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.
Continue Reading Does Texas follow the “sham affidavit” doctrine?
Summary Judgment
The Interplay Between Federal Rule 56 and Daubert
The Fifth Circuit Court of Appeals’ opinion in Operaciones Tecnicas Marinas, SAS v. Diversified Marine Services, LLC illustrates the interplay between the requirements of Federal Rule of Civil Procedure 56—the summary judgment rule—and the requirements of Daubert case law that an expert adequately exclude alternative causes.
Diversified Marine Services, LLC (Diversified) was called upon to…
Plaintiffs avoid getting (anti) SLAPPed
Appellate courts in Texas have seen an influx of defamation, business disparagement, and other similar actions since 2011 when the Texas Citizens Participation Act (“TCPA”), Tex. Civ. Prac. & Rem. Code §§ 27.001-27.011 (2015), was signed into law. The TCPA is an anti-SLAPP statute; SLAPP is an acronym for Strategic Lawsuits Against Public Participation, which…
Employee’s assault claim barred by the TCHRA
In a short, straight-forward opinion, the Dallas Court of Appeals recently held that a common-law claim for assault is precluded by the Texas Commission on Human Rights Act. Here, the plaintiff alleged that a supervisor engaged in various sexual related conduct against her at work, including unwanted force and touching. The defendant moved for…
Dallas weighs in on no-evidence summary judgment procedure
The Dallas Court of Appeals has written a couple of recent significant opinions addressing no-evidence summary judgment practice.
In the first opinion, the en banc court considered a no-evidence motion that listed the elements of the claim at issue and then asserted that there was no evidence of "one or more" elements of the plaintiff’s…
Conflicts in Summary Judgment Practice
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…
Dallas Court of Appeals issues rare en banc decision addressing summary judgment practice
The Dallas Court of Appeals recently addressed summary judgment practice in a rare en banc opinion. At issue was whether the defendants’ no-evidence motion for summary judgment adequately challenged the elements of plaintiffs’ claims by listing the elements and then stating that the plaintiffs had no evidence to support "one or more" of the elements…
Affidavits and Personal Knowledge
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…
Formation of the Attorney-Client Relationship
How and when does an attorney-client relationship form? The Dallas Court of Appeals says that the attorney-client relationship is contractual in nature and may be either express or implied. But the relationship must be based upon an intent by BOTH parties to create such a relationship and it is insufficient to create an attorney-client relationship…
Enforcement of Settlement Agreements
There’s been a spate of recent opinions involving enforcements of settlement agreements. Byron reported on a couple of opinions earlier this week. Today I report on Green v. Midland Mortgage Co. decided by the Fourteenth Court of Appeals in Houston. There are four points in this opinion worthy of note:
- First, in an action
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