in our example, the affidavit will not be admitted as into evidence of for the purposes for which it was taken. 3. Conclusive statements - Defect of Substance One of the most often raised (and granted) objections to the introduction of an affidavit into evidence is that the affiant stated conclusions of law/fact and did not state or premise any such conclusions on the actual facts at issue. A conclusory statement, either of the facts or the law, where there are no underlying facts to support the conclusion, is a defect of substance and may be raised for the first time on appeal. This is to be distinguished from a defect in form where the objection is deemed waived if it is not raised at the time the affidavit is sought to be admitted into evidence. In this appeal, Mayo asserts for the first time an additional challenge to Evelyn’s affidavit on the ground that it contains conclusory statements. Although this objection was not presented to the trial court, we address it because conclusory statements in an affidavit are defects of substance that may be raised for the first time on appeal . Churchill v. Mayo , 224 S.W.3d 340, 347 (Tex.App.—Houston [1st Dist.] 2006) (emphasis added) Summary Judgment “A conclusory statement is one that does not provide the underlying facts to support the conclusion.” Rodriguez v. Wal-Mart Stores, Inc., 52 S.W.3d 814, 823 (Tex.App.- San Antonio 2001), rev’d on other grounds, 92 S.W.3d 502 (Tex.2002); Dolcefino, 19 S.W.3d at 930; Rizkallah, 952 S.W.2d at 587. A “conclusory” statement may set forth an unsupported legal conclusion or an unsupported factual conclusion. See Rizkallah, 952 S.W.2d at 587. Choctaw Properties, L.L.C. v. Aledo I.S.D. , 127 S.W.3d 235, 242 (Tex.App.—Waco 2003) (emphasis
added) Summary Judgment
The rationale for such a rule is premised on the theory that, if an actual trial were being held, and the affiant testified with conclusions only, wholly omitting from his/her testimony any facts upon which the conclusion(s) were based, a court would have no choice but to disallow such testimony. ... Affidavits consisting only of conclusions are insufficient to raise an issue of fact. Life Ins. Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d at 381. By stating that his contractual obligation had been modified, Michael asserted nothing more than a legal conclusion. His affidavit did not set forth such facts as would be admissible in evidence, as required by Rule 166-A(e), TEX.R.CIV.P. If this had been a trial on the merits and the only thing to which Michael testified was that his obligation had been modified, the trial court would have been required to instruct a verdict against him. Michael’s affidavit opposing Barbara’s motion for summary judgment should have gone further and specified factual matters such as the time, place, and exact nature of the alleged modification. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) Summary Judgment A legal conclusion in an affidavit is one with no factual underpinnings. The affiant boldly makes a conclusion of law such as:
Example 1 - “The land was held by A in
adverse possession as against the world” or
Example 2 - “The Sun Oil Company lease dated June 15, 1985, recorded in Volume 144 at Page 215 of the Panola County Deed Records automatically terminated on June 15, 1998.”
What is missing from such conclusions of law are the facts:
36
N a t i o n a l A s s o c i a t i o n o f D i v i s i o n O r d e r A n a l y s t s
Made with FlippingBook. PDF to flipbook with ease