Unfiled Discovery Products As Summary Judgment Evidence

January 29, 2012

Prior to 1999, courthouses across Texas were running out of storage space for the voluminous discovery documents which were being filed in civil cases, particularly in complex litigation matters.  The Texas Supreme Court responded with the promulgation of TRCP 191.4, which for the first time excepted out certain types of discovery documents which, according to the rule, should not be filed with the court.  While this change apparently did accomplish its purpose of reducing the space necessary to store civil files, it also raised new questions as to the proper use and treatment of discovery products relied upon in the summary judgment context.

Generally speaking, if the discovery relied upon to support or defend a summary judgment motion is filed with the court, then a movant or respondent relying upon it need only make specific reference to it in the motion or response for the discovery to be considered properly before the court as summary judgment evidence.  However, if the discovery is unfiled, then additional steps must be taken to ensure that the discovery products are before the court for consideration as evidence in the summary judgment context.

TRCP 166a(d) provides that in order for unfiled discovery products to be used as summary judgment evidence, the party relying upon it must file a “statement of intent” to use the specific discovery as summary judgment proof.   To comply with this rule, many attorneys will file a “Statement of Intent” either as a part of the summary judgment motion or response, or as a separate pleading.  The latter is the safest approach, but is oftentimes unnecessary. 

First, case law is clear that a separate pleading is not required.  Moreover, despite the plain language of the rule, in certain circumstances even use of the words “statement of intent” is not necessary.  The requirement to file a “statement of intent” will be fulfilled when the discovery is attached to the motion and the motion clearly relies on the attached discovery for support, notwithstanding the lack of a formal “statement of intent” on file.  Blake v. Intco Investments of Texas, Inc., 123 S.W.3d 521 (Tex. App. — San Antonio 2003).

The bigger question arises as to whether unfiled discovery need be filed at all.  The rule itself does not clearly state whether it must be filed.  TRCP 166a(d) simply provides that unfiled discovery products may be used as summary judgment evidence if “a notice containing specific references to the discovery” is filed along with a statement of intent to use the specified discovery as summary judgment proof.”  The rule is silent as to whether the unfiled discovery must be attached to the motion or response as well, although the comments following the rule have been read by some to imply that they should be attached.  And, of course, that is the safest approach.

At least one court has applied TRCP 166a(d) to require that the unfiled discovery documents be filed with the court in advance of the hearing.  Gomez v. TriCity Community Hospital, Ltd., 4 S.W.3d 281 (Tex.App. — San Antonio 1999) (the summary judgment evidence was not before the trial court because appellants “failed to file the discovery materials referenced in their notice” prior to the summary judgment hearing).  Two other courts have interpreted the rule to permit specific references to be used rather than requiring a party to file the discovery document itself.  In both of these cases, however, the courts did require a recitation of the substance of the discovery product in order to meet the “specific reference” requirement of the rule.  E.B. Smith Co. v. U.S. Fidelity and Guaranty Co., 850 S.W.2d 621 (Tex. App. — Corpus Christi 1993) (interpreting the term “specific reference” to require the party relying on unfiled discovery to show the court “language” from the document); Salmon v. Miller, 958 S.W.2d 424 (Tex. App. — Texarkana 1997) (holding deposition testimony not properly before the court because movant provided specific page and line number references instead of excerpts). 

One court has held, albeit inferentially, that specific page numbers and other identifiers of that nature will suffice.  Grainger v. Western Casualty Life Insurance Co., 930 S.W.2d 609 (Tex. App. — Houston [1st Dist.] 1996) (unfiled deposition identified by deponent, volume and page number, unfiled interrogatories referred to by set and number, with a six-page summary of the evidence in a memorandum filed with the court).  The dissent in Grainger points out the two major problems with this approach.  First, this interpretation leaves no mechanism for a trial judge to access or verify the information which is not on file with the court.  Second, allowing a memorandum summary of the evidence in lieu of actual excerpts blurs the line between argument and evidence.  (In fairness, the opinion in Grainger was also based on the fact that the appellant had waived error by failing to object at the trial court level to movant’s reliance on unfiled discovery in this manner.)

