law-affidavit-found-conclusory | admission and exclusion of evidence | conclusory testimony | hearsay | lack
of personal knowledge |
CONCLUSORY STATEMENTS IN AN AFFIDAVIT
Affidavits consisting only of conclusions are [...] insufficient to raise an issue of fact in response to a motion
for summary judgment. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984) (holding that a statement in
an affidavit that "his contractual obligation had been modified" was nothing more than a legal conclusion and
the affidavit should have gone further to specify factual matters such as the "time, place, and exact nature of
the alleged modification"). Conclusory statements are not credible or susceptible to being readily
controverted. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996). A conclusory statement is one
that does not provide the underlying facts to support the conclusion. Haynes v. City of Beaumont, 35 S.W.3d
166, 178 (Tex.App.-Texarkana 2000, no pet.).
A conclusory statement is one that does not provide the underlying facts to support
A witness's affidavit is conclusory if it fails to explain the basis of the witness's
statements to link his conclusions to the facts).
Conclusory statements in an affidavit unsupported by facts are insufficient to defeat
An affidavit is conclusory if it fails to explain the basis of the affiant’s statements to link his
conclusions to the facts. Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999). Because such
statements are not proof, they cannot create a disputed issue of material fact. See Laidlaw Waste
Sys. v. City of Wilmer, 904 S.W.2d 656, 661 (Tex. 1995) (holding that conclusory statements are not
proof); see also CA Partners v. Spears, 274 S.W.3d 51, 63 (Tex. App.—Houston [14th Dist.] 2008,
pet. denied); 1001 McKinney Ltd. v. Credit Suisse First Boston Mortgage Capital, 192 S.W.3d 20,
27 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (citing Wadewitz v. Montgomery, 951 S.W.
2d 464, 466 (Tex. 1997)).
SUMMARY JUDGMENT AFFIDAVIT(S) FOUND CONCLUSORY
Christus Health v. Kone, Inc. (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)(Brown)
(fraud and fraud-in-the-inducement claims relating to a contract for elevator-maintenance services,
one-satisfaction rule does not apply here, pleading sufficiency, special exceptions, affidavit found to be
AFFIRMED: Opinion by Justice Brown
Before Justices Anderson, Frost and Brown
14-07-00786-CV Christus Health and Christus Health Gulf Coast v. Kone, Inc
Appeal from 127th District Court of Harris County
Trial Court Judge: Sharolyn P. Wood
As evidence that Kone made misstatements of material fact, Christus points to that portion of the elevator-
services contract in which Kone represented that it had “the experience, skill and resources necessary to
provide the Services consistent with the terms and conditions of this Agreement, consistent with industry
standards and in a good and workman like manner." To raise an issue that this representation was false,
Christus relies on the affidavit of Mr. Zach McCain, Christus' retained elevator maintenance expert. McCain
opined that Kone's elevator maintenance personnel “lacked the experience, skill, or resources necessary to
provide services consistent with the terms and conditions of that maintenance contract, consistent with
industry standards, or in a good and workmanlike manner." Christus maintains that this evidence is sufficient
to raise a fact issue on this element of fraud. In response, Kone contends that McCain's affidavit is
conclusory, a sham affidavit, and not timely provided, and that the trial court erroneously overruled Kone's
objections on these grounds. We review a trial court's evidentiary decisions by an abuse-of-discretion
standard. Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527-28 (Tex. 2000).
Assuming for purposes of discussion that the alleged misstatements Christus relies on were material, we
nevertheless agree with Kone that the McCain affidavit is conclusory because it fails to set out the basis for
his opinions. Additionally, McCain does not opine that Kone's alleged misstatements of material fact were
made at the time the parties entered into the contract. After noting that he reviewed the audits performed by
PersohnHahn and Kone and the work items performed by Thyssen Krupp in 2003 and 2004, McCain states
in relevant part:
Based on reviewing those documents, among others, I have formed the opinion that the elevator
maintenance personnel assigned by Kone to perform Kone's obligations under the 2002 Elevator
Maintenance Agreement lacked the experience, skill or resources necessary to provide services consistent
with the terms and conditions of that maintenance contract, consistent with industry standards, or in a good
and workmanlike manner.
Although McCain states in his affidavit that he has reviewed audits and work items performed by another
contractor, he says nothing about the basis for that opinion; how those audits and work items revealed to him
that Kone's personnel lacked the experience, skill, or resources to perform the elevator services at the time
the parties entered into the contract; what experience, skill, or resources were needed; or how the audits and
the lack of experience, skill, or resources related to the accident.
Conclusory statements in an affidavit unsupported by facts are insufficient to defeat summary judgment. CA
Partners v. Spears, 274 S.W.3d 51, 63 (Tex. App. - Houston [14th Dist.] 2008, pet. denied); 1001 McKinney
Ltd. v. Credit Suisse First Boston Mortgage Capital, 192 S.W.3d 20, 27 (Tex. App. - Houston [14th Dist.]
2005, pet. denied) (citing Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997)).
