Tag Archives: Summary Judgment

Does Texas follow the “sham affidavit” doctrine?

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 … Continue Reading

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 … Continue Reading

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 … Continue Reading

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 summary … Continue Reading

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 Richard Aznaran.  … Continue Reading

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 … Continue Reading

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 … Continue Reading

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 … Continue Reading

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 to … Continue Reading

When to Raise Summary Judgment Grounds

A party seeking summary judgment must raise all its grounds in the motion itself; raising a ground for summary judgment at the summary judgment hearing will not support the summary judgment if the judgment is attacked on appeal. In Ritchey v. Pinnell, Brenda Ritchey brought suit against Steven and Amy Pinnell after Ritchey purchased a … Continue Reading

Another disagreement over what constitutes no evidence of causation

I have said on various occasions (during admittedly nerdy conversations with colleagues) that this expert opinion or that piece of evidence surely constitutes no evidence as a matter of law and that no court could possibly see it differently.  But we all know that it is never quite that easy and never that clear cut.  The Beaumont Court of Appeals’ recent … Continue Reading

Remember That If You Move For Traditional Summary Judgment, You Will Want To Attach Evidence To Support Your Arguments

How effective is a motion for summary judgment that has no evidence attached to it?  Not very.  Sometimes you can dodge a few bullets.  Ultimately, you will get hit.  That’s what happened in the Dallas Court of Appeals’ opinion in  American Board of Obstetrics and Gynecology, Inc. v. Yoonessi. The American Board of Obstetrics and … Continue Reading

Rule 193.6 Applies to Summary Judgment Practice

The Texas Supreme Court recently held that Rule 193.6 of the Texas Rules of Civil Procedure applies to summary judgment proceedings.  Thus, any discoverable information, including expert information under Rule 194, that has not been properly disclosed or supplemented, should be excluded.  The Court stated that "the ‘hard deadline’ established by the pretrial discovery rules ensures that the … Continue Reading
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