Affidavit Advice

Kroger Specialty Infusion v. Sturns, No. 05-22-01276-CV (May 16, 2024), presents four important, “nuts and bolts” tips about summary-judgment affidavits:

1. Conclusory objection. An argument that an affidavit is “conclusory” is considered a “defect of substance” that may be raised for the first time on appeal.
2. Conclusory example. This statement, as a matter of law, is conclusory as to whether someone improperly solicited customers. If you’re drafting an affidavit, say more than this:
   

   “While employed by BioPlus, and shortly before becoming employed by BioPlus, Sturns solicited some of the same customers, referral sources and/or patients in her former Sales Territory, in violation of her Agreement with [Kroger]. Sturns: (a) provided BioPlus business cards and marketing materials to one or more customers, referral sources and/or patients within the Restricted Area and/or the Sales Territory (both as defined in the Agreement); (b) conducted meetings with one or more such customers, referral sources and/or patients; and (c) met with or spoke to such customers, referral sources and/or patients.”

3. Other objections. “Objections to the testimony of an interested witness or the absence of personal knowledge are defects in form” that must be raised in a specific objection that the trial court rules upon (emphasis added).
4. Still an other objection. The need for an objection includes testimony that starts with weasel words like “I have reason to believe” or “[u]nless stated otherwise, I have personal knowledge.” Those are still objections to form that must be raised by objection, ruled upon, etc.

(LPHS represented one of the successful appellees in this case.)