Prestress Services Industries of TN, LLC v. W. G. Yates & Sons Construction Company et al

Filing 223

ORDER granting in part and denying in part 216 Motion to Recognize Facts Established by the Pleadings as Judicial Admissions. Signed by Magistrate Judge Roy Percy on 1/5/18. (cs)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
W.G. YATES & SONS CONSTRUCTION COMPANY
V.

PLAINTIFF

CIVIL ACTION NO. 3:15-CV-80-MPM-RP

HOCH ASSOCIATES, P.C.,

DEFENDANT AND
THIRD PARTY DEFENDANT

V.
NANGIA ENGINEERING OF TEXAS, LTD.

THIRD PARTY DEFENDANT

ORDER
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.

1

Hoch did not number its proposed judicial admissions. The court will do so for clarity of reference herein.

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 tolerances which were permitted by AECOM’s
own specifications.
This statement accurately reflects Yates’ averment in paragraph 263 of Docket 42, and it
constitutes a binding judicial admission.

10. Yates further incurred delays to the Project critical path schedule of approximately

68 days for replacing of the topping slabs, 12 days for the P3-P4-P5 pile caps, and
62 days for P4 remedial work.
This statement accurately reflects an averment Yates’ makes in paragraph 274 of Docket
42, and it constitutes a binding judicial admission.
11. AECOM was responsible for overall Project design and for coordinating design

documents, including work of engineers of design parties, like Hoch, to ensure
that the Parking Garage design was adequate and met applicable codes.
This statement accurately reflects Yates’ averment in paragraph 278 of Docket 42, and it
constitutes a binding judicial admission.
12. AECOM is primarily responsible for the Minimum Design Clearance Bust.
This statement accurately reflects an averment Yates’ makes in paragraph 376 of Docket
42, and it constitutes a binding judicial admission. While it is true, as Yates points out in its
response, that this statement does not include Yates’ assertion of Hoch’s negligence that is also
contained in that paragraph, understandably Hoch does not wish to rely on that assertion as a
binding judicial admission, and Yates must present evidence to support it. Regardless of the
impression Yates contends Hoch is trying to create, Hoch is relying on Yates’ own words as
Hoch is entitled to do.
13. The Minimum Clearance Design Bust was caused by AECOM’s design.
This statement, while not a verbatim recitation, fairly and accurately reflects an averment
Yates’ makes within its admission in paragraph 72 of Docket 42, and it constitutes a binding
judicial admission.
14. AECOM was primarily liable for the Minimum Clearance Design Bust because

AECOM established the ten foot (10’0”) floor to floor height which did not leave
enough room for the other precast members and topping slab to be installed in
accordance with the Contract documents, including allowable tolerance for the
production and placement of precast members and of cast-in-place topping slabs,

and achieve a final product that met the requirement of the International Building
Code (IBC-2012) for a minimum seven foot (7’0”) clear height for the levels of
the parking garage.
This statement accurately reflects Yates’ averment in paragraph 367 of Docket 42, and it
constitutes a binding judicial admission.
15. AECOM is partly at fault for not specifying seismic code requirement in

AECOM’s design and for not ensuring that Hoch’s design complied with the
applicable seismic code.
This statement accurately reflects an averment Yates’ makes in paragraph 381 of Docket
42, and it constitutes a binding judicial admission. Again, Yates’ complaint that the referenced
paragraph also contains an assertion as to Hoch’s liability is unavailing, as Hoch does not wish to
rely on that assertion, and Yates must present evidence to support it. Also unavailing is Yates’
contention that because Hoch has admitted liability for the seismic code violation, the issue of
fault for the seismic code violation is no longer at issue, for it does not appear to the court that
Hoch has admitted sole liability for the seismic code violation. To the contrary, by requesting
the insertion of this and other judicial admissions in the pretrial order, Hoch has broadcasted its
intention to assign some of the fault to AECOM using Yates’ own factual assertion.
16. AECOM was substantially liable for the failure of PSI-TN, through Hoch, to meet

the seismic code because: AECOM had overall and delegable responsibility for
the entire Project design; AECOM had the duty to verify the Project design
complied with the applicable building code requirements including the seismic
code; AECOM had the responsibility to ensure that all design elements of the
Parking Garage specifically including those designed by engineers of other parties,
like Hoch as PSI’s engineer, were coordinated with each other and were
constructible with customary means and methods; and AECOM had the
opportunity to review Hoch’s design submitted PSI-TN for code compliance.
This statement accurately reflects Yates’ averment in paragraph 369 of Docket 42, and it
constitutes a binding judicial admission.

