “fails to convey with any degree of lucidity what was actually said or meant by the attorney.  There can be no judicial admission under those circumstances.”)

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


Judicial Admissions in Testimony

July 24, 2011

It is a generally-understood principle that a statement of fact contained in a motion or pleading may constitute a formal judicial admission which is accepted as true by the court and jury and binds the party making it.  What is less understood are the circumstances under which this rule may be extended to in-court statements and testimony and when these statements may be held to be equally conclusive.

Although formal judicial admissions may look like the quasi-judicial admissions found in Rule 801 of the Texas Rules of Evidence (statements made during judicial proceedings which are exceptions to the hearsay rule and constitute some evidence, but not conclusive evidence), they actually work more like the discovery admissions of Rule 198 of the Texas Rules of Civil Procedure, because they do constitute conclusive evidence.  The main difference is that they aren’t governed by any rule or statute, and we must look to case law for guidance on their application.

The general rule is that any formal declaration against interest made in open court by a party has the potential for being construed as a judicial admission.  Davidson v. State of Texas, 737 S.W.2d 942 (Tex. App. — Amarillo 1987).  At first blush, it may appear that such a broad rule would carry enormous risk that an unsophisticated or imprudent client might just talk himself right out of court.  Fortunately, the law provides certain safeguards to protect those who lack requisite wordsmithing skills to avoid the heartburn associated with a meal of their own words.

First, courts have clarified that this rule should be applied with caution.  United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex. App. — San Antonio 1951).  Second, courts seem to indulge an initial presumption that such statements are quasi-admissions, not true judicial admissions, and, as such, some evidence, but not conclusive of the facts admitted.  Mendoza v. Fidelity & Guaranty Insurance Underwriters, Inc., 606 S.W.2d 6924 (Tex. 1980).  Only when a party’s statement satisfies each prong of the Texas Supreme Court’s five-prong test will a quasi-admission be elevated to the status of a formal judicial admission and bind the party making it:

1.  The declaration relied upon was made during the course of a judicial proceeding.  This appears to include deposition testimony, Adams v. Tri-Continental Leasing Corp., 713 S.W.152 (Tex. App. — Dallas 1986) (deposition testimony in that case held not to be a judicial admission due to conflict in the testimony), but not out-of-court statements made after suit was filed but prior to trial. American Baler Co. v. SRS Sys, Inc., 748 S.W.2d 243 (Tex. App. — Houston [1st Dist.] 1988).

2.  The statement is contrary to an essential fact embraced in the theory of recovery or defense asserted by the person giving the testimony.  The prong is fairly self-explanatory.  What it seems to suggest is that a party shouldn’t be put in peril of testifying himself out of court on matters that are merely tangential or non-essential.  Therefore, unless the admission goes to the heart of a party’s cause of action or defense, the statement will not bar a party from offering evidence contrary to their own testimony.

3.  The statement is deliberate, clear and unequivocal, and the hypothesis of mere mistake or slip of the tongue has been eliminated.  Most cases focus on this prong.  Unfortunately, they are few in number and most are decades old.  Nevertheless, these cases do provide some good examples of the type of testimony which has been held to be insufficiently “deliberate, clear and unequivocal”:

*          Opinion testimony by a party on matters which a lay person would not be qualified or competent to testify.  Mendoza at 694 (a plaintiff’s opinion about his own physical limitations).

*          Facts which are not peculiarly within the declarant’s own knowledge, but are mere impressions of a transaction or an event as a participant or an observer, especially when there is evidence to the contrary.  Gevinson v. Manhattan Construction Co., 449 S.W.2d 458, 466 (Tex. 1969) (a party’s sworn statement that the other party “foreclosed” on property).

*          Inexactitude in testimony.  Cranetex, Inc. v. Precision Crane & Rigging, 760 S.W.2d 298, 304 (Tex. App. — Texarkana, 1989) (“on or about” a certain date was equivocal as to the date); Bray v. McNeely, 682 S.W.2d 615 (Tex. App. — Houston [1st Dist.] 1984) (“I think so” was ambiguous).

4.  The giving of conclusive effect to the declaration will be consistent with the public policy upon which the rule is based.  There is little to no case law which addresses the application of this prong.  However, the Supreme Court has clearly articulated the public policy which underlies this rule, to wit:  that it would be unjust to permit a party to recover after he has sworn himself out of court by clear, unequivocal testimony.  Mendozaat 694.

5.  The statement is not also destructive of the opposing party’s theory of recovery.  This final prong simply embraces the general rule that applies to all admissions, i.e., that one party’s admissions cannot be used against other parties. Griffin v. Superior Insurance Co., 338 S.W.2d 415 (Tex. 1960).

