law-conclusory affidavit | affidavit based on best knowledge and belief | hearsay challenge | lack of personal
knowledge | business records affidavit | business records exception to the hearsay rule | appellate review of
evidentiary rulings | admission and exclusion of evidence
WHAT IS A CONCLUSORY STATEMENT?
A conclusory statement is one that does not provide the underlying facts to support the conclusion. 1001
McKinney Ltd. v. Credit Suisse First Boston Mortgage Capital, 192 S.W.3d 20, 27 (Tex. App.-Houston [14th
Dist.] 2005, pet. denied).
Conclusory statements in an affidavit are not proper summary judgment evidence. See Tex. R. Civ. P. 166a
(f) (supporting affidavit must set forth such facts as would be admissible in evidence); see also Ryland
Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam).
To serve as competent summary judgment proof under Texas Rule of Civil Procedure 166a(c), an affidavit of
an interested party must be "clear, positive, direct, credible, free from contradiction, and susceptible of being
readily controverted." Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App.-Texarkana 2000, no pet.);
see Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997). An affidavit that makes self-serving,
conclusory statements without any underlying factual detail cannot support a summary judgment. Haynes, 35
S.W.3d at 178. Finally, an objection that an affidavit is conclusory is an objection to substance that may be
raised for the first time on appeal. Id.
See Coastal Transport Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004) (stating
that even unobjected-to conclusory testimony does not raise a fact issue); Dolcefino v. Randolph, 19 S.W.3d
906, 930 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (explaining that conclusory allegations in
affidavits are insufficient to raise a fact issue).
CONCLUSORY TESTIMONY NOT COMPETENT
To support or defeat summary judgment, an affidavit must state facts and cannot merely recite legal
conclusions. See McIntyre v. Ramirez, 109 S.W.3d 741, 749-50 (Tex. 2003) (citing Ryland Grp., Inc. v. Hood,
924 S.W.2d 120, 122 (Tex. 1996) (per curiam)). Such unsupported conclusory statements are not credible
and are not susceptible to being readily controverted; conclusory statements by an expert witness will not
support or defeat a summary judgment. See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.
W.3d 794, 803 (Tex. 2003); Ryland Grp., 924 S.W.2d at 122.
CONCLUSORY STATEMENTS NOT EVIDENCE
Affidavits containing conclusory statements unsupported by facts are not competent summary-judgment
evidence. Prime Prods, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 637 (Tex. App.-Houston [1st Dist.] 2002,
pet. denied) (quoting Aldridge v. De Los Santos, 878 S.W.2d 288, 296 (Tex. App.-Corpus Christi 1994, writ
dism'd w.o.j.)); Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.-Houston [1st Dist.] 1997, no pet.) ("A
conclusory statement is one that does not provide the underlying facts to support the conclusion."). An
affidavit opposing a summary judgment motion must be factual—conclusions of the affiant lack probative
value. Prime Prods., 97 S.W.3d at 637; see also Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.
1996) ("[Conclusory affidavits are neither] credible nor susceptible to being readily controverted.").
Mere conclusory statements do not constitute effective summary judgment proof and need not be given the
same presumptive force as allegations of fact. Abbott Laboratories, Inc. v. Segura, 907 S.W.2d 503, 508
(Tex. 1995). Moreover, appellant attached no evidence to his motion. See Tex. R. Civ. P. 166a(i) (“The
court must grant the motion unless the respondent produces summary judgment evidence raising a genuine
issue of material fact."). Appellant's allegations of fraud amount to conclusory accusations and he presents
no evidence raising a genuine issue of material fact on any element of his fraud cause of action. See
Segura, 907 S.W.2d at 508. Specifically, appellant did not point to a single specific misrepresentation upon
which he bases his claim. The trial court did not err in granting summary judgment on this claim. Samson v.
Manley (Tex.App.- Houston [14th Dist.] Oct. 6, 2009)(Anderson)
(client' suit against his lawyer and opposing counsel, summary judgment on multiple causes of actions
affirmed, underlying suit: workers compensation suit)
DEFINED: A conclusory statement is one that does not provide the underlying facts to
support the conclusion. Paragon Gen. Contractors, 227 S.W.3d at 883; Rizkallah, 952 S.W.2d at 587.
A conclusory statement can be either a legal conclusion or factual conclusion. See Rizkallah, 952 S.W.2d at
587.
USE: Conclusory statements in affidavits are insufficient to raise a fact issue. Ryland Group, Inc. v. Hood,
924 S.W.2d 120, 122 (Tex. 1996); Paragon Gen. Contractors, 227 S.W.3d at 883; Rizkallah v. Conner, 952
S.W.2d 580, 587 (Tex. App.- Houston [1st Dist.] 1997, no pet.).
In the trial court, Zurich objected that these statements were legal and factual conclusions and therefore
were not competent summary judgment evidence. The record does not reflect a ruling on the objections.
However, because a conclusory affidavit is substantively defective, failure to obtain a ruling on an objection
does not waive a challenge to the defect and the objection may be considered on appeal. See Paragon
Gen. Contractors, 227 S.W.3d at 883; Pico, 209 S.W.3d at 909.
