Taylor v. Taylor, No. 2-05-435-CV (Tex. App. 8/31/2007)
| Decision Date | 31 August 2007 |
| Docket Number | No. 2-05-435-CV.,2-05-435-CV. |
| Parties | LARRY RAY TAYLOR, Appellant, v. LULA M. TAYLOR, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 231st District Court of Tarrant County.
Panel F: LIVINGSTON, GARDNER, and McCOY, JJ.
Appellant Larry Ray Taylor appeals the property division in the trial court's decree granting appellee Lula M. Taylor a divorce from appellant.2 Appellant brings forty-four issues for our review. We affirm.
Appellant and appellee were married on May 12, 1986. They did not have any children together. The parties owned two tracts of real property in Fort Worth, Tarrant County, Texas that made up the bulk of the property to be divided: (1) 4941 Harlem Street; and (2) 3513 Chimney Rock. During the marriage, the parties lived at the Chimney Rock property, which appellee had acquired before the marriage. They used the Harlem Street property as rental property.
On October 29, 1986, appellee executed a general warranty deed transferring a one-half interest in the Chimney Rock property to appellant. Appellee testified at trial that her sole purpose in executing the deed was for appellant's convenience in dealing with subcontractors working on the property to repair fire damage. According to appellee, she did so at appellant's request. She testified that it was not her intention to make a gift to him of any of the property at that time.
Appellee and appellant were separated in August 1999 when appellant was incarcerated for sexual assault of a child and sentenced to ten years' confinement. Appellee filed for divorce on November 17, 2003 alleging insupportability, cruel treatment, conviction of a felony and incarceration, and abandonment as grounds for divorce.
In 2004, while the divorce was pending, appellee sold the Harlem Street property with the trial court's approval and in accordance with the trial court's order. Appellee's attorney held the sale proceeds in a trust account pending the final decree of divorce, and the trial court authorized appellee's attorney and, later, appellant's attorney to withdraw funds from the account for attorneys' fees. The remainder of the parties' property consisted of both personal property and household items, three motor vehicles, two retirement savings accounts held by appellee, one life insurance policy insuring appellee's life, and a burial policy in appellee's name.
The trial court granted the divorce on November 14, 2005 and signed the final decree on February 9, 2006. Appellant appeals the property division.
Appellant contends in his fourth, thirty-third, thirty-fourth, thirty-sixth, and thirty-seventh issues that the trial court abused its discretion by awarding the Chimney Rock property to appellee as her separate property based on its finding that appellant judicially admitted that the Chimney Rock property was appellee's separate property. In his fifth through sixteenth, twenty-ninth through thirty-second, thirty-fifth, thirty-ninth through forty-first, and forty-third through forty-fourth issues, he contends that the trial court erred by voiding the October 29, 1986 deed purporting to give him a one-half interest in the property and by hearing parol evidence regarding appellee's intent in executing the deed.
In its findings of fact and conclusions of law, the trial court made the following finding:
Before the marriage of the parties, Lula Taylor owned the following property with the values shown: 3513 Chimney Rock, Arlington, Texas. Respondent Larry Taylor induced Petitioner Lula Taylor to sign a warranty deed conveying a one-half interest in and to the separate property of Lula Taylor, to enable Larry Taylor to negotiate with, and deal with contractors and insurance adjusters, following an insured loss to the property. Larry Taylor admitted in Court pleadings, discovery and in prior testimony in Court hearings, in this cause, that the property was the separate property of Lula Taylor. The Court further found that the conveyance of the one-half interest was meant only to facilitate the repairs to the property, and that the parties expressed no actual intent to convey any ownership to Larry Taylor.
"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) (quoting Houston First Am. Sav. v. Musik, 650 S.W.2d 764, 767 (Tex. 1983)); Commercial Structures & Interiors, Inc. v. Liberty Educ. Ministries, Inc., 192 S.W.3d 827, 835 (Tex. App.-Fort Worth 2006, no pet.). A judicial admission is a formal waiver of proof that dispenses with the production of evidence on an issue. Lee v. Lee, 43 S.W.3d 636, 641 (Tex. App.-Fort Worth 2001, no pet.). 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. Peck v. Peck, 172 S.W.3d 26, 31 (Tex. App.-Dallas 2005, pet. denied); Dutton v. Dutton, 18 S.W.3d 849, 853 (Tex. App.-Eastland 2000, pet. denied); Roosevelt v. Roosevelt, 699 S.W.2d 372, 374 (Tex. App.-El Paso 1985, writ dism'd).
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. U.S. Fid. & Guar. Co. v. Carr, 242 S.W.2d 224, 229 (Tex. Civ. App.-San Antonio 1951, writ ref'd); Peck, 172 S.W.3d at 31; Lee, 43 S.W.3d at 641. Five conditions must have occurred for a party's admission to be conclusive against him: (1) the declaration relied upon must have been made in the course of a judicial proceeding; (2) the declaration was contrary to an essential fact embraced in the theory of recovery or defense asserted by the party; (3) the statement was deliberate, clear, and unequivocal; (4) giving conclusive effect to the declaration would not run contrary to public policy; and (5) the declaration related to a fact upon which a judgment for the opposing party was based. Carr, 242 S.W.2d at 229; Peck, 172 S.W.3d at 31; Lee, 43 S.W.3d at 641-42.
Applying the elements required to establish a judicial admission to the case at hand, it is evident that the trial court correctly concluded that appellant judicially admitted that the Chimney Rock property was appellee's separate property and that appellee was barred from introducing evidence that he and appellee held the property jointly as tenants in common. First, appellant's admissions were made during the course of a judicial proceeding: in at least one pretrial hearing,3 in his sworn inventory and appraisement,4 and in his response to interrogatories. Moreover, a majority of his pretrial discovery requests were aimed at matters essential to his claim for reimbursement and economic contribution to the community estate for expenditures made on the Chimney Rock property. See Tex. Fam. Code Ann. § 3.402(a) (Vernon 2006) (); Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex. 1982) ().
Second, the admission is contrary to an essential fact asserted by appellant at trial: that the property was held by appellant and appellee jointly as tenants in common and, therefore, that he was entitled to a one-half undivided interest as his separate property. It was not until trial that Appellant asserted he was previously mistaken about the property being appellee's separate property. He claimed that he only made the statements based on the fact that she owned the property before they were married. However, when appellant made the prior inconsistent statements, they were deliberate, clear, and unequivocal. The inventory and interrogatory responses, for instance, were sworn before a notary public. As to appellant's argument that the statements were made while he was acting pro se,5 appellant's Amended Original Counterpetition for Divorce, filed by appellant's counsel approximately one month before trial, restates appellant's claim for reimbursement and economic contribution to the community estate for "funds or assets expended by the community estate for payment of unsecured liabilities of [appellee's] separate estate." This claim is not pled in the alternative.
The fourth element is satisfied in that giving effect to the admissions of the separate character of the property would be consistent with the public policy that a party should not be permitted to recover when he has sworn himself out of court by a clear and unequivocal statement. Appellant should not be allowed to maintain consistently under oath that property belonged to appellee as her separate property, then argue at trial that he owned half as his separate property. And, finally, the admission supports the judgment in favor of appellee.
Because appellant judicially admitted that the property was appellee's separate property, the trial court properly barred him from offering conflicting evidence, such as the deed, and from disputing the fact admitted. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000). We overrule appellant's fourth, thirty-third, thirty-fourth, thirty-sixth, and thirty-seventh issues. Because the trial court's award of the Chimney Rock property to appellee is supported by appellant's judicial admission, we need not address appellant's issues complaining about the trial court's finding and...
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