law-interested-witness-testimony | admission an exclusion of evidence | objections to affidavits |
To prove facts through an interested witness, the testimony must be uncontroverted, clear,
positive, direct, credible, free from contradiction, and susceptible to being readily
controverted. TEX.R. CIV. P. 166a(c). Testimonial statements by an interested witness
that meet these requirements may be the basis for a summary judgment. Id.; Casso v.
Brand, 776 S.W.2d 551, 558 (Tex.1989).
TESTIMONY BY INTERESTED WITNESS
The general rule is that an interested witness "does no more than raise a fact issue to be determined by the jury."
Rosenblatt v. Freedom Life Ins. Co. of America, 240 S.W.3d 315, 321 (Tex. App.--Houston [1st Dist] 2007, no pet.)
(citing Ragsdale, 801 S.W.2d at 882). Under the exception to this rule, evidence is taken as true as a "matter of
law" when the testimony of an interested witness is not contradicted by any other witness, or attendant
circumstances, and the same is clear, direct and positive, and free from contradiction, inaccuracies, and
circumstances tending to cast suspicion thereon. Id. The exception is "especially true," the court observed, when
"the opposing party has the means and opportunity of disproving the testimony," but did not object. Id.
Cobbs v. Stern, Miller & Higdon (Tex.App.- Houston [1st Dist.] Jul. 2, 2009)(Alcala)
(denial of special appearance reversed in interlocutory appeal, attorney-client disputes and litigation,
void or voidable contract, solicitation of clients contingency fee agreement as against public policy, affidavit
testimony by interested witness, interlocutory appeal-special appearance)
REVERSE TRIAL COURT JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Alcala
Before Justices Jennings, Alcala and Higley
01-09-00112-CV John L. Cobbs v. Stern, Miller & Higdon
Appeal from 151st District Court of Harris County
Trial Court Judge: Hon. Michael Engelhart
Stern filed an affidavit describing the Agreement signed by Cobb, but he did not dispute the statements made by
Cobb concerning how Cobb was solicited by the law firm and Stern in Louisiana. Under these circumstances,
Cobb's affidavit must be taken as true as a matter of law because the firm and Stern did not challenge the facts
stated in the affidavit, even though they had the means and opportunity of disproving the testimony. Cobb's
affidavit is clear, direct, and positive. There are no circumstances tending to cast suspicion on Cobb's affidavit.
Although the admissions made by Cobb acknowledged that he had read the Agreement before he signed it, he
later corrected those admissions to make clear that he did not read the Agreement before he signed it. Therefore,
the evidence before the court was free from contradiction and inaccuracies. Even if we determined there was an
inconsistency concerning whether Cobb read the Agreement before he signed it, there is no dispute or
inconsistency concerning Cobb's statements that Stern and employees from the firm solicited him in Louisiana,
which is the sole pertinent issue before us in this appeal. Because Cobb's affidavit must be taken as true as a
matter of law, we conduct a de novo review. See id.
Mr. Bone is an interested witness on the issue of the amount of attorneys’ fees to be awarded to his clients and,
as Texas courts have long held, “[i]t is the general rule that the testimony of an interested witness, . . . , though
not contradicted, does no more than raise a fact issue to be determined by the [fact-finder].” See Ragsdale v.
Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990) (citing Cochran Wool Growers Central Storage Co.,
166 S.W.2d 904, 908 (Tex. 1942)). A jury, as fact finder, could choose to believe all, some, or none of Mr. Bone’s
testimony in deciding the amount of attorneys’ fees to be awarded.
Ogu v. Bridle Wood (Tex.App,- Houston [1st Dist.] Jan. 8, 2009)(Hanks)
(declaratory judgment, attorney's fees, jury trial)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Hanks
Before Justices Jennings, Hanks and Bland
01-07-00933-CV Caroline Ogu and Oakey Ugboaja v. Bridle Wood, et al
Appeal from County Civil Court at Law No 4 of Harris County\
Eix, Inc. v. JP Morgan Chase Bank (Tex.App.- Houston [14th Dist.] Feb. 19, 2009)(Boyce)
(commercial debt suit, personal guaranty, summary judgment evidence, affidavit by interested witness)
AFFIRMED: Opinion by Justice William Boyce
Before Justices Frost, Brown and Boyce
14-08-00042-CV Eix, Inc., and Saeed Moradi v. JP Morgan Chase Bank, N.A.
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Linda Storey
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