A “sham affidavit” has been described as referring to an affidavit in which an affiant offers sworn testimony that contradicts the affiant’s prior, sworn testimony on a material point and the affiant gives no explanation in the affidavit for the change in the testimony. The scenario of the “sham affidavit” arises with great frequency in Texas summary judgment practice. Because many district courts and intermediate appellate courts refuse to give credence to such an affidavit, many motions for summary judgment have been granted and upheld.
The Supreme Court of Texas has never formally adopted or recognized the “sham affidavit” doctrine. On February 6, 2018, the Texas Supreme Court will hear oral argument in Lujon v. Navistar, Inc., No. 16-0588. Mr. Lujon argues that the application of the “sham affidavit” doctrine violates Texas Supreme Court holdings in Gaines v. Hamman, 358 S.W.2d 557, 562 (Tex. 1962), and in Randall v. Dallas Power & Light, Co., 752 S.W.2d 4, 5 (Tex. 1988), in which the court held that a deposition does not have controlling effect over an affidavit. The briefs of the parties in the Lujon case may be found here.
The majority opinion in the court of appeals recognized and applied the sham affidavit doctrine, while a vigorous dissent argued that the sham affidavit doctrine should not be recognized.
Practitioners should watch for the Texas Supreme Court opinion in Lujon as it may resolve a conflict between the intermediate appellate courts over whether Texas follows the sham affidavit doctrine.