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NO. 2012-30259
BRENDA SIEBERT IN THE DISTRICT COURT OF
VS. HARRIS COUNTY, TEXAS
KINGWOOD ATHLETIC CLUB, ET AL 165th JUDICIAL DISTRICT
PLAINTIFF’S BRIEF REGARDINGEVIDENCE
RELATED TO THE DEFENDANTS’ LAST MINUTE STIPULATON
COME NOWPilaintiff , and would show the Court as follows:
Defendants seek to preclude Plaintiff from discussing evidence which the Defendant
unilaterally claims is no longer relevant in light of the Defendants’ last minute stipulationThis
is simply not Texas law.
A StipulationRemoves an Issue from Trial Only When That is the
Intent
of theParties as Reflectedin the Language of Th Agreement
An agreed stipulation can alter which issues are to be submitted for the jury’ s resolution
but only if that is the parties’ mutual intent:
[T]he issues to be tried may be limited or excluded by stipulation. Rosenboom.
Mach. & Tool, Inc. v. Machala 995 S.W.2d 817, 822 (Tex. App.-Houston [1st
Dist.] 1999, pet. denied).. . In construing
a stipulation, a courtmust determine
the intent of the parties from the language used in the entire agreement, examining
the surrounding circumstances, including the state of the pleadings, the allegations
made therein, and the attitude of the parties with respect to the issue. However,
a stipulation should not be given greater effect than the parties intended, and
should not be construed as an admission of a fact intended to be controverted. Id.
Laredo Med. Group v. Jaimes, 227 S.W.3d 170, 174 (Tex. App.San Antonio 2007, pet.
denied); Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 821 22 (Tex. App.
Houston [1st Dist.] 1999, pet. denied) (same This mle that a stipulation does not preclude the
admissibility of evidence unless that is part of the party’s agreement is applicable in both Texas
state courts and Texas federal courts
In Spleizer, we concluded that “as a general mule a party may not preclude his
adversary's proof by an admission or offer to stipulate.” Id. at 955. In another
case, we further explained: “We will not adopt an inflexible nule that allows a
party by stipulation to prevent his adversary's case from ing presented
in its
appropniately full and real life context.” United States v. Davis, 792 F.2d 1299,
1305 (Sth Cir), cert. denied, 479 U.S. 964, 107 S.Ct. 464, 93 L.Ed.2d 409 (1986).
United States v. Yeagin, 927 F.2d 798 (5th Cir.1991); see also United States v. Palmer, 37 F.3d
, 1084 (5th Cir.1994), cert. denied, 514 U.S. 1087 (1995) (“As a general nule, a party may
not preclude his adversary's proof by an admission or offer to stipulate.”).
Even where there is an agreed, written stipulation as to both negligence and proximate
causation, evidence of the negligent conduct is still relevant and admissible to provide context to
those issues which are beyond the scope of the written stipulation:
[A]ppellants
assert that the trial court ered in admitting evidence of their
negligence in light of their written stipulation of negligence. We disagree. While
appellants stipulated to the issues of negligence and proximate cause, they did not
stipulate to the manner in which responsibility should be apportioned between
them. Additionally, appellants did not stipulate to Hutton's liability for exemplary
damages. Evidence of appellants' negligence was relevant to these issues.
Accordingly, the trial court did not abuse its discretion in admitting this evidence.
Matbon, Inc. v. Gries, 288 S.W 87 (Tex. App.Eastland 2009, no pet.)
Stipulations are a Contractual Agreement among the Parties and Court
and Are Not Binding Unlessall Tenxs are Specified and Agreed Upon.
The existence and validity of a stipulation, as well as the scope of that stipulation are
issues determined
by reference to the parties’ agreement, and all material terms of the stipulation
must be clearly spelled out and agreed upon
When construing a trial stipulation, we must determine
the parties' intent from th
language used in the entire agreement “‘in the light of the sumounding
circumstances, including the state of the pleadings, the allegations therein, and the
attitude of the parties in respect of the issues.’ [Herschbach v. City of Corpus
Christi .W.2d 720, 734 (Tex. App.Corpus Christi 1994, writ denied)]
(quoting Discovery Operating, Inc. v. Baskin, 855 S.W.2d 884, 886 87 (Tex.
App.El Paso 1993, orig. proceeding)). Stipulations that are ambiguous and
uncertain in their terms should be disregarded. . Fora stipulation made in open
court to be binding, the parties must dictate all material terms into the record and
express their assent to those terms.
Wackenhut Corrections Corp. v. De La Rosa, 305 S.W.3d 594, 615 (Tex. App.Corpus Christi
2009, no pet.); see also Laredo Med. Group
v. Jaimes, 227 S.W.3d 170, 174 75 (Tex. App.San
Antonio 2007, pet. denied); Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 822
(Tex. App. Houston [1st Dist.] 1999, pet. denied); Austinv. Austin, 603 S.W.2d 204, 207 (Tex.
Mann v. Fender, 587 S.W.2d 188, 202 (Tex.Civ.App.Waco 1979, wit refd nre.);
Jackson
v. Lewis, 554 S.W.2d 21, 24 (Tex. Civ. App. Amarillo 1977, no wit); U.S. Fire Ins.
Co. v. Carter, 468 S.W.2d 151, 154 (Tex. Civ. App.Dal las), writ refdn. r. e. per curiam 473
S.W.2d 2 (Tex.1971). This requirement of mutual assent to the terms of the stipulation is
necessary because a “stipulation is a binding contract between the parties and the court,” which
“serves as proof on an issue that would otherwise be tried, is conclusive on the issue addressed,
and estops the parties from claiming
to the contrary.” Cooperv. Cochran, 288 S.W.3d 522, 535
36 (Tex. App. Dallas 2009, no pet.) (citing Solares v. Solares, 232 S.W.3d 873, 883 (Tex. App.
Dallas 2007, no pet.); see also Shepherd
v. Ledford, 962 S.W.2d 28, 33 (Tex.1998); McCuen v.
Huey, 255 S.W.3d 716, 726 (Tex. App. Waco 2008, no pet.); Houston Lighting & Power Co. v.
City of Wharton, 101 S.W.3d 633, 641 (Tex. App. Houston [1st Dist] 2003, pet. denied) );
Hansen v. Academy Corp., 961 S.W.2d 329, 336 (Tex. App.Houston [1st Dist] 1997, writ
denied); Federal Lanes, Inc. v. City of Houston, 905 S.W.2d 686, 689 (Tex.App.Houston [1st
Dist.] 1995, writ denied); Ortega Carter v. America Int'l Adjustment, 834 S.W.2d 439, 441
(Tex. App. Dallas 1992, writ denied); Westridge
Willa Apartments v. Lakewood
Bank & Trust
., 438 S.W.2d 891, 895 (Tex. Civ. App. Fort Worth 1969, writ ref.dn.re.).
A Proper Stipulation Should Appear in the J ury Charge
When a party has “made judicial admissions” on an issue that would otherwise be
presented for the jury to resolve as part of the jury charge, the admission is “fairly submitted” as
an instruction in the charge and “does not constitute an impermissible ‘comment directly on the
weight
of the evidence’” because when “the evidence
to a fact is positive
and not disputed or
questioned, it is to be taken as an established
fact; and the charge of the Court should proceed
upon that basis.” Texas Employers’ Insurance Association v. Fuentes, 597 S.W.2d 811, 812
(Tex. Civ. App.Eastland 1980, writ ref'd nre.) (quoting Tex. R. Civ. P. 277); see also Peralta
v. Durham 133 S.W.3d 339, 340 (Tex. App. Dallas 2004, no pet. h.) (“Peralta stipulated to
liability
and the ... charge of the court instructed the jury that Peralta was ‘negligent on the
occasion in question
and her negligence was a proximate
cause of the occurrence in question.’”)
Southwestern Bell Tel., L.P. v. Valadez, No. 02 CV, 2008 WL 425746, at *7 (Tex.
App.Fort Worth 2008, no pet. h.) (the agreed scope of damages was “addressed both in
Valadez's stipulation presented in front of the jury and in the court's charge”); Martin v. State
200 S.W.3d 635, 640 41 (Tex. Crim. App. 2006) (“The jury charge must include some reference
to the defendant's stipulation and its legal effect”).
Wherefore, premises considered, Plaint respectfully pray that this Honorable Court
hereby deny any limitation of evidence as a result of the late stipulatio
Respectfully submitted,
/S/
JAMES F. MARTIN
State Bar No. 13077700
4429 Town Center Place
Ki Texas 77339
Telephone: (281) 360 0175
Facsimile: (281) 361 0174
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I do hereby certify that on this day of September, 2014, a true and correct copy of the
foregoing was sent and/or delivered to all parties through counsel of record pursuant to Rule 21a,
T.RCP.