A conclusory statement is one that does not provide the underlying facts to support the conclusion. Id.
(citing 1001 McKinney Ltd., 192 S.W.3d at 27); see also Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)
(stating that a witness's affidavit is conclusory if it fails to explain the basis of the witness's statements to link
his conclusions to the facts).
Further, a conclusory statement of an expert witness is insufficient to create a question of fact to defeat
summary judgment. See McIntyre v. Ramirez, 109 S.W.3d 741, 749-50 (Tex. 2003) (citing Ryland Group,
Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam); see also Wadewitz, 951 S.W.2d at 466
(“Conclusory statements by an expert are insufficient to support or defeat summary judgment.").
We conclude that McCain's affidavit is nearly identical in key respects to the affidavit considered by the
supreme court in Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) (per curiam). In Anderson, an attorney
sued for malpractice moved for summary judgment supported by his own affidavit, which stated in substance:
I have reviewed the Plaintiff's Original Petition, my file and the relevant and material documents filed with the
Court, and it is clear that I acted properly and in the best interest of Mrs. Jimmie F. Anderson when I
represented her, and that I have not violated the [DTPA]. I did not breach my contract with Mrs. Jimmie F.
Anderson, and have not been guilty of any negligence or malpractice. Mrs. Jimmie F. Anderson has suffered
no damages or legal injury as a result of my representation of her. Id. at 54. The supreme court held that
this affidavit was “wholly conclusory" and would not support a summary judgment. Id. at 55.
Christus attempts to distinguish Anderson on the basis that in that case, the challenged affidavit merely
referenced general documents and did not provide a list of items to support his allegations. Here, Christus
contends, McCain “did not summarily review general documents and simply conclude that Kone had
committed fraud in the inducement"; rather, Abased on specific documents detailing the many deficiencies in
Kone's work and his experience," he determined that Kone “lacked experience, skill, resources, and training
to perform elevator maintenance services." Christus also contends that McCain's affidavit is sufficient
because it provides a “reasoned basis" for his opinion. See Allbritton v. Gillespie, Rozen, Tanner & Watsky,
P.C., 180 S.W.3d 889, 893 (Tex. App.- Dallas 2005, pet. denied).
We are not persuaded by Christus's proffered distinction. In his affidavit, McCain states no more than he
has considered the relevant facts and concluded that Kone's personnel lacked the required experience,
skills, or resources to perform the services. Significantly, he does not explain why Kone's personnel lacked
the required experience, skills, or resources to perform the services, who these personnel were, when the
personnel lacked the experience (whether at the time the contract was executed or at the time of the
accident), what experience, skill, or resources the personnel lacked, what the applicable industry standards
were, or what experience, skill, or resources were necessary to perform the services in a good and
workmanlike manner. Moreover, McCain's affidavit is easily distinguished from those at issue in Allbritton. In
that case, the experts' affidavits not only included a list of the documents reviewed and their ultimate
conclusions, they also listed the underlying bases for their opinions. See id. at 892-94. In contrast, McCain
failed to supply any reasoned basis for his conclusions, and without more, a reasonable person is left only to
speculate about the factual basis for his conclusions. Therefore, we conclude that the McCain affidavit is
conclusory and fails to raise a genuine issue of material fact concerning whether Kone made misstatements
of material fact at the time the parties entered into the contract.
In its reply brief, Christus argues that even if this court determines that McCain's affidavit is conclusory,
Christus provided other summary-judgment evidence independently establishing the same facts.
Specifically, Christus points to (1) the contract setting out Kone's representations and providing that they
were “material inducements," (2) ThyssenKrupp work tickets that identified numerous items that Kone failed
to do, and (3) Persohn/Hahn audits that identified additional deficiencies in Kone's elevator maintenance
services. We have assumed that representations in the contract were material, but without McCain's
affidavit, there is no evidence raising a fact issue that they were false. And the two other exhibits Christus
identifies do not fill that void. The “ThyssenKrupp work tickets" are invoices for work Thyssen/Krupp
performed on Christus's elevators between September 2003 and June 2004. These invoices do no more
than demonstrate that the elevators required maintenance and service during that time period. They do not
raise a fact issue concerning whether Kone made misrepresentations about its personnel's experience, skills,
or resources to perform the services at the time the contract was executed in 2002. Similarly, the exhibit
identified as Persohn/Hahn audits consists of what appears to be an evaluation of each of Christus's
elevators in August 2003. The documents identify the specific elevators by number and description, and
contain a chart reflecting each elevator's “operating Conditions and Performance" and listing the “Items to be
corrected." But this exhibit does not include any summaries or other explanatory information concerning
what they reflect, nor does it include any criticisms of Kone. Reviewing these documents in the light most
favorable to Christus, we conclude that they do not raise a fact issue concerning whether Kone made
misstatements of material fact to Christus.
Therefore, we overrule Christus' issue.
We overrule Christus' issue and affirm the trial court's judgment.
/s/ Jeffrey V. Brown
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