law-affidavit-objections-substantive-vs-form

Substantive Objections

Gellatly argues that the trial court erred by admitting the Lutz and Kenney affidavits because they
are conclusory. In his “business-records” affidavit, Lutz testified that he was one of the records
custodians for Unifund. Similarly, Kenney testified that she was a media supervisor for Unifund.
Gellatly generally argues that each affidavit is “nothing more than a series of conclusions,”
without identifying any statements in the affidavits that she contends are legal conclusions.
Unifund CCR Partners v. Gellatly (Tex.App.- Houston [1st Dist.] July 3, 2008)(Nuchia)
(credit card suit by assignee of card issuer against consumer,
deemed admissions, sufficiency of summary judgment proof,
objections to affidavits, preservation or error)
(breach of contract and
quantum meruit exclusive of each other)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia  [
pdf version here]
Before Justices Nuchia, Alcala and Hanks
01-07-00552-CV Unifund CCR Partners v. Sara Morgan Gellatly
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge:
Hon. Roberta A. Lloyd  

Conclusory statements in an affidavit are not proper summary judgment proof. Rizkallah, 952
S.W.2d at 587. “A conclusory statement is one that does not provide the underlying facts to
support the conclusion.” Id. “Conclusory statements without factual support are not credible and
are not susceptible to being readily controverted.” Id.; See TEX.R. CIV. P. 166a(c).

Contrary to Gellatly’s assertions, the affidavits are not conclusory. Lutz’s affidavit was based on
personal knowledge derived from his work at Unifund. Lutz’s affidavit specifically states, “I have
personal knowledge of the facts stated, and they are all true and correct.” We have held
“business records” affidavits such as Lutz’s to be competent summary judgment evidence. E.g.
Winchek, 232 S.W.3d at 206 (holding that business records affidavit made by custodian of
records not conclusory).
Kenney’s affidavit states that she is the media supervisor for Unifund and “authorized to make the
statements and representations herein.” Kenney’s affidavit is a series of factual statements,
asserting such facts as Gellatly’s name, account number, the amount of principal balance and
interest owing on Gellatly’s account, and the contractual interest rate.
We conclude that the Lutz and Kenney affidavits are not conclusory and that the trial court did
not err in considering them.



Anderson’s remaining objections that the evidence is conclusory, based on legal or factual
conclusions, based on qualifications, and unsupported by facts are substantive and may be
considered for the first time on appeal.  See id.; see also Tri-Steel, 166 S.W.3d at 448.  However,
Anderson’s objections merely quote various statements or cite various paragraphs in each
document, labeling each sentence or paragraph as “conclusory,” based on conclusions or
qualifications, or unsupported by facts.  She does not provide a “description of the particular
basis for the objection.”  Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 207 (Tex. App.—Dallas
2005, no pet.).  “[W]e cannot tell how, according to [Anderson], these statements are
‘conclusory’” or defective in any other way.  Id.

Because her “
objections are not sufficiently specific,” we reject Anderson’s contention that
the County’s evidence is fatally defective and incompetent.  Id.; see Womco, Inc. v. Navistar Int'l
Corp., 84 S.W.3d 272, 281 n.6 (Tex. App.—Tyler 2002, no pet.) (“objection that paragraph 11
contains unsubstantiated legal conclusions is itself conclusory” and fails to “offer any explanation
to the trial court as to the precise bases for their objection”); see also Garcia v. John Hancock
Variable Life Ins. Co., 859 S.W.2d 427, 434 (Tex. App.—San Antonio 1993, writ denied)
(objections to paragraph on grounds of “speculation” and “conclusion” failed to state the grounds
supporting inadmissibility)).   
08‑0664  LIMESTONE COUNTY, TEXAS v. LAURI J. ANDERSON; from Limestone County; 10th district
(
10-07-00174-CV, ___ SW3d ___, 07‑02‑08)(employment law, termination of employment, sex discrimination, retaliation claim,
adverse employment action, causal nexus, filing deadline for administrative complaint under Texas Labor Code, exhaustion of
administrative remedies)