17. AECOM has issued a certificate to establish a Substantial Completion Date of

June 10, 2015.
This statement accurately reflects Yates’ averment in paragraph 339 of Docket 42, and it
constitutes a binding judicial admission. As discussed above, Yates’ complaint that Hoch has
not included another of Yates’ factual assertions is unavailing.
18. Hoch is liable for Yates’ costs to correct deficiencies in Hoch’s design of the

lower level corbels in the approximate principal amount of $25,000.
This statement accurately reflects Yates’ averment in paragraph 383 of Docket 42, and it
constitutes a binding judicial admission.
Based on the above findings, the court concludes that all of Hoch’s proposed judicial
admissions that are based on Yates’ own pleadings indeed constitute judicial admissions that are
conclusively binding on Yates, and they will be inserted in the appropriate section of the pretrial
order. Hoch’s proposed judicial admissions that are based on PSI’s pleadings, however, are
more problematic.
It is certainly true that “the common law speaks in a loud and consistent voice: An
assignee stands in the shoes of his assignor.” F.D.I.C. v. Bledsoe, 989 F.2d 805, 810 (5th Cir.
1993) (emphasis in original). However, in considering whether factual assertions contained in
PSI’s current pleadings are conclusively binding on Yates as PSI’s assignee, the court is given
pause by the fact that Yates itself -- PSI’s opponent at the time the assertions were made -denied some of those very assertions in its own responsive pleading. In these exceedingly rare
and awkward circumstances, the court is reluctant to conclude that Yates’ acquisition of PSI’s
claims against Hoch and Nangia effected a conclusive admission of PSI’s factual assertions that
Yates’ own pleadings deny. The court has no problem finding that PSI’s factual assertions that
Yates has admitted constitute judicial admissions that are conclusively binding on Yates, both in

its own right and as PSI’s assignee, but the court will decline to make the same finding with
respect to PSI’s factual assertions that Yates has denied.
The court believes the more prudent ruling with respect to such assertions is that,
although they do not constitute judicial admissions that need not be put in evidence in order to be
considered against Yates, they constitute admissions of a party opponent – Yates as PSI’s
assignee – and Hoch may use them in evidence as such in the event Yates proceeds to trial on
any claim as PSI’s assignee.

Other courts have consistently held that an assignor’s pre-

assignment declarations and admissions are admissible against his assignee. See, e.g., McMullin
v. Borgers, 806 S.W.2d 724, 732 (Mo.Ct.App. 1991); Household Finance Corp. v. Mowdy, 300
N.E.2d 863, 867 (Ill.App.Ct. 1973); Johnson v. Riecken, 173 N.W.2d 511, 516 (Neb.1970).
Hoch may so use such admissions notwithstanding the amendment of the pleadings to conform
to the pretrial order. White v. ARCO/Polymers, Inc., 720 F.2d 1391, 1396 (5th Cir. 1983)
(holding despite party’s admissions no longer being considered conclusive they still operate as
evidentiary admissions); Borel v. U.S. Cas. Co., 233 F.2d 385, 387-88 (5th Cir. 1956) (holding
although superseded pleading is not conclusive admission of statements made therein, that part
of pleading making admission may still be offered in evidence and be considered by jury along
with all other evidence).
The court will consider each of Hoch’s proposed judicial admissions that are based on
PSI’s pleadings in turn below.2
19. Yates was responsible for reviewing the design documents that AECOM prepared

and identifying any problems with those documents.
This statement is based on PSI’s averment in paragraph 40 of its Amended Complaint for

2

For clarity of reference herein the court will use numbers successive to those used for Hoch’s proposed judicial
admissions based on Yates’ own pleadings above.

