American Idol, General, LP D/B/A the REO, and Randy Hanson A/K/A Randall Hanson v. Pither Plumbing Co., Inc.

ACCEPTED
12-14-00134-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
2/17/2015 10:05:40 AM
CATHY LUSK
CLERK
CAUSE NO. 12-14-00134-CV
IN THE COURT OF APPEALS OF TEXAS FILED IN
12th COURT OF APPEALS
TWELFTH JUDICIAL DISTRICT TYLER, TEXAS
2/17/2015 10:05:40 AM
AMERICAN IDOL, GENERAL, LP d/b/a The REO, and
CATHY S. LUSK
RANDY HANSON a/k/a RANDALL HANSON, Clerk
Appellants
v.
PITHER PLUMBING CO., INC.,
Appellee
__________________________________________________
On Appeal from Cause No. 2012-1842-A
In the 188th Judicial District Court of Gregg County, Texas
The Honorable David Brabham, Presiding
__________________________________________________
BRIEF OF APPELLEE PITHER PLUMBING CO., INC.
__________________________________________________
T. JOHN WARD, Jr.
State Bar No. 00794818
jw@wsfirm.com
CLAIRE ABERNATHY HENRY
State Bar No. 24053063
claire@wsfirm.com
BRETT F. MILLER
State Bar No. 24065750
bmiller@wsfirm.com
WARD & SMITH LAW FIRM
P. O. Box 1231
Longview, Texas 75606-1231
(903)757-6400 (Telephone)
(903)757-2323 (Facsimile)
ATTORNEYS FOR APPELLEE
-ORAL ARGUMENT REQUESTED-
IDENTITY OF PARTIES AND COUNSEL
Party Counsel
American Idol, General, LP, Ken W. Good
d/b/a The Reo, and Randy Hanson The Good Law Firm
a/k/a Randall Hanson, Law Office of Ken W. Good, PLLC
Defendants/Appellants 5604 Old Bullard Road, Suite 102
Tyler, Texas 75703
(903) 579-7507
(866) 381-0455
E-mail: keng@tyler.net
Appellate Counsel
Lisa Moran
Evan Barat
Moran Law Firm
100 E. Ferguson, Ste. 1018
(903) 504-5004 (telephone)
(903) 595-4534 (facsimile)
E-mail: info@moran-lawfirm.com
Trial Counsel
ii
Pither Plumbing Co., Inc., T. John Ward, Jr.
Plaintiff/Appellee State Bar No. 00794818
Clarie Abernathy Henry
State Bar No. 24053063
Brett F. Miller
State Bar No. 24065750
WARD & SMITH LAW FIRM
P.O. Box 1231
Longview, Texas 75606-1231
(903) 757-6400 (telephone)
(903) 757-2323 (facsimile)
E-mail: jw@wsfirm.com,
claire@wsfirm.com, bmiller@wsfirm.com
Appellate Counsel
T. John Ward, Jr.
State Bar No. 00794818
Akilah F. Craig
State Bar No. 24076194
WARD & SMITH LAW FIRM
P.O. Box 1231
Longview, Texas 75606-1231
(903) 757-6400 (telephone)
(903) 757-2323 (facsimile)
E-mail: jw@wsfirm.com
Trial Counsel
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ....................................................... ii-iii
TABLE OF CONTENTS ...................................................................................... iv-v
INDEX OF AUTHORITIES.............................................................................. vi-viii
RECORD REFERENCE ABBREVIATIONS .........................................................ix
STATEMENT OF THE CASE .................................................................................. x
ISSUES PRESENTED..............................................................................................xi
STATEMENT OF FACTS ........................................................................................ 1
1. Pither Plumbing Co., Inc. provided plumbing services to American Idol
General, LP d/b/a the Reo................................................................................ 1
2. The total amount billed for Pither's services was $17,372.03, which
American Idol refused to pay………………………………………………..2
3. During his deposition, Randall Hanson admitted numerous facts favorable to
Appellee's claims………………………………………………………..…...2
4. Hanson completely changed his testimony in an affidavit submitted to avoid
summary judgment…………………………………………………………..3
SUMMARY OF ARGUMENT ................................................................................. 5
ARGUMENT ............................................................................................................. 6
1. Standards of Review. ....................................................................................... 6
A. Exclusion of Summary Judgment Evidence ......................................... 6
B. Summary Judgment ............................................................................... 6
2. The trial court did not err in granting summary judgment for Appellee
because the only controverting evidence offered by Appellants was Hanson's
iv
Affidavit, which the trial court properly disregarded under the sham-
affidavit doctrine. (Appellee's Issue No. 1, corresponds to Appellants’ Issue
No. 1). .............................................................................................................. 8
A. The "Sham Affidavit" Doctrine............................................................. 8
B. Hanson's Affidavit is a sham. ................................................................ 9
C. The trial court implicitly sustained Appellee's objection to Hanson's
Affidavit .............................................................................................. 21
D. Even under a de novo review, this Court should adopt the sham-
affidavit doctrine and affirm the summary judgment ......................... 24
I. The sham-affidavit doctrine is widely followed in Texas and
across the country……………………………………………………25
II. The sham-affidavit doctrine promotes the efficient evaluation
and disposition of lawsuits…………………………………………..29
E. Response to Appellants' Other Arguments………………………….32
I. No pleading to support suit on a sworn account or claim for
quantum meruit…………………………………………...…………32
II. Hanson has no liability……………………...………………..33
III. The trial court erred in granting summary judgment on
damages……………………………………………………...………34
3. The trial court did not err in awarding Appellee its attorney's fees (no
corresponding numbered issue in Appellants' Brief). ................................... 35
PRAYER .................................................................................................................. 36
APPENDIX ............................................................................................................. 38
1. Affidavit of Randall Hanson.......................................................................... 38
v
INDEX OF AUTHORITIES
Cases
Barth v. Royal Ins. Co., No. 13-02-688-CV, 2004 Tex. App. LEXIS 11319, *9, n.5
(Tex. App.—Corpus Christi Dec. 16, 2004, no pet.) (mem. op.)……...………….25
Benson v. Gaston, No. 12-13-00287-CV, 2014 Tex. App. LEXIS 2753, *3-4, n.2
(Tex. App.—Tyler Mar. 12, 2014, pet. denied)…………………………….8, 28, 29
Burkett v. Welborn, 42 S.W.3d 282, 286 (Tex. App.—Texarkana 2001, no
pet.)......................................................................................................................8, 25
Cantu v. Peacher, 53 S.W.3d 5, 10 (Tex. App.—San Antonio 2001, pet.
denied)……………………………………………………………………….8, 9, 25
Davis v. City of Grapevine, 188 S.W.3d 748, 755-756 (Tex. App.—Fort Worth
2006, pet. denied)…………………………………………………………………25
Del Mar College Dist. v. Vela, 218 S.W.3d 856, 862, n.6 (Tex. App.—Corpus
Christi 2007, no pet.)………………...……………………………………………25
Enernational Corp. v. Exploitation Eng’rs, Inc., 705 S.W.2d 749, 750 (Tex.
App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.)………………………………..32
Eslon Thermoplastics v. Dynamic Sys., Inc., 49 S.W.3d 891, 901 (Tex. App.—
Austin 2001, no pet.)……………...………………………………………………25
Fair v. Arp Club Lake, Inc., 437 S.W.3d 619, 623 (Tex. App.—Tyler 2014, no
pet.)…………………………………………………………………………………7
Farroux v. Denny’s Restaurants, 962 S.W.2d 108, 111 (Tex. App.—Houston [1st
Dist.] 1997, no pet.)……………...……………………………………………..8, 25
First State Bank of Mesquite v. Bellinger & DeWolf, LLP, 342 S.W.3d 142, 147
(Tex. App.—El Paso 2011, no pet.)………………………………....6, 8, 24, 25, 28
Frazier v. Yu, 987 S.W.2d 607, 610 (Tex. App.—Fort Worth 1999, pet.