Given the potential for a party testifying himself out of court, most attorneys should feel at least some degree of trepidation anytime they see their clients raise their hands to take the oath.  Worrisome as that may be, however, there is one thing that is even worse than having your client talk himself out of court.  And that’s when you do it for him.  In the next post, we’ll take a closer look at that.

–Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas


Use of Admissions at Trial

July 16, 2011

Admissions are powerful evidence.  Properly used, they not only conclusively establish the admitted fact, but they also serve to bar any evidence to the contrary.  The bar may be short-lived, however, if vigilance is not exercised to prevent inadvertent waiver.

Rule 198 of the Texas Rules of Civil Procedure addresses two types of admissions:  (1) admissions and (2) deemed admissions.  Of course, admissions respond to a request for admission by admitting the facts sought.  Deemed admissions occur when no response, or a late response, is made.  Deemed admissions are considered admissions without the necessity of a court order.

Both admissions and deemed admissions will retain their status as admissions until they have been withdrawn or amended by court order.  Hence, untimely denials, even if only a day or two late, are ineffective to negate deemed admissions.  Deemed admissions remain admissions until and through the date of trial, unless their withdrawal is sought and obtained by the trial court.

Most often admissions are read into evidence at trial.  However, this is not necessary if they have been filed with the court.  Admissions which are on file are effective without being introduced into evidence and will support a finding of that fact on final judgment.  Welch v. Gammage, 545 S.W.2d 223, 226 (Tex. App. — Austin 1977) (“[Although] the better practice is to introduce the requests for admissions and the responses into evidence… [nevertheless, they] may be considered as a part of the record if they were filed with the clerk of the court at trial time.”)

Whether admissions are read into evidence or simply filed with the papers of the court, no evidence which contradicts the admission may be introduced at trial over an objection.  In other words, the court should sustain any objection made to evidence which attempts to controvert the admitted fact.  The key, of course, is in lodging a timely objection.  Marshall v. Vise, 767 S.W.2d 699, 699 (Tex. 1989) (“a party waives the right to rely upon an opponent’s deemed admissions unless objection is made to introduction of evidence contrary to those admissions”).

Absent timely objection, however, evidence which controverts the admission may be properly received into evidence.  And once this happens, the admission is automatically downgraded from its status as a conclusively-proven fact and is relegated to mere evidence to be considered by the trier of fact.  Should this occur during a jury trial, then it becomes important that the admissions actually be formally received into evidence as well (as opposed to being on file with the clerk of the court).  Although there appears to be no case law on point, it is logical to assume that admissions which are of mere evidentiary value, i.e., admissions which simply furnish evidence on a fact in dispute, must be heard by a jury (as with any other piece of evidence), or they would not support a jury’s finding of fact consistent with them.

The treatment of admissions at the summary judgment stage, however, differs dramatically from that at trial on the merits.  Notwithstanding whether an objection is lodged, it seems well-established in case law that for purposes of summary judgment, the trial court cannot consider evidence which contradicts admissions.  Controverting evidence of this type will not create a fact issue to preclude summary judgment.  Instead, any evidence which controverts an admission is simply barred.  Beasley v. Burns, 7 S.W.3d 768 (Tex. App. — Texarkana 1999).

Beware, however, the Texas Supreme Court case which reversed a summary judgment based entirely upon deemed admissions.  Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005) (per curiam).  In Wheeler, the Supreme Court held that basing a summary judgment on deemed admissions alone was tantamount to a “merits-preclusive sanction” violative of due process. (“When a party uses deemed admissions to try to preclude presentation of the merits of a case, the same due process concerns [addressed in TransAmerican Natural Gas. Corp.] arise.”)

While Rule 198 places no limits on a party seeking any number of admissions of fact, opinion or application of law to facts, which, when combined, may serve to admit away an entire cause of action or defense, Wheeler cautions that admissions were “never intended to be used as a demand upon a (party) to admit that he had no cause of action or ground of defense.”  In light of this holding, one might expect that summary judgment motions based solely upon deemed admissions would be frowned upon by both trial courts and appellate courts upon review.

There are three other points which merit brief mention.  First, while admissions may be used by all parties in a case, they may only be used against the party who answered (or failed to answer).  This is true even in multi-party cases involving related persons and entities — an admission by one party cannot be used against another party, no matter how similar their interests.  Second, admissions may only be used in the case in which they were made.  And, finally, denials to requests for admissions are not admissible (although erroneous admission into evidence has been held to be harmless error).

– Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas

Update October 27, 2011:  See the recent Texas Supreme Court case reaffirming the holding in Wheeler regarding the use of admissions as a “merits preclusive sanction.”  http://www.supreme.courts.state.tx.us/historical/2011/oct/100854.pdf


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