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


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