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NO. 06-0318 ___________________________________________________________ IN THE SUPREME COURT OF TEXAS ___________________________________________________________ CITY OF GRAPEVINE, Petitioner V. JAMES B. DAVIS, Respondent ___________________________________________________________ On Petition for Review from the Court of Appeals Second District Forth Worth, Texas ___________________________________________________________ RESPONDENT' SUR-REPLY BRIEF S LAURANCE L. PRIDDY Texas State Bar No. 16323000 ADVOCACY, INCORPORATED 1420 W. Mockingbird Lane, Suite 450 Dallas, Texas 75247 (214) 630-0916 (Phone) (214) 630-3472 (Fax) BRIAN EAST Texas State Bar No. 06360800 ADVOCACY, INCORPORATED 7800 Shoal Creek Blvd., Suite 171-E Austin, Texas 78757 (512) 454-4816 (Phone) (512) 454-3999 (Fax) ATTORNEYS FOR RESPONDENT

TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii I. II. III. INTRODUCTION AND SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 HARMONIZING TEXAS CASE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 UNDER ANY ANALYSIS, THE TRIAL COURT WAS JUSTIFIED IN ACCEPTING DAVIS' AFFIDAVIT . . . . . . . . . . . . . . . . . . . . 5 S A. B. The Relevant Facts Do Not Reflect A " Sham". . . . . . . . . . . . . . . . . . . . . 5 The Proper Limits Of The " Sham Affidavit" Rule . . . . . . . . . . . . . . . . . . 8 1. 2. 3. 4. The Rule Must Be Applied With Caution . . . . . . . . . . . . . . . . . . . 8 The Rule Only Applies To Direct Contradictions . . . . . . . . . . . . . 9 Subsequent Clarifications Are Permitted . . . . . . . . . . . . . . . . . . . 11 The Rule May Not Apply If The Initial Questioning Is Confusing Or Cursory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 The Rule Does Not Apply If The Later Testimony Is Consistent With Other Evidence . . . . . . . . . . . . . . . . . . . . . . . . . 14 The Rule Should Not Apply If The Affidavit Is Plausible . . . . . . 14

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6. C.

The Court Need Not Decide The Applicability Of The " Sham Affidavit" Rule Because Under Any View, The Court Below Did Not Err . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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TABLE OF AUTHORITIES CASES Baer v. Chase, 392 F.3d 609 (3rd Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 14 Bank of Illinois v. Allied Signal Safety Restraint Systems, 75 F.3d 1162 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 11, 12 Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) . . . . . . . . . . . . . . . . . . . 6 Cain v. Green Tweed & Co., Inc., 832 A.2d 737 (Del. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 13, 15 Choudhry v. Jenkins, 559 F.2d 1085 (7th Cir.), cert denied sub nom Indiana v. Choudhry, 434 U.S. 997 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Davis v. City of Grapevine, 188 S.W.3d 748 (Tex. App.­ Worth 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Fort Eslon Thermoplastics v. Dynamic Systems, Inc., 49 S.W.3d 891 (Tex. App.­ Austin 2001, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 2 Farroux v. Denny'Restaurants, Inc., s 962 S.W.2d 108 (Tex. App.­ Houston [1st Dist.] 1997, no pet.) . . . . . 2-4, 8, 9, 11 Franks v. Nimmo, 796 F.2d 1230 (10th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir.1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11

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Larson v. Family Violence & Sexual Assault Prevention Ctr. of S. Tex., 64 S.W.3d 506 (Tex. App.­ Corpus Christi 2001, pet. denied) . . . . . . . . . . . . . . 3 Little v. Texas Dept. of Criminal Justice, 148 S.W.3d 374 (Tex. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 15 Mauna Loa Vacation Ownership, L.P. v. Accelerated Assets, L.L.C., 2005 WL 2410676, at *3 (D. Ariz. Sep. 28, 2005) . . . . . . . . . . . . . . . . . . . . . . 13 Messick v. Horizon Industries Inc., 62 F.3d 1227 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Owsiak v. Kimco Corp., 1997 WL 722990, at *5 n.1 (N.D. Ill. Nov. 13, 1997) . . . . . . . . . . . . . . . . . . . 13 Pappas v. J.S.B. Holdings, Inc., 392 F. Supp. 2d 1095 (D. Ariz. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Phillips v. Irvin, 2006 WL 1663677, at *5, n.13 (S.D. Ala. June 14, 2006) . . . . . . . . . . . . . . . . . 12 Pittman v. Atlantic Realty Co., 754 A.2d 1030 (Md. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14 Randall v. Dallas Power & Light Co., 752 S.W.2d 4 (Tex.1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 4, 5 Sears v. PHP of Alabama, Inc., 2006 WL 932044 (M.D. Ala. April 10, 2006) . . . . . . . . . . . . . . . . . . . . . . . 10, 12 Selenke v. Medical Imaging of Colorado, 248 F.3d 1249 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Shelcusky v. Garjulio, 797 A.2d 138 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 14, 15 Sosebee v. Hillcrest Baptist Medical Center, 8 S.W.3d 427 (Tex. App.­ Waco 1999, rev. denied) . . . . . . . . . . . . . . . . . . . . . . 4