The Methodist Hospital v. Zurich American Inc. Co. (Tex. App. - Houston [14th Dist.] Jul. 7, 2009) (Seymore)
(INSURANCE LITIGATION: insured's suits against worker's compensation carrier alleging wrongful payment of
noncompensable injury claims within the deductible)(insurer's duty of good faith and fair dealings, negligent
claims handling, express warranty claim, breach of warranty - elements, conclusory affidavit)
AFFIRMED: Opinion by Justice Seymore
Before Justices Frost, Seymore and Guzman
14-07-00663-CV The Methodist Hospital v. Zurich American Insurance Company, Tamera McKinney and
Mary Vu
Appeal from 280th District Court of Harris County
CONCURRING: Concurring Opinion by Justice Frost (higlighting applicable binding Supreme Court
precedent)
However, Harrison provided no facts indicating Zurich's purported inadequacies caused its failure to
challenge compensability of the claims; instead, he merely made a bare assertion there was a causal
connection. See id. at 587 (holding plaintiff car owner's averment in affidavit that certain actions by
defendant mechanic caused damage to plaintiff's car were conclusory because she provided no factual
support). In fact, Harrison stated the assertions were his “opinion." See Ryland Group, Inc., 924 S.W.2d at
122 (recognizing that an interested witness's affidavit reciting he “estimates" or “believes" certain facts to be
true will not support summary judgment). Accordingly, Harrison's averments were substantively defective and
did not constitute evidence that any breach of the warranties mentioned in paragraph 11 resulted in
damages to Methodist.
Alsheikh v. Arabian National Sipping Corp. (Tex.App.- Houston [1st Dist.] Apr. 2, 2009)(Alcala)
(res judicata defense, attorney's fees fee factors)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Hanks
01-08-00007-CV Jawad Alsheikh v. Arabian National Shipping Corporation
Appeal from 269th District Court of Harris County
Trial Court Judge: Hon. John Thomas Wooldridge
Alsheikh also complains that Kennedy's testimony was conclusory because Kennedy stated he took the
Arthur Andersen factors into consideration without identifying underlying facts to support the eight factors.
While testifying, Kennedy identified each factor and stated he took these factors into consideration in forming
his opinions. As set forth above, Kennedy did testify to most of the factors from Arthur Andersen. We
conclude Kennedy's testimony is not conclusory because he did provide facts to support most of the Arthur
Andersen factors and based his opinions on his experience and knowledge of the practice of law in Harris
County. See Tex. Commerce Bank v. New, 3 S.W.3d 515, 517-18 (Tex. 1999) (noting affidavit testimony in
support of attorneys' fees was not conclusory and was legally sufficient where attorney testified he was duly
licensed attorney, he was familiar with usual and customary attorneys' fees in locality, and, based on his
knowledge of services rendered, fee in dispute was reasonable); State & County Mut. Fire Ins. Co. v. Walker,
228 S.W.3d 404, 409 (Tex. App.--Fort Worth 2007, no pet.) (finding attorney's testimony not conclusory
where "attorney testified about his professional experience and background and described the work he had
performed and the amount of time spent on the case").
Conclusory statements in an affidavit are not proper summary judgment evidence. See
Tex. R. Civ. P. 166a(f) (supporting affidavit must set forth such facts as would be admissible in evidence);
see also Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam).
A conclusory statement is one that does not provide the underlying facts to support the conclusion. 1001
McKinney Ltd. v. Credit Suisse First Boston Mortgage Capital, 192 S.W.3d 20, 27 (Tex. App.--Houston [14th
Dist.] 2005, pet. denied).
AFFIDAVIT REQUIREMENTS FOR SUMMARY JUDGMENT PURPOSES: To serve as competent summary
judgment proof under Texas Rule of Civil Procedure 166a(c), an affidavit of an interested party must be
"clear, positive, direct, credible, free from contradiction, and susceptible of being readily controverted."
Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App.--Texarkana 2000, no pet.); see Trico Techs.
Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997).
An affidavit that makes self-serving, conclusory statements without any underlying factual detail cannot
support a summary judgment. Haynes, 35 S.W.3d at 178. Finally, an objection that an affidavit is conclusory
is an objection to substance that may be raised for the first time on appeal. Id.
Grant v. Laughlin Environmental, Inc. (Tex.App.- Houston [1st Dist.] Dec. 18, 2008)(Jennings)
(summary judgment evidence, conclusory affidavit, breach of contract, quantum meruit, fraud, negligent
misrepresentation)
Texas Mutual contends that Weedon's testimony was not competent evidence of a knowing violation because
it was conclusory. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex.
2004) (stating that conclusory or speculative opinion testimony is incompetent evidence and cannot support
a judgment).
DOES COMPLAINT THAT AFFIDAVIT IS CONCLUSORY REQUIRE PRESERVATION OF
ERROR IN THE TRIAL COURT?
While at least one court has held this same argument is not preserved when the appellant fails to object and
obtain a ruling, other courts, including this one, have stated that an objection an affidavit is conclusory
challenges the substance of the affidavit and may be raised for the first time on appeal. Compare
Thompson v. Chrysler First Business Credit Corp., 840 S.W.2d 25, 28-29 (Tex. App.- Dallas 1992, no writ)
with Griffin v. Methodist Hosp., 948 S.W.2d 72, 76 n.2 (Tex. App.- Houston [14th Dist.] 1997, no writ). We
need not decide whether Sandhu preserved error because we hold the affidavit was not conclusory.
Sandhu v. Pinglia Investments of Texas, LLC (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)(Seymore)
(commercial real estate transaction: financing of purchase of shopping center, suit for breach of promissory
note, summary judgment procedure, affirmative defenses not properly asserted in response to Plaintiff's
motion, proof of balance due and damages in note suit)
Decision: TRIAL COURT'S JUDGMENT AFFIRMED: Opinion by Justice Charles Seymore
Panel members: Chief Justice Hedges, Justices Anderson and Seymore
14-08-00184-CV Raghbir Sandhu v. Pinglia Investments of Texas, LLC and Sumer Pinglia
Appeal from 164th District Court of Harris County
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