Advantage Aviation Technologies, Inc. v. Axcess Aviation Maintenance Services, Inc.

Affirmed and Opinion Filed December 27, 2023




                                      In The
                           Court of Appeals
                    Fifth District of Texas at Dallas
                              No. 05-23-00344-CV

      ADVANTAGE AVIATION TECHNOLOGIES, INC., Appellant
                            V.
     AXCESS AVIATION MAINTENANCE SERVICES, INC., Appellee

               On Appeal from the 14th Judicial District Court
                           Dallas County, Texas
                    Trial Court Cause No. DC-21-03315

                        MEMORANDUM OPINION
                Before Justices Molberg, Pedersen, III, and Smith
                          Opinion by Justice Molberg
      In this appeal of a two-party, tried-to-the bench lawsuit, appellant Advantage

Aviation Technologies, Inc. asks us to vacate a judgment against Advantage and in

favor of appellee Axcess Aviation Maintenance Services, Inc. on the parties’

competing breach of contract claims involving two separate agreements.

      Advantage raises five issues. All are premised on the argument that Axcess

lacks standing to pursue its claims against Advantage because no contracts exist
between these parties but between Axcess and a party different from Advantage.1 As

a result of its lack-of-standing argument, Advantage questions jurisdiction, and says

the trial court’s judgment is void and must be vacated.

        In the course of the lower court proceedings, Advantage filed a counterclaim

against Axcess, wherein it claimed, without equivocation and not in the alternative,

Axcess breached the contracts between the parties. Advantage alleged it sustained

damages of more than $90,000 to which it was entitled, plus attorney fees pursuant

to the contracts. In other words, Advantage sought to enforce the very contracts

which it belatedly claims did not exist.

        We affirm the judgment based on the record before us and our prior binding

precedent in Murphy v. Killer Ridez, Inc., No. 05-13-00035-CV, 

,

at *1–2 (Tex. App.—Dallas Feb. 3, 2014, no pet.) (mem. op.), in which we stated:

        Murphy’s complaint on appeal challenges the existence and validity of
        the contract, claiming the parties had no agreement regarding charges
        for parts and materials and no evidence shows they had a contract. At
        trial, however, Murphy did not challenge the validity of the contract, he
        did not argue the contract was missing an essential element, nor did he
        claim there was no “meeting of the minds.” In fact, in his amended
        counter petition, Murphy alleged he and Killer Ridez had a contract,
        Killer Ridez “promised and agreed to perform restoration” of Murphy’s
        pickup, and Killer Ridez breached its contractual obligations to
        Murphy.


    1
      On appeal, Advantage argues the contracts at issue were between Axcess and a third-party, Advantage
Aviation Technologies, II, LLC, a matter Advantage failed to raise to the trial court before, during, and
after trial—that is, until filing its reply brief in support of Advantage’s motion for new trial. Although not
determinative of our conclusion, at no time prior did Advantage raise a question about a defect in the parties
to the litigation. See, e.g., TEX. R. CIV. P. 93(4) (requiring a verified denial where a defect of parties is
claimed). A review of the trial record also reveals that the case was tried to the court as if the named parties
were, in fact, the parties to the contracts.
                                                     –2–
        Assertions of fact, not pleaded in the alternative, in the live pleadings
        of a party are regarded as formal judicial admissions. Holy Cross
        Church of God in Christ v. Wolf, 

 (Tex. 2001);
        Houston First Am. Sav. v. Musick, 

 (Tex. 1983).
        A judicial admission that is clear and unequivocal is conclusive upon
        the party making it; it relieves the opposing party of the burden of
        proving the admitted fact and bars the admitting party from disputing
        it. Wolf, 

; Gevinson v. Manhattan Constr. Co., 

 (Tex. 1969).

        Here, Murphy pleaded the existence of a contract and alleged Killer
        Ridez was the breaching party. In so doing, Murphy has judicially
        admitted the existence of a contract and is now barred from disputing
        it. We reject Murphy’s appellate challenge of whether the parties had
        a contract.
        In its pleading, Advantage did what Murphy did: pleaded the existence of the

same contracts Axcess alleged, and alleged Axcess was the breaching party. Based

on the record before us and our prior decision in Murphy, we conclude Advantage

has judicially admitted the existence of the contracts between the parties and is now

barred from disputing it.2

        We overrule Advantage’s five issues and affirm the trial court’s judgment.




230344f.p05                                          /Ken Molberg/
                                                     KEN MOLBERG
                                                     JUSTICE




    2
     Our sister court reached a similar conclusion regarding judicial admissions in a party’s pleading in
Restrepo v. All. Riggers & Constructors, Ltd., 

, 740–41 (Tex. App.—El Paso 2017, no pet.)
(concluding appellants judicially admitted they entered into the contract with appellees).


                                                  –3–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                   JUDGMENT

ADVANTAGE AVIATION                             On Appeal from the 14th Judicial
TECHNOLOGIES, INC., Appellant                  District Court, Dallas County, Texas
                                               Trial Court Cause No. DC-21-03315.
No. 05-23-00344-CV           V.                Opinion delivered by Justice
                                               Molberg. Justices Pedersen, III and
AXCESS AVIATION                                Smith participating.
MAINTENANCE SERVICES, INC.,
Appellee

       In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

    It is ORDERED that appellee AXCESS AVIATION MAINTENANCE
SERVICES, INC. recover its costs of this appeal from appellant ADVANTAGE
AVIATION TECHNOLOGIES, INC.


Judgment entered this 27th day of December, 2023.




                                         –4–