law-cc-affidavit-concluory-of-not
Conclusory statements in an affidavit are not proper summary judgment proof. Rizkallah, 952 S.W.2d at 587. “A
conclusory statement is one that does not provide the underlying facts to support the conclusion.” Id.
“Conclusory statements without factual support are not credible and are not susceptible to being readily
controverted.” Id.; See TEX.R. CIV. P. 166a(c).
Nuchia says assignee's business records affidavit was not conclusory
Unifund CCR Partners v. Gellatly (Tex.App.- Houston [1st Dist.] July 3, 2008)(Nuchia)
(credit card suit by assignee of card issuer against consumer, deemed admissions, sufficiency of summary
judgment proof, breach of contract and quantum meruit exclusive of each other)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Alcala and Hanks
01-07-00552-CV Unifund CCR Partners v. Sara Morgan Gellatly
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
Gellatly argues that the trial court erred by admitting the Lutz and Kenney affidavits because they are
conclusory. In his “business-records” affidavit, Lutz testified that he was one of the records custodians for
Unifund. Similarly, Kenney testified that she was a media supervisor for Unifund. Gellatly generally argues that
each affidavit is “nothing more than a series of conclusions,” without identifying any statements in the affidavits
that she contends are legal conclusions.
Contrary to Gellatly’s assertions, the affidavits are not conclusory. Lutz’s affidavit was based on personal
knowledge derived from his work at Unifund. Lutz’s affidavit specifically states, “I have personal knowledge of
the facts stated, and they are all true and correct.” We have held “business records” affidavits such as Lutz’s to
be competent summary judgment evidence. E.g. Winchek, 232 S.W.3d at 206 (holding that business records
affidavit made by custodian of records not conclusory).
Kenney’s affidavit states that she is the media supervisor for Unifund and “authorized to make the statements
and representations herein.” Kenney’s affidavit is a series of factual statements, asserting such facts as Gellatly’
s name, account number, the amount of principal balance and interest owing on Gellatly’s account, and the
contractual interest rate.
We conclude that the Lutz and Kenney affidavits are not conclusory and that the trial court did not err in
considering them.
Amex Custodian of Records Affidavit not conclusory
Winchek also contends that Axelrod's affidavit is conclusory and fails to state any objective facts. Conclusory
statements in affidavits are not competent evidence to support a summary judgment. Rizkallah, 952 S.W.2d at
587.
A conclusory statement is one that does not provide the underlying facts to support the conclusion. Id. at 587.
Winchek has not pointed to any specific language in Axelrod's affidavit to support her contention.
The record shows that Axelrod attested that he is the custodian of records for Amex, that he bears the
responsibility for archived documents regarding accounts in active litigation, and that he is required to have
knowledge of the facts regarding high-balance account holders involved in litigation, such as Winchek. As
stated in detail above, Axelrod attested to the facts regarding Winchek's account. We conclude that Axelrod's
affidavit was not conclusory. See Choctaw Properties, L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 242-43 (Tex. App.
--Waco 2003, no pet.). We further conclude that Axelrod's affidavit constituted competent summary judgment
proof. .
Winchek v. American Exp. Travel Related Servs. Co., 232 S.W.3d 197 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(Higley) (debt collection, credit card debt suit, summary judgment for creditor based on breach of contract
affirmed)