In many ways, the law remains unclear as to how to treat unfiled discovery in the summary judgment context.  Until the Texas Supreme Court weighs in, at minimum, a movant or respondent should provide extensive verbatim quotes of the contents of any unfiled discovery which is being relied upon.  It is never a bad idea to file the discovery products themselves, but keep in mind that even when the discovery products are filed, the inquiry doesn’t stop there.  Especially when such documents are voluminous, specific references must be made to the particular excerpts being relied upon.  Otherwise, the trial court may refuse to consider it.  Kelly v. Gaines, 181 S.W.3d 394 (Tex. App. — Waco 2005).  As one court put it, a court shouldn’t be expected to “sift through a 500-page deposition to search for evidence.”  Guthrie v. Suiter, 934 S.W.2d 820 (Tex. App. — Houston [1st Dist.] 1996). 

Amen to that.

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


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


Use of the Fifth Amendment Privilege in a Civil Case

September 26, 2011

According to a 2006 survey, while almost 25% of Americans cannot name a single right guaranteed by the First Amendment, 38% erroneously believe that the right against self-incrimination is one of them.[1] Thanks in part to television crime shows, a third of all Americans at least understand that they have the right to remain silent, even if they don’t know exactly where that right can be found in the Constitution.

Of course, a witness’s right not to self-incriminate is found in the Fifth Amendment. (Article I, Section 10 of the Texas Constitution contains a similar provision as well.)  This Constitutional right includes a defendant’s right to: (1) remain silent, (2) not be called as a witness for the prosecution, and (3) not have the fact that he exercised his right against self-incrimination used against him. This principle is well-established in the criminal context where juries are instructed that the defendant cannot be compelled to testify, and that if he exercises his right not to testify, the jury cannot use this as any evidence of guilt whatsoever.

In civil cases, however, the juries receive no such instruction.  First of all, any party or witness in a civil case may be called to testify, whether they are facing criminal charges or not.  Second, witnesses in civil actions do not enjoy an unfettered right to refuse to answer questions on Fifth Amendment grounds. Finally, in a civil case it is perfectly permissible for a judge or jury to infer that a witness is guilty of wrongdoing if they invoke the Fifth Amendment privilege against self-incrimination in response to a question. (Of course, civil juries can’t send witnesses to jail for invoking the Fifth Amendment; they can only find them civilly liable.)

The Right to Refuse to Answer:

Just because a witness can been called to testify in a civil case doesn’t mean that the witness must answer every question posed.  Witnesses still enjoy their federal and state Constitutional rights against self-incrimination, even though they are not testifying in a criminal proceeding. If a question calls for an answer that might cause the witness to self-incriminate, then the witness may invoke the Fifth Amendment privilege against answering that question. Even in the civil context, this right against self-incrimination is an important one, because if a witness fails to invoke the Fifth Amendment and thereafter provides an incriminating answer, that answer can be used against the witness in a subsequent criminal case.

Unlike criminal cases, however, when a witness in a civil case invokes the protections of the Fifth Amendment, the inquiry does not simply stop there. It is well-settled law in Texas that when a witness in a civil case invokes the Fifth Amendment, the assertion of this privilege is subject to scrutiny by the judge, who will determine whether the refusal to answer is made in good faith and is justifiable under the circumstances.  Such an inquiry is a delicate undertaking, because the witness cannot be compelled to disclose the very information that the privilege protects, but in order to uphold the privilege, it must be shown that answering the question is “likely to be hazardous” to the witness.

