Example 1 - What did A do to adverse possess Blackacre? Did he fence the land? Did he pay taxes on the land? Did he live on the land or merely farm same? Did anyone else in the immediate area know of A’s ownership? How long did A adversely possess the land? Example 2 - Was production established under the lease? On what date did it cease? How does the affiant know the actual date of last production? What lease provision is the affiant relying on to state that the lease automatically terminated? Conclusions of fact in an affidavit cause the same admissibility problems as conclusions of law. The following statements have been found by the author in affidavits submitted in satisfaction of title requirements. There were no additional supporting facts contained in the affidavits.
conclusion, especially if the conclusion is one of law.
The objection that a statement is “conclusory” is an objection that is frequently made to challenge affidavits in summary judgment cases. Johnson v. Bethesda Lutheran Homes & Servs., 935 S.W.2d 235, 239 (Tex.App.--Houston [1st Dist.] 1996, no writ.) (Hedges, J., concurring). There is much confusion about what this objection means. Id. It does not mean that logical conclusions based on stated underlying facts are improper. That type of conclusion is proper in both lay and expert testimony. What is objectionable is testimony that is nothing more than a legal conclusion . Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984). To allow such testimony is to reduce to a legal issue a matter that should be resolved by relying on facts. Statements of legal conclusions amount to little more than the witness choosing sides on the outcome of the case . Mowbray v. State, 788 S.W.2d 658, 668 (Tex.App.--Corpus Christi 1990, pet. ref’d). 952 S.W.2d 580 (Tex.App. — Houston [1 Dist.] 1997) . Rizkallah v. Conner , 952 S.W.2d 580, 587 (Tex.App. —Houston [1 Dist.] 1997) (emphasis added) Summary Judgment © Terry E. Hogwood 2021 Articles are not intended to be and should not be relied upon as legal advice or to establish any kind of an attorney-client relationship with the author. Please contact the author of this article if you have any questions.
Example 1 - “Mary Lou Jones is one and the
same person as Mary Lou Benson.”
Example 2 - “There are no lakes, rivers, streams, roads or railroads located on Blackacre.”
What is missing from such conclusions of fact are the underlying facts:
Example 1 - How did the affiant come to know Mary Lou Jones? Did Mary Lou Jones marry and take the name Benson after her marriage? If so, is there a marriage license available which would better serve to prove who Mary Lou Jones is? Did the name change take place while the affiant knew and was in actual contact with Mary Lou Jones? Example 2 - Did the affiant actually walk the land? On what date? Are there any pictures confirming the affiant’s conclusions? The law is clear - Conclusions are permitted by affiants. However, they must be premised on full and complete facts which lead logically to the
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G r o w t h T h r o u g h E d u c a t i o n - A p r i l / M a y / J u n e 2 0 2 1
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