denied)………………………………………………………………………...22, 23
vi
Fred Loya Ins. Agency, Inc. v. Cohen, 446 S.W.3d 913, 926-928 (Tex. App.—El
Paso 2014, pet. filed)…………………………………………………………...…28
Gaines v. Hamman, 358 S.W.2d 557 (Tex. 1962)…………………………….26, 27
Hassell v. Mo. Pac. R.R. Co., 880 S.W.2d 39, 41, n.1 (Tex. App.—Tyler 1994, writ
denied)…………...………………………………………………………………..29
Kao Holdings, L.P. v. Young, 261 S.W.3d 60, 63-64 (Tex. 2008)…..……………34
Marx v. Elec. Data Sys. Corp., 418 S.W.3d 626, 637-638 (Tex. App.—Amarillo
2009, no pet.)………………………………………………………………….22, 23
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-549 (Tex. 1985)……………7
Pando v. Southwest Convenience Stores, LLC, 242 S.W.3d 76, 79-80 (Tex. App.—
Eastland 2007, no pet.)……………………………………………………………25
Patrick v. McGowan, 104 S.W.3d 219, 221 (Tex. App.—Texarkana 2003, no
pet.)……………………………………………………………………………..6, 24
Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969)………...27
Pierce v. Wash. Mut. Bank, 226 S.W.3d 711, 717-718 (Tex. App.—Tyler 2007,
pet. denied)…………………………………………………………………....28, 29
Plunkett v. Conn. Gen. Life Ins. Co., 285 S.W.3d 106, 119 (Tex. App.—Dallas
2009, pet. denied)…………………………………………………………………25
Randall v. Davis Power & Light Co., 752 S.W.2d 4 (Tex. 1988) (per
curiam)...............................................................................................................26, 27
Slagle v. Prickett, 345 S.W.3d 693, 702 (Tex. App.—El Paso 2011, no pet.)……22
S.W.S. Erectors v. Infax, Inc., 72 F.3d 489, 495-496 (5th Cir. 1996)……………..25
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004)….29
vii
Thompson v. City of Corsicana Hous. Auth., 57 S.W.3d 547, 557-558 (Tex. App.—
Waco 2001, no pet.)…………………………………………………………….…25
Trostle v. Trostle, 77 S.W.3d 908, 915 (Tex. App.—Amarillo 2002, no pet.)…....25
Unterreiner v. Volkswagen of Am., 8 F.3d 1206, 1212 (7th Cir. 1993), overruled on
other grounds by Hill v. Tangherlini, 724 F.3d 965, 967, n.1 (7th Cir. 2013)……31
Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006) (per curiam)………....32
Walker v. Gutierrez, 111 S.W.3d 56, 60, n.1 (Tex. 2003)………………...………23
Statutes
Tex. Bus. Org. Code § 152.306…………………..……………………………….33
Tex. Civ. Prac. & Rem. Code 17.022……………………………………………..34
Tex. Civ. Prac. & Rem. Code § 38.001, et seq.……..…………………………….35
Rules
Tex. R. Civ. P. 93…………………………………………………………………33
Tex. R. Civ. P. 94…………………………………………………………………33
Tex. R. Civ. P. 166a(c)…………………………………………………….31, 32-33
Tex. R. App. P. 33……………………………………...……………………..22, 32
Other Authorities
Randy Wilson, The Sham Affidavit Doctrine in Texas, 66 TEX. B.J. 962, 962–69
(2003)……………………………………………………………….8, 25, 26, 27, 30
viii
RECORD REFERENCE ABBREVIATIONS
The Reporter’s Record in this case is comprised of one volume, from a
hearing on February 6, 2014 on Plaintiff/Appellee’s Second Motion for Summary
Judgment and on Defendants/Appellants’ Motion for Continuance. The Reporter’s
Record will be identified as “RR”, followed by the page and line number of the
referenced testimony. For example, “RR 10/2-5” refers to page 10, lines 2-5 of the
Reporter’s Record.
The Clerk’s Record in this case consists of one (1) volume, as does the
Supplemental Clerk’s Record. Reference to the Clerk’s Record will be by the
prefix “CR,” and reference to the Supplemental Clerk’s Record will be by the
prefix “SCR,” followed by the page number in the record and, where appropriate, a
page and/or line citation. For example, “CR 105 (10/1-5)” refers to page 105 of
the Clerk’s Record, a deposition excerpt, and specifically lines 1-5 on page 10 of
the deposition transcript. Also as an example, “CR 47 (¶ 11)” refers to page 47 of
the Clerk’s Record, specifically paragraph no. 11 on that page.
ix
STATEMENT OF THE CASE
Nature of the Suit on a sworn account, for quantum meruit, breach of
Case contract, and attorney’s fees arising from
Defendants/Appellants’ failure to pay Plaintiff/Appellee for
agreed-upon plumbing services. CR 4, 45, 252; SCR 6.
Course of the On February 6, 2014, the trial court heard Plaintiff/Appellee’s
Proceedings Second Motion for Traditional Summary Judgment. RR 1, 6;
CR 50.
Trial Court 188th Judicial District Court of Gregg County, Texas, The
Honorable David Brabham, Presiding
Trial Court’s On February 21, 2014, the trial court signed its Order Granting
Disposition of Plaintiff’s Second Motion for Traditional Summary Judgment,
the Case awarding Plaintiff/Appellee judgment against Appellants in the
amount of $17,169.48 on its claims for breach of contract, suit
on a sworn account, and quantum meruit. CR 274. The trial
court also awarded Appellee attorney’s fees of $7,847.00, pre-
and post-judgment interest, and court costs. CR 274. On
March 21, 2014, Appellants filed a Motion for New Trial and,
on May 21, 2014, filed their Notice of Appeal. CR 276, 282.
x
ISSUES PRESENTED
Issue No. 1: The trial court did not err in granting summary judgment for Appellee
because the only controverting evidence offered by Appellants was
the sham affidavit of Randall Hanson, which the trial court properly
disregarded. (corresponds to Appellants’ Issue No. 1).
Issue No. 2: The trial court did not err in awarding Appellee its attorney’s fees.
(no corresponding numbered issue in Appellants’ Brief).
xi
TO THE HONORABLE JUSTICES OF THE TWELFTH COURT OF APPEALS:
Appellee Pither Plumbing Co., Inc. files this Brief in response to the Brief of
Appellants American Idol General, LP d/b/a the Reo and Randy Hanson a/k/a
Randall Hanson:
STATEMENT OF FACTS
Because of its dissatisfaction with omissions and errors in Appellants’
Statement of Facts, Appellee submits the following pursuant to TEX. R. APP. P.
38.2(a)(1)(B):
1. Pither Plumbing Co., Inc. provided plumbing services to American Idol
General, LP d/b/a the Reo.
Pither Plumbing Co., Inc. (“Appellee”) is engaged in the business of
providing plumbing services and related materials. CR 135 (¶ 3). On or about the
following dates, Appellee entered into oral agreements with Appellant American
Idol General, LP d/b/a the Reo (“American Idol”) to provide it with plumbing
services and related materials at the Reo, a famous nightclub and dance hall in
Gregg County, Texas: January 18, 2010; May 27, 2010; August 20, 2010;
November 30, 2011; December 5, 6, 8, 9, 15, 16, 19, 20, 21, 22, 23, 28, 29, 30 and
31, 2011; and January 6, 10, and 12, 2012. CR 135-136 (¶ 3-4); CR 61-102. The
Reo is located at 4716 W. Loop 281, on the southeast corner of the intersection of
State Highway 31 and W. Loop 281 in Longview. CR 61. Typically, either
1
Appellant Randy Hanson a/k/a Randall Hanson (“Hanson”), general partner of
American Idol, or C.J. Broers, its general manager, would request Appellee to
perform plumbing services; Appellee would perform the requested and agreed-
upon services; and Appellee would send an invoice to American Idol for payment.
CR 136 (¶ 5); CR 61-102.
2. The total amount billed for Pither’s services was $17,372.03, which
American Idol refused to pay.
As reflected in the invoices submitted to American Idol, the total amount
charged for Appellee’s plumbing services was $17,372.03. CR 137 (¶ 6); CR 61-
102. The charges were agreed upon and in keeping with the usual and customary
amount for plumbing services in the area, and the parties understood that Appellee
expected payment in return for its services. CR 136 (¶ 4); CR 137 (¶ 7).
Appellants refused to pay for the plumbing services provided by Appellee, forcing
it to hire attorneys, send demand letters, and ultimately file the underlying lawsuit.
CR 137 (¶ 8-9); CR 145-152.
3. During his deposition, Hanson admitted numerous facts favorable to
Appellee’s claims.
During his deposition, Hanson admitted the following:
A. American Idol was in the nightclub business, operating under the
assumed name of “The Reo.” CR 105 (10/3-25); CR 222.
B. Appellee had performed plumbing services for American Idol in the
past, and American Idol paid for those services by checks drawn on its
2
checking account. CR 107 (22/1-6, 25); CR 110 (30/19-23); CR 222-
223.
C. Hanson was a general partner of American Idol during the relevant
time. CR 104 (9/3 – 10/2); CR 112-131 (33/8 – 52/14).
D. C.J. Broers was American Idol’s employee and general manager. CR
106 (19/13-20); CR 112 (33/9-16).
E. C.J. Broers, on behalf of American Idol, always called Appellee to get
plumbing work done at the Reo. CR 119 (40/5-16); CR 225-226.
