law-conclusory-statement | evidentiary challenges | admission and exclusion of evidence | affidavits
objection to affidavit as to form vs. substance | substance versus form objections |
CONCLUSORY TESTIMONIAL STATEMENTS
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.
AFFIDAVIT REGARDING CORPORATE ENTITIES AND IDENTITIES FOUND CONCLUSORY
We agree with Tomsic that the affidavit alone is insufficient to require relief. While the
trademark laws make it hard to believe Macy’s South or Macy’s West are not affiliated with Macy’s
Inc., it was the defendant’s burden to prove they were. See In re Weekley Homes, L.P., 180 S.W.3d
127, 130 (Tex. 2005). On that issue the affidavit was conclusory rather than conclusive, failing to
establish any basis for the affiant’s knowledge of corporate structure or attach any supporting
documents whatsoever. And even if they were affiliates, treating affiliates as one entity for purposes
of arbitration may be inconsistent with their separate creation. See In re Merrill Lynch Trust Co.
FSB, 235 S.W.3d 185, 191 (Tex. 2007).
But in this case the Plan itself stated that “the Company” would mean “your particular
employer.” This definition is certainly nonspecific, but it serves to avoid the kind of disputes about
corporate divisions and affiliates that Tomsic tries to raise here.
In Re Macy's Texas, Inc., No. 08-0584 (Tex. Jun. 26, 2009)(per curiam)(arbitration under FAA compelled by
mandamus in dispute over personal injuries sustained at work)(correct identification of employer was an issue,
but did not defeat duty to arbitrate claim against "company" / employer)
IN RE MACY'S TEXAS, INC.; from Bexar County; 4th district (04-08-00469-CV, ___ SW3d ___, [per curiam
opinion of the San Antonio Court of Appeals denying mandamus relief] 07-23-08)
stay order issued October 10, 2008, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally
grants the petition for writ of mandamus.
Per Curiam Opinion [pdf]
COURT OF APPEALS CASES IN WHICH SUPREME COURT REVIEW WAS DENIED
INTEGRATED APPLICATIONS ENGINEERING, INC. AND DAVID HOWE v. MAGGIE FENG HONG, BO HONG,
IAE, SUPPLY, INC. AND IAE ENERGY & SUPPLIES, INC.; from Fort Bend County; 14th district
(14-06-00579-CV, ___ SW3d ___, 03-11-08 (judgment reversed, conclusory and insufficient expert testimony
to support damages award)
Exxon argues that Hite’s testimony that Exxon failed to develop the leases is conclusory and, therefore,
insufficient to support the jury’s verdict. “Opinion testimony that is conclusory or speculative is not
relevant evidence, because it does not tend to make the existence of a material fact ‘more probable or less
probable.’” Coastal Trans. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232–33 (Tex. 2004) (quoting
Tex. R. Evid. 401). Such conclusory evidence cannot support a judgment. Id. at 232.