Ripley Dean Sutton v. Emmett Sutton III and Cheryl Stallworth ( 2021 )

Affirmed and Memorandum Opinion filed October 28, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00335-CV
RIPLEY DEAN SUTTON, Appellant
V.
EMMETT SUTTON III AND CHERYL STALLWORTH, Appellees
On Appeal from the 250th District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-19-002560
MEMORANDUM OPINION
Appellees Emmett Sutton, III and Cheryl Stallworth sued their brother,
appellant Ripley Dean Sutton, seeking the partition of an office building they
owned as co-tenants. Appellant filed an ouster counterclaim against his siblings.
Appellees filed a no-evidence summary judgment on that claim, which the trial
court granted. Concluding the trial court did not err when it struck all of
appellant’s summary judgment evidence and then granted appellees’ motion, we
affirm the trial court’s final judgment.
BACKGROUND
This case involves a dispute between three siblings over the ownership and
use of an office building. Each sibling owned an undivided interest in the office
building. Appellees eventually filed suit against appellant seeking a court-ordered
partition of the office building. Appellees asserted that the property was not
susceptible to division in kind and should therefore be sold, with proceeds being
divided among the three siblings according to their respective ownership interest.
In response, appellant filed a general denial as well as a counterclaim for
ouster. Appellant alleged that the parties’ co-tenancy began upon the death of their
mother and that over the ensuing years appellees had “enjoyed exclusive,
continuous use and possession of the property” and had denied appellant “all use,
enjoyment, and possession of the property.” Appellant sought compensation for
the full value of his alleged loss of use of the property.
Appellees sought a declaration that the siblings’ relative ownership interests
were 1/6th for appellant and 5/12th for each appellee. Appellant agreed to these
determinations and the trial court signed an agreed order to that effect. The trial
court then appointed an appraiser to value the property and file a sworn appraisal.
Once the sworn appraisal was filed with the trial court, the trial court signed an
order notifying the parties of the appraised value and that any party could object to
the appraisal within thirty days. While appellant initially objected to the appraised
value, he eventually agreed to it.
Appellees then asked the trial court to determine the fair market value of the
property. The trial court did so in an order notifying the parties that the fair market
value was $260,000. The trial court also notified appellant that he could buy his
siblings out for $216,666.67. Appellant did not exercise his option to buy out his
siblings. At that point, appellees asked the trial court to order a partition of the
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property by public sale.
Appellees also filed a no-evidence motion for summary judgment on
appellant’s ouster counterclaim. Appellees argued appellant had no evidence they
had given him actual or constructive notice of repudiation of his co-tenancy rights
in the property.
Appellant responded to appellees’ no-evidence summary judgment motion
and he attached three affidavits to his response. The first affidavit was signed by
Jeff Tippens. Tippens stated that he was appellant’s former attorney and he
authenticated two letters attached to the affidavit. Tippens sent the letters to Chip
Sommerville, an attorney who previously represented appellees. Both letters
discussed the possibility of settling the dispute over joint ownership of the office
building. The second affidavit was signed by Mark Hughes. Finally, appellant
submitted the third affidavit signed by himself, which included a single paragraph
directed toward his ouster counterclaim, which we quote below. Appellees filed
objections to each of appellant’s affidavits and the attached letters.
While appellees’ no-evidence motion was pending, the trial court signed an
agreed order declaring that a partition in kind would result in substantial prejudice
to the parties. It ordered a partition by open sale of the property at a price not less
than $260,000. The trial court then granted appellees’ no-evidence motion for
summary judgment. The trial court also sustained appellees’ objections to
appellant’s affidavits in the same order.
Thereafter, pursuant to the trial court’s earlier agreed order, the office
building was sold. After the sale closed, appellant and appellees executed a
general warranty deed to the buyers and the sales proceeds were distributed to
appellant and appellees in accordance with their agreed ownership interests. This
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appeal followed.1
ANALYSIS
Appellant raises two issues on appeal challenging only the trial court’s
granting of appellees’ no-evidence motion for summary judgment. Before we
consider those issues, we must first address the parties’ contentions that this court
lacks jurisdiction to consider appellant’s appeal.
I. This court has jurisdiction to consider appellant’s appeal.
Whether a court has subject-matter jurisdiction is a question of law subject
to de novo review. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 Tex. 2004). Subject-matter jurisdiction is essential to a court’s power to
decide a case. City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013).
While appellees were the first to challenge our jurisdiction, we initially
address the jurisdictional challenge appellant raised in his reply brief. Appellant
argues that the Travis County District Court did not have jurisdiction over the
siblings’ dispute because, in appellant’s view, their mother’s estate was still
pending in the Travis County Probate Court at the time the partition suit was filed.
In support of his argument, appellant asks this Court to take judicial notice of the
docket sheet of the probate court handling his mother’s estate. Appellant asserts
the docket sheet does not show that the estate was formally closed. According to
appellant, because his mother’s estate was still pending in the Travis County
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The Supreme Court of Texas ordered the Third Court of Appeals to transfer this case to
this court. See Tex. Gov't Code § 73.001. Under the Texas Rules of Appellate Procedure, “the
court of appeals to which the case is transferred must decide the case in accordance with the
precedent of the transferor court under principles of stare decisis if the transferee court’s decision
otherwise would have been inconsistent with the precedent of the transferor court.” Tex. R. App.
P. 41.3. We are unaware of any conflict between Third Court of Appeals precedent and that of
this court on any relevant issue.
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Probate Court, the Texas Estates Code assigns exclusive jurisdiction over the
siblings’ office building dispute to the same probate court. See Tex. Estates Code
§ 32.005 (providing that statutory probate court has exclusive jurisdiction of all
probate proceedings “unless the jurisdiction of the statutory probate court is
concurrent with the jurisdiction of . . . any other court.”). Based on this, appellant
asserts the trial court’s orders and judgment are void and we have jurisdiction only
to reverse them and then dismiss the appeal. City of Garland v. Louton, 691
S.W.2d 603, 605 (Tex. 1985) (“If trial court lacks subject matter jurisdiction, the
appellate court can make no order other than reversing the judgment of the court
below and dismissing the cause.”).
While it may be true there was no formal order closing the mother’s estate,
that is not always required. Instead, “an estate is closed when the probate court
signs an order discharging the administrator and closing the estate, or when all of
the estate’s property is distributed, the estates’ debts are paid, and there is no need
for further administration.” In re Blankenship, 392 S.W.3d 249, 257–58 (Tex.
App.—San Antonio 2012, no pet.). Appellant offers no evidence establishing that
when the partition suit was filed, there were any unpaid estate debts, undistributed
property, or any other need for further administration of the mother’s estate.
Instead, in the trial court, the three siblings agreed, and the trial court declared, that
the office building was owned solely by the siblings as co-tenants. This indicates
the probate proceeding had closed. Accordingly, we conclude that the probate
court’s exclusive jurisdiction was not triggered. See In re Stegall, No. 02-17-
00410-CV, 2019 WL 6205244, at *8 (Tex. App.—Fort Worth Nov. 21, 2019, no
pet.) (mem. op.) (“A pending probate proceeding triggers a statutory probate
court’s exclusive subject-matter jurisdiction over any cause of action related to the
probate proceeding under Section 32.005.”) (internal quotations omitted). The Fort
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Worth Court of Appeals recently addressed a similar case. In Baker v. Baker, the
Fort Worth Court of Appeals held that “because no probate proceeding was
pending at the time Amy filed her partition suit, the exclusive-subject-matter-
jurisdiction provision of section 32.005 was not triggered.” No. 02-18-00051-CV,
2018 WL 4224843, at *2 (Tex. App.—Fort Worth Sept. 6, 2018, no pet.) (mem.
op.). Because there was no pending probate proceeding when the partition suit was
filed, we reach the same conclusion here.
We turn now to appellees’ contentions that this court lacks jurisdiction
because (1) appellant did not timely appeal the trial court’s orders addressing the
partition of the office building; and (2) the unchallenged sale of the office building
rendered the dispute moot. We address these contentions in order.
Appellees’ jurisdictional arguments arise out of the unique procedures used
to resolve partition suits. A partition suit involves a multi-step process, and it has
two final judgments, both of which are appealable as a final judgment. Estate
Land Co. v. Wiese, 546 S.W.3d 322, 325 (Tex. App.—Houston [14th Dist.] 2017,
pet. denied). In the first step of a partition suit, the trial court determines whether
the partition will be in kind or by sale, the share or interest of the joint owners or
claimants, and all questions of law or equity affecting title. Id.; Johnson v.
Johnson-McHenry, 978 S.W.2d 142, 144 (Tex. App.—Austin 1998, no pet.). In
the second step, assuming the trial court, as it did here, determines the property
must be partitioned by sale, the trial court approves the terms of the proposed sale.
Estate Land Co., 546 S.W.3d at 326. This second order must be appealed after its
issuance, but before the property is sold. Id.; Taylor v. Hill, 249 S.W.3d 618, 624
(Tex. App.—Austin 2008, pet. denied). Assuming there is an appeal of this second
order, matters that were determined by the first decree cannot be reviewed.
Thomas v. McNair, 882 S.W.2d 870, 877 (Tex. App.—Corpus Christi 1994, no
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writ).
In appellees’ view, we lack jurisdiction because the trial court was required
to resolve appellant’s ouster claim during the first step of the partition process and
then account for any amount it found appellant was owed for lost use and
enjoyment of the office building when it determined each sibling’s ownership
share. Appellees, citing this Court’s Estate Land Company opinion, argue
appellant was required to immediately appeal the trial court’s failure to account for
his ouster claim in its first order and because he did not, we do not have
jurisdiction to consider his challenge at this stage of the litigation. 546 S.W.3d at
325 (stating that “issues determined by the partition order must be challenged
following issuance of the partition order; they cannot be attacked collaterally after
the court issues a later order or judgment”). We disagree.
“It is well settled that the obligations and equities between the parties to an
action to partition property in which they are jointly interested may be adjusted
and enforced by the court in the partition suit.” Goodloe & Meredith v. Harris, 94
S.W.2d 1141, 1144 (Tex. [Comm’n Op.] 1936) (emphasis added). In other words,
the trial court has the discretion on whether to address these types of claims before
or after the sale of the land. Burdette v. Estate of Burns, 200 S.W.3d 358, 363
(Tex. App.—Dallas 2006, no pet.) (“It remains within the discretion of the trial
judge whether to address these issues prior to the sale.”); Thomas, 882 S.W.2d at
878 (“Because of the preliminary nature of the first judgment, it remains within the
power and discretion of the trial court to address these matters after the sale.”). An
examination of the record reveals that the trial court exercised its discretion to
address appellant’s ouster claim after the first order determining the parties’
respective ownership interest in the office building, which was undisputed. As a
result, there was no ruling on appellant’s ouster claim for appellant to appeal until
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the second final judgment concluding the partition proceeding made the trial
court’s interlocutory summary judgment order on his ouster claim final.
We turn next to appellees’ argument that we do not have jurisdiction
because the sale of the office building renders appellant’s ouster claim moot. A
case becomes moot when (1) a justiciable controversy no longer exists between the
parties, (2) the parties no longer have a legally cognizable interest in the case’s
outcome, (3) the court can no longer grant the requested relief or otherwise affect
the parties’ rights or interests, or (4) any decision would constitute an
impermissible advisory opinion. Elec. Reliability Council of Tex., Inc. v. Panda
Power Generation Infrastructure Fund, LLC, d/b/a Panda Power Funds, 619
S.W.3d 628, 635 (Tex. 2021). If a controversy becomes moot, the plaintiff loses
standing to maintain his claims. Williams v. Lara, 52 S.W.3d 171, 184 (Tex.
2001). An appellate court is prohibited from deciding a moot controversy. Nat’l
Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 85 (Tex. 1999).
A cotenant in possession who excludes another cotenant is liable to the
excluded cotenant for the rental value of his or her possession. McGehee v.
Campbell, No. 01-08-1023-CV, 2010 WL 1241300, at *4 (Tex. App.—Houston
[1st Dist.] March 25, 2010, no pet.) (mem. op.). Appellees have cited no authority,
and our own research has revealed none, mandating that any recovery appellant
may receive if his ouster claim is successful must be paid exclusively from the
proceeds of the sale of the office building. As a result, we hold that the sale of the
office building did not render appellant’s ouster claim moot.
II. The trial court did not err when it granted appellees’ no-evidence
motion for summary judgment.
As mentioned above, appellees filed a no-evidence motion for summary
judgment asserting appellant had no evidence that appellees had given him actual
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or constructive notice of repudiation of his co-tenancy rights in the office building.
The trial court granted the motion. Appellant brings two issues on appeal attacking
the trial court’s granting of appellees’ no-evidence motion for summary judgment.
In his first issue, appellant argues the trial court erred when it sustained appellees’
objections to his summary judgment evidence and then struck the affidavits and
attached exhibits. Appellant’s second issue builds upon his first. Appellant argues
that his summary judgment evidence creates a genuine issue of material fact on the
challenged element of his claim. We address these issues together.
A. Standard of review and applicable law
We review the trial court’s grant of summary judgment de novo. See, e.g.,
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We consider
all of the summary judgment evidence in the light most favorable to the
nonmovant, crediting evidence favorable to the nonmovant if a reasonable
factfinder could and disregarding contrary evidence unless a reasonable factfinder
could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
A movant may obtain a no-evidence summary judgment by asserting that
there is no evidence of one or more essential elements of a claim on which the
nonmovant has the burden of proof. Tex. R. Civ. P. 166a(i). The burden then
shifts to the nonmovant to present evidence raising a genuine issue of material fact
as to the elements specified in the motion. Tamez, 206 S.W.3d at 582. We sustain
a no-evidence summary judgment when (a) there is a complete absence of
evidence of a vital fact; (b) the court is barred by rules of law or of evidence from
giving weight to the only evidence offered to prove a vital fact; (c) the evidence
offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence
conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., Inc.
v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). If the nonmovant produces more
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than a scintilla of evidence to raise a genuine issue of material fact, the trial court
cannot grant a no-evidence summary judgment. Tex. R. Civ. P. 166a(i). More
than a scintilla of evidence exists when the evidence rises to a level that would
enable reasonable and fair-minded people to differ in their conclusions as to the
existence of the vital fact. Dworschak v. Transocean Offshore Deepwater Drilling,
Inc., 352 S.W.3d 191, 196 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
Summary judgment evidence must be presented in a form that would be
admissible at trial. Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112
(Tex. App.—Houston [14th Dist.] 2000, no pet.). We review a trial court’s
decision to exclude or admit summary judgment evidence for an abuse of
discretion. Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 667 (Tex. App.—
Houston [14th Dist.] 2012, pet. denied). We must uphold the trial court’s
evidentiary ruling if there is any legitimate basis for the ruling. Owens-Corning
Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Further, to establish
reversible error on an evidentiary complaint, the complaining party must show that
the trial court erred in excluding the evidence and that the error probably caused
the rendition of an improper judgment. Horizon/CMS Healthcare Corp. v. Auld,
34 S.W.3d 887, 906 (Tex. 2000).
Hearsay is an out-of-court statement offered in evidence to prove the truth of
the matter asserted and is inadmissible unless a statute or rule of exception applies.
Tex. R. Evid. 801(d), 802. The proponent of hearsay has the burden to show that
the testimony fits within an exception to the general rule. Volkswagen of Am., Inc.
v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004).
A conclusory statement is one that expresses a factual inference without
providing underlying facts to support that conclusion. Leonard v. Knight, 551
S.W.3d 905, 911 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Affidavits that
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state conclusions without providing underlying facts to support those conclusions
are not proper summary judgment evidence. Id. To avoid being excluded as
conclusory, an affidavit must contain specific factual bases, admissible in
evidence, from which any conclusions are drawn. Id.B. The trial court did not abuse its discretion when it struck the
Tippens affidavit and attached letters.
We turn first to the trial court’s striking of the Tippens affidavit and the
attached letters. In his affidavit Tippens stated that he was an attorney licensed in
the state of Texas. He further stated that he represented appellant in 2018 and
2019 in connection with appellant’s interest in the disputed office building.
Tippens then identified the two letters attached to his affidavit as letters he sent on
behalf of appellant to the attorney representing appellees at the time. Appellees
objected that the Tippens affidavit was conclusory and unsubstantiated by any
supporting facts. Appellees also objected that the two attached letters were
inadmissible because they contained hearsay and communications regarding
possible settlement of the dispute. The trial court struck both the affidavit and the
attached letters.
The Tippens affidavit is not conclusory because it contains statements of
fact. The trial court therefore abused its discretion when it sustained appellees’
objection and struck it. We conclude, however, that the trial court’s error in
striking the affidavit was harmless because it contains no evidence regarding the
challenged element of appellant’s ouster claim. See Tex. R. App. P. 44.1(a)(1);
Waterway Ranch, LLC v. City of Annetta, 411 S.W.3d 667, 679 (Tex. App.—Fort
Worth 2013, no pet.) (concluding that any error in striking affidavit was harmless
because none of the facts stated therein, even if true, affected the propriety of the
plaintiff’s claim).
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We turn next to the letters attached to the Tippens affidavit. Both letters
conveyed (1) appellant’s position that appellees had excluded him from the
property, and (2) proposals to settle the dispute. We conclude the trial court did
not abuse its discretion when it struck both letters because they were based entirely
on hearsay and contained settlement communications. See Tex. R. Evid. 408(a)
(prohibiting use of settlement communications as evidence proving or disproving a
claim); Tex. R. Evid. 801(d), 802 (defining hearsay as an out-of-court statement
offered in evidence to prove the truth of the matter asserted and stating that it is
generally inadmissible).
C. Any error in striking the Hughes affidavit was harmless.
In his affidavit Hughes stated that he had known appellant and appellees for
over twenty years. He then stated that he was “familiar with their office conflicts
and business done with” his company. Hughes continued that appellant had asked
him to testify regarding disputes that arose between appellant and appellees
“concerning unauthorized contact with [appellant’s] longtime clients.” Appellees
objected that the Hughes affidavit was conclusory. We need not decide if the
affidavit was conclusory because even if the trial court erred when it struck it, the
error was harmless because nothing Hughes stated in his affidavit has any
connection with appellant’s ouster cause of action. See Tex. R. App. P. 44.1(a)(1);
Waterway Ranch, LLC, 411 S.W.3d at 679.
D. The trial court did not reversibly err when it struck paragraph 7
of appellant’s affidavit.
Appellant’s affidavit included a single paragraph directed toward his ouster
counterclaim. That paragraph, with numbering added, provides:
[1] In 2014 after my mother’s death I contacted [appellee Cheryl
Stallworth] several times to inform her of me having an associate in
my office space to do production based on joint work. [2] I had been
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referred to several highly regarded agents. [3] I had informed my
mother in about 2012 in John Cambell’s [sic] office of this and she
said she agreed that it would be good for everyone and said she would
inform my sister. [4] My mother was having a difficult time with
understanding for many years and may or may not have informed
Cheryl. [5] Cheryl refused all calls and would not meet or talk of
anything. [6] And [Cheryl] would not allow Sub to either. [7] I then
discussed the problem in 2014 with attorney John Crane who sent a
letter [to] have my production interest sent to my daughter if [Cheryl]
continued to ban me and/or an associate from the office. [8] Cheryl
was very familiar with my wishes and knew how to calculate
production income for a housed agent. [9] [Cheryl] informed me only
1 time that neither I nor anyone I knew would be welcome at that
office. [10] John Crane and I then discussed waiting until the sale of
the property (because values were skyrocketing) and making the
ousting and loss of income a claim at the time of sale.
Appellees objected that each sentence of this paragraph was conclusory and
hearsay. They also objected that the tenth sentence contained statements that were
speculative and based only on appellant’s subjective belief. Finally, appellees
objected that appellant’s reference to a letter written by John Crane violated the
best evidence rule found in Rule 1002 of the Texas Rules of Evidence. The trial
court sustained appellees’ objections and struck the affidavit in its entirety.
Appellant initially labels appellees’ objection a “blanket objection” and
argues it is insufficient because it fails to identify which parts of the affidavit are
objectionable. An improper blanket hearsay objection, for example, is an objection
that fails to identify which parts of the challenged document contain hearsay. In re
C.C., 476 S.W.3d 632, 635 (Tex. App.—Amarillo 2015, no pet.). That is not the
situation we are presented with here. Instead, appellees specifically informed
appellant, and the trial court, that they were objecting to every sentence contained
in paragraph 7 of appellant’s affidavit because appellees believed those sentences
contained hearsay and were also conclusory. This is sufficiently specific. See
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Stovall & Assocs., P.C. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 797 (Tex. App.—
Dallas 2013, no pet.) (stating that an “objecting party must make specific
objections to each component part of a particular piece of evidence to preserve
error on appeal.”).
Appellant next challenges the trial court’s granting of appellees’ objections
only with respect to sentences 5, 6, 7, 8, and 9 of paragraph 7 of his affidavit. We
address them in order.
