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
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
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 2-1 opinion in Pink v. Goodyear Tire & Rubber Company illustrates this point.
In Pink, the panel reversed a no evidence summary judgment rendered for Goodyear. That reversal was based, in part, on the court’s determination that the following expert testimony presented by Pink constituted some evidence of causation:
I was Veryl Pink’s treating oncologist. Mr. Pink was diagnosed with renal cell carcinoma, which was confirmed by biopsy. The ultimate cause of Mr. Pink’s death was the progression of the disease.
Based upon reasonable medical probability it is my opinion that the cause of Mr. Pink’s renal cell carcinoma was exposure to chemicals, more than likely benzene. In rendering this opinion I have reviewed Mr. Pink’s medical records, the deposition testimony of Mr. Pink and three of his coworkers, the deposition of Dr. Radelat, and scientific literature.
Continue Reading Another disagreement over what constitutes no evidence of causation
Demonstration of Personal Knowledge in Affidavits
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).
Continue Reading Demonstration of Personal Knowledge in Affidavits
Rule 11 not conclusive evidence of attorney’s authority to settle case
The Dallas Court of Appeals has held that a settlement agreement by Rule 11 did not support summary judgment because the client challenged her counsel’s authority to sign the Rule 11. In this case, a plaintiff settled a case by a Rule 11 Agreement. Later, she brought suit against the same party she had settled with
Making Special Exceptions to Summary Judgment Motions
Yet another summary judgment gone wrong.
Sundance Resources, Inc. v. Ole Brook Energy Services, Inc. reminds me of my sixth grade math teacher; she used to deduct points from tests when students failed to show their work. In this case, the attorneys concluded they were entitled to summary judgment but they didn’t show
To Specially Except or Not Specially Except Grounds for Summary Judgment
When should a party specially except to the grounds of a summary judgment motion? Should the non-movant specially except when the grounds are ambiguous? Or if the grounds are not expressly present?
The Dallas Court of Appeals addressed this issue in Garza v. CTX Mortgage Company, LLC.
The Garzas sued CTX for various causes
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
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
Open Records Act and its Application to E-mail
The more time you spend studying City of Dallas v. Dallas Morning News, the more I.Q. points you lose. This case may be more important for what it doesn’t answer than for what you hope it will answer.
The primary issue in this appeal is whether e-mails that are sent to and from private e-mail addresses of the Mayor and other city officials and which involve matters of official public business, are public information and subject to the Texas Open Records Act.Continue Reading Open Records Act and its Application to E-mail