Fisher v. Yates

OPINION ON REHEARING

In his motion for rehearing, Jim Yates contends that we should not rely on Fisher’s and McNatt’s answers to interrogatories as raising a fact issue because the interrogatory answers were not referenced in Fisher’s and McNatt’s summary judgment responses. The answers, however, were referred to in Yates’ own motion as a part of his own summary judgment evidence. A nonmovant may rely on the summary judgment evidence referenced or set forth in the movant’s own motion in order to raise a fact issue. Sundance Oil Co. v. Aztec Pipe & Supply Co., 576 S.W.2d 780, 781 (Tex.1978); Jordan v. Geigy Pharmaceuticals, 848 S.W.2d 176 (Tex.App.-Fort Worth 1992, no writ); Keever v. Hall & Northway Advertising, Inc., 727 S.W.2d 704, 706 (Tex.App.-Dallas 1987, no writ); see Tex.R.Civ.P. 166a(c).

Yates also contends that it is improper to rely on the Fisher and Yates answers because interrogatory answers may only be used against, not for, the person answering them.

We respectfully disagree with this contention in the context of this case. In ordinary circumstances, answers to interrogatories may only be used against the answering party. Tex.R.Civ.P. 168(2). But we believe that rule does not apply when the movant for summary judgment makes those answers a part of his own summary judgment evidence. In that situation, the mov-ant, not the answering party, is the one “using” the answers, and he adopts those answers as a part of his own case. If the answers raise a fact issue and thereby defeat his motion, he is bound by the fact issue that his own motion raises. This is just an application of the well-settled rule that a party’s own pleadings may disprove his case.

*384The summary judgment rule explicitly provides that “interrogatory answers referred or set forth in the motion or response ” may be used to raise or negate a fact issue. If the rule meant to limit the use of interrogatory answers in summary judgment cases to use against the answering party only, the rule could have easily so stated. To disallow the use of evidence adopted by the movant in his own motion for summary judgment would violate the longstanding rule that evidence adopted and used by a party is admissible against that party. Now that we have abandoned the “voucher rule,” such evidence is no longer binding on the party who uses it, but it may be used against him.

We recognize that in several cases courts have reached a different conclusion from that we reach. Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85, 95 (Tex.App.Dallas 1996, writ denied) (opinion on rehearing); Nebgen v. Minnesota Mining & Mfg. Co., 898 S.W.2d 363 (Tex.App.-San Antonio 1995, writ denied); Dorsett Bros. Concrete Supply, Inc. v. Safeco Title Ins. Co., 880 S.W.2d 417 (Tex.App.-Houston [14th Dist.] 1993, writ denied). But those cases are based on cases where there is no indication that the interrogatory answers were made a part of the movant’s summary judgment evidence. Thus, those cases do not support the holding in Hanssen, Nebgen, and Dorsett. The same is true of the other cases we have found that merely state the general rule.9 We respectfully disagree with the holdings in those cases, and we conclude that summary judgment is improper when the movant’s own summary judgment evidence shows that a fact issue is raised, even though some of that summary judgment evidence is in the form of the opposing parties’ answers to interrogatories.

For the reasons stated, the motion for rehearing is overruled.

. See Barragan v. Mosler, 872 S.W.2d 20 (Tex.App.-Corpus Christi 1994, no writ); Elliott v. State, 818 S.W.2d 71 (Tex.App.-San Antonio 1991, writ denied); Worley v. Butler, 809 S.W.2d 242 (Tex.App.-Corpus Christi 1990, no writ); Keever v. Hall & Northway Advertising, Inc., 727 S.W.2d 704 (Tex.App.-Dallas 1987, no writ); Walker v. Horine, 695 S.W.2d 572 (Tex.App.-Corpus Christi 1985, no writ); Thurman v. Frozen Food Express, 600 S.W.2d 369 (Tex.Civ.App.-Dallas 1980, no writ); Stanford v. Johnson, 577 S.W.2d 791 (Tex.Civ.App.-Corpus Christi 1979, no writ); Fort Bend Indep. Sch. Dist. v. Weiss, 570 S.W.2d 241 (Tex.Civ.App.-Houston [1st Dist.] 1978, no writ); Jeffrey v. Larry Plotnick Co., 532 S.W.2d 99 (Tex.Civ.App.-Dallas 1975, no writ); Sprouse v. Texas Employers' Ins. Ass'n, 459 S.W.2d 216 (Tex.Civ.App.-Beaumont 1970, writ ref'd n.r.e.).