As the Texas Supreme Court pointed out in Ex Parte Butler, the witness must be in potential jeopardy of prosecution under criminal law. 522 S.W.2d 196 (Texas 1975). For example, the threat of civil penalties and forfeitures – even if considerable in scope and amount – will not give rise to Fifth Amendment protections, since the conduct does not subject a witness to criminal prosecution. Likewise, for example, a witness may be compelled to testify as to the facts surrounding his committing insurance fraud (a crime), if it occurred more than five years earlier and hence beyond the criminal statute of limitations. (In that situation, further inquiry might be required to determine any applicable tolling provisions before the testimony is compelled.)  If after careful inquiry and consideration of all the circumstances of the case, the judge is perfectly clear that the witness is mistaken and that the answer cannot possibly have a tendency to incriminate, then the judge can compel the witness to answer the question.  Failure to answer at that point will subject the witness to possible contempt of court, which, ironically enough, may involve assessment of jail time.

It is also important to note that judicial scrutiny of the legitimacy of the Fifth Amendment invocation does not occur automatically. A court is not required to perform this inquiry sua sponte – opposing counsel must seek the trial court’s intervention through a motion to compel or other procedural tool. If counsel fails to raise this issue and provide the trial court with the opportunity to consider the issue, then any complaint as to improper use of the privilege is waived on appeal.

The Evidentiary Value of Invoking the Fifth:

Once it has been established that the witness has a right to refuse to answer a question, what happens next?  Simply stated, the judge or jury can infer that a witness committed the very crime that he was protected from testifying about.[2] But infer is all they can do. Invoking the Fifth Amendment does not give rise to a presumption of culpable conduct nor is it, standing alone, sufficient evidence to prove wrongdoing. Courts have routinely held that a Fifth Amendment claim of privilege will not substitute for other relevant evidence, pointing to the language of the U.S. Supreme Court case which first recognized the negative inference concept, that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” 

The failure to offer probative evidence in addition to the assertion of the Fifth Amendment privilege leaves the fact-finder with only an inference, and because an inference is considered nothing more than a mere suspicion, the inference in and of itself does not constitute more than a scintilla of evidence. Therefore, without more evidence, the negative inference which is permitted in these circumstances will not support a finding of fact or raise a fact issue which precludes summary judgment.

Consequently, while the negative inference associated with a Fifth Amendment claim of privilege is an important tool in a civil attorney’s arsenal, it is important that other evidence be discovered and presented both in summary judgment proceedings and at trial. When faced with a no-evidence challenge, either by motion for summary judgment or directed verdict, it will be important that the record contain additional probative evidence of the culpable conduct. Reliance on the inference of guilt alone simply will not overcome the evidentiary hurdle.

One might ask if the very person, perhaps the only person, who can testify as to essential evidentiary facts refuses to testify, how then can a party obtain probative evidence sufficient to defeat a no-evidence challenge?  In a recent appeal involving a hit-and-run fatality, an attorney raised this very point, arguing that public policy and the interests of justice are not served by allowing a wrongdoer to conceal all evidence, frustrate the discovery process, and evade civil liability through use of the Fifth Amendment. Unfortunately, because the attorney failed to raise these public policy arguments before the trial court, the issue was deemed waived and not considered on appeal.  Webb v. Maldonado, 331 S.W.3d 879 (Tex. App. — Dallas 2011).

The bottom line is that in a civil case, the invoking of the Fifth Amendment is powerful evidence – juries instinctively understand that in order for a person to claim the right not to self-incriminate, there must have been incriminating conduct to begin with. When instructed by the court that they may consider this as evidence of guilt, most juries do not hesitate to do so.  So, while the Fifth Amendment claim may be used as the nail in the coffin of your opponent’s case, there will be no burial without something more.

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

(For more information about the use of the Fifth Amendment privilege and Miranda warnings regarding its use in the criminal context, see http://blog.amjudges.org/?p=110.)


[1] The First Amendment recites five basic freedoms – freedom of speech, freedom of the press, freedom of religion, freedom to assemble and freedom to petition for redress from the government.

[2] This inference is recognized in both federal and state case law as well as Rule 513(c) of the Texas Rules of Evidence.


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


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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