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W. G. Yates & Sons Construction Company v. Hoch Associates, P.C.

United States District Court, N.D. Mississippi, Oxford Division

January 5, 2018

W.G. YATES & SONS CONSTRUCTION COMPANY PLAINTIFF
v.
HOCH ASSOCIATES, P.C., DEFENDANT AND THIRD PARTY DEFENDANT
v.
NANGIA ENGINEERING OF TEXAS, LTD. THIRD PARTY DEFENDANT

          ORDER

          ROY PERCY, UNITED STATES MAGISTRATE JUDGE

         At the final pretrial conference in this matter, Hoch Associates, P.C. (“Hoch”) sought to include in the “facts established by the pleadings, by stipulation, or by admission” section of the pretrial order certain proposed facts that Hoch contends constitute judicial admissions of W.G. Yates & Sons Construction Company (“Yates”) by virtue of having been asserted in Yates' current pleadings in this cause or in the current pleadings of Prestress Services Industries of TN, LLC (“PSI”), which has assigned to Yates its claims against Hoch. Hoch reasoned that unless these purported judicial admissions are included in the pretrial order, Hoch will be unable to rely on them at trial, as the pretrial order will amend and supersede all previous pleadings. The undersigned agreed with Hoch's reasoning and instructed the parties to submit briefing on Hoch's proposed facts established by judicial admission. This matter is now before the court on Hoch's Motion to Recognize Facts Established by the Pleadings as Judicial Admissions. Docket 216.

         Citing well-established case law that factual statements in pleadings constitute binding judicial admissions of the party that made them, Hoch argues that Yates is bound by the factual assertions it made in its current pleadings, specifically its Amended Answer and Affirmative Defenses to Amended Complaint and Amended Counterclaims and Cross Claims (Docket 42). Additionally, citing the legal principle that Yates as the assignee of PSI's claims stands in the shoes of PSI with respect to its claims, Hoch argues that Yates is likewise bound by the factual assertions made by PSI in its current pleadings, specifically PSI's Amended Complaint for Compensatory and Declaratory Relief (Docket 28) and PSI's Answer to Amended Counterclaim of Defendant W.G. Yates & Sons Construction Company (Docket 58).

         Yates opposes Hoch's motion but cites no case law or other legal authority in its response. Docket 219. Yates argues that Hoch's proposed judicial admissions that are based on Yates' own pleadings are misleading because they focus on Yates' allegations as to the wrongdoing of AECOM Design (with whom Yates has settled), are taken out of context and do not include Yates' allegations as to Hoch's wrongdoing. With respect to Hoch's proposed judicial admissions that are based on PSI's pleadings, Yates argues it is not bound by those factual assertions because Yates denied some of them in its own responsive pleading (before Yates' acquired PSI's claims by assignment) and they do not accurately reflect Yates' own factual contentions. The court finds Hoch's motion should be granted in part and denied in part.

         Hoch's undisputed recitation of Fifth Circuit case law regarding judicial admissions is accurate. The Fifth Circuit “has long noted that factual statements in the pleadings constitute binding judicial admissions.” McCreary v. Richardson, 738 F.3d 651, 659 n.5 (5th Cir. 2013). “[F]actual assertions in pleadings are . . . judicial admissions conclusively binding on the party that made them.” Davis v. A.G. Edwards and Sons, Inc., 823 F.2d 105, 108 (5th Cir. 1987) (quoting White v. ARCO/Polymers, 720 F.2d 1391, 1396 (5th Cir. 1983)) (emphasis added in Davis). This is the case irrespective of evidence to the contrary, as “[f]acts that are admitted in the pleadings ‘are no longer at issue.'” Davis, 823 F.3d at 108 (quoting Ferguson v. Neighborhood Housing Services, Inc., 780 F.2d 549, 551 (6th Cir. 1986)).

         A judicial admission need not be introduced in evidence at trial in order to be binding against the party that made it. Mack v. Newton, 737 F.2d 1343, 1365 (5th Cir. 1984) (holding fact established in defendant's current pleading did not have to be put in evidence in order to be considered against defendant). “Pleadings are for the purpose of accurately stating the pleader's version of the case, and they bind unless withdrawn or altered by amendment.” Sinclair Refining Co. v. Tompkins, 117 F.2d 596, 598 (5th Cir. 1941). As the Fifth Circuit noted in Pullman Co. v. Bullard, “The conclusiveness of an unstricken admission is illustrated in Jones v. Morehead, 1 Wall. 155, 17 L.Ed. 662, where the admission was enforced though the evidence showed it untrue, and in Northern Pacific Railroad v. Paine, 199 U.S. 561, 7 S.Ct. 323, 30 L.Ed. 513, where the only evidence of plaintiff's title was an admission in a plea which was not a good one, but was not stricken.” 44 F.2d 347, 349 (5th Cir. 1930).