Compensatory and Declaratory Relief (“Docket 28”). In its answer in paragraph 40 of Docket
42, Yates does not admit PSI’s allegation and instead admits it had responsibilities with respect
to AECOM’s design documents only as set forth in Yates’ Prime Contract with the Foundation.
The court does not construe this as an admission of PSI’s allegation, and the statement proposed
by Hoch does not constitute a judicial admission. However, Hoch may use the referenced
pleading in evidence as an admission of Yates as PSI’s assignee in the event Yates’ proceeds to
trial on PSI’s claims.
20. Prior to Yates’ work on the topping slab, PSI provided Yates with design

information regarding the required clearance between the levels of the parking
garage. Specifically and among others, on July 31, 2014, PSI informed Yates that
the height between the topping slab and the precast members on the floor above
should be 7’-0” for the topping slab to bottom of inverted tee beam (at P2 & P3)
lines.
This statement is based on PSI’s averment in paragraph 66 of Docket 28, which averment
Yates’ denies in paragraph 66 of Docket 42. It does not constitute a judicial admission, but Hoch
may use the referenced pleading in evidence as an admission of Yates as PSI’s assignee in the
event Yates proceeds to trial on PSI’s claims.
21. Yates failed to cast the topping slab to maintain the required clearance.
This statement is based on PSI’s averment in paragraph 67 of Docket 28, which averment
Yates’ denies in paragraph 67 of Docket 42. It does not constitute a judicial admission, but Hoch
may the referenced pleading in evidence as an admission of Yates as PSI’s assignee in the event
Yates proceeds to trial on PSI’s claims.
22. As a result of Yates’ improper casting of the topping slab, Yates was required to

perform remedial work on the topping slab, more specifically the removal of it and
remedial work to it.
This statement is based on PSI’s averment in paragraph 68 of Docket 28, and Yates’
lengthy answer in paragraph 68 of Docket 42 essentially amounts to a denial of the allegation. It

does not constitute a judicial admission, but Hoch may use the referenced pleading in evidence
as an admission of Yates as PSI’s assignee in the event Yates proceeds to trial on PSI’s claims.
23. The critical path of the Project was delayed for the period of time from Yates’

initial demolition of the topping slab it improperly placed through the date on
which Yates completed the remedial work required by the Foundation’s engineer.
This statement is based on PSI’s averment in paragraph 72 of Docket 28, and Yates’
answer in paragraph 72 of Docket 42 essentially amounts to a denial of the allegation. It does
not constitute a judicial admission, but Hoch may use the referenced pleading in evidence as an
admission of Yates as PSI’s assignee in the event Yates proceeds to trial on PSI’s claims.
24. PSI was not responsible for any of the costs or delays associated with the

demolition of the topping slab or the subsequent remedial work.
This statement is based on PSI’s averment in paragraph 73 of Docket 28, which averment
Yates’ denies in paragraph 73 of Docket 42. It does not constitute a judicial admission, but Hoch
may use the referenced pleading in evidence as an admission of Yates as PSI’s assignee in the
event Yates proceeds to trial on PSI’s claims.
25. Yates breached the duty of care by negligently managing the Project and the

schedule and negligently performing work on the Project, including but not limited
to casting the topping slab and the remedial work at the topping slab.
This statement is based on PSI’s averment in paragraph 130 of Docket 28, which
averment Yates’ denies in paragraph 130 of Docket 42.

It does not constitute a judicial

admission, but Hoch may use the referenced pleading in evidence as an admission of Yates as
PSI’s assignee in the event Yates proceeds to trial on PSI’s claims.
26. By preparing the plans, specifications, and other contract documents for the

Project and allowing the Foundation to publish them, AECOM represented that the
plans, specifications, and other contract documents were accurate, complete, and
buildable and that AECOM prepared the plans, specifications, and other contract
documents in accordance with the engineering standards prevailing in the
community.

