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


Limine Motions – Their Uses And Limitations

July 9, 2011

I can’t think about that right now.  If I do, I’ll go crazy.  I’ll think about that tomorrow.
– Scarlett O’Hara

Limine motions use a Scarlett O’Hara approach to evidentiary problem-solving  –  at best, the most they accomplish is putting off the ultimate decision for another day.  No matter whether a limine motion is granted or denied, no final ruling has been made on the admissibility of any evidence whatsoever.  A limine order simply establishes the ground rules by which an offer of evidence can later be made.  Because of this, no limine ruling will ever be considered error or grounds for reversal on appeal.  Understanding this concept is a key component to learning how to most effectively use this evidentiary tool.

It is also important to understand the two basic ground rules which a limine order puts into play.  They are simply this:  If the limine motion is granted, the proponent of evidence must first approach the bench for a ruling outside the jury’s presence before referring to the matter in front of the jury.  If the limine motion is denied, the proponent of the evidence may offer that particular evidence at trial just like any other piece of evidence.

Keeping these broad concepts in mind, when making or responding to a limine motion, here are the basic guidelines:

  • Rules:  Limine motions are creatures of common law.  Because in Texas there are no procedural rules which govern their use, attornneys should generally look to case law for guidance on substantive issues concerning limine rulings, and look to local rules for guidance on deadlines and other procedural aspects of getting them filed and heard.
  • Purpose:   Motions in limine are best used for situations involving inflammatory or highly prejudicial facts of questionable admissibility.  It is an exceptionally good method of identifying in advance evidentiary situations which invoke Rule 404 of the Texas Rules of Evidence – evidence, which although relevant, may be excluded because its probative value is outweighed by the risk of unfair prejudice.  A limine order keeps the skunk out of the jury box until the court has made a TRE 404 determination on whether the evidence can come in.  Because this is the essential purpose of the rule, many judges are disinclined to waste time considering limine requests on more mundane matters, absent an agreement between the parties which can be enforced without argument on the point.
  • Preserving Error:  Never rely on a limine ruling to preserve error — it doesn’t.  If the judge denies a motion in limine, then the objecting party must act just as though the limine motion were never filed at all.  At the time the objectionable evidence is offered, a timely, specific objection must be made and a ruling must be obtained thereon.  If the judge grants the motion, the proponent of the evidence must approach the bench outside the hearing and presence of the jury, make an offer of the evidence and get a ruling on the offer.  Oftentimes these offers are made during a bench conference or during a break when the court reporter is not recording the proceedings.  No error is preserved if no record is made of the offer and ruling.  It is also important to remember that error is not preserved unless this offer is made before the jury is charged (even if the parties agree otherwise).  
  • Violations:  The appropriate remedy for a limine violation is contempt of court, which is punishable by up to a $500 fine, a 6-month imprisonment, or both.   Because contempt (of court order) is the appropriate remedy for a limine violation, it is important to have a limine order actually entered.  Therefore, a prudent attorney will provide the judge with an order to sign immediately after the court rules on the limine motion.  Without a written order, contempt may not be available as a remedy.  However, a judge may also grant a mistrial in response to a limine order violation. 
  • Persuading the Court to Grant the Motion:  Given the fact that many courts don’t allocate much time to hear limine arguments, don’t bury an important limine issue among voluminous boilerplate requests.  Pick the most important issues and focus on them.  Don’t wait until the last minute to file the limine motion.  Absent a local rule governing their use, limine motions may be filed at any time, even after a trial has commenced.  But waiting that late is not advisable.  If a limine motion is important enough to file, then it’s important enough to be filed early and heard well in advance of voir dire.  This is especially important if the admissibility issue is unique or complex.  The chances of having a limine motion granted increase if the judge has had ample time to consider the issue, arguments and perhaps briefing.  Finally, since many limine issues cut both ways, obtaining agreement from opposing counsel on limine issues which are clearly appropriate and mutually beneficial is the easiest way to ensure that your motion is granted. 
  • Persuading the Court to Deny a Motion:  Most judges frown on conducting jury trials in piecemeal or disjointed fashion.  If an opponent’s limine motion would require frequent bench conferences outside the jury’s presence on non-inflammatory issues, an attorney may argue that this would impair the effective and efficient presentation of evidence in the case.  So, if the matters raised in the limine motion aren’t potentially prejudicial or inflammatory (such as an attempt to call a non-disclosed witness), then it may be argued that these matters are the type which would best be ruled upon in the ordinary course of trial.
  • When Not to File:  In a bench trial, for obvious reasons, although, believe it or not, I’ve actually seen that attempted a few times.

