Page 15 - San Antonio Vol 1 No 3
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The basic principal of the ‘sham af da“
vit rule’ is that if your client cannot maintain a consistent story in an af davit used to try to defeat a motion for summary judgment, without explaining the reason for any inconsistency, then a trial court can disregard the af davit.”
poration’s judicial admissions; (2) the corporation’s tax records; (3) Lujan’s counsel’s representations to the trial court that all assets had been transferred; and (4) the corporation’s bank records.  e only in- consistency with prior deposition testimony of Lujan appeared to be only tangential to the ownership of the trucks. So why was the “sham a davit rule” applied here if there was no inconsistency with a prior deposition on a material point?
Here, the appellate court recognized that the fact pattern in this case was di erent than the “usual fact pattern,” but held that “[t]hat alone...should not preclude the application of the doctrine’s rationale when analogous circumstances warrant it.” In a rming the lower courts’ decisions, the Texas Supreme Court appeared to support this broader application. On one hand, the Court protected the normal fact pattern by noting that the contradictions between Lujan’s deposi- tion and a davit related to certain “material points,” even if not re- lated to the ownership of the trucks. On the other hand, the Court a rmed the trial court’s consideration of corporate tax records and also looked to other circumstances that appeared to support the trial court’s decision, including Lujan’s counsel’s representations in court.
So, when will the rule be applied? It is clear the rule now applies in Texas. It is also clear that statements to the IRS made under pen- alty of perjury can be deemed to be sworn statements, and that other circumstances, such as an attorney’s representations in open court, can at least be looked at for support. But what are the boundaries of the Lujan holding? Will statements to any federal or state agency also be deemed sworn statements? How about statements to federally in- sured banks? Will veri ed interrogatories now trigger the rule? Will other representations in pleadings, discovery responses, or perhaps even social media also be considered, even if only for support?
Considering the fact pattern in Lujan, and the Texas Supreme Court’s description of the rule as a “ exible concept,” it is likely that the full scope of the rule’s applicability remains to be seen. Regardless, the Lujan holding certainly raises the bar for creating “genuine” fact issue via a davit, and stresses the importance of those basic tenets of litigation – to properly prepare your client before he or she testi es and to ensure consistency not only with a davits, but also with prior tax  lings, corporate  lings, bank records, veri cations, and other documents and representations.
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