sham affidavit doctrine in Texas

2021The court in Lujan determined that if “the subsequent affidavit clearly contradicts the witness’s earlier testimony involving the suit’s material points, without explanation, then the sham affidavit rule applies.” Id. at 88 (internal quotation marks omitted).

2020Sham Affidavit Rule Pursuant to the sham affidavit rule, “a trial court may conclude that a party does not raise a genuine fact issue by submitting sworn testimony that materially conflicts with the same witness’s prior sworn testimony, unless there is a sufficient explanation for the conflict.” Lujan v. Navistar, Inc., 555 S.W.3d 79, 87 (Tex. 2018) (addressing the rule in the summary judgment context).

2016However, as Ragland points, out and BNSF acknowledges, the Fort Worth Court of Appeals has expressly rejected the sham affidavit rule, and has instead held that even “when conflicting inferences may be drawn between a party’s summary judgment affidavit and his deposition on matters of material fact, ,a fact issue is presented.” See, e.g., Davis v. City of Grapevine, 188 S.W.3d 748, 756 (Tex.App.-Fort Worth 2006, pet. denied).

2016See Sauls, 2015 WL 3905671 , at *7 (“this court does not apply the sham-affidavit doctrine and continues to adhere to the principle that ‘when conflicting inferences may be drawn between a party’s summary judgment affidavit and his deposition on matters of material fact, a fact issue is presented’ ”) (quoting Davis, 188 S.W.3d at 756 ).

2012See Farroux v. Denny’s Rests., Inc., 962 S.W.2d 108, 111 (Tex.App.-Houston [1st Dist.] 1997, no pet.) (recognizing the sham affidavit doctrine, which sets out that a contradictory affidavit prepared by the same witness after a deposition should be disregarded if (1) the discrepancy is not explained, and (2) it appears the affidavit was drafted solely as a sham to defeat summary judgment). 2.

2007The District urges this Court to follow Farroux v. Denny’s Restaurants, Inc., 962 S.W.2d 108, 111 (Tex.App.-Houston [1st Dist.] 1997, no pet.), and adopt the sham affidavit doctrine.

2007Bank , 226 S.W.3d 711, 717-18 (Tex. App. C Tyler 2007, pet. filed) (rejecting rule); Davis v. City of Grapevine , 188 S.W.3d 748, 755-56 (Tex. App. C Fort Worth 2006, pet. denied) (same); Larson v. Family Violence & Sexual Assault Prevention Ctr. of S. Tex. , 64 S.W.3d 506, 513 (Tex. App. C Corpus Christi 2001, pet. denied) (same); and Thompson v. City of Corsicana Housing Auth. , 57 S.W.3d 547, 557 (Tex. App. C Waco 2001, no pet.) (same). [8] The Texas Supreme Court has yet to specifically address the sham affidavit rule but has previously held that A a deposition does not have controlling ef

2007Bank , 226 S.W.3d 711, 717-18 (Tex. App. C Tyler 2007, pet. filed) (rejecting rule); Davis v. City of Grapevine , 188 S.W.3d 748, 755-56 (Tex. App. C Fort Worth 2006, pet. denied) (same); Larson v. Family Violence & Sexual Assault Prevention Ctr. of S. Tex. , 64 S.W.3d 506, 513 (Tex. App. C Corpus Christi 2001, pet. denied) (same); and Thompson v. City of Corsicana Housing Auth. , 57 S.W.3d 547, 557 (Tex. App. C Waco 2001, no pet.) (same). [8] The Texas Supreme Court has yet to specifically address the sham affidavit rule but has previously held that A a deposition does not have controlling ef

2007Bank , 226 S.W.3d 711, 717-18 (Tex. App. C Tyler 2007, pet. filed) (rejecting rule); Davis v. City of Grapevine , 188 S.W.3d 748, 755-56 (Tex. App. C Fort Worth 2006, pet. denied) (same); Larson v. Family Violence & Sexual Assault Prevention Ctr. of S. Tex. , 64 S.W.3d 506, 513 (Tex. App. C Corpus Christi 2001, pet. denied) (same); and Thompson v. City of Corsicana Housing Auth. , 57 S.W.3d 547, 557 (Tex. App. C Waco 2001, no pet.) (same). [8] The Texas Supreme Court has yet to specifically address the sham affidavit rule but has previously held that A a deposition does not have controlling ef

2007Bank , 226 S.W.3d 711, 717-18 (Tex. App. C Tyler 2007, pet. filed) (rejecting rule); Davis v. City of Grapevine , 188 S.W.3d 748, 755-56 (Tex. App. C Fort Worth 2006, pet. denied) (same); Larson v. Family Violence & Sexual Assault Prevention Ctr. of S. Tex. , 64 S.W.3d 506, 513 (Tex. App. C Corpus Christi 2001, pet. denied) (same); and Thompson v. City of Corsicana Housing Auth. , 57 S.W.3d 547, 557 (Tex. App. C Waco 2001, no pet.) (same). [8] The Texas Supreme Court has yet to specifically address the sham affidavit rule but has previously held that A a deposition does not have controlling ef

2014See Morgan v. Straub, No. 08-00-00191-CV, 2001 WL 925760 , at 2-4 (Tex.App.-El Paso August 16, 2001, opin. on reh’g, no pet.); see also Pierce v. Washington Mutual Bank, 226 S.W.3d 711, 717-18 (Tex.App.-Tyler 2007, pet. denied); Del Mar College District v. Vela, 218 S.W.3d 856, 862 (Tex.App.-Corpus Christi 2007, no pet.); Davis v. City of Grapevine, 188 S.W.3d 748, 756 (Tex.App.-Fort Worth 2006, pet. denied); Thompson v. City of Corsicana Housing Authority, 57 S.W.3d 547, 557 (Tex.App.-Waco 2001, no pet.).

2011See Pierce v. Washington Mutual Bank, 226 S.W.3d 711, 717-18 (Tex.App.-Tyler 2007, pet. denied); Del Mar College District v. Vela, 218 S.W.3d 856, 862 (Tex.App.-Corpus Christi 2007, no pet.); Davis v. City of Grapevine, 188 S.W.3d 748, 756 (Tex.App.-Fort Worth 2006, pet. denied); Thompson v. City of Corsicana Housing Authority, 57 S.W.3d 547, 557 (Tex.App.-Waco 2001, no pet.).

2018Our later decision in Randall v. Dallas Power & Light Co. involved similar circumstances. 752 S.W.2d 4 (Tex. 1988).

2015Circuit have adopted the sham-affidavit doctrine in one form or another). 25 refer to two cases from the Supreme Court of Texas—Randall v. Davis Power & Light Co., 752 S.W.2d 4 (Tex. 1988) (per curiam) and Gaines v. Hamman, 358 S.W.2d 557 (Tex. 1962)—for the proposition that “a deposition does not have controlling effect over an affidavit in determining whether a motion for summary judgment should be granted.” Appellants’ Brief, p. 14.

2016In Randall v. Dallas Power & Light Co., the Texas Supreme Court unequivocally stated the established rule that “a deposition does not have controlling effect oyer an affidavit in determining whether a motion for summary judgment should be granted.” 752 S.W.2d 4, 5 (Tex.1988) (citing Gaines v. Hamman, 358 S.W.2d 557 (1962)).

2015Circuit have adopted the sham-affidavit doctrine in one form or another). 25 refer to two cases from the Supreme Court of Texas—Randall v. Davis Power & Light Co., 752 S.W.2d 4 (Tex. 1988) (per curiam) and Gaines v. Hamman, 358 S.W.2d 557 (Tex. 1962)—for the proposition that “a deposition does not have controlling effect over an affidavit in determining whether a motion for summary judgment should be granted.” Appellants’ Brief, p. 14.

2015While neither the Supreme Court of Texas nor this Court have expressly rejected or adopted the sham-affidavit doctrine, it is followed by most of the Courts of Appeals in Texas;1 nearly every federal circuit Court of Appeals, including the Fifth Circuit;2 and by most states across the country.3 Appellants 1 Of the Courts of Appeals that have directly considered the sham-affidavit doctrine, the following have adopted it: First State Bank of Mesquite v. Bellinger & DeWolf, LLP, 342 S.W.3d 142, 148 (Tex. App.—El Paso 2011, no pet.); Plunkett v. Conn. Gen.