F. If C.J. Broers was calling Appellee for plumbing services, it would be
for work at the Reo (i.e., American Idol), not at the Reo Palm Isle
Club. CR 111 (32/2-17); CR 120 (41/2-13); CR 129 (50/1-8); CR
130-131 (51/19 – 52/1).
G. On at least one occasion, Hanson met with Appellee’s employees at
the Reo and requested them to perform plumbing services. CR 120-
122 (41/14 – 43/4); CR 123 (44/12-20); CR 229.
H. Appellee performed the plumbing services at issue at the Reo. CR
111 (32/2-17); CR 120 (41/2-13); CR 124-125 (45/24 – 46/3); CR 129
(50/1-8); CR 130-131 (51/19 – 52/1); CR 224.
4. Hanson completely changed his testimony in an affidavit submitted to
avoid summary judgment.
On December 16, 2013, after it obtained Hanson’s favorable deposition
testimony, Appellee filed its Second Motion for Traditional Summary Judgment
(“Motion for Summary Judgment”). CR 50. On January 30, 2014, Appellants
filed their Response and attached the Affidavit of Randall Hanson (“Hanson’s
3
Affidavit”). CR 169, 186. Hanson’s Affidavit included the following statements,
which completely contradicted his prior deposition testimony:
A. American Idol did not operate the club known as “The Reo” during
the relevant time period from January 18, 2010 – January 12, 2012.
CR 187.
B. American Idol never paid for plumbing services, or any other services
that were purported to be performed at the Reo Palm Isle Club,
located at 4716 W. Loop 281, Longview, Texas. CR 188.
C. American Idol did not have a checking account. CR 187.
D. C.J. Broers was not an employee of American Idol. CR 187.
E. American Idol had no employees during the relevant time period from
January 18, 2010 – January 12, 2012. CR 187.
F. C.J. Broers had no authority to enter into construction contracts on
behalf of American Idol. CR 187.
G. American Idol never received plumbing services from Appellee. It
could not have requested or received services, as it only held a liquor
license. CR 187.
H. Neither American Idol, nor any agent of American Idol, including
Hanson or C.J. Broers, ever entered into an agreement with Appellee
regarding plumbing services that were purported to be performed at
the Reo Palm Isle Club, located at 4716 W. Loop 281, Longview,
Texas. CR 188.
Hanson’s Affidavit does not offer any explanation for his change in testimony. See
CR 186-188. In its summary-judgment reply, Appellee objected to Hanson’s
Affidavit at length under the “sham affidavit” doctrine and requested the trial court
4
to strike the affidavit. CR 220-221, 230. On February 6, 2014, the trial court held
a hearing on Appellee’s Motion for Summary Judgment. RR 1, 6. On February
21, 2014, the trial court signed its Order granting Appellee’s Motion for Summary
Judgment, and this appeal ensued. CR 274.
SUMMARY OF ARGUMENT
This appeal lives or dies with Hanson’s Affidavit, the only material,
controverting evidence offered by Appellants in response to Appellee’s Motion for
Summary Judgment. Hanson’s Affidavit directly contradicted his prior deposition
testimony on several material points in the case—without any explanation for the
change. Appellee objected to Hanson’s Affidavit under the “sham affidavit”
doctrine, and the trial court implicitly sustained that objection and disregarded
Hanson’s Affidavit. Accordingly, the standard of review is for an abuse of
discretion, and this Court must affirm because Appellants failed to show that the
trial court’s ruling was in error and probably caused the rendition of an improper
judgment. But even if this Court finds that the trial court failed to rule on
Appellee’s objection to Hanson’s Affidavit, the standard of review is de novo and,
even under that standard, this Court should adopt the sham-affidavit doctrine,
disregard Hanson’s Affidavit, and affirm summary judgment.
5
ARGUMENT
1. Standards of Review.
A. Exclusion of Summary Judgment Evidence.
A trial court’s ruling concerning the admission or exclusion of summary
judgment evidence is reviewed for an abuse of discretion. First State Bank of
Mesquite v. Bellinger & DeWolf, LLP, 342 S.W.3d 142, 147 (Tex. App.—El Paso
2011, no pet.); Patrick v. McGowan, 104 S.W.3d 219, 221 (Tex. App.—Texarkana
2003, no pet.). A trial court abuses its discretion when it acts “in an arbitrary or
unreasonable manner without reference to any guiding rules or principles.”
Bellinger & DeWolf, 342 S.W.3d at 147. When reviewing a matter committed to
the trial court’s discretion, a court of appeals may not substitute its own judgment
for that of the trial court. Id. “To obtain reversal of a judgment based on error in
the admission or exclusion of evidence, an appellant must show that the trial
court’s ruling was in error and that the error probably caused the rendition of an
improper judgment.” McGowan, 104 S.W.3d at 221 (citing Tex. R. App. P.
44.1(a)(1)).
B. Summary Judgment.
A trial court’s grant of summary judgment is reviewed de novo under the
following standards:
6
(1) The movant for summary judgment has the burden of showing that
there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law;
(2) In deciding whether there is a disputed material fact issue
precluding summary judgment, evidence favorable to the non-movant
will be taken as true; and
(3) Every reasonable inference must be indulged in favor of the non-
movant and any doubts resolved in its favor.
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-549 (Tex. 1985); Fair v. Arp
Club Lake, Inc., 437 S.W.3d 619, 623 (Tex. App.—Tyler 2014, no pet.). Once the
movant establishes a right to summary judgment, “the non-movant has the burden
to respond to the motion and present to the trial court any issues that would
preclude summary judgment.” Arp Club Lake, 437 S.W.3d at 623. If the trial
court grants summary judgment, but its order does not specify the grounds it relied
upon, the court of appeals “must affirm summary judgment if any of the summary
judgment grounds are meritorious.” Id.
7
2. The trial court did not err in granting summary judgment for Appellee
because the only controverting evidence offered by Appellants was
Hanson’s Affidavit, which the trial court properly disregarded under
the sham-affidavit doctrine. (Appellee’s Issue No. 1, corresponds to
Appellants’ Issue No. 1).
A. The “Sham Affidavit” Doctrine.
Under the “sham affidavit” doctrine, a party cannot file an affidavit to
contradict his own deposition testimony—without any explanation for the change
in testimony—for the purpose of creating a fact issue to avoid summary judgment.
E.g., Benson v. Gaston, No. 12-13-00287-CV, 2014 Tex. App. LEXIS 2753, *3-4,
n.2 (Tex. App.—Tyler Mar. 12, 2014, pet. denied); First State Bank of Mesquite v.
Bellinger & DeWolf, LLP, 342 S.W.3d 142, 148 (Tex. App.—El Paso 2011, no
pet.); Burkett v. Welborn, 42 S.W.3d 282, 286 (Tex. App.—Texarkana 2001, no
pet.); Cantu v. Peacher, 53 S.W.3d 5, 10 (Tex. App.—San Antonio 2001, pet.
denied); Farroux v. Denny’s Restaurants, 962 S.W.2d 108, 111 (Tex. App.—
Houston [1st Dist.] 1997, no pet.). See also Randy Wilson, The Sham Affidavit
Doctrine in Texas, 66 TEX. B.J. 962, 962–69 (2003). Without an explanation for
the change in testimony, it is assumed that the sole purpose of the affidavit was to
avoid summary judgment and, therefore, the affidavit presents merely a “sham”
fact issue which the trial court should disregard. Gaston, 2014 Tex. App. LEXIS
at *3-4; Bellinger & DeWolf, 342 S.W.3d at 148; Welborn, 42 S.W.3d at 286.
8
The question of whether the affidavit contradicts the affiant’s prior
deposition testimony requires the court to “examine the nature and extent of the
differences in the facts asserted in the deposition and the affidavit.” Cantu, 53
S.W.3d at 10. If the differences are merely “variations on a theme, consistent in
the major allegations but with some variances of detail,” the affidavit may be used
for impeachment but is not wholly ineffective. Id. “If, on the other hand, the
subsequent affidavit clearly contradicts the witness’s earlier testimony involving
the suit’s material points, without explanation, the affidavit must be disregarded
and will not defeat the motion for summary judgment.” Id. at 10-11.
B. Hanson’s Affidavit is a sham.
Below is a table that compares Hanson’s sworn deposition testimony with
his subsequently-filed affidavit, offered by Appellants to defeat summary
judgment. The statements in Hanson’s Affidavit clearly contradict his prior
deposition testimony on material points in the case, including whether American
Idol requested or received plumbing services and whether C.J. Broers was an
employee/agent of American Idol.
Sworn Deposition Testimony Statements from Affidavit
Ms. Craig: Are you aware of the fact American Idol General, L.P. did not
that American Idol General, L.P. has an operate the club known as “The Reo”
assumed name of The Reo? during the relevant time period from
Mr. Hanson: Yes, I am aware of that. January 18, 2010-January 12-2012.
