Rulemaking by Fiat in a Most Unsuitable Case: A Critique of the Texas Supreme Court's Creation of a Catchall Sham Affidavit Rule in Lujan v. Navistar, Inc. (Tex. 2018)

Abstract

In Lujan v. Navistar, Inc. the Texas Supreme Court incorporated the federal sham affidavit doctrine into Texas summary judgment practice and turned the doctrine into a rule. Although this change in civil procedure could have been accomplished through the rule-revision process, the adoption of the doctrine through a precedent-setting opinion is not particularly remarkable because a number of intermediate courts of appeals in Texas had already recognized it. CASE CITE IN SOUTHWESTERN REPORTER AND WESTLAW: Lujan v. Navistar, Inc., No. 16-0588, 555 S.W.3d 79, 2018 WL 1974473 (Tex. Apr. 27, 2018)(sham affidavit doctrine adopted as part of summary judgment practice and adjudication in Texas) What is remarkable is that the Texas High Court blessed the statewide application of the doctrine in a case that did not even present a conflict in the same party’s deposition testimony and affidavit on the dispositive issue for summary judgment motion at issue (nontransfer of ownership of trucks from individual to a corporation of which the same individual was the sole owner, which was the pivotal issue for purposes of legal standing). The conflict the Court found significant was instead based on extrinsic tax-related documents and on a transcript of attorney argument in open court from a hearing on a pretrial motion unrelated to the motion for summary judgment. By recognizing the materiality of these other forms of evidence to the sham determination, the Court fundamentally altered the character and scope of the sham affidavit doctrine. It also rejected the elements of the test that intermediate appellate courts in Texas had used to determine whether the doctrine should be applied in a particular case; a test that involved the comparison and evaluation of the substance of the affidavit and the substance of the prior deposition on the material fact question at issue. The reliance on evidence other than the party’s deposition then allowed the Court to assert that it was not overruling existing Texas Supreme Court precedent that stands for the proposition that inconsistent deposition testimony may not be given effect over a summary judgment affidavit, and that a conflict between the two creates a fact issue for the trier of fact, rather than a sham issue that the trial court may resolve summarily. See Randall v. Dallas Power & Light, 752 S.W.2d 4 (Tex. 1988); Gaines v. Hamman, 358 S.W.2d 557 (Tex. 1962). The Texas courts of appeals will soon have to grapple with how Texas trial courts are to exercise—and not abuse--their vastly expanded discretion under the summary judgment regime as judicially amended by Lujan, without accompanying guidance or a clear set of criteria on how to go about determining the existence of a sham sufficiently serious to warrant disregard for the affidavit and grant of summary judgment for the movant. Although Lujan v. Navistar makes the sham affidavit doctrine viable throughout the state, it provides no guidance as to how the trial courts are to handle the vastly increased array of potentially sham-relevant evidence that may now be considered under an infinite set of case-specific circumstances; when and in what form such evidence should be proffered within the timeframes that govern summary judgment motions and responses; and how pertinent exculpatory evidence may be offered by the party accused of having run afoul the sham affidavit rule. The Texas Rules of Civil Procedure do not permit an evidentiary hearing on motions for summary judgment and many are upon submission without an oral hearing even merely for argument. By acknowledging that each case is unique and that the caseload as a whole is diverse in the particulars, the Lujan opinion itself makes a good case for the leaving the matter of amending the summary judgment rules to the Court’s rule-making process, rather than devising a new rule to fit the idiosyncrasies of a particular case brought before the Court for a decision.