brief, Okoli also states: [TDHS] has employed the wrong legal theory to appeal: [TTCA] § 101.057. Mr. Okoli’s malice and fraud claims [sic] come under Crv. PRAC. & Rem.Code § 41.003(a).... Section 41.003 does not establish a cause of action. Rather, that section allows for the recovery of exemplary damages upon clear and convincing evidence of fraud, malice, or gross negligence. Tex. Crv. Prac. & Rem.Code Ann. § 41.003(a) (Vernon Supp. 2006). By this concession in his appellee’s brief, Okoli has judicially admitted that his petition’s allegations of “malice” and “fraud” were merely allegations on which he might base a request for exemplary damages, rather than their being causes of action. See Jansen v. Fitzpatrick, 14 S.W.3d 426, 431 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (<HOLDING>). TDHS’s jurisdictional plea attacked these
holding that reply brief is appropriate forum to rebut new material raised in appellees brief recognizing that statements in appellees brief can constitute judicial admissions holding that the appellant cannot raise new issues in a reply brief he can only respond to arguments raised for the first time in appellees brief internal quotation marks omitted holding that only deliberate clear and unambiguous statements are judicial admissions holding that only deliberate clear and unequivocal statements can constitute conclusive judicial admissions