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


Using Judicial Notice for Ordinances, Rules and Regulations

July 2, 2011

When ordinances, administrative rules or regulations are at issue in a case, the Texas Rules of Evidence provide the vehicle by which a court may take judicial notice of their content.  TRE 204 permits courts to take judicial notice of municipal and county ordinances, the contents of the Texas Register and agency rules and regulations in the Administrative Code.  Unlike other types of judicial notice, a court has discretion to judicially notice these matters sua sponte, but upon proper motion, the taking of judicial notice is mandatory, rather than discretionary.             

Like other rules of judicial notice, this rule incorporates two basic requirements: (1) the providing sufficient information to the court so that judicial notice can be taken, and (2) the providing of fair notice and opportunity for all parties to be heard on the matter.  Depending upon which type of law is at issue, different approaches may be used in finding the law, but none present much difficulty, especially now when most lawyers consider the information superhighway a vital part of their daily commute.

Despite the mandatory language of the rule, trial courts have in the past demonstrated considerable unwillingness to take judicial notice when it came to city and county ordinances.  This reluctance was rooted in the fact that, historically speaking, ordinances were often very difficult to research and to verify.  Many ordinances were not codified or even maintained in a bound form, rendering the task of locating particular provisions, tracking amendments and determining the applicable law during a relevant time period challenging, if not impossible.  Consequently, most courts would accept nothing less than a certified copy of the ordinance from the custodian of the record (usually the city secretary) in order to satisfy the “sufficient information” requirement of the rule, and appellate courts would affirm refusals to take judicial notice of ordinances when unauthenticated or unverified copies were presented.  Hollingsworth v. King, 810 S.W.2d 772 (Tex. App. – Amarillo 1991); City of Houston v Southwest Concrete Construction, Inc., 835 S.W.2d 728 (Tex. App. – Houston [14th Dist.] 1992).

With the advent of the internet, those days are now behind us.  More and more cities and counties are publishing their codes and charters on official websites, and access to this information is usually just a click or two away.  Virtually all municipalities in Tarrant County, for example, have both their city charters and city codes available to be downloaded from their websites.  More trial courts are willing to accept official website versions as at least presumptively reliable, given the safeguards of the fair notice and hearing requirements built into Rule 204, which allow the other side an opportunity to “meet the request,” i.e., challenge the accuracy of the status, wording or content of the version submitted to the court.

Rule 204 likewise allows, and, upon motion, mandates the taking of judicial notice of the contents of the Texas Register.  For those attorneys who are unfamiliar with this tome, the Texas Register is a weekly publication considered to be the “official journal” of state agency rulemaking in Texas.  It contains a treasure trove of regulatory information – attorney general opinions and opinion requests, all proposed, adopted, withdrawn and emergency rule actions, notices of any state agency reviews of agency rules, and a host of other miscellaneous information.  For example, one version contained a proposed rule change for the Texas Department of Insurance’s Prohibited Trade Practices regarding restrictions of claims in residential property insurance, including the text of the proposed change and information about the public comment process.  The Register is available on-line through the Texas Secretary of State’s website at www.sos.state.tx.us.

Any rulemaking actions become codified with other agency rules and regulations in the Texas Administrative Code, which is also maintained by the Secretary of State and may be downloaded from his website.  As with ordinances and codes, TRE 204 mandates that judicial notice be taken of both the Register and the Administrative Code when properly requested by any party.  Perhaps more persuasive than the mandatory language of TRE 204, however, is the judicial notice mandate found in the Government Code.  Tex. Gov’t Code §§2002.022(a) & 2002.054(1) provide that the contents of both the Register and the Administrative Code “are to be judicially noticed,” and at least one appellate court has interpreted this statutory language to require a court to take judicial notice of the Register and the Administrative Code even when no request has been made for the court to do so.  Eckman v. Des Rosiers, 940 S.W.2d 394, 399 (Tex. App. – Austin 1997) (lower courts owe obedience to these regulations, “like statutes or the decisions of a higher court…under the doctrine of stare decisis,” and have a mandatory duty to judicially notice them).

Obtaining judicial notice of codes, ordinances, rules or regulations is no longer the tedious task of days’ past, especially if you make the internet your first stop.  All the information you need may be only a mouse click or two away.

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


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