Ms. Craig: Have you mark this. And (CR 187)
I'm showing you what's been marked as
9
Plaintiff's Exhibit 2. What is that
document?
Mr. Hanson: It's an assumed name
certificate for a limited partnership.
Ms. Craig: And when was that assumed
name certificate filed with the Secretary
of State?
Mr. Hanson: It says here January 31st,
2006.
Ms. Craig: And based on that document
do you know when the assumed name
The Reo will expire from. I believe it
says on here that the assumed name will
expire in 2016; is that correct?
Mr. Hanson: 2016, correct, yes.
(CR 105 (10/3-25); CR 222)
Ms. Craig: All right. I want to talk to
you a little bit about American Idol
General, L.P. What kind of business is
that?
Mr. Hanson: American Idol General
was a corporate entity started, gosh,
around 2003 or something like that, for
a, be primarily the nightclub business.
(CR 222)
Ms. Craig: Okay. So based on the fact American Idol General, L.P. had no
that the employees during the relevant time
assumed name of the American Idol period from January 18, 2010-January
General is The Reo, American Idol 12, 2012.
General is sort of a mouthful, I'm going (CR 187)
to refer to it as The Reo. So can we
agree that if I say The Reo, I'm talking C.J. Broers was not an employee of
about American Idol General, L.P.? American Idol General, L.P.
Mr. Hanson: That would be fine. (CR 187)
(CR 222)
10
Ms. Craig: Okay. Who is C.J. Broers,
and I'm just saying it the way I think it's
pronounced?
Mr. Hanson: He was our general
manager for, and I, I think he was on the
liquor license too, on the beer and wine
permit.
Ms. Craig: And when you say "for us",
do you mean for The Reo?
Mr. Hanson: For The Reo, yes.
(CR 106 (19/13-20))
Ms. Craig: Do you see this check that's American Idol General, L.P. did not
been marked as Plaintiff's Exhibit 7? have a checking account.
Mr. Hanson: I do. (CR 187)
Ms. Craig: Do -- whose account did that
check come out from? American Idol General, L.P. never paid
Mr. Hanson: The Reo. for plumbing services, or any other
Ms. Craig: Whose signature is on that services that were purported to be
check? performed at Reo Palm Isle Club,
Mr. Hanson: It looks to be a located at 4716 W. Loop 281,
bookkeeper, some – I think it was our Longview, Texas.
bookkeeper at the time. (CR 188)
(CR 222; CR 107 (22/1-6))
Ms. Craig: Okay. Now, do you see that
there is also a payment for, on January
27th, 2010, there's a payment for
303.10?
Mr. Hanson: Uh-huh (yes).
4 (Exhibit 8 marked)
Ms. Craig: Whose account was that
check taken out of?
Mr. Hanson: The Reo.
(CR 107 (22/25); CR 223)
Ms. Craig: Okay. There is a also a
payment for $154.91 on February 20th,
2010; do you see that on Exhibit 6?
11
Mr. Hanson: Correct.
Ms. Craig: Now, Exhibit 10, do you see
whose account the check was taken out,
taken out of?
Mr. Hanson: The Reo.
(CR 223)
Ms. Craig: I'm going to give you 9.
And there is also a payment on July
13th, 2010 for $229.31. Do you see that
on Exhibit 6?
Mr. Hanson: Correct.
Ms. Craig: Exhibit 9, where was the
check written from, what account?
Mr. Hanson: The Reo.
(CR 223)
Ms. Craig: And based on Exhibits 7, 8,
9, and 10, the fact that the checks were
made from The Reo's account gives you
a basis for believing that the work was
done at The Reo, correct?
Mr. Hanson: Correct.
(CR 110 (30/19-23))
Ms. Craig: And based on Exhibits 7, 8, American Idol General, L.P. never
9, and 10, the fact that the checks were received services from Pither Plumbing,
made from The Reo's account gives you Inc. It could not have requested or
a basis for believing that the work was received services, as it only held a liquor
done at The Reo, correct? license.
Mr. Hanson: Correct. (CR 187)
(CR 110 (30/19-23))
Ms. Craig: Do you remember calling
Pither Plumbing to ask for that work to
be done?
Mr. Hanson: The only -- I don't recall
calling. I recall meeting one of the
employees or one of his guys there, and
12
said we had to remove these troughs and
put urinals in.
Ms. Craig: Okay. So you were at the
site of The Reo when that work was
being done?
Mr. Hanson: I was at the site. I was in
and out, you know, because I didn't
drive over here all the time.
Ms. Craig: Okay.
Mr. Hanson: But I remember, you
know, talking about taking those
troughs out and putting urinals in.
Ms. Craig: So you specifically asked
for that work to be done?
Mr. Hanson: For that particular scope
of work.
(CR 120-122 (41/14 – 43/4))
Ms. Craig: The fact that it's billed to
The Reo Pale Isle, we can agree that that
was an error on Pither Plumbing's part,
because the work was actually done at
The Reo, correct?
Mr. Hanson: Right.
(CR 124-125 (45/24 – 46/3))
Ms. Craig: Now after looking at all the
invoices that I've showed you, Exhibit
24 which reflects all of them, do you
agree that Pither Plumbing performed a
service for The Reo?
Mr. Hanson: I would agree to that.
(CR 224)
Ms. Craig: Now, this is Exhibit 13, C.J. Broers had no authority to enter
invoice 1248 related to that Exhibit into construction contracts on behalf of
Number 11. Who called to have that American Idol General, L.P.
work done? (CR 187)
Mr. Hanson: Looks like C.J. again.
13
Ms. Craig: And C.J. is that same
employee, at least at that time, was an
employee of The Reo and not The Reo
Palm Isle Club?
Mr. Hanson: Yeah, he was an
employee, he was like the general
manager.
(CR 112 (33/9-16))
Ms. Craig: And at no point did you call
after that work was done to say that the
work wasn't done very well?
Mr. Hanson: Again, I'm seeing this for
the first time. And, you know, I lived in
Tyler, he was over here. I came over
here once a week on Saturdays. And
my whole thing was, if there was a
problem, fix it, and just, you know,
unless it's really that important, don't
call me.
(CR 112 (33/17-25))
Ms. Craig: Did you ever call Pither
Plumbing to get work done at The Reo?
Mr. Hanson: I don't recall ever calling
Pither; C.J. always did that. So I don't
know why I would have all of the
sudden. So I don't recall that.
Ms. Craig: Okay. Are you saying that
you never called Pither Plumbing to get
work done?
Mr. Hanson: I think the only time I've
ever called Pither was on the
skating/soccer field. Now, if for some
reason I did call, I don't recall it. But, I
mean, C.J. just handled all that stuff, so.
He was always the one that made the
calls.
(CR 119 (40/5-16))
14
Ms. Craig: Okay. I'm handing you
Exhibit 21. Who called for that work to
be done at The Reo?
Mr. Hanson: It would appear C.J.
Ms. Craig: The fact that C.J. called for
the work to be done, do you know that
that means, or do you understand that
that means the work was actually done
at The Reo and not at The Reo Palm Isle
Club?
Mr. Hanson: I would assume that, yes.
(CR 129 (50/1-8))
Ms. Craig: Now, C.J. when he called
for Pither
13 Plumbing to get work done for The
Reo was acting on behalf of The Reo?
Mr. Hanson: Yeah.
(CR 225)
Ms. Craig: And you'd agree that based
on at least the call sheets that were
included in some of these invoices, you
would actually call to have or if you
were on site, you would ask for work to
get done?
Mr. Hanson: If I ever called over there,
which I don't, I don't ever recall on that,
because it was just, I have always, hey,
C.J., get this, get that, you know, and
then, you know, he would handle that.
(CR 225-226)
15
Ms. Craig: Exhibit Number 12, do you American Idol General, L.P., nor any
know who called for that work to be agent of American Idol General, L.P.,
done? And you don't have to guess, you including Randall Hanson or C.J. Broers
can turn to page 2. ever entered into an agreement with
Mr. Hanson: I don't see where who Pither Plumbing regarding plumbing
called for it. services that were purported to be
Ms. Craig: Do you see in the area that performed at the Reo Palm Isle Club,
says "phone call"? It says, "phone 753- located at 4716 W. Loop 281,
4440 fax/cell C.J. Then next to message Longview, Texas.
it says, "(903) 752-0686"? (CR 188)
Mr. Hanson: That would be that one,
that phone number, so I'm just assuming
C.J. would have made that call.
Ms. Craig: And if C.J. made the call for
the work to be done, then it's work that's
being done at The Reo, correct?
Mr. Hanson: Correct.
Ms. Craig: And that's not work that's
being done at The Reo Palm Isle Club?
