Texas Supreme Court Adopts “Sham Affidavit Rule”
On April 27, 2018, the Texas Supreme Court in Albert Lujan d/b/a Texas Wholesale Flower Co. v. Navistar, Inc., officially adopted the “sham affidavit rule.” Under the rule, “if a party submits an affidavit that conflicts with the affiant’s prior sworn testimony and does not provide a sufficient explanation for the conflict, a trial court may disregard the affidavit when deciding whether the party has raised a genuine fact issue to avoid summary judgment.”
The case arose when Texas Wholesale Flower Co., Inc., and its owner Albert Lujan, sued truck manufacturer Navistar and claimed that recurring mechanical problems had caused disruptions in flower deliveries and the loss of perishable products and customers. Whether the flower company or Lujan as an individual owned the trucks became a contested issue. At one point, Lujan claimed that he purchased the trucks in his individual capacity but had transferred ownership to the flower company, as his counsel described it, “lock, stock and barrel.”
Navistar moved for summary judgment and asserted that Lujan lacked standing. Lujan, however, responded with a sworn affidavit stating that the trucks were his and that he did not transfer ownership of the trucks to the flower company. At the summary judgment hearing, Lujan’s counsel was unable to explain Lujan’s contradictory statements. He attributed some of the admittedly-false statements in the affidavit to his client’s misunderstanding of the “true facts,” but asserted that other than these falsehoods, “everything in the affidavit is true.” Dissatisfied with this explanation, the trial court told counsel that “I would have a little better time of this if it was a thoughtful affidavit that tried to explain” the false statements, but instead it appeared that “either you’re not paying attention to what the facts of the case are, or you’re just saying whatever is convenient at the time.” After additional briefing from the parties, the trial court struck Lujan’s affidavit as a sham and granted partial summary judgment for Navistar.
A divided court of appeals affirmed. On petition for review, the Texas Supreme Court officially adopted the sham affidavit rule. The rule finds its footing in Rule 166a of the Texas Rules of Civil Procedure, which states that a party is entitled to summary judgment when “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law . . . .” Tex. R. Civ. P. 166a(c). The key word, the court explained, is “genuine,” which means “authentic or real,” while a “sham,” by definition, is “not genuine.” Thus, the sham affidavit rule is not a “free-standing” rule, but is simply a “valid application of a trial court’s authority to distinguish genuine fact issues from non-genuine fact issues under Rule 166a.” And it’s not a new rule either. Before Lujan, eight of the Texas courts of appeals had recognized the sham affidavit rule, as had the United States Supreme Court and every federal court of appeals.
The impact of Lujan, though, should not be underestimated. Four Texas courts of appeals had previously declined to follow the sham affidavit rule, and before Lujan reached the Texas Supreme Court, a sharp dissent in the Fourteenth Court of Appeals argued that the rule was unnecessary, useless, and squarely in conflict with controlling Texas Supreme Court precedent. Lujan put those concerns to rest, and supplied Texas courts and litigants with a useful tool to help ensure that only genuine factual disputes reach the jury.
About the Authors
- Robert Gilbreath leads the appellate group at Hawkins Parnell & Young, LLP. He has handled more than 200 appeals in a wide variety of areas. Rob served a year as law clerk at the Texas Supreme Court. He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization and is the former Chair of the Board’s Appellate Exam Commission. He is also a founding member and trustee of the Texas Supreme Court Historical Society.