Much has been written about the sham affidavit doctrine in Texas and other jurisdictions. Texas courts are divided on the applicability of the sham affidavit doctrine. Compare Del Mar College Dist. v. Vela, 218 S.W.3d 856 (Tex. App. – Corpus Christi 2007, no pet.), with Fred Loya Ins. Agency v. Cohen, 446 S.W.3d 913 (Tex. App. – El Paso 2014, no pet.). The sham affidavit doctrine arises when a person is deposed and after the deposition, a party files a motion for summary judgment using the deponent’s testimony as support for a position in the motion for summary judgment. In response to the motion for summary judgment, the nonmoving party attaches an affidavit from the deponent that directly contradicts his deposition testimony in order to raise a genuine issue of fact to prevent the motion for summary judgment from being granted. See Gaines v. Hamman, 163 Tex. 618 (Tex. 1962); Randall v. Dallas Power & Light Co, 754 S.W.2d 4 (Tex. 1988) (conflicting inferences can be drawn from deposition and affidavit and a fact issue is presented and summary judgment should be denied); see generally, Notes: Reconsidering the Sham Affidavit Doctrine, 50 Duke Law Journal 261 (2000).
Since Randall, many of the Texas courts have now held that such an affidavit merely creates a sham issue and cannot be used to avoid summary judgment. See Pando v. Southwest Convenience Stores, LLC, 242 S.W.3d 76, 79 (Tex. App. – Eastland 2007, no pet.); Fred Loya Ins. Agency v. Cohen, 446 S.W.3d 913 (Tex. App. – El Paso 2014, no pet.). Both the courts in Pando and Fred Loya, set out various elements to consider when asking the court to apply the sham affidavit doctrine to a summary judgment response that includes an affidavit that contradicts the prior deposition testimony.
To argue an affidavit is a sham affidavit, a party must show the following: 1). the affidavit was executed after the deposition; 2). there is a clear contradiction; 3). on a material point; 4). without explanation. Pando v. Southwest Convenience Stores, LLC, 242 S.W.3d 76, 79 (Tex. App. – Eastland 2007, no pet.). If those elements are met, the sham affidavit doctrine can be applied and the contradictory statements in the affidavit may be disregarded. If a party does file an affidavit that contradicts his prior deposition testimony, it is clear that he must explain for the change in the testimony as to why there is a direct contradiction. Without an explanation for the change in the testimony, courts may assume that the sole purpose of the affidavit was to avoid summary judgment and as such, it merely presents a “sham” fact issue. Farroux v. Denny’s Rests., Inc., 962 S.W.2d 108, 111 (Tex. App.-Houston [1st Dist.] 1997, no pet.).
This issue is getting quite a bit of attention from the Texas courts and it will not be long before the Supreme Court of Texas resolves the split between the various courts of appeals. The opinions in this blog are solely the author’s and any replies, suggestions, or comments can be sent to firstname.lastname@example.org. Happy Halloween!