law-sj-affidavits | affidavits | conclusory affidavit | personal knowledge requirement | business records
affidavit
evidentiary requirements for SJ | no-evidence-vs-traditional-summary-judgment-motion
An affidavit presented in a summary judgment proceeding must be made on personal
knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that
the affiant is competent to testify to the matters stated therein. Tex.R. Civ. P. 166a(f). Sworn or
certified copies of all papers or parts thereof referred to in a summary-judgment affidavit must
be attached thereto or served therewith. Tex.R. Civ. P. 166a(f).
SJ AFFIDAVITS CASELAW
Hearsay, when not objected to, is relevant evidence that can be considered on appeal. Tex. R. Evid.
802.
Because the objections to hearsay and speculation are objections to form, the [litigants] waived them by
failing to present the objection to the trial court. See Tex. R. Evid. 802; Pico v. Capriccio Italian Rest.,
Inc., 209 S.W.3d 902, 909 (Tex. App.--Houston [14th Dist.] 2006, no pet.).
A conclusory statement is one that does not provide the underlying facts to support the conclusion and,
therefore, is not proper summary-judgment proof. Rizkallah v. Conner, 952 S.W.2d 580, 587
(Tex.App.-Houston [1st Dist.] 1997, no writ). Conclusory statements are not susceptible to being readily
controverted. See Eberstein v. Hunter, 260 S.W.3d 626, 630 (Tex.App.-Dallas 2008, no pet.) (readily
controvertible statements by an affiant are not per se conclusory).
An objection that an affidavit is conclusory can be raised for the first time on appeal, as it goes to a
substantive defect. See Pico, 209 S.W.3d at 909. A conclusory statement in an affidavit is insufficient to
raise an issue of fact in response to a motion for summary judgment. Ryland Group, Inc. v. Hood, 924
S.W.2d 120, 122 (Tex. 1996). A conclusory statement is one that does not provide the underlying facts
to support the conclusion. Winchek v. Amer. Express Travel Related Servs. Co., 232 S.W.3d 197, 206
(Tex. App.--Houston [1st Dist.] 2007, no pet.).
XTO Energy Inc. v. Smith Production, Inc. (Tex.App. - Houston [14th Dist.] Feb. 24, 2009)(Frost)
(contract interpretation, expert witness affidavit struck)
AFFIRMED: Opinion by Justice Frost
Before Justices Frost, Seymore and Guzman
14-07-00069-CV XTO Energy Inc. v. Smith Production Inc.
Appeal from 281st District Court of Harris County
Trial Court Judge: David J. Bernal
Dissenting Opinion by Justice Guzman (Tex.App. - Houston [14th Dist.] Feb. 24, 2009)(contract
construction)
Cantu v. Transocean Enterprises Inc. (Tex.App.- Houston [14th Dist.] Jul. 17, 2007)(Anderson)(summary
judgment affidavit stricken)
AFFIRMED: Opinion by Justice Anderson
Before Justices Brock Yates, Anderson and Hudson
14-05-01178-CV Richard Cantu v. Transocean Enterprises Inc. d/b/a Todco Management Service, Inc.
and Transocean Development Co. and Transocean, Sedco, Forex
Appeal from 189th District Court of Harris County (Judge William R. Burke JR)
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