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Sudan v. Sudan, 199 S.W.3d 291 (Tex. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Thompson v. City of Corsicana Hous. Auth., 57 S.W.3d 547 (Tex. App.­ Waco 2001, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 4 Tippens v. Celotex Corp., 805 F.2d 949 (11th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10 Van T. Junkins & Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656 (11th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 RULES TEX. R. APP. P. 56.1(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 OTHER AUTHORITIES Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2726, at 452 (3d ed. 1998) . . . . . . . . . . . . . . 9 Roget'II: The New Thesaurus (3d. ed. 1995), s online at http://www.bartleby.com/62/81/O1058100.html . . . . . . . . . . . . . . . . . 6

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TO THE HONORABLE COURT: Respondent James B. Davis files this sur-reply on the " sham affidavit" issue. I. INTRODUCTION AND SUMMARY Davis reasserts that the Petitioner waived this issue by failing to include it in its Petition or its opening brief on the merits, as more fully set out in the Motion to Strike filed herewith. However, even if this Court does not strike Petitioner'belated " s sham affidavit" briefing, the courts below did not err in considering Respondent'affidavit in this case. s Petitioner appears to invite this Court to reject its earlier precedent in Randall v. Dallas Power & Light Co., 752 S.W.2d 4, 5 (Tex.1988), and those court of appeals cases (like the instant one) that rely on it. But there is no need for the Court to do so, either to resolve this case, or in order for Texas courts to properly apply the " sham affidavit" rule. Although there are some linguistic inconsistencies in the court of appeals dicta on " sham affidavits," conflict is not as " the clear" the City argues. Most opinions, both those as from this court and those from the intermediate courts, can be readily harmonized. Furthermore, the Petition should be denied on this issue pursuant to TEX. R. APP. P. 56.1(b)(1), because even if the court of appeals did not correctly declare the law in all respects, there is no reversible error. Under any version of the " sham affidavit" rule, it would not apply to affidavits that do not directly or flatly contradict an earlier deposition; on the contrary, affidavits are permitted that expand on or explain deposition testimony.

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II. HARMONIZING TEXAS CASE LAW The opinion below notes that " many courts of appeals have adopted the sham affidavit doctrine."Davis v. City of Grapevine, 188 S.W.3d 748, 756 (Tex. App.­ Worth 2006) Fort (footnote omitted). But the Fort Worth court did not reject those cases. Instead, it held that it would " apply the rule set forth by the Texas Supreme Court in Randall that when conflicting inferences may be drawn between a party'summary judgment affidavit and his s deposition on matters of material fact, a fact issue is presented."Id. The reality is that there is no actual inconsistency between Farroux v. Denny'Restaurants, Inc., 962 S.W.2d 108, s 111 (Tex. App.­ Houston [1st Dist.] 1997, no pet.) (adopting the " sham affidavit" rule), and Randall v. Dallas Power & Light Co., 752 S.W.2d 4, 5 (Tex.1988). In Randall, this Court simply held that " conflicting inferences may be drawn from if a deposition and from an affidavit filed by the same party in opposition to a motion for summary judgment, a fact issue is presented."Randall, supra, 752 S.W.2d at 5 (emphasis supplied).1 In Farroux, the First Court of Appeal stated that " party cannot file an [a] affidavit to contradict his own deposition testimony . . . for the [sole] purpose of creating a fact issue to avoid summary judgment."Farroux, supra, 962 S.W.2d at 111.2 Both holdings are easily harmonized. They indicate that if the two sworn statements are not fully

The Court also reaffirmed " well-established rule that a deposition does not have the controlling effect over an affidavit in determining whether a motion for summary judgment should be granted."Id. That is, neither form of testimony has automatically superior status.

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To the same effect, see Eslon Thermoplastics v. Dynamic Systems, Inc., 49 S.W.3d 891, 901 (Tex. App.­ Austin 2001, no pet.). 2

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consistent, in the sense that differing inferences may be drawn from them, there is no " sham." the other hand, if the statements themselves (rather than inferences flowing from On them) completely contradict each other, with no explanation,3 the trial court may find the later testimony to be a " sham."As shown below, this distinction is also supported by the weight of authority from other jurisdictions. The two other cases the City cites in support of its view of a conflict in the law fit within the above distinction. For example, the City suggests the holding in Larson v. Family Violence & Sexual Assault Prevention Ctr. of S. Tex., 64 S.W.3d 506, 513 (Tex. App.­ Corpus Christi 2001, pet. denied) