Of Sham Affidavits

Hardy v. Communication Workers of America provides three reminders about the “sham affidavit” doctrine recently applied by the Texas Supreme Court in Lujan v. Navistar, Inc., 555 S.W.3d 79 (Tex. 2018):

• Object. “Hardy did not object to Mathias’s affidavit in her response to the motions for summary judgment, and she did not object to the affidavit during the trial court’s hearing to consider pretrial motions, including the motions for summary judgment. Finally, the record does not show that the trial court ruled, or refused to rule, on an objection to Mathias’s affidavit.” (citations omitted).
• Confirm the claimed inconsistency.  “The 2019 affidavit does not mirror the 2016 affidavit—it is organized differently, it is longer, and it contains more factual detail. However, a side-by-side comparison of Mathias’s statements in the two affidavits does not reveal material contradictions. Nor does Hardy direct us to the specific statements that she asserts are contradictory. Instead, she complains that Mathias fails to explain: (1) why she created a new affidavit, (2) why the new affidavit did not include every statement from the 2016 affidavit, and (3) why certain statements were worded differently.”
• Procedural posture.  “[W]e are not faced with a contradictory affidavit by the nonmovant, seeking to raise a fact issue in order to avoid summary judgment. Instead, Hardy attempts to apply the sham affidavit rule to an affidavit filed by the movant in support of summary judgment.”

No. 05-19-01388-CV (Dec. 10, 2021) (mem. op.).