Texas Probate Litigation: Failure to Deny Can Be an Admission


If you’ve ever found yourself in a situation where you’re aware a party to a probate litigation but not sure how to properly handle it, read on for some important information.

Worker’s Compensation Act, Non-Subscriber:

Employers who do not provide workers’ compensation insurance coverage. Texas does not require such coverage, but employers who do not participate lose certain privileges (such as immunity from lawsuits initiated by injured employees).

Case Law

Grogan v. Santos, 617 S.W.2d 312 (Tex.Civ.App. — Tyler 1981, no writ)

Facts & Procedural History

Albert Santos (Plaintiff) sued Georgia Grogan (Defendant Grogan) and John Carter (d/b/a Carter Farms Quality Meat) for personal injuries sustained while working for Farms Quality Meat (Carter Farms). Carter Farms was considered a non-subscriber under the Worker’s Compensation Act. Plaintiff stated that, while serving as the foreman for the meat cutting operations, he slipped and fell on a piece of meat and separated his left shoulder. He alleged that Carter Farms was negligent (failed to provide a safe workplace, did not enforce safety rules, and did not warn employees of work hazards) and failed to carry worker’s compensation insurance. Defendant Grogan answered the complaint by denying the claims, as well as denying that she was a partner with John Carter or conducted business with Carter Farms. However, Defendant did not provide verification of her denial of the partnership. Defendant Carter failed to answer and was given a default judgment. The trial court denied Defendant Grogan’s motion to amend her answer so she could verify her denial of partnership. The case went before a jury, which found that Plaintiff was entitled to damages in the amount of $21,206.00 because of the claims stated above.

Defendant Grogan appealed, and the Court of Civil Appeals affirmed the judgment of the trial court. The Court held that: (1) trial court did not abuse its discretion in refusing to allow alleged partner to file verified amended answer denying partnership after commencement of trial; (2) trial court did not err in overruling motion of alleged partner for continuance; (3) jury instruction was not to comment on weight of evidence; (4) testimony was sufficient to support finding of physical pain and mental anguish in the future; (5) award of $18,000 for physical pain and mental anguish in the future related to employee’s separated shoulder did not amount to reversible error; and (6) complaint as to harmful effect, if any, of closing argument of employee’s counsel was waived.

For the first and second issues, the Court stated that the failure to verify a denial of partnership results in an admission of its existence, which cannot be revoked at trial. The Court stated that the granting of Defendant’s motion could have prejudiced Plaintiff and would have interfered with the trial court’s docket. For the third issue, the Court reasoned that the jury instruction did not suggest that the trial court had an opinion regarding whether Carter Farms was negligent. For the fourth issue, the Court stated that the evidence was sufficient – the testimonies of Plaintiff’s wife and physician showed that he would continue to suffer pain in the future because of the injury he sustained. For the fifth issue, the Court determined that the amount of damages to which a party was entitled for future pain and suffering is primarily within the discretion of the jury. For the sixth issue, the Court stated that the record failed to show that Defendant Grogan objected to the failure to produce a witness specifically, and thus lacked merit.

Main Considerations

When does a jury instruction comment on the weight of the evidence?

When it is worded in a way that indicates an opinion by the trial court on the truth of the fact or or facts in inquiry.

When are comments by counsel during oral argument of the failure on the part of the other party to produce a witness in a civil action improper?

When the witness is equally available to both parties.

The Takeaway

Santos v. Grogan shows that a defendant seeking to deny partnership with another defendant must do so through an answer well in advance of trial so that neither the plaintiff nor the court will be impeded.

Do you need to hire an Experienced Probate attorney for a Claim against an Estate?

If you need to file a claim against an estate in Texas, you may be wondering if you need to hire an experienced probate attorney. The answer to this question depends on the specific facts of your case. If the estate is small and there is no contest among the heirs, you may be able to represent yourself in court. However, if the estate is large or there is disagreement among the heirs, it is usually best to hire an attorney. An experienced probate attorney will know how to navigate the legal process and will be able to protect your rights. If you are considering filing a claim against an estate, contact a probate attorney today to discuss your case. (512) 273-7444.


What is discovery in law?

Discovery is the process of uncovering information that is relevant to a legal case. This can be done through interviews, subpoenas, and the like. In probate litigation, discovery is often used to uncover information about the decedent’s assets and liabilities.

What is a discovery in court?

In court, a discovery is the process through which each party obtains information and evidence from the other party. The purpose of discovery is to allow each party to fully prepare for trial. Discovery can be accomplished in several ways, including written interrogatories, requests for production of documents, and depositions.

How to file a motion for discovery?

If you’re involved in probate litigation in Texas, one of the first things you’ll need to do is file a motion for discovery. This motion allows you to request information from the other side in the case, which can be crucial to your success.

The process for filing a motion for discovery is relatively simple. First, you’ll need to prepare a written motion that includes a list of the specific information you’re requesting. Once the motion is filed, the other side will have 14 days to respond.

If they fail to deny your motion, it will be considered an admission of the facts contained therein. That’s why it’s so important to be clear and specific in your request. If you’re not sure what to ask for, consider consulting with an experienced Texas probate litigation attorney who can help you get the information you need to win your case.

What is a discovery request?

In Texas probate litigation, a discovery request is a formal request for information from the opposing party. The requesting party must submit the request in writing to the other party and specify what types of information they are seeking. The opposing party then has a certain amount of time to provide the requested information.

How to file a claim against an estate?

If you feel like you have grounds to file a claim against an estate in Texas, there are a few things you need to do. First, you need to determine if the estate is currently in probate. If it is, then you will need to file your claim with the court handling the probate proceedings. You will also need to serve notice of your claim on the executor or administrator of the estate.

If the estate is not currently in probate, then you will need to file a petition for probate with the court and have the executor or administrator of the estate served with notice of your claim.

Once you have filed your claim and served notice, the executor or administrator of the estate will have an opportunity to respond. If they deny your claim, then you can request a hearing before the court to argue your case. If they do not respond or fail to deny your claim within a certain timeframe, then their failure to deny can be considered an admission of liability, and you may be able to recover damages without having to go through a full trial.

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