Mr. Hanson: Correct.
(CR 111 (32/2-17))
Ms. Craig: Now, this is Exhibit 13,
invoice 1248 related to that Exhibit
Number 11. Who called to have that
work done?
Mr. Hanson: Looks like C.J. again.
Ms. Craig: And C.J. is that same
employee, at least at that time, was an
employee of The Reo and not The Reo
Palm Isle Club?
Mr. Hanson: Yeah, he was an
employee, he was like the general
manager.
(CR 112 (33/9-16))
Ms. Craig: Now finally, on Exhibit 11
there is that invoice 3160, do you see
that?
16
Mr. Hanson: Correct.
Ms. Craig: I'm showing you Exhibit
Number 14 which is invoice number
3160 for 811.33, do you see that?
Mr. Hanson: Correct.
Ms. Craig: Who called for that work to
be done?
Mr. Hanson: Again, we're going to
assume that that number was C.J.'s
number at the time, so I'm going to say
C.J.
(CR 114 (35/5-14))
Ms. Craig: I'm handing you Exhibit 16.
What is that document; do you know
what that is?
Mr. Hanson: I don't know what it is.
Ms. Craig: It says on there that Randy
Hanson called to get --
Mr. Hanson: Where does it say that?
Ms. Craig: It says, "Randy Hanson",
correct?
Mr. Hanson: It says "for Randy
Hanson", but --
Ms. Craig: But if it's a document from
Pither
Plumbing, then it would not be a
message for Randy Hanson, correct?
We could assume that the message
wasn't being left for you at Pither
Plumbing?
Mr. Hanson: Correct.
(CR 118-119 (39/17 – 40/4))
Ms. Craig: I'm handing you -- and I
can get back now, I think we're done
with that. Exhibit 17, have you ever
seen that document?
Mr. Hanson: I have not.
17
Ms. Craig: Do you know who called
for that work to be done?
Mr. Hanson: Well, again, it looks like
it says C.J. here.
Ms. Craig: And if C.J. called for work
to be done, then it would be for work
that's been done at The Reo, not The
Reo Palm Isle?
Mr. Hanson: Correct.
(CR 120 (41/2-13))
Ms. Craig: Do you remember calling
Pither Plumbing to ask for that work to
be done?
Mr. Hanson: The only -- I don't recall
calling. I recall meeting one of the
employees or one of his guys there, and
said we had to remove these troughs and
put urinals in.
Ms. Craig: Okay. So you were at the
site of The Reo when that work was
being done?
Mr. Hanson: I was at the site. I was in
and out, you know, because I didn't
drive over here all the time.
Ms. Craig: Okay.
Mr. Hanson: But I remember, you
know, talking about taking those
troughs out and putting urinals in.
Ms. Craig: So you specifically asked
for that work to be done?
Mr. Hanson: For that particular scope
of work.
(CR 121-122 (42/14 – 43/4))
Ms. Craig: And just to clarify, did you
call ahead of time to have that work
done, or were the Pither Plumbing guys
already working on something in The
18
Reo when you asked them, hey, could
you also fix or remove the troughs?
Mr. Hanson: I don't recall -- I
remember them being there when I
came up that morning, and I don't know
if it was because C.J. had already called
and asked them to come up.
(CR 123 (44/12-20))
Ms. Craig: Let's take a look at Exhibit
19.
Mr. Hanson: Okay.
Ms. Craig: Do you see who called for
that work to be done, at least according
to the Pither Plumbing's records?
Mr. Hanson: Well, it's got my number
on there.
(CR 125 (46/19-24))
Ms. Craig: Okay. I'm handing you
Exhibit 21. Who called for that work to
be done at The Reo?
Mr. Hanson: It would appear C.J.
Ms. Craig: The fact that C.J. called for
the work to be done, do you know that
that means, or do you understand that
that means the work was actually done
at The Reo and not at The Reo Palm Isle
Club?
Mr. Hanson: I would assume that,
yes.
(CR 129 (50/1-8))
Ms. Craig: I'm showing you Exhibit
23.
Do you see who called for the work to
be done on Exhibit 23?
Mr. Hanson: It would appear C.J.
Ms. Craig: And if C.J. called for the
19
work to be done, then it's work that's
being done at The Reo, not The Reo
Palm Isle Club?
Mr. Hanson: Correct.
(CR 130-131 (51/19 – 52/1))
Ms. Craig: So again, you specifically
have asked for work to get done at The
Reo?
Mr. Hanson: I specifically on that very
initial deal, because I had knowledge of
what needed to be done.
(CR 229)
Ms. Craig: And you'd agree that based
on at least the call sheets that were
included in some of these invoices, you
would actually call to have or if you
were on site, you would ask for work to
get done?
Mr. Hanson: If I ever called over
there, which I don't, I don't ever recall
on that, because it was just, I have
always, hey, C.J., get this, get that, you
know, and then, you know, he would
handle that.
Ms. Craig: All right. You --
Mr. Hanson: So my conversation
would be when they were on site that
when I came in there that very first time,
you know, the City had said you got to
get rid of the horse troughs and put
urinals in. And that was the direct
conversation that I had.
(CR 229)
20
Appellants provided no explanation for the change in Hanson’s testimony.
See CR 186-188. Without an explanation for the change in testimony, the trial
court could assume the sole purpose of Hanson’s Affidavit was to avoid summary
judgment and, accordingly, disregard the affidavit for presenting a “sham” fact
issue.
C. The trial court implicitly sustained Appellee’s objection to
Hanson’s Affidavit.
Appellants attached Hanson’s Affidavit to their response to Appellee’s
Motion for Summary Judgment. CR 169, 186. In its reply, Appellee objected to
Hanson’s Affidavit at length under the sham-affidavit doctrine and requested the
trial court to strike the affidavit. CR 220-221, 230. Appellants then filed an
“Answer” to Appellee’s reply, and argued that the trial court should not apply the
sham-affidavit doctrine to disregard Hanson’s Affidavit. CR 241-251. In its Order
granting Appellee’s Motion for Summary Judgment, the trial court stated that it
“considered Plaintiff’s Motion, Defendants’ Response, Plaintiff’s Reply thereto
[which included the objection to Hanson’s Affidavit], Defendants’ Response to
Plaintiff’s Reply, and the arguments of counsel for the parties[.]” CR 274
(emphasis added).
While the trial court did not expressly rule on Appellee’s objection and
motion to strike Hanson’s Affidavit, the record clearly demonstrates an implied
21
ruling and that is sufficient. Tex. R. App. P. 33.1(a)(2)(A) (permitting the trial
court to rule on objections “either expressly or implicitly”); Frazier v. Yu, 987
S.W.2d 607, 610 (Tex. App.—Fort Worth 1999, pet. denied) (discussed infra);
Slagle v. Prickett, 345 S.W.3d 693, 702 (Tex. App.—El Paso 2011, no pet.)
(“When a trial court grants a summary judgment on the motion to which the
special exceptions pertain, the trial court has implicitly overruled the special
exceptions.”); Marx v. Elec. Data Sys. Corp., 418 S.W.3d 626, 637-638 (Tex.
App.—Amarillo 2009, no pet.) (applying Second District case law under Tex. R.
App. P. 41.3) (discussed infra).
For example, in Frazier v. Yu, Yu moved for summary judgment against
Frazier, the plaintiff, on her negligence claims stemming from a car wreck.
Frazier, 987 S.W.2d at 608. In response to Yu’s motion, Frazier only attached her
own affidavit and the affidavit of a medical doctor. Id. Yu filed written objections
to both affidavits and moved the trial court to strike them, but the trial court never
made an explicit ruling. Id. at 608, 610. However, in its order granting summary
judgment, the trial court stated that it reviewed “all competent summary judgment
evidence.” Id. at 610 (emphasis in original). The Fort Worth Court of Appeals
found this language and the circumstances sufficient to “create[] an inference that
the court implicitly sustained Yu’s objections.” Id. Without the affidavits, Frazier
22
had no summary judgment evidence and, accordingly, the Court of Appeals
affirmed the summary judgment. Id. at 611.
Less conspicuous language was at issue in Marx v. Elec. Data Sys. Corp.,
where the trial court’s summary judgment merely stated that it “considered” the
summary-judgment-movant’s evidentiary objections and motion to strike. 418
S.W.3d at 637-638. The Amarillo Court of Appeals found that this language,
coupled with the trial court’s grant of summary judgment, “constituted an implicit
granting of the motion to strike as well.” Id. at 638 (citing Frazier v. Yu).
The Supreme Court of Texas has recognized implicit rulings in other
procedural contexts. See Walker v. Gutierrez, 111 S.W.3d 56, 60, n.1 (Tex. 2003)
(when trial court granted defendants’ motion to dismiss plaintiff’s health-care-
liability claim for failure to properly file expert reports, the court implicitly denied
the plaintiff’s motion seeking a grace period to cure the defects in its expert
reports). The common thread in Frazier, Marx, Gutierrez, and other “implicit
ruling” cases is a sufficient indication in the record to allow the Court of Appeals
to imply a ruling on the pertinent objection/motion.
Here, the trial court could not have granted summary judgment in the face of
Hanson’s Affidavit because it blatantly contradicted his prior deposition testimony
on several material points in Appellee’s Motion for Summary Judgment. In other
words, had the trial court admitted Hanson’s Affidavit as summary-judgment
23
evidence, the record would be so peppered with fact issues that no reasonable trial
court would grant summary judgment. Accordingly, the trial court’s order granting
summary judgment, coupled with the statement that it “considered” Appellee’s
summary-judgment reply (which contained Appellee’s objection and motion to
strike Hanson’s Affidavit), make it obvious that the trial court disregarded
Hanson’s Affidavit under the sham-affidavit doctrine. And as explained in Section
2.D., below, neither the Supreme Court of Texas nor this Court have expressly
rejected or adopted the sham-affidavit doctrine, and there is abundant authority in
Texas and elsewhere to support its application. Therefore, the trial court acted well
within its discretion when it applied the sham-affidavit doctrine and disregarded
Hanson’s Affidavit.
This Court may not substitute its own judgment for that of the trial court.
Bellinger & DeWolf, 342 S.W.3d at 147. And Appellants have not even attempted
to show that the trial court’s evidentiary ruling “was in error and that the error
probably caused the rendition of an improper judgment.” McGowan, 104 S.W.3d
at 221 (citing Tex. R. App. P. 44.1(a)(1)). Accordingly, this Court should affirm.
D. Even under a de novo review, this Court should adopt the sham-
affidavit doctrine and affirm the summary judgment.
If this Court finds that the trial court did not disregard Hanson’s Affidavit,
the proper standard of review is de novo and this Court must either adopt or reject
24
the sham-affidavit doctrine. Because the doctrine is widely followed in Texas and
across the country, and promotes the efficient evaluation and disposition of
lawsuits, this Court should adopt the sham-affidavit doctrine, disregard Hanson’s
Affidavit, and affirm the trial court’s summary judgment.
I. The sham-affidavit doctrine is widely followed in Texas and
across the country.
While neither the Supreme Court of Texas nor this Court have expressly
rejected or adopted the sham-affidavit doctrine, it is followed by most of the
Courts of Appeals in Texas;1 nearly every federal circuit Court of Appeals,
including the Fifth Circuit;2 and by most states across the country.3 Appellants
1
Of the Courts of Appeals that have directly considered the sham-affidavit doctrine, the
following have adopted it: First State Bank of Mesquite v. Bellinger & DeWolf, LLP, 342
S.W.3d 142, 148 (Tex. App.—El Paso 2011, no pet.); Plunkett v. Conn. Gen. Life Ins. Co., 285
S.W.3d 106, 119 (Tex. App.—Dallas 2009, pet. denied); Pando v. Southwest Convenience
Stores, LLC, 242 S.W.3d 76, 79-80 (Tex. App.—Eastland 2007, no pet.); Trostle v. Trostle, 77
S.W.3d 908, 915 (Tex. App.—Amarillo 2002, no pet.); Cantu v. Peacher, 53 S.W.3d 5, 10 (Tex.
App.—San Antonio 2001, pet. denied); Eslon Thermoplastics v. Dynamic Sys., Inc., 49 S.W.3d
891, 901 (Tex. App.—Austin 2001, no pet.); Burkett v. Welborn, 42 S.W.3d 282, 286 (Tex.
App.—Texarkana 2001, no pet.); Farroux v. Denny’s Restaurants, 962 S.W.2d 108, 111 (Tex.
App.—Houston [1st Dist.] 1997, no pet.). The Corpus Christi Court of Appeals has taken a case-
by-case approach. Cf. Barth v. Royal Ins. Co., No. 13-02-688-CV, 2004 Tex. App. LEXIS
11319, *9, n.5 (Tex. App.—Corpus Christi Dec. 16, 2004, no pet.) (mem. op.) (applying sham-
affidavit doctrine to disregard non-movant’s affidavit), with Del Mar College Dist. v. Vela, 218
S.W.3d 856, 862, n.6 (Tex. App.—Corpus Christi 2007, no pet.) (declining to apply sham-
affidavit doctrine under facts presented, but noting the doctrine’s “limited viability or application
where (1) the affidavit is executed after the deposition and (2) there is a clear contradiction on
(3) a material point (4) without explanation, as in Barth v. Royal Ins. Co.[.]”). Only two Courts
of Appeals have declined to adopt the sham-affidavit doctrine. See Davis v. City of Grapevine,
188 S.W.3d 748, 755-756 (Tex. App.—Fort Worth 2006, pet. denied); Thompson v. City of
Corsicana Hous. Auth., 57 S.W.3d 547, 557-558 (Tex. App.—Waco 2001, no pet.).
2
See S.W.S. Erectors v. Infax, Inc., 72 F.3d 489, 495-496 (5th Cir. 1996); Randy Wilson, The
Sham Affidavit Doctrine in Texas, 66 TEX. B.J. 962, 964, n.10 (2003) (noting that all federal
circuits except the D.C. Circuit have adopted the sham-affidavit doctrine in one form or another).
25
refer to two cases from the Supreme Court of Texas—Randall v. Davis Power &
Light Co., 752 S.W.2d 4 (Tex. 1988) (per curiam) and Gaines v. Hamman, 358
S.W.2d 557 (Tex. 1962)—for the proposition that “a deposition does not have
controlling effect over an affidavit in determining whether a motion for summary
judgment should be granted.” Appellants’ Brief, p. 14. But neither case
confronted a true “sham affidavit”, and neither case adopted, rejected, or even
mentioned the sham-affidavit doctrine.
In Randall, the plaintiff filed an affidavit in response to the defendant’s
motion for summary judgment, which the trial court denied. 752 S.W.2d at 4-5.
The defendant then deposed the plaintiff, whose testimony conflicted with his prior
affidavit. Id. at 5. Based on the deposition testimony, the defendant filed a second
motion for summary judgment, which the trial court granted. Id. The Supreme
Court of Texas reversed and remanded under the “well-established rule that a
deposition does not have controlling effect over an affidavit in determining
whether a motion for summary judgment should be granted.” Id. (citing Gaines v.
Hamman, 358 S.W.2d 557, 562 (Tex. 1962)). The Supreme Court explained that if
“conflicting inferences” may be drawn from a party’s deposition and affidavit filed
in opposition to a motion for summary judgment, a fact issue exists. Id. Randall is
not a sham-affidavit case because the plaintiff’s affidavit pre-dated his deposition,
3
Wilson, 66 Tex. B.J. at 965, n.16 (noting that the sham-affidavit doctrine “is generally well
recognized in most states” and citing to twenty-nine opinions from across the country).
26
i.e., the affidavit was not submitted to avert prior deposition testimony and avoid
the defendant’s second motion for summary judgment.
Gaines, handed down in 1962, pre-dates any court’s adoption of the sham-
affidavit doctrine (in Texas or elsewhere), and should therefore be read with
caution. See Randy Wilson, The Sham Affidavit Doctrine in Texas, 66 TEX. B.J.
962, 964 (2003) (surveying sham-affidavit cases across the country, the earliest of
which is Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969)).
Moreover, Gaines did not involve contradictory testimony, only conflicting
inferences that could be drawn from the plaintiff’s deposition and his
subsequently-filed affidavit in response to the defendant’s motion for summary
judgment. Gaines, 358 S.W.2d at 558-560, 562-564. The Supreme Court of Texas
reversed the trial court’s summary judgment for the defendant, and addressed the
defendant’s argument that the plaintiff’s deposition controlled over his affidavit
and foreclosed his cause of action as a matter of law: “there is no basis for giving
controlling effect to a deposition as compared to an affidavit . . . . If conflicting
inferences may be drawn from the deposition and from the affidavit of the same
party, a fact issue is presented.” Id. at 562 (emphasis added).
The El Paso Court of Appeals has distinguished Randall and Gaines as not
being true “sham affidavit” cases: “A different situation is presented, however,
when the summary judgment affidavit is executed after the deposition and there is
27
a clear contradiction on a material point without explanation for the change.”
First State Bank of Mesquite v. Bellinger & DeWolf, LLP, 342 S.W.3d 142, 147-
148 (Tex. App.—El Paso 2011, no pet.) (emphasis added). The Supreme Court of
Texas has simply not addressed the sham-affidavit doctrine (but it may soon – See
Fred Loya Ins. Agency, Inc. v. Cohen, 446 S.W.3d 913, 926-928 (Tex. App.—El
Paso 2014, pet. filed)).
