Chapter 30-3 Summary Judgment Evidence

• Jurisdiction: United States

30-3 Summary Judgment Evidence

Summary judgment evidence, whether adduced by the movant or the non-movant, must set forth facts that would be admissible at trial. This section discusses this requirement for the various types of summary judgment evidence and objections to summary judgment evidence.

30-3:1 Prohibition on Oral Testimony

Summary judgment evidence must be written and filed with the Court unless submitted pursuant to Tex. R. Civ. P. 166a(d). No oral testimony will be allowed at the hearing.⁵⁵

30-3:2 Deadlines for Filing Summary Judgment Evidence

The movant's summary judgment evidence must be filed at least 21 days before the date of the hearing, and the nonmovant's proof must be filed at least seven days before the hearing if opposing the motion.⁵⁶ The Court may consider (and either party may rely on) any evidence on file as summary judgment proof.⁵⁷

30-3:3 Affidavits: Personal Knowledge Requirement

Affidavits, whether supporting or opposing summary judgment, must be based on personal knowledge (unless the affiant is an expert) and must set forth facts that would be admissible in evidence.⁵⁸ The affidavit must also show affirmatively that the affiant is competent to testify.⁵⁹

Texas now allows the use of unsworn declarations in lieu of affidavits,⁶⁰ but otherwise the requirements applicable to affidavits apply equally to unsworn declarations.

An affidavit must be based on personal knowledge, not speculation or belief about the facts.⁶¹ Affidavits based on the "best of the person's knowledge"⁶² or based on knowledge gained after "inquiry" have been held to be insufficient.⁶³ An affidavit showing no basis for personal knowledge is also insufficient summary judgment proof.⁶⁴ The affiant should state the facts showing that the affiant was in a position to have personal knowledge (i.e., the affidavit must credit the witness with personal knowledge using facts).⁶⁵ The statements in the affidavit "need factual specificity such as place, time, and exact nature of the alleged facts."⁶⁶ Conclusory statements, without factual support, provide no evidence.⁶⁷

30-3:4 Affidavits: Requirement to Set Forth Facts Admissible at Trial

An affidavit must set forth facts that would be admissible at trial.⁶⁸ Thus, if what is stated in the affidavit would be objectionable coming from the witness stand, it is objectionable at the summary judgment stage.⁶⁹ Statements that are speculative, that address subsequent remedial measures, or which are not the best evidence, are objectionable.

Affidavits of an expert that do not establish the qualifications of the expert⁷⁰ or that contain unsupported conclusions without an explanation of the basis of the opinion or the methodology used to reach the opinion are objectionable.⁷¹ Similarly, affidavits that contain hearsay without establishing an applicable exception are objectionable.⁷²

30-3:5 Affidavits: Interested Witnesses

Rule 166a(c) provides that summary judgment may be based on the uncontroverted testimonial evidence of an interested witness so long as the evidence is "clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted."⁷³ The same rule applies to the affidavit of an expert witness as to "subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts."⁷⁴

Affidavits of an interested witness (or their employees) or expert may raise a genuine issue of material fact, even if controverted, when used in support of a response to a motion for summary judgment. Rule 166a(c) governs the situation in which the affidavit is used to support the motion for summary judgment.

Interested witness affidavits can provide a basis for summary judgment as long as they meet the requisites of Rule 166a(c) that the contents of the affidavit could have been readily controverted.⁷⁵ "Could have been readily controverted" does not mean that the "evidence could have been easily and conveniently rebutted, but rather indicates that the testimony could have been effectively countered by opposing evi-dence."⁷⁶

The party claiming that the affidavit cannot be readily controverted should object on this ground or the error is waived.⁷⁷ Similarly, if additional discovery would be needed to controvert the affidavit, the party so claiming must notify the Court either through a request for continuance or affidavit.

30-3:6 Affidavits: Exhibits to Affidavits

Rule 166a(f) requires that sworn or certified copies of all papers referred to in the affidavit shall be attached thereto or served along with the affidavit. The affidavit should state that attached documents are true and correct copies in order to authenticate them.⁷⁸ The affidavit should also establish that the documents are admissible under the hearsay rule by establishing an exception or showing that they are not hearsay.⁷⁹

Documents attached to an expert's affidavit need not be admissible under the hearsay rule so long as they are "information of a type reasonably relied upon by experts in the field."⁸⁰

30-3:7 Sham and Bad Faith Affidavits

Affidavits made in bad faith solely for purposes of delay may result in sanctions including attorney's fees and costs against the party or attorney utilizing the affidavit.⁸¹

A sham affidavit cannot defeat or support summary judgment. A sham affidavit is one which is executed after witness position, and contradicts the earlier testimony on a material point without a reasonable explanation for the change.⁸² A sham affidavit is executed to create a fact issue and avoid summary judgment.⁸³

30-3:8 Use of Discovery

Summary judgment may be based on depositions, transcripts, interrogatory answers and other discovery responses referenced or set forth in the motion or response.⁸⁴ If the summary judgment evidence is not on file with the clerk, copies of the material or a notice containing specific references to the discovery or specific references to other instruments must be filed and served on all parties.⁸⁵

The notice must contain "specific references" to the discovery.⁸⁶ The notice must contain a statement of intent to use the discovery specified in the notice as summary judgment proof.⁸⁷ The notice must be filed at least 21 days...