Sunday, March 13, 2011
Texas Rule of Evidence 801(e)(2)(B) provides that
A statement is not hearsay if...[t]he statement is offered against a party and is...a statement of which the party has manifested an adoption or belief in its truth;
So, let's say that a district seeks to acquire a waterline easement across land owned by a company and initiates condemnation proceedings against the company when negotiations fail. And let's say that at a hearing, the district presents an appraisal by a state certified appraiser of the damages that the company would suffer from the easement. Finally, let's say that the company later brings a civil action against the district. Will the district be able to claim that the appraisal is inadmissible hearsay because the appraiser was not its agent? According to the recent opinion of the Supreme Court of Texas in Reid Road Mun. Utility Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 2011 WL 836869 (Tex. 2011), the answer is "no" because the appraisal constitutes an "adoptive admission" under Texas Rule of Evidence 801(e)(2)(B).
The facts in Speedy Stop were as stated above, and the Supreme Court of Texas found that "even assuming there was no evidence of an agency relationship...Rule 801(e)(2)(B) allows for admissions by a party-opponent when the party-opponent has manifested an adoption or belief in the statement's truth." And the court found that the district had manifested such a belief because "[i]t has long been the rule that '[w]here a party has used a document made by a third party in such way as amounts to an approval of its contents, such statement may be received against him as an admission by adoption.'"
Moreover, the court found that
the appraisal is admissible against the District as an admission by adoption. See TEX.R. EVID. 801(e)(2)(B); see also Stadler, 166 S.W.2d at 125. Our conclusion is also supported by other cases in a variety of different contexts. See Fox v. Taylor Diving & Salvage Co., 694 F.2d 1349, 1355 (5th Cir.1983) (holding that because the plaintiff's expert witness based his opinions regarding lost wages upon the assumption that the plaintiff was not a “Jones Act seaman,” the plaintiff was precluded from presenting a theory of recovery resting on the Jones Act); Buckley v. Airshield Corp., 116 F.Supp.2d 658, 664 (D.Md.2000) (holding that party adopted documents as true by submitting them as exhibits in a separate case); Harris v. United States, 834 A.2d 106, 117 (D.C.2003) (“Submission of documents to a court also suggests adoption of the documents.”); see also KENNETH S. BROWN ET AL ., MCCORMICK ON EVIDENCE § 261, at 211 (6th ed. 2006) (“When a party offers in evidence a deposition or an affidavit to prove the matters stated therein, the party knows or should know the contents of the writing so offered....Accordingly, it is reasonable to conclude that the writing so introduced may be used against the party as an adoptive admission in another suit.”).