A “sham affidavit” has been described as referring to an affidavit in which an affiant offers sworn testimony that contradicts the affiant’s prior, sworn testimony on a material point and the affiant gives no explanation in the affidavit for the change in the testimony. The scenario of the “sham affidavit” arises with great frequency in Texas summary judgment practice. Because many district courts and intermediate appellate courts refuse to give credence to such an affidavit, many motions for summary judgment have been granted and upheld.
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affidavits
Conflicts in Summary Judgment Practice
By Mike Northrup on
Posted in Summary Judgment
I recently presented a continuing education seminar focusing on current issues in state summary judgment practice. As a result of that presentation, the Dallas Court of Appeals‘ holding in Bastida v. Abel’s Mobile Home Service, Inc., came to my attention. In that case, the trial court granted a summary judgment in favor of…
Affidavits and Personal Knowledge
By Mike Northrup on
Posted in Summary Judgment
One should always be careful of falling victim to using and reusing forms because it may come back to bite you. Many drafters of affidavits start out by having the affiant state something like, "I have personal knowledge of the facts set forth below." This language by itself may not be sufficient to give anything…
Summary Judgment Affidavits: Form vs. Substance
By Mike Northrup on
Posted in Opinions & Judgments
The difference between defects in the form of an affidavit versus defects in substance is not always clear and the appellate courts have not always agreed on what is substantive and what is not. But the difference can be important. As the Dallas Court of Appeals points out in Stone v. Midland Multifamily Equity Reit…
Demonstration of Personal Knowledge in Affidavits
By Mike Northrup on
Posted in Summary Judgment
Beware of using "form" language in an affidavit to establish the affiant’s personal knowledge of the facts. A statement such as "I have personal knowledge of the facts in this affidavit," may not be adequate. And the danger of getting it wrong is that the affidavit is legally insufficient.
A good discussion of how far an affiant must go to establish personal knowledge is found in the Houston Fourteenth Court of Appeals‘ opinion in Valenzuela v. State & County Mutual Fire Insurance Co. The court of appeals held that a "mere recitation that the affidavit is based on personal knowledge is inadequate if the affidavit does not positively show a basis for the knowledge." "The affidavit must explain how the affiant has personal knowledge." (emphasis added).
Mandamus Procedure Changes
By Mike Northrup on
Posted in Opinions & Judgments
With its opinion in In re Butler, the Dallas Court of Appeals reminds us that there has been an important change to mandamus procedure. Appellate Rule 52.3 was amended effective September 1, 2008, and now requires a certification by the person filing the petition for writ of mandamus that he or she has reviewed…