Attachments Amplify

The majority and dissenting opinions in Davis v. Homeowners of Am. Ins. Co. differed about how to apply Tex. R. Civ. 91a to a limitations issue in a homeowner-coverage dispute. Foornote 6 in the majority opinion provides an interesting analysis of what materials, attached to pleadings, are fairly considered as an actualy part of those pleadings:

“Rule 59 permits as ‘pleading exhibits’ only ‘[n]otes, accounts, bonds, mortgages, records, and all other written instruments, constituting, in whole or in part, the claim sued on, or the matter set up in defense.’ …  Pleading exhibits are not evidence. They are exhibits in aid of, and to factually amplify allegations in, pleadings and, if used, must be incorporated by reference into the pleadings in some manner. In other words, they are viewed as constituting a part of the pleading to which they are attached. … [A] court may consider a movant’s pleading only to determine whether an affirmative defense has been properly raised in the pleading of the movant. Rule 59 hardly grants carte blanche to litigants to attach unauthenticated, hearsay, unduly prejudicial, or other traditionally objectionable documents to pleadings and have them considered as ‘evidence’ in the traditional sense. Rule 59 pleading exhibits merely imbue or augment the allegations of the pleading to which they are attached.”

No. 05-21-00092-CV (May 31, 2023) (citations omitted, emphasis in original).