Moreover, although this Court has mentioned the sham-affidavit doctrine on
two occasions, it has neither adopted nor rejected the doctrine. See Benson v.
Gaston, No. 12-13-00287-CV, 2014 Tex. App. LEXIS 2753, *3-4, n.2 (Tex.
App.—Tyler Mar. 12, 2014, pet. denied) (mem. op.); Pierce v. Wash. Mut. Bank,
226 S.W.3d 711, 717-718 (Tex. App.—Tyler 2007, pet. denied). Appellants claim
that Pierce v. Wash. Mut. Bank is a sham-affidavit case in which this Court
addressed an affidavit that conflicted with prior deposition testimony. See
Appellants’ Brief, pp. 13-14. But Pierce concerned an affidavit that arguably
conflicted with the affiant’s prior interrogatory answers. Pierce, 226 S.W.3d at
712-713, 717. Pierce is further distinguishable because (1) it was a homestead
abandonment case, involving constitutional protections which this Court preferred
to be “fully developed before a finder of fact” (Id. at 715, 717); and (2) it was
unclear whether the affidavit at issue even conflicted with the affiant’s prior
interrogatory answers (Id. at 718 (Hoyle, J., dissenting) (explaining that “Pierce’s
28
affidavit did not conflict with his interrogatory answers[.]”)). Seven years after
Pierce, this Court issued its opinion in Benson v. Gaston and implicitly confirmed
that it has neither adopted nor rejected the sham-affidavit doctrine. Gaston, 2014
Tex. App. LEXIS at *3-4, n.2.
Appellants also cite to Hassell v. Mo. Pac. R.R. Co., 880 S.W.2d 39, 41, n.1
(Tex. App.—Tyler 1994, writ denied) for the proposition that “factual conflicts
existing between the non-movant’s own deposition and affidavit must be resolved
in the non-movant’s favor.” Appellants’ Brief, p. 14. But Hassell is easily
distinguished because it did not involve an issue regarding the sham-affidavit
doctrine, and does not even mention the phrase “sham affidavit.”
II. The sham-affidavit doctrine promotes the efficient
evaluation and disposition of lawsuits.
The purpose of summary judgment practice is to “eliminate patently
unmeritorious claims and untenable defenses.” Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 228 (Tex. 2004). Summary judgment motions are filed
every day based on the non-movant’s deposition testimony, and litigants routinely
evaluate cases for settlement purposes based on their opponent’s deposition
testimony. Without the sham-affidavit doctrine, a legitimate motion for summary
judgment could be defeated by the non-movant’s unexplained change in testimony,
mustered in the face of the motion, and deposition-based summary judgment
29
practice would become a useless exercise. See Wilson, 66 TEX. B.J. at 968.
Moreover, litigants would have less incentive to settle a case based on deposition
testimony which, instead of remaining inviolate, merely reflects one of two
potential versions of the facts at issue. By requiring litigants to reasonably explain
a change in testimony, the sham-affidavit doctrine crystallizes deposition
testimony and promotes the efficient evaluation and disposition of lawsuits.
And the doctrine properly places the burden stemming from changed
testimony upon the affiant. That is, the sham-affidavit doctrine requires the affiant
to explain his or her change in testimony—a simple task; without the sham-
affidavit doctrine, the burden from the change in testimony falls on the shoulders
of the opposing party, who must needlessly eat the time and money expended on
preparing a motion for summary judgment based on prior deposition testimony.
To dissuade this Court from adopting the sham-affidavit doctrine,
Appellants will likely argue that the trial court cannot act as a fact-finder and
weigh the credibility of witnesses for purposes of summary judgment, and that all
inferences should be resolved in the non-movant’s favor. But the sham-affidavit
doctrine calls upon the trial court’s discretionary power to admit or exclude
summary-judgment evidence, which is distinct from its role as fact finder.
Analyzing Rule 56 of the Federal Rules of Civil Procedure, which is nearly
30
identical to Rule 166a(c), the U.S. Court of Appeals for the Seventh Circuit
explained the distinction as follows:
Federal Rule of Civil Procedure 56 empowers a court to make a
threshold determination of whether a factual issue is ‘genuine.’ This
power does not emanate from the court’s role as a fact-finder, a role
which lays dormant during the summary judgment process. Rather,
this power emanates from a court’s ability to make an initial
assessment of any evidence. A district court exercises its prerogative
to assess evidence at trial by determining whether any evidence is
admissible. The court is not acting as a fact-finder when it makes such
determinations. A district court also exercises its prerogative to assess
evidence at the summary judgment stage by determining whether an
alleged factual conflict is ‘genuine.’
Unterreiner v. Volkswagen of Am., 8 F.3d 1206, 1212 (7th Cir. 1993), overruled on
other grounds by Hill v. Tangherlini, 724 F.3d 965, 967, n.1 (7th Cir. 2013).
Without the sham-affidavit doctrine to police unexplained contradictions in
testimony offered to defeat summary judgment, Rule 166a(c)’s use of the term
“genuine” is rendered meaningless. Tex. R. Civ. P. 166a(c) (the trial court shall
grant summary judgment if the evidence shows that “there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a matter of
law[.]”) (emphasis added). Moreover, the sham-affidavit doctrine does not ask the
trial court to weigh the credibility of witnesses, but to accept deposition testimony
as true and disregard unexplained, contradictory statements in the deponent’s
subsequent affidavit.
31
Whatever Appellants’ complaints are, this much is indisputable: the sham-
affidavit doctrine asks for a pittance from the non-movant/affiant – he need only
offer an explanation for his change in testimony to avoid application of the
doctrine. Because Hanson offered no such explanation, this Court should disregard
Hanson’s Affidavit and affirm summary judgment for Appellee.
E. Response to Appellants’ Other Arguments.
I. No pleading to support suit on a sworn account or
claim for quantum meruit.
Appellants complain on appeal that the summary judgment “has procedural
issues” because there was no pleading to support a suit on a sworn account or a
claim for quantum meruit. Appellants’ Brief, pp. 4, 9. But Appellants failed to
object to the lack of a pleading before the trial court, instead merely complaining
that Appellee’s suit on a sworn account was unverified.4 CR 176. And the parties
fully briefed Appellee’s sworn account and quantum meruit claims for summary
judgment. CR 50, 169. Therefore, Appellants waived any error, tried the claims
by consent, and cannot complain on appeal. See Via Net v. TIG Ins. Co., 211
S.W.3d 310, 313 (Tex. 2006) (per curiam); Tex. R. App. P. 33.1(a); Tex. R. Civ. P.
166a(c) (“Issues not expressly presented to the trial court by written motion,
4
It should be noted that deficiencies in a plaintiff’s sworn account, such as the lack of a
verification, merely prevent it from constituting prima facie evidence of the debt. See
Enernational Corp. v. Exploitation Eng’rs, Inc., 705 S.W.2d 749, 750 (Tex. App.—Houston [1st
Dist.] 1986, writ ref’d n.r.e.). The plaintiff would still be entitled to summary judgment when, as
here, it offers affidavit testimony to prove up the account as a matter of law. CR 135-138.
32
answer or other response shall not be considered on appeal as grounds for
reversal.”) (emphasis added).
If the Court finds that Appellants did not waive error, the deficiencies in
their own pleadings at the time of the summary-judgment hearing must be
accounted for: (1) only Hanson, individually, entered a verified denial of
Appellee’s sworn account (SCR 52); (2) American Idol had only entered a general
denial (CR 44); and (3) neither Appellant had entered a verified denial to support a
defense of improper capacity or defect of parties under Tex. R. Civ. P. 93(2) or (4),
or any affirmative defense under Tex. R. Civ. P. 94 (cf. CR 44 with SCR 52, and
note that Appellants filed their Second Amended Original Answer and Special
Exceptions on February 18, 2014, twelve days after the summary-judgment
hearing. CR 270.).
II. Hanson has no liability.
Appellants argue that Hanson has no liability because he did not contract
with Appellee (Appellants’ Brief, p. 8), did not have an account with Appellee
(Appellants’ Brief, p. 10), and did not operate the Reo or own the subject
building/property (Appellants’ Brief, pp. 11-12). Even assuming those arguments
are true, Hanson is still individually liable because he was admittedly a general
partner of American Idol at all pertinent times. CR 57; CR 104 (9/3 – 10/2); CR
112-131 (33/8 – 52/14). Under Tex. Bus. Org. Code § 152.306(a), “[a] judgment
33
may be entered against a partner who has been served with process in a suit against
the partnership.” Because Hanson was served with process and individually
named as a party, the trial court properly granted summary judgment against him.