While not a verbatim recitation, this statement fairly and accurately reflects the substance
of PSI’s averments in paragraphs 116 and 117 of Docket 28. In its answer in paragraphs 116 and
117 of Docket 42, and while making additional averments regarding matters not addressed in
PSI’s averments, Yates essentially admits PSI’s averments, and as such this statement constitutes
a binding judicial admission. Yates’ complaint that the statement is misleading because Hoch
designed and engineered the precast components is unavailing, as that fact is not addressed in the
subject averments that Yates admits.
27. AECOM knew that the contractors, subcontractors, and material suppliers that bid

on, and eventually constructed, the Project would rely upon the accuracy of the
plans, specifications, and other contract documents that AECOM prepared and the
Foundation published.
This statement is based on PSI’s averment in paragraph 118 of Docket 28, to which
averment Yates answers in paragraph 118 of Docket 42, “Admitted that AECOM is charged with
such knowledge,” which essentially is an admission.

This statement constitutes a binding

judicial admission.
28. The plans, specifications, and other contract documents that AECOM prepared

were not buildable, accurate, and complete.
This statement is based on PSI’s averment in paragraph 120 of Docket 28, which
averment Yates’ admits in paragraph 120 of Docket 42, and as such it constitutes a binding
judicial admission.
29. By failing to provide a buildable, accurate, and complete design, AECOM

materially breached its contract on the Project.
This statement fairly and accurately reflects an averment PSI makes in paragraph 122 of
Docket 28, which averment Yates admits in paragraph 122 of Docket 42, and as such it
constitutes a binding judicial admission.

30. Yates failed to mitigate its damages, if any.
This statement is based on an affirmative defense that PSI states in its Answer to
Amended Counterclaim of Defendant W.G. Yates & Sons Construction Company (“Docket 58”).
No responsive pleading by Yates is required, and therefore the allegation is considered denied.
FED.R.CIV.P. 8(a)(6). Additionally, the court considers this statement to be more of a legal
conclusion than a factual assertion. For these reasons, the statement does not constitute a judicial
admission nor may Hoch use it in evidence as an admission of Yates as PSI’s assignee.
31. Yates’ claims for delay damages are barred by the existence of concurrent delays.
This statement is based on an affirmative defense that PSI states in Docket 58. No
responsive pleading by Yates being required, the allegation is considered denied, and the court
also considers this statement to be more of a legal conclusion than a factual assertion. For these
reasons, the statement does not constitute a judicial admission nor may Hoch use it in evidence
as an admission of Yates as PSI’s assignee.
Based on the above findings, the court concludes that Hoch’s proposed judicial
admissions that are based on PSI’s pleaded factual assertions that Yates has admitted constitute
judicial admissions that are conclusively binding on Yates, and they will be inserted in the
appropriate section of the pretrial order. PSI’s pleaded factual assertions that Yates has denied
do not constitute judicial admissions, but Hoch may use the referenced pleadings in evidence as
admissions of Yates as PSI’s assignee in the event Yates proceeds to trial on PSI’s claims. PSI’s
pleaded affirmative defenses do not constitute judicial admissions nor may they be used by Hoch
in evidence.

THEREFORE, IT IS ORDERED, that Hoch’s Motion to Recognize Facts Established by
the Pleadings as Judicial Admissions is GRANTED IN PART and DENIED IN PART as
follows:
Hoch’s proposed facts established by the pleadings that the court has found herein above to
constitute judicial admissions will be inserted in the appropriate section of the pretrial order as
facts established by the pleadings. Hoch’s motion will be stricken as a pending motion in the
pretrial order. Additionally, in the event Yates proceeds to trial on PSI’s claims, Hoch may use
PSI’s pleaded factual assertions in Docket 28 as admissions of Yates as PSI’s assignee. This will
be noted in the pretrial order with respect to Hoch’s trial exhibit D-H-33.
SO ORDERED, this the 5th day of January, 2018.

/s/ Roy Percy
__________________
UNITED STATES MAGISTRATE JUDGE