Opinion issued January 17, 2013.




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                            ————————————
                               NO. 01-12-00621-CV
                            ———————————
                         JOHN A VANN, APPELLANT
                                         V.
                CHARLA BRADSHAW CONNER, APPELLEE


                    On Appeal from the 431st District Court
                            Denton County, Texas
                    Trial Court Cause No. 2009-40755-362

                          MEMORANDUM OPINION

      Charla Conner and KoonsFuller, P.C. (collectively, KF), intervened in John

and Janet Vann’s divorce action, seeking payment for attorney’s fees that Janet

owed to them for representing her during the divorce. After a bench trial on the

claims in intervention, the trial court found John and Janet jointly and severally

liable for the attorney’s fees. John appeals, contending that: (1) KF failed to plead
a cause of action against him individually and pleaded no basis for its recovery

against him; (2) KF judicially admitted that it did not seek a judgment against

John; and (3) the trial court’s temporary orders establishing John’s support

obligations during the divorce solely defined the extent of John’s support

obligations, relieving him of further liability for Janet’s support and thus for the

attorney’s fees sought by KF. Finding no error, we affirm.

                                   Background

      In 2009, John Vann sued Janet Vann for a divorce. Janet retained KF to

represent her in the divorce. During the proceedings, the trial court ordered that

John pay $3,500.00 per month in spousal support to Janet, as well as many of

Janet’s living expenses. The trial court also ordered John to pay Janet’s attorney’s

fees in an amount equal to payments that he made to his own attorney after the date

of the order. Rancorous proceedings ensued.

      KF later moved to withdraw as counsel and petitioned to intervene, seeking

attorney’s fees for its representation of Janet. Its petition included claims for

breach of contract, quantum meruit, and a suit on a sworn account. KF requested

judgment against Janet and John jointly and severally, expressly requesting that the

court: “Render judgment in favor of Intervenor and against JANET VANN and

JOHN VANN, jointly and severally.”




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      John and Janet eventually settled their divorce, leaving outstanding KF’s

claims in its petition to intervene. After a bench trial on KF’s claims in

intervention, the trial court found for KF on its suit on sworn account. It judged

John and Janet to be jointly and severally liable for $69,612.50 in unpaid attorney’s

fees incurred during the divorce and $14,612.50 for attorney’s fees incurred by KF

in prosecuting its suit in intervention. The trial court entered findings that John had

failed to provide support to Janet during the pendency of the divorce. It also found

that the attorney’s fees incurred by Janet were “necessaries” within the meaning of

Section 2.501 and 3.201 of the Texas Family Code, for which John was personally

liable, but we do not affirm the judgment on that basis.

                                     Discussion

Sufficiency of the Pleadings

      John first contends that KF never pleaded a cause of action against him

individually such that he could be held liable for the fees. Texas follows a fair

notice standard for pleading. Horizon/CMS Healthcare Corporation v. Auld, 34

S.W.3d 887, 896 (Tex. 2000). Under this standard, courts assess the sufficiency of

pleadings by determining whether an opposing party can ascertain from the

pleading the nature, basic issues, and the evidence that might be relevant to the

controversy. Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007); see TEX. R. CIV. P.

47(a). An opposing party should identify defects in a pleading using special


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exceptions so that a party may cure a defect by amendment if possible. Auld, 34

S.W.3d at 897. In the absence of special exceptions, we construe the petition

liberally in the pleader’s favor. Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993).

      John did not specially except to clarify the pleadings or the basis for

recovery against him, and thus we construe KF’s petition liberally in its favor. See

Boyles, 855 S.W.2d at 601. KF’s petition lists Janet as the respondent and asserts

causes of action based on fees that Janet incurred during the divorce proceedings,

but in its prayer for relief, KF requests that the court “[r]ender judgment in favor of

Intervenor and against Janet Vann and John Vann, jointly and severally.” This

request was sufficient to notify John that KF sought to recover against him for the

fees. The petition did not allege the specific basis for recovery against John, but in

the absence of special exceptions, the basis for recovery may be inferred from the

context as a debt of the marital estate. See Gallagher v. City of Brownsville, 429

S.W.2d 663, 667 (Tex. App.—Corpus Christi 1968, writ ref’d n.r.e.) (holding that,

absent special exceptions, judgment was valid even though the pleadings failed to

fully allege basis of recovery). Accordingly, we hold that the pleadings support a

judgment against John.

Judicial Admission

      Second, John contends that KF’s counsel’s statement that “we haven’t made

a claim for a judgment against Mr. Vann at this time based on the Sworn Account


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grounds as we have with Mrs. Vann” constitutes a binding judicial admission that

prevents KF from recovering against John on the suit on sworn account, the only

claim for which the trial court granted relief. A judicial admission is an assertion of

fact, usually found in pleadings or stipulations of the parties, that acts as a formal

waiver of proof. Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d

692, 694 (Tex. 1980). “A judicial admission must be a clear, deliberate, and

unequivocal statement.” Auld, 34 S.W.3d at 905.

      The statement by KF that it had not made a claim against John on the suit on

sworn account is not a statement of fact relevant to the basis of KF’s recovery

against John. When read in its entirety, the statement clarified that KF sought to

recover fees for representing Janet and not for representing John. It was not a clear,

unequivocal statement that KF was not seeking to recover the fees that Janet

incurred from John as obligations he owed to the marital estate. See id. Because

counsel’s statement was equivocal in the context, we hold that the statement is not

a judicial admission that would preclude KF from recovering against John.

Extent of John’s Support Obligations

      Finally, John contends that, by complying with the trial court’s temporary

orders, he discharged any further duty to support Janet—and thus any liability for

her attorney’s fees—because the orders defined the extent of his duty of support

during the divorce. The parties, however, presented conflicting evidence regarding


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whether John had paid Janet the $3,500 per month in support as ordered and

whether he had made payments to Janet’s attorneys when he paid his own attorney.

In particular, KF presented evidence that John had withheld payment to his own

attorney until the divorce was concluded in an attempt to avoid payment to Janet’s

attorneys under the trial court’s temporary orders. The trial court could have

credited the evidence that John failed to comply with the trial court’s temporary

orders to conclude that John had had not fulfilled his duty of support.

      Because the trial court reasonably could have found that John did not

comply with the trial court’s temporary orders, and thus concluded that he had

failed to fulfill his duty of support, John’s contention—premised on his fulfilling

the support obligations set out in the temporary orders—is without merit. We

therefore need not determine whether complying with temporary orders for support

during a pending divorce relieve a spouse of any further obligation to support the

other spouse.1




1
 Because the trial court found that John failed to comply with its temporary
support orders and sufficient evidence supports its finding, we need not decide
whether complying with temporary support orders during a divorce discharges a
spouse’s duty of support. See Gardner Aldrich, LLP v. Tedder, No. 02-10-00115-
CV, 2011 WL 3546589 (Tex. App.—Fort Worth Aug. 11, 2011, pet. granted).
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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Jane Bland
                                             Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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