In Albert Lujan d/b/a Texas Wholesale Flower Co. v. Navistar, Inc., et al. the Texas Supreme Court held that Texas trial courts may disregard a "sham" affidavit that contradicts prior deposition testimony in an attempt to raise a genuine issue of fact without a sufficient explanation for the conflict between the deposition testimony and the statements in the affidavit. Specifically, the Court ruled that the "sham affidavit rule is a valid component of a trial court's authority under Rule 166a to distinguish genuine fact issues from non-genuine fact issues."
In this case, Albert Lujan submitted a sworn affidavit in opposition to Navistar's motion for summary judgment, contradicting his prior deposition testimony. Specifically, Lujan stated in the affidavit that he did not transfer ownership of assets to his corporation and that the corporation "never conducted business." The court noted Lujan's deposition testimony was contradicted by his affidavit on material points. Lujan's attorney admitted portions of the affidavit were false and in an attempt to explain stated "Lujan either did not recall or misunderstood the relevant facts." Unpersuaded, the trial court struck the affidavit as sham and granted partial summary judgment. A divided panel on the Fourteenth Court of Appeals affirmed and adopted the sham affidavit doctrine.
The Texas Supreme Court acknowledged that at least eight courts of appeals in Texas recognize the sham affidavit rule as a procedural mechanism for trial courts to discharge their obligation under Texas Rule of Civil Procedure 166a(c), which requires the non-movant to a raise a genuine fact issue to survive summary judgment. The Court drew a parallel between Rule 166a and Federal Rule of Civil Procedure 56a, noting the operative clauses to be "materially indistinguishable" and finding the federal precedent applying the sham affidavit rule to be persuasive. The Court held affidavits that contradict prior sworn testimony, without a sufficient explanation for the contradiction, may be disregarded.
Importantly, the sham affidavit rule does not provide trial courts unfettered authority to disregard affidavits or "to weigh evidence or determine credibility, and thus try the case on the affidavits." Rather, trial courts must "examine the nature and extent" of the contradiction. The Court explained "[m]ost differences between a witness's affidavit and deposition are more a matter of degree and details than direct contradiction. This reflects human inaccuracy more than fraud." However, "[i]f . . . the subsequent affidavit clearly contradicts the witness's earlier testimony involving the suit's material points, without explanation, then the sham affidavit rule applies."
The Texas Supreme Court upheld the trial court's decision to disregard Lujan's affidavit because he failed to sufficiently explain the contradiction between his affidavit and deposition testimony. The Court also noted the surrounding circumstances—namely Lujan's inability to explain the falsity of material points in the affidavit—as a basis for upholding the trial court's decision. The Lujan opinion makes it a lot harder for attorneys to "fix" the unfavorable deposition testimony by submitting a curated affidavit that attempts to create a genuine issue of material fact after the deposition, making witness preparation prior to the deposition that much more important.
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