SCR 4, 46-47. See Kao Holdings, L.P. v. Young, 261 S.W.3d 60, 63-64 (Tex.
2008); Tex. Civ. Prac. & Rem. Code 17.022 (“Citation served on one member of a
partnership authorizes a judgment against the partnership and the partner actually
served.”).
III. The trial court erred in granting summary judgment
on damages.
Appellants argue that the trial court erred in granting summary judgment on
damages because one of the invoices attached to Appellee’s Motion for Summary
Judgment mentioned, but failed to segregate, work done at the “Taco Place,” and
there was nothing further in the record to segregate the Taco Place charges.
Appellants’ Brief, pp. 12-13. Appellants have simply overlooked the summary
judgment evidence and post-hearing briefing.
By its Motion for Summary Judgment, Appellee sought damages in the
amount of $17,372.03.5 CR 54-55, 137. During the summary-judgment hearing,
Appellee acknowledged that part of that amount included work done at the Taco
Place and suggested that the trial court could “cross out” that charge. RR 32/14-
5
Appellants incorrectly state that Appellee sought only “$17,272.03.” Appellants’ Brief, p. 12.
34
24. After the hearing, the trial court sent counsel a letter requesting an explanation
on how to cross out the Taco Place charges. CR 281. Appellee then filed a letter
explaining that the Taco Place charges were, in fact, itemized on other invoices
already in the record and amounted to $202.55. SCR 61-65; CR 80, 96, 98, 100.
The trial court deducted $202.55 from $17,372.03 to arrive at the judgment amount
of $17,169.48. CR 274. Therefore, the trial court properly excluded the Taco
Place charges and this Court should affirm the trial court’s summary judgment as
to damages. Alternatively, if this Court finds that Appellee did not prove its
damages as a matter of law, it should affirm as to liability and reverse and remand
only as to the issue of damages.
3. The trial court did not err in awarding Appellee its attorney’s fees (no
corresponding numbered issue in Appellants’ Brief).
As shown above, the trial court properly awarded summary judgment for
Appellee on its claims for breach of contract, quantum meruit, and sworn account.
Appellee proved $8,945.92 in attorney’s fees and expenses through the Affidavit of
T. John Ward, Jr., which was uncontroverted. CR 154-157. Accordingly, the trial
court did not err in awarding Appellee its attorney’s fees in the lesser amount of
$7,847.00. Tex. Civ. Prac. & Rem. Code § 38.001, et seq.
35
PRAYER
Appellee respectfully requests this Court to affirm the trial court’s summary
judgment and grant Appellee such other and further relief to which it is justly
entitled. Should this Court find that Appellee did not prove its damages as a matter
of law, Appellee alternatively requests this Court to affirm as to liability and
reverse and remand only as to the issue of damages.
Respectfully submitted,
/s/ Brett F. Miller
T. JOHN WARD, Jr.
State Bar No. 00794818
jw@wsfirm.com
CLAIRE ABERNATHY HENRY
State Bar No. 24053063
claire@wsfirm.com
Brett F. Miller
State Bar No. 24065750
bmiller@wsfirm.com
WARD & SMITH LAW FIRM
P. O. Box 1231
Longview, Texas 75606-1231
(903)757-6400 (Telephone)
(903)757-2323 (Facsimile)
ATTORNEYS FOR APPELLEE
36
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of TEX. R. APP. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point font for text and 12-point for footnotes. This document also complies with
the word-count limitations of TEX. R. APP. P. 9.4(i), because it contains 8,236
words, according to the computer program used to prepare this document,
excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1).
/s/ Brett F. Miller
Brett F. Miller
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was filed
electronically. This document was served on all counsel who are deemed to have
consented to electronic service. Local Rule 3(c). Pursuant to TEX. R. APP. P.
9.5(b) and Local Rule 3(c)(2), all other counsel of record not deemed to have
consented to electronic service were served with a true and correct copy of the
foregoing by email, facsimile, or certified mail on this the 17th day of
February, 2015.
/s/ Brett F. Miller
Brett F. Miller
37
CAUSE NO. 12-14-00134-CV
IN THE COURT OF APPEALS OF TEXAS
TWELFTH JUDICIAL DISTRICT
AMERICAN IDOL, GENERAL, LP d/b/a The REO, and
RANDY HANSON a/k/a RANDALL HANSON,
Appellants
v.
PITHER PLUMBING CO., INC.,
Appellee
__________________________________________________
On Appeal from Cause No. 2012-1842-A
In the 188th Judicial District Court of Gregg County, Texas
The Honorable David Brabham, Presiding
__________________________________________________
APPENDIX TO BRIEF OF APPELLEE PITHER PLUMBING CO., INC.
____________________________________________________________
1. Affidavit of Randall Hanson (CR 186).
38
NO. 2012-1842-A
PITHER PLUMBING CO., INC. § IN THE DISTRICT COURT
§
v. § OF GREGG COUNTY, TEXAS
§
AMERICAN IDOL GENERAL, LP §
D/B/A THE REO, and RANDY §
HANSON A/KJA RANDALL HANSON § 188™ JUDICIAL DISTRICT
AFFIDAVIT OF RANDALL HANSON
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF SMITH §
Before me, the undersigned authority, on this day personally appeared RANDALL
BRADFORD HANSON, who, being by me first duly swom, according to law, upon her oath
deposed and stated as follows:
"My name is RANDALL BRADFORD HANSON, I am over the age of 18 years, of
sound mind, have never been convicted of a felony or a crime of moral turpitude, and have
personal knowledge of the following facts and the following facts are true and conect.
"I am Defendant in the cunent suit.
"All of the facts contained in the attached response are true and correct to the best of my
knowledge.
"Max Singleton is the owner the building in question, "The Reo Palm Isle Club", located
at 4716 W. Loop 281, Longview, Texas.
"Max Singleton has owned the building during the time that Plaintiff allegedly provided
plumbing services for "The Reo Palm Isle Club", located at 4716 W. Loop 281, Longview,
Texas.
186
"Tacos Goyo was located at 4716 W. Loop 281, Longview, Texas and was a tenant of
Max Singleton during the relevant time period from January 18, 2010 through January 12,2012.
Tacos Goyo was a separate business with no connection whatsoever to Randy Hanson, American
Idol, or the club commonly known as "The Reo."
"The club commonly known as, "The Reo" was a tenant of Max Singleton during the
relevant time period.
"American Idol General, LP has never owned the propetty called "The Reo Palm Isle
Club" located at 4716 W. Loop 281, Longview, Texas.
"American Idol General, LP did not operate the club known as "The Reo" during the
relevant time period from January 18,2010 through January 12,2012.
"American Idol General, LP was not affiliated with the property called "The Reo Palm
Isle Club" located at 4716 W. Loop 281, Longview, Texas.
"American Idol General, LP had no employees during the relevant time period from
January 18,2010 through Januaty 12, 2012.
"American Idol General, LP existed solely to hold the liquor license for the club
commonly known as "The Reo."
"American Idol General, LP had no assets.
"American Idol General, LP did not have a checking account.
"American Idol General, LP never received services from Pither Plumbing Co., Inc. It
could not have requested or received services, as it only held a liquor license.
"C.J. BROERS was not an employee of American Idol General, LP.
"C.J. BROERS had no authority to enter into construction contracts on behalf of
American Idol General, LP.
187
"American Idol General, LP, nor any agent of American Idol General, LP, including
RANDALL HANSON or C.J. BROERS, ever entered into an agreement with Pither Plumbing
Co., Inc. regarding plumbing services that were purported to be performed at "Reo Palm Isle
Club", located at 4716 W. Loop 281, Longview, Texas.
"American Idol General, LP never paid for plumbing services, or any other services that
were purpmied to be perfotmed at "Reo Palm Isle Club", located at 4716 W. Loop 281,
Longview, Texas.
"American Idol General, LP never received invoices from Plaintiff regarding the
•
plumbing services that were purported to be performed at "Reo Palm Isle Club", located at 4716
W. Loop 281, Longview, Texas.
"American Idol General, LP never received any demand letters from Plaintiff regarding
the plumbing services that were purpmied to be performed at "Reo Palm Isle Club", located at
4716 W. Loop 281, Longview, Texas.
"BRKA, INC is a contracting company, and C.J. BROERS was an agent ofBRKA, INC.
"Further affiant sayeth not."
SUBSCRIBED AND SWORN TO before me the undersigned Notary Public on this 28th day of
January, 2014 .
.:o't``lf.'f:t;,, CATHERINE POWELL CLAYTON
1.§;~.1>\ Notary Public. State of Texas
\~:.~l:>i My Commission Expires
. ,,~,~·u-..~,,,
. llml\ ..~ June 17, 2017
188