2015While neither the Supreme Court of Texas nor this Court have expressly rejected or adopted the sham-affidavit doctrine, it is followed by most of the Courts of Appeals in Texas;1 nearly every federal circuit Court of Appeals, including the Fifth Circuit;2 and by most states across the country.3 Appellants 1 Of the Courts of Appeals that have directly considered the sham-affidavit doctrine, the following have adopted it: First State Bank of Mesquite v. Bellinger & DeWolf, LLP, 342 S.W.3d 142, 148 (Tex. App.—El Paso 2011, no pet.); Plunkett v. Conn. Gen.

2012See Bexar Cnty. v. Lopez, 94 S.W.3d 711, 715 (Tex. App.—San Antonio 2002, no pet.); see also Browne v. Kroger Co., No. 14-04-00604-CV, 2005 WL 1430473 at * 3 (Tex. App.—Houston [14th Dist.] June 21, 2005, no pet.) (mem. op.).

2012See Bexar Cnty. v. Lopez, 94 S.W.3d 711, 715 (Tex.App.-San Antonio 2002, no pet.); see also Browne v. Kroger Co., No. 14-04-00604-CV, 2005 WL 1430473 at *3 (Tex.App.-Houston [14th Dist.] June 21, 2005, no pet.) (mem. op.).

2007Bank , 226 S.W.3d 711, 717-18 (Tex. App. C Tyler 2007, pet. filed) (rejecting rule); Davis v. City of Grapevine , 188 S.W.3d 748, 755-56 (Tex. App. C Fort Worth 2006, pet. denied) (same); Larson v. Family Violence & Sexual Assault Prevention Ctr. of S. Tex. , 64 S.W.3d 506, 513 (Tex. App. C Corpus Christi 2001, pet. denied) (same); and Thompson v. City of Corsicana Housing Auth. , 57 S.W.3d 547, 557 (Tex. App. C Waco 2001, no pet.) (same). [8] The Texas Supreme Court has yet to specifically address the sham affidavit rule but has previously held that A a deposition does not have controlling ef

2007Bank , 226 S.W.3d 711, 717-18 (Tex. App. C Tyler 2007, pet. filed) (rejecting rule); Davis v. City of Grapevine , 188 S.W.3d 748, 755-56 (Tex. App. C Fort Worth 2006, pet. denied) (same); Larson v. Family Violence & Sexual Assault Prevention Ctr. of S. Tex. , 64 S.W.3d 506, 513 (Tex. App. C Corpus Christi 2001, pet. denied) (same); and Thompson v. City of Corsicana Housing Auth. , 57 S.W.3d 547, 557 (Tex. App. C Waco 2001, no pet.) (same). [8] The Texas Supreme Court has yet to specifically address the sham affidavit rule but has previously held that A a deposition does not have controlling ef

2006See Hale v. Pena , 991 S.W.2d 942, 946-47 (Tex. App.—Fort Worth 1999, no pet.).

2006See Hale v. Pena, 991 S.W.2d 942, 946-47 (Tex.App.Fort Worth 1999, no pet.).

2018We agree with the San Antonio court of appeals that a court asked to disregard a conflicting affidavit must "examine the nature and extent of the differences in the facts asserted in the documents to determine what effect a conflict should be given in a particular case." Cantu v. Peacher , 53 S.W.3d 5 , 7 (Tex. App.-San Antonio 2001, pet. denied).

2015This Honorable Court addressed the sham affidavit doctrine in the case of Cantu v. Preacher, 53 S.W.3d 5 (Tex. App.-San Antonio 2001, pet. denied), synthesizing the earlier holdings of Texas appellate courts concerning this doctrine and stating the conclusion succinctly and well: We conclude that a court must examine the nature and extent of the differences in the facts asserted in the deposition and the affidavit.

2015The purpose of summary judgment practice is to “eliminate patently unmeritorious claims and untenable defenses.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).

