CHAPTER 10 - 10-6 Use and Effect of Admissions

• Jurisdiction: United States

10-6 Use and Effect of Admissions

10-6:1 Persons Bound by Admissions

An admission is binding only on the party making it.¹⁶⁹ Thus, the requesting party is not bound by an admission merely because it served the request. Rather, the requesting party may disregard an admission even if it offers other admissions from the same set into evidence or introduces evidence consistent with the admission.¹⁷⁰

Nor is an admission generally binding on other opposing parties, third parties, or co-parties.¹⁷¹ As to a non-admitting party, the admission is hearsay evidence to which a hearsay objection should be made, if the admission is offered as evidence against the party.¹⁷²

There are two exceptions to this rule. The first is when the admission falls within one of the hearsay exceptions to Texas Rule of Evidence 801(e)(2). That is, when the statement:

[1] is one the party manifested that it adopted or believed to be true;

[2] was made by a person whom the party authorized to make a statement on the subject; . . .
[3] was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or

[4] was made by the party's coconspirator during and in furtherance of the conspiracy.¹⁷³

The second exception is when there is privity or a joint interest between the admitting party and the other party.¹⁷⁴

10-6:2 Who Can Use Admissions

Any party to an action, even those joined after the admissions were made, can use an admission against the admitting party.¹⁷⁵ However, when a party appears in two capacities, an admission by the party in one capacity cannot be used against the party in the other.¹⁷⁶

A party cannot use its own admission at trial or for summary judgment. Only when the admission is offered against the responding party does it come within the hearsay exception for a party-opponent's admissions.¹⁷⁷

10-6:3 Limitations on Use of Requests for Admission Against the State of Texas

Sections 41.003 and 402.004 of the Texas Government Code provide that, in any action to which the State is a party, an admission by the attorney general, a district attorney or a county attorney does not prejudice the rights of the State.¹⁷⁸ However, as a general rule, the State of Texas is bound by the same rules as any other litigant and must respond to discovery requests.¹⁷⁹ Thus, if the State fails to timely object to the requests for admissions on the statutory bar, it waives any protection it provides.¹⁸⁰

Moreover, to the extent the request for admission merely clarifies or elicits facts and does not prejudice the State, Sections 41.003 and 402.004 do not apply, and the State must respond to the request.¹⁸¹ If, however, the request for admission calls for a response that will prejudice the State, the attorney general (or a district or county attorney) has a valid objection based on those statutes.¹⁸²

10-6:4 Effect of Admissions and Denials

A matter admitted in accordance with Texas Rule 198, whether expressed or deemed, is conclusively established in the pending action unless the court on motion permits withdrawal or amendment of the admission or it is a legal conclusion.¹⁸³ An admission made in response to a request for admission is comparable to an admission in a pleading or a stipulation, as opposed to evidentiary admissions of a party for use at trial.¹⁸⁴ A matter admitted does not require further proof, and, as long as the admission stands, the admitting party will not be allowed to introduce directly contradicting evidence, whether in the form of live testimony at trial or summary judgment affidavits, over the requesting party's objection.¹⁸⁵

An ambiguous admission, however, is not conclusive of anything. For example, in Sedillo v. Valtierra,¹⁸⁶ the San Antonio Court of Appeals reversed a summary judgment because the use of the term "and/or" in a request for admission asking the plaintiff to admit that the defendant's "negligence and/or negligence per se was not a proximate cause of the accident in question," made the admission ambiguous.

The term "and/or" is "used to imply that either or both of the things mentioned may be affected or involved." We agree that the use of the term "and/or" raises a genuine issue of material fact regarding whether the deemed admission addresses both negligence claims or only one of the negligence claims.¹⁸⁷

Before admissions can be used, they must be filed with the trial court.¹⁸⁸ Also, if the party is relying on deemed admissions, it also must show that they were properly served.¹⁸⁹

Unlike other discovery, such as disclosures, interrogatories, and deposition testimony, which must be admitted into evidence to have probative value or to be considered as evidence in support of a judgment, admissions do not have to be introduced as evidence to be before a trial or appellate court.¹⁹⁰ Nonetheless, admissions should be introduced into evidence to avoid confusion.¹⁹¹ Before an admission can be admitted into evidence or otherwise used at trial or in connection with a summary judgment motion, it is subject to all pertinent objections to its use.¹⁹² And, if the trier of fact finds facts contrary to an admission, the admission controls.¹⁹³

