law-judicial-admission | deemed admissions | SJ evidence |
Assertions of fact, not pleaded in the alternative, in the live pleadings of a party are regarded as formal judicial
admissions. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001). A judicially admitted
fact is established as a matter of law, and the admitting party may not dispute it or introduce evidence contrary
to it. Bowen v. Robinson, 227 S.W.3 86, 92 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). This rule is
based on the public policy that it would be absurd and manifestly unjust to permit a party to recover after he has
sworn himself out of court by a clear and unequivocal statement. Id.
Nonetheless, a judicial admission must be clear, deliberate, and unequivocal. Regency Advantage Ltd. P’ship v.
Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex. 1996). We agree with Relators that, when read in context,
the passages cited by Walters from each motion for summary judgment are not clear, unequivocal, and
deliberate statements admitting that the sponge was retained in the 1995 tubal ligation or that retained sponge
caused Walters to suffer chronic pelvic pain for nine years to ten years.
"A judicial admission must be a clear, deliberate, and unequivocal statement." Regency Advantage Ltd.
Partnership v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex. 1996)
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000) (a judicial admission may be made in
live pleadings); Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (a judicial
admission may also be made in a response to a motion or counter-motion). The judicial admission, however,
must be clear and unequivocal. See Holy Cross Church of God in Christ, 44 S.W.3d at 568. We do not believe
this statement is so unequivocal as to constitute a judicial admission.
A judicial admission is "a formal waiver of proof usually found in pleadings or the stipulations of the parties."
Hennigan v. I.P. Petroleum Co., Inc., 858 S.W.2d 371, 372 (Tex. 1993) (per curiam) (quoting Mendoza v. Fid. &
Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980)). The statements of counsel at issue here do not
constitute a judicial admission because litigants are required to "respect" all rulings of the court. Moreover,
Collins's counsel further stated that "we believe that under the law, [Collins] has the right to be the managing
conservator of this child. He is the sole remaining parent that is living and he wants to serve in that capacity."
(emphasis added). Inasmuch as the parent of a child has "the right to represent the child in legal action and to
make other decisions of substantial legal significance concerning the child[,]" we cannot conclude that
Collins has waived the issues presented here.
In Re Collins (Tex. App.- Houston [14th Dist.] Dec. 17, 2007)(Guzman)
(amicus attorney, representation of minor in wrongful death action involving mother, grandparents vs. surviving
MOTION OR WRIT GRANTED: Opinion by Justice Guzman
Before Justices Brock Yates, Fowler and Guzman
14-07-00624-CV In Re: Russell Craig Collins
Appeal from 387th District Court of Fort Bend County (Judge Robert J. Kern)
Crown Asset Management LLC v. Short (Tex.App.- Houston [1st Dist.] Apr. 16, 2009)(Hanks)
(MV note suit fails on summary judgment, inadequate documentation attached, declaratory judgment on car
ownership reversed, UDJA fees reversed, no judicial admission as to MV title)
AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND RENDER JUDGMENT:
Opinion by Justice Hanks
Before Chief Justice Radack, Justices Alcala and Hanks
Crown Asset Management, LLC v. Christopher B. Short
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: Hon. R. Jack Cagle
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