         Based on the clear state of the law in these regards, the court concludes that Hoch's proposed judicial admissions that are accurately based on factual assertions made by Yates in its own current pleadings do indeed constitute judicial admissions that are conclusively binding on Yates, irrespective of any evidence to the contrary. Yates' complaint that Hoch has selected Yates' factual assertions focusing on the wrongdoing of AECOM Design and has not included Yates' assertions as to Hoch's wrongdoing is unavailing, for it is Hoch's right - not Yates' - to select those current pleaded factual assertions of Yates that Hoch may rely on at trial as judicial admissions. “The statements of fact in a party's pleadings are merely his contentions and are not evidence for himself unless admitted by his opponent, but the opponent may rely on them as conclusive admissions so long as they are not altered or withdrawn by amendment.” Pullman Co., 44 F.2d at 348. The court will consider each of Hoch's proposed judicial admissions that are based on Yates' own pleadings in turn below.[1]

         1. The Project critical path was delayed by removal and remediation of the P-4 topping slab caused by AECOM's minimum clearance design bust.

         This statement accurately reflects Yates' admission in paragraph 69 of its Amended Answer and Affirmative Defenses to Amended Complaint and Amended Counterclaims and Cross Claims (“Docket 42”), and it constitutes a binding judicial admission.

         2. The critical path of the Parking Garage Project was delayed by the problems resulting from the Minimum Clearance Design Bust which was caused by AECOM's design of a 10'-0” floor-to-floor height without consideration of dimensions of other elements which could not be installed, especially in accordance with standard and permitted construction tolerances, and still maintain the finished parking level to parking level clear height of 7'-0”.

         This statement accurately reflects Yates' admission in paragraph 72 of Docket 42, and it constitutes a binding judicial admission.

         3. AECOM was obligated to prepare plans, specifications, contract documents, and other design information that complied with applicable law (including building codes), that complied with applicable standards of care of professional engineers in the community, and that were accurate, complete, and buildable. Yates, PSI, and Hoch were intended beneficiaries of these obligations of AECOM.

         This statement accurately reflects Yates' admission in paragraph 121 of Docket 42, and it constitutes a binding judicial admission.

         4. AECOM materially breached its obligations to Yates and to Hoch as third-party beneficiaries to the Foundation-AECOM contract.

         This statement accurately reflects Yates' averment in paragraph 122 of Docket 42, and it constitutes a binding judicial admission.

         5. AECOM provided the overall dimensions of the Parking Garage, specifically including a ten foot (10') floor-to-floor clearance (i.e., top of concrete slab of floor below to bottom of concrete slab above).

         This statement accurately reflects Yates' averment in paragraph 258 of Docket 42, and it constitutes a binding judicial admission.

         6. AECOM well knew there were other installations integral to the Parking Garage design that had to be installed within this ten foot floor-to-floor clearance, mainly including double tee beams, precast caps, precast spandrels, steel railings and a concrete topping slab with required slope dimensions and rebar of specified size, configuration, and concrete cover.

         This statement accurately reflects Yates' averment in paragraph 259 of Docket 42, and it constitutes a binding judicial admission.

         7. PSI-TN, through its subcontractor, Hoch, provided the design for these intermediate concrete members and installations between floor slabs.

         This statement accurately reflects Yates' averment in paragraph 260 of Docket 42, and it constitutes a binding judicial admission.

         8. Yates' engineering consultant ultimately realized that AECOM's ten foot floor-to-floor design height did not allow enough space for constructing other features in accordance with the prescribed dimensions and allowable tolerances, permitted by AECOM's specifications, and still maintain the seven foot minimum IBC code clearance requirement.

         This statement accurately reflects Yates' averment in paragraph 262 of Docket 42, and it constitutes a binding judicial admission.

         9. AECOM's 10'-0” floor-to-height made it infeasible to construct the Parking Garage and maintain a 7'0” minimum clearance since there was no allowance at all for production and construction ...


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