Admissions, both express and deemed, are competent summary judgment evidence, and they can establish that there is no genuine issue of material fact, thereby justifying a summary judgment's entry.¹⁹⁴ A trial court has no discretion to ignore admissions, express or deemed, in ruling on a summary judgment motion unless the admission is a legal conclusion or otherwise inadmissible.¹⁹⁵ As pointed out above, they cannot be contradicted by other summary judgment evidence.¹⁹⁶

A party, however, can waive its right to rely on an admission's conclusiveness. Waiver occurs when either the party relying on the admission or the admitting party without objection introduces evidence directly contradicting the admitted matter.¹⁹⁷ Evidence that merely explains the admission or is consistent with it will not result in waiver.¹⁹⁸

A denial or other refusal to admit a fact in response to a request for admission is not evidence and, therefore, is inadmissible. As explained by the San Antonio Court of Appeals: "When an answering party denies or refuses to make an admission of fact, such refusal is nothing more than a refusal to admit a fact. It is not evidence of any fact except the fact of refusal. Admitting such denial into evidence is error."¹⁹⁹ In other words, a "denial of a request for admission does not 'admit the opposite of the proposition offered for admission, but rather is simply to establish that the matter is in dispute.'"²⁰⁰

10-6:5 Use of Admissions or Denials in Other Proceedings

Under Texas Rule 198.3, "[a]ny admission made by a party under this rule may be used solely in the pending action and not in any other proceeding."²⁰¹ This rule prevents the use of an admission in other civil or criminal actions as well as in administrative proceedings or arbitrations.²⁰² Thus, one way for a party to avoid the effect of damning admissions in an action is to dismiss it and re-file another action, if the limitations period has not run.²⁰³

Texas Rule 198.3 also should prevent the use of a judgment based solely on deemed admissions for collateral estoppel purposes in another proceeding because the "actually-litigated" requirement of such an estoppel is not met by a deemed admission.²⁰⁴

However, some questions remain. First, can the responding party's admission be used to impeach its testimony in another proceeding? Although no case has considered this question, read literally, Texas Rule 198.3's prohibition on an admission's use in other proceedings prevents this.

Second, can a denial, as opposed to an admission, be used in another proceeding, for example, to show that the admitting party's current position or testimony is inconsistent with that in an earlier proceeding? Even though Texas Rule 198.3 only provides that "[a]ny admission made by a party" cannot be used "in any other proceeding[,]" the answer is "no" because, under Texas law, admission denials are neither evidence nor admissible.

This principle is illustrated by Mack Boring & Parts Co. v. Novis Marine, Ltd.²⁰⁵ In that case, Mack Boring, a boat-parts manufacturer, sued Novis in a New Jersey federal district court for amounts due and owing for parts—Yanmar saildrives—sold to Novis.²⁰⁶ Novis counterclaimed, alleging that Mack Boring had breached the parties' contract and express and implied warranties because the saildrives were defective.²⁰⁷

While the action was pending, one of Novis's customers sued Novis in a Texas state court, claiming that the boat and Yanmar saildrive Novis sold him were defective. During discovery in that action, Novis denied requests for admission regarding: "(i) whether the Yanmar saildrives it purchased from Mack Boring (and subsequently sold to [the customer]) were defective; (ii) whether Mack Boring breached an express warranty; (iii) whether Mack Boring breached the implied warranty of merchantability; and (iv) whether Mack Boring breached the implied warranty of fitness for a particular purpose."²⁰⁸

Mack Boring moved for summary judgment in its federal action, arguing, among other things, that Novis's admission denials in the Texas state court proceeding judicially estopped it from asserting its counterclaims.²⁰⁹ The United States District Court for the District of New Jersey relying on the fact that, under Texas law, admission denials are neither evidence nor admissible, rejected the argument:

Applying the first part of the estoppel test, the January 25, 2008 admission responses might seem clearly inconsistent with Novis's present counterclaims. . . . At first blush, it would seem the inconsistency requirement [of judicial estoppel] has been met.

Yet when considered in the context of Texas civil procedure, Novis's statements of denial do not contradict its present counterclaims as a matter of law. Mack Boring contends that Novis's admission responses

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