2012P. 166a(c).1 Id. 1 We note that the County couched its plea to the jurisdiction as an alternative motion for summary judgment and that the order granting the plea to the jurisdiction additionally granted the County’s motion for summary judgment. 4 A trial court’s decision to strike an affidavit under the sham affidavit doctrine is reviewed under an abuse of discretion standard.

2023Higgins Trucking, 6 Inc., 197 S.W.3d 879, 883 (Tex. App.—Dallas 2006, no pet.); see Murray v. Nabors Well Serv., 622 S.W.3d 43 , 51 (Tex. App.—El Paso 2020, no pet.); see also Sullivan v. Aransas Cnty.

2020See Lujan, 555 S.W.3d at 88 (contradiction must be on a material point); Fraire, 441 S.W.3d at 527 (material fact is one that might affect case outcome under governing law).

2019See Trahan, 247 S.W.3d at 284 .

2018See, e.g. , Daubert v. NRA Grp., LLC , 861 F.3d 382 , 389 (3d Cir. 2017) ("[W]e review a district court's decision to exclude materials under the sham-affidavit doctrine for abuse of discretion."); France v. Lucas , 836 F.3d 612 , 622 (6th Cir. 2016) ("The district court declined to consider the affidavit by applying the 'sham affidavit' doctrine.

2018See, e.g. , Daubert v. NRA Grp., LLC , 861 F.3d 382 , 389 (3d Cir. 2017) ("[W]e review a district court's decision to exclude materials under the sham-affidavit doctrine for abuse of discretion."); France v. Lucas , 836 F.3d 612 , 622 (6th Cir. 2016) ("The district court declined to consider the affidavit by applying the 'sham affidavit' doctrine.

2018See, e.g. , Daubert v. NRA Grp., LLC , 861 F.3d 382 , 389 (3d Cir. 2017) ("[W]e review a district court's decision to exclude materials under the sham-affidavit doctrine for abuse of discretion."); France v. Lucas , 836 F.3d 612 , 622 (6th Cir. 2016) ("The district court declined to consider the affidavit by applying the 'sham affidavit' doctrine.

2018See, e.g. , Daubert v. NRA Grp., LLC , 861 F.3d 382 , 389 (3d Cir. 2017) ("[W]e review a district court's decision to exclude materials under the sham-affidavit doctrine for abuse of discretion."); France v. Lucas , 836 F.3d 612 , 622 (6th Cir. 2016) ("The district court declined to consider the affidavit by applying the 'sham affidavit' doctrine.

2016Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 522 (1993) (“[Pjerjury may purchase the defendant a chance at the factfinder [but] it also carries substantial risk.”); • lies in a deposition after telling the truth in that same deposition, see Duffield v. Penman, No. 01-98-01131-CV, 1999 WL 1018180 , at *3-4 (Tex. App.—Houston [1st Dist.] Nov. 10, 1999, no pet.) (not designated for publication) (contradictions within the false-imprisonment plaintiffs deposition about whether she was voluntarily or involuntarily detained created a fact question); • lies on an errata sheet within twenty days after tel

2016See Parkway Dental Assocs., P.A. v. Ho & Huang Props., L.P., 391 S.W.3d 596, 604 (Tex.App.-Houston [14th Dist.] 2012, no pet.) (holding that it was unnecessary to decide whether to adopt sham affidavit doctrine because issue was not preserved for appeal).

2016See Parkway Dental Assocs., P.A. v. Ho & Huang Props, L.P., 391 S.W.3d 596, 604 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding that it was unnecessary to decide whether to adopt sham affidavit doctrine because issue was not preserved for appeal).

2016See, e.g., Aguirre v. Vasquez, 225 S.W.3d 744, 756 (Tex.App.—Houston [14th Dist.2007, no pet.).

2016See Herrera v. GTS Corp., 183 F.Supp.2d 921, 929 (S.D.Tex.2002) (applying sham affidavit doctrine when, plaintiffs affidavit contradicted both his prior deposition testimony and statements made to federal government in Social Security Administration questionnaire).

2016Herrera, suing ' for disability discrimination, gave deposition testimony about the physical requirements of his job and then filed an affidavit in opposition to a motion for summary judgment in which he attempted to vary the job duties to establish that he "could perform the essentials of his job.” Id. at 928.