/S/
JAMES F.M ARTIN
Preview
NO. 2012-30259 BRENDA SIEBERT IN THE DISTRICT COURT OF VS. HARRIS COUNTY, TEXAS KINGWOOD ATHLETIC CLUB, ET AL 165th JUDICIAL DISTRICT PLAINTIFF’S BRIEF REGARDINGEVIDENCE RELATED TO THE DEFENDANTS’ LAST MINUTE STIPULATON COME NOWPilaintiff , and would show the Court as follows: Defendants seek to preclude Plaintiff from discussing evidence which the Defendant unilaterally claims is no longer relevant in light of the Defendants’ last minute stipulationThis is simply not Texas law. A StipulationRemoves an Issue from Trial Only When That is the Intent of theParties as Reflectedin the Language of Th Agreement An agreed stipulation can alter which issues are to be submitted for the jury’ s resolution but only if that is the parties’ mutual intent: [T]he issues to be tried may be limited or excluded by stipulation. Rosenboom. Mach. & Tool, Inc. v. Machala 995 S.W.2d 817, 822 (Tex. App.-Houston [1st Dist.] 1999, pet. denied).. . In construing a stipulation, a courtmust determine the intent of the parties from the language used in the entire agreement, examining the surrounding circumstances, including the state of the pleadings, the allegations made therein, and the attitude of the parties with respect to the issue. However, a stipulation should not be given greater effect than the parties intended, and should not be construed as an admission of a fact intended to be controverted. Id. Laredo Med. Group v. Jaimes, 227 S.W.3d 170, 174 (Tex. App.San Antonio 2007, pet. denied); Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 821 22 (Tex. App. Houston [1st Dist.] 1999, pet. denied) (same This mle that a stipulation does not preclude the admissibility of evidence unless that is part of the party’s agreement is applicable in both Texas state courts and Texas federal courts In Spleizer, we concluded that “as a general mule a party may not preclude his adversary's proof by an admission or offer to stipulate.” Id. at 955. In another case, we further explained: “We will not adopt an inflexible nule that allows a party by stipulation to prevent his adversary's case from ing presented in its appropniately full and real life context.” United States v. Davis, 792 F.2d 1299, 1305 (Sth Cir), cert. denied, 479 U.S. 964, 107 S.Ct. 464, 93 L.Ed.2d 409 (1986). United States v. Yeagin, 927 F.2d 798 (5th Cir.1991); see also United States v. Palmer, 37 F.3d , 1084 (5th Cir.1994), cert. denied, 514 U.S. 1087 (1995) (“As a general nule, a party may not preclude his adversary's proof by an admission or offer to stipulate.”). Even where there is an agreed, written stipulation as to both negligence and proximate causation, evidence of the negligent conduct is still relevant and admissible to provide context to those issues which are beyond the scope of the written stipulation: [A]ppellants assert that the trial court ered in admitting evidence of their negligence in light of their written stipulation of negligence. We disagree. While appellants stipulated to the issues of negligence and proximate cause, they did not stipulate to the manner in which responsibility should be apportioned between them. Additionally, appellants did not stipulate to Hutton's liability for exemplary damages. Evidence of appellants' negligence was relevant to these issues. Accordingly, the trial court did not abuse its discretion in admitting this evidence. Matbon, Inc. v. Gries, 288 S.W 87 (Tex. App.Eastland 2009, no pet.) Stipulations are a Contractual Agreement among the Parties and Court and Are Not Binding Unlessall Tenxs are Specified and Agreed Upon. The existence and validity of a stipulation, as well as the scope of that stipulation are issues determined by reference to the parties’ agreement, and all material terms of the stipulation must be clearly spelled out and agreed upon When construing a trial stipulation, we must determine the parties' intent from th language used in the entire agreement “‘in the light of the sumounding circumstances, including the state of the pleadings, the allegations therein, and the attitude of the parties in respect of the issues.’ [Herschbach v. City of Corpus Christi .W.2d 720, 734 (Tex. App.Corpus Christi 1994, writ denied)] (quoting Discovery Operating, Inc. v. Baskin, 855 S.W.2d 884, 886 87 (Tex. App.El Paso 1993, orig. proceeding)). Stipulations that are ambiguous and uncertain in their terms should be disregarded. . Fora stipulation made in open court to be binding, the parties must dictate all material terms into the record and express their assent to those terms. Wackenhut Corrections Corp. v. De La Rosa, 305 S.W.3d 594, 615 (Tex. App.Corpus Christi 2009, no pet.); see also Laredo Med. Group v. Jaimes, 227 S.W.3d 170, 174 75 (Tex. App.San Antonio 2007, pet. denied); Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 822 (Tex. App. Houston [1st Dist.] 1999, pet. denied); Austinv. Austin, 603 S.W.2d 204, 207 (Tex. Mann v. Fender, 587 S.W.2d 188, 202 (Tex.Civ.App.Waco 1979, wit refd nre.); Jackson v. Lewis, 554 S.W.2d 21, 24 (Tex. Civ. App. Amarillo 1977, no wit); U.S. Fire Ins. Co. v. Carter, 468 S.W.2d 151, 154 (Tex. Civ. App.Dal las), writ refdn. r. e. per curiam 473 S.W.2d 2 (Tex.1971). This requirement of mutual assent to the terms of the stipulation is necessary because a “stipulation is a binding contract between the parties and the court,” which “serves as proof on an issue that would otherwise be tried, is conclusive on the issue addressed, and estops the parties from claiming to the contrary.” Cooperv. Cochran, 288 S.W.3d 522, 535 36 (Tex. App. Dallas 2009, no pet.) (citing Solares v. Solares, 232 S.W.3d 873, 883 (Tex. App. Dallas 2007, no pet.); see also Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex.1998); McCuen v. Huey, 255 S.W.3d 716, 726 (Tex. App. Waco 2008, no pet.); Houston Lighting & Power Co. v. City of Wharton, 101 S.W.3d 633, 641 (Tex. App. Houston [1st Dist] 2003, pet. denied) ); Hansen v. Academy Corp., 961 S.W.2d 329, 336 (Tex. App.Houston [1st Dist] 1997, writ denied); Federal Lanes, Inc. v. City of Houston, 905 S.W.2d 686, 689 (Tex.App.Houston [1st Dist.] 1995, writ denied); Ortega Carter v. America Int'l Adjustment, 834 S.W.2d 439, 441 (Tex. App. Dallas 1992, writ denied); Westridge Willa Apartments v. Lakewood Bank & Trust ., 438 S.W.2d 891, 895 (Tex. Civ. App. Fort Worth 1969, writ ref.dn.re.). A Proper Stipulation Should Appear in the J ury Charge When a party has “made judicial admissions” on an issue that would otherwise be presented for the jury to resolve as part of the jury charge, the admission is “fairly submitted” as an instruction in the charge and “does not constitute an impermissible ‘comment directly on the weight of the evidence’” because when “the evidence to a fact is positive and not disputed or questioned, it is to be taken as an established fact; and the charge of the Court should proceed upon that basis.” Texas Employers’ Insurance Association v. Fuentes, 597 S.W.2d 811, 812 (Tex. Civ. App.Eastland 1980, writ ref'd nre.) (quoting Tex. R. Civ. P. 277); see also Peralta v. Durham 133 S.W.3d 339, 340 (Tex. App. Dallas 2004, no pet. h.) (“Peralta stipulated to liability and the ... charge of the court instructed the jury that Peralta was ‘negligent on the occasion in question and her negligence was a proximate cause of the occurrence in question.’”) Southwestern Bell Tel., L.P. v. Valadez, No. 02 CV, 2008 WL 425746, at *7 (Tex. App.Fort Worth 2008, no pet. h.) (the agreed scope of damages was “addressed both in Valadez's stipulation presented in front of the jury and in the court's charge”); Martin v. State 200 S.W.3d 635, 640 41 (Tex. Crim. App. 2006) (“The jury charge must include some reference to the defendant's stipulation and its legal effect”). Wherefore, premises considered, Plaint respectfully pray that this Honorable Court hereby deny any limitation of evidence as a result of the late stipulatio Respectfully submitted, /S/ JAMES F. MARTIN State Bar No. 13077700 4429 Town Center Place Ki Texas 77339 Telephone: (281) 360 0175 Facsimile: (281) 361 0174 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I do hereby certify that on this day of September, 2014, a true and correct copy of the foregoing was sent and/or delivered to all parties through counsel of record pursuant to Rule 21a, T.RCP. /S/ JAMES F.M ARTIN