Texas law recognizes judicial admissions, which “are assertions of fact, not pleaded in the alternative, in the live pleadings of a party.” Lyons v. Lindsey Morden Claims Mgmt., 985 S.W.2d 86, 92 (Tex. App.—El Paso 1999, no pet.) (citation omitted). In other words, a judicial admission is a factual statement made by a party to a lawsuit in a pleading filed with the court (and not replaced or withdrawn by an amended pleading).
Texas law also applies the doctrine of judicial estoppel, which “precludes a party who successfully maintains a position in one proceeding from afterwards adopting a clearly inconsistent position in another proceeding to obtain an unfair advantage.” Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 643 (Tex. 2009) (per curiam) (citation omitted).
The Effect of Judicial Admissions
The Supreme Court of Texas has held that “assertions of fact, not pled 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). Judicially admitted facts are conclusively established in the case without the need to introduce the pleading into evidence, or to introduce independent evidence of the admitted fact. Hous. First Am. Savs. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983). A judicial admission bars the admitting party from later disputing the admitted fact. Holy Cross Church, 44 S.W.3d at 568.
The Elements of Judicial Admissions
The elements required for a judicial admission are:
- a statement made during the course of a judicial proceeding;
- that is contrary to an essential fact or defense asserted by the person making the admission;
- that is deliberate, clear, and unequivocal;
- that, if given conclusive effect, would be consistent with public policy; and
- that is not destructive of the opposing party’s theory of recovery.
Peck v. Peck, 172 S.W.3d 26, 31 (Tex. App.—Dallas 2005, pet. denied) (citations omitted). If these elements exist, the statement constitutes a judicial admission. But an exception exists for statements made as part of a pleading in the alternative (meaning the party is advancing alternate theories of the case, which Texas law permits). In that event, there is no judicial admission. See Lyons, 985 S.W.2d at 92 (citations omitted).
Waiver of Judicial Admissions
Even where a judicial admission exists, the party seeking to take advantage of it must not waive reliance on it. That means the party must object to any attempt to introduce evidence contradicting the admitted matter, or to any question seeking to have the jury decide the admitted matter. As the Supreme Court of Texas has held:
The party relying on his opponent’s pleadings as judicial admissions of fact, however, must protect his record by objecting to the introduction of evidence contrary to that admission of fact and by objecting to the submission of any issue bearing on the fact admitted.
Hous. First Am. Savs. v. Musick, 650 S.W.2d 764, 769 (Tex. 1983); see also Hurlbut v. Gulf Atlantic Life Ins. Co., 749 S.W.2d 762, 765 (Tex. 1987) (citing Musick, 650 S.W.2d at 769).
Judicial Admissions in Family Law Modification Actions
The Texas Family Code requires proof of a material and substantial change in circumstances to support modification of certain orders affecting the parent-child relationship. Tex. Fam. Code §§ 156.101, 156.401.
The intermediate appellate courts in Texas have held almost uniformly that one party’s pleading of a material and substantial change in circumstances constitutes a judicial admission, and relieves the other party of proving such a change in support of a counter-petition for modification. See, e.g., In re L.C.L., 396 S.W.3d 712, 718 (Tex. App.—Dallas 2013, no pet.); In re A.E.A., 406 S.W.3d 404, 410 (Tex. App.—Fort Worth 2013, no pet.). This remains true even if the parties seek different relief in their petitions. See In re L.C.L., 396 S.W.3d at 718-19.
The Elements of Judicial Estoppel
The elements of judicial estoppel under Texas law are:
- the sworn, prior inconsistent statement was made in a judicial proceeding;
- the party who made the statement successfully maintained the prior position;
- the prior inconsistent statement was not made inadvertently or by mistake, fraud or duress; and
- the statement must be deliberate, clear, and unequivocal.
See Am. Sav. & Loan Ass’n of Houston v. Musick, 531 S.W.2d 581, 589 (Tex. 1975) (citation omitted). “Accordingly, a party cannot be judicially estopped if it did not prevail in the prior action.” Ferguson, 295 S.W.3d at 643 (citation omitted).
Litigants (and even attorneys) sometimes attempt to assert judicial estoppel based on a party’s adoption of inconsistent positions in a single lawsuit. But that is improper. “Judicial estoppel does not apply to contradictory positions taken in the same proceeding; instead, judicial estoppel may apply only in a subsequent action.” Galley v. Apollo Associated Servs., 177 S.W.3d 523, 529 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citation omitted).
Where they apply, the doctrines of judicial admission and judicial estoppel can have significant implications for proof of claims, and the admissibility of evidence, at trial. Litigants and their lawyers need to be familiar with the concepts, and know how to assert their entitlement to rely on them.