Sentences 5 and 6 provide that “Cheryl refused all calls and would not meet
or talk of anything. And [Cheryl] would not allow Sub to either.” We conclude
that neither sentence is conclusory nor do they contain hearsay. However, even if
the trial court erred when it struck these two sentences, we conclude any error was
harmless because the challenged sentences are not relevant to appellant’s ouster
cause of action and therefore constitute no more than a mere scintilla of evidence
on the challenged notice of repudiation element of appellant’s claim. See Tex. R.
App. P. 44.1(a)(1); Waterway Ranch, LLC, 411 S.W.3d at 679.
Sentence 7 provides that “[appellant] then discussed the problem in 2014
with attorney John Crane who sent a letter [to] have my production interest sent to
my daughter if [Cheryl] continued to ban me and/or an associate from the office.”
We conclude this sentence is hearsay and the trial court did not abuse its discretion
when it sustained appellees’ objection and struck it. See Tex. R. Evid. 801(d)
(defining hearsay as an out-of-court statement offered in evidence to prove the
truth of the matter asserted and stating that it is generally inadmissible); 802
(stating that hearsay is not admissible except when by permitted by specified
exceptions not applicable here).
In sentence 8 appellant stated that “Cheryl was very familiar with my wishes
and knew how to calculate production income for a housed agent.” We conclude
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this sentence is conclusory and the trial court did not abuse its discretion when it
sustained appellees’ objection and struck it. See Padilla v. Metropolitan Transit
Authority of Harris County, 497 S.W.3d 78, 85 (Tex. App.—Houston [14th Dist.]
2016, no pet.) (defining conclusory statements). However, even if the trial court
erred when it struck this sentence, we conclude any error was harmless because the
sentence is not relevant to appellant’s ouster cause of action and therefore
constitutes no more than a mere scintilla of evidence on the challenged notice of
repudiation element of appellant’s claim. See Tex. R. App. P. 44.1(a)(1);
Waterway Ranch, LLC, 411 S.W.3d at 679.
In sentence 9 appellant states that “[Cheryl] informed me only 1 time that
neither I nor anyone I knew would be welcome at that office.” We agree with
appellant that this statement is not hearsay because it was made by a party
opponent. See Tex. R. Evid. 801(e)(2). We do, however, hold that the statement is
conclusory because appellant does not offer facts anywhere in his affidavit
identifying the office where he would not be welcome as the office building at
issue in this litigation. See Alicea v. Curie Building, LLC, No. 08-19-00235-CV,
2021 WL 614794, at *3 (Tex. App.—El Paso Feb. 17, 2021, no pet.) (“An affidavit
must contain detailed accounts of the facts or provide supporting documents in
order to be sufficient summary judgment evidence.”); Nationwide Coin and
Bullion Reserve, Inc. v. Thomas, 625 S.W.3d 498, 504 (Tex. App.—Houston [14th
Dist.] 2020, no pet. h.) (“[A] conclusory statement expresses a factual inference
without providing underlying facts to support that conclusion”); Padilla, 497
S.W.3d at 85 (observing that a statement in an affidavit is conclusory when it
“expresses a factual inference without providing underlying facts to support that
conclusion”). We therefore hold that the trial court did not abuse its discretion
when it struck sentence 9 of appellant’s affidavit. See Duncan v. Lisenby, 912
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S.W.2d 857, 859 (Tex. App.—Houston [14th Dist.] 1995, no writ) (“An affidavit
does not constitute competent summary judgment proof if it is conclusory or based
on opinion.”); cf. Alicea, 2021 WL 614794, at *3 (“An affidavit that makes factual
conclusions or conclusory statements without providing factual statements is
insufficient evidence to warrant summary judgment.”).
In summary, the trial court did not abuse its discretion when it struck most of
appellant’s summary judgment evidence. In addition, we hold that appellant’s
remaining evidence was insufficient to raise a genuine issue of material fact on the
challenged element of appellant’s ouster cause of action. The trial court therefore
did not err when it granted appellees’ no-evidence motion for summary judgment.
We overrule appellant’s issues on appeal.
CONCLUSION
Having overruled appellant’s issues on appeal, we affirm the trial court’s
final judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Wise, Bourliot, and Zimmerer.
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