A party who submits a summary judgment affidavit that contradicts his or her prior sworn testimony must explain the reason for the conflict or the trial court may disregard the affidavit when deciding whether there is a genuine issue of fact raised to avoid a summary judgment.  This rule is known as the “sham affidavit” doctrine.  Federal courts have been following the sham affidavit doctrine at least since 1969, but state courts have been a little slower to adopt this doctrine in the absence of guidance from the Supreme Court of Texas.  We now have just that.

In Lujan v. Navistar, Inc., No. 16-0588, 61 Tex. Sup. Ct. J. 982 (Apr. 27, 2018), the Supreme Court of Texas concluded that the sham affidavit doctrine is a valid doctrine in Texas.  The court reasoned that Texas’ summary judgment rule, like its federal counterpart, requires that a trial court focus on whether there is a “genuine” issue of material fact.  A “sham” is not “genuine” by definition.  Thus, the court reasoned that a trial court is charged by the rule with weeding out non-genuine fact issues, which requires a litigant to explain conflicting testimony that appears to be presented merely to create a fact issue and avoid summary judgment.

Notably, the court cautioned that not every contradiction of prior sworn testimony requires a court to disregard an affiant’s affidavit.  The court pointed out that lay witnesses may become easily confused during a deposition or the witness may not initially remember some detail that he or she later recalls.  The court pointed out that this is due more to human inaccuracy than to fraud.  Thus, the court emphasized that the sham affidavit rule should not be applied mechanically and uniformly, but requires a more fact-specific analysis.  In some cases, the court concluded, two pieces of conflicting testimony from the same witness will raise legitimate conflicting inferences that require denial of the motion for summary judgment.

In the Lujan case, the court concluded that the trial court did not abuse its discretion in disregarding an affidavit submitted in response to Navistar’s motion for summary judgment.  Mr. Lujan had testified and submitted sworn statements that he had transferred five trucks to a corporate entity.  Included in the sworn items were tax forms showing a transfer of the trucks.  Thus, when Mr. Lujan presented an affidavit asserting that he owned the trucks individually, the supreme court held that the trial court did not abuse its discretion by disregarding the affidavit.

By Published On: May 2, 2018Categories: AppellateTags:


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Mike Northrup is a Shareholder and Section Head of the Cowles and Thompson Appellate Practice Group. He practices in both the trial and appellate courts in cases involving personal injury, insurance issues, employment law, commercial disputes, and zoning disputes. He also provides litigation support to attorneys in other sections of the firm. Mike served as a briefing attorney for former Chief Justice Thomas R. Phillips, Texas Supreme Court, 1988-89. He has taught as an adjunct professor at Hastings College of Law and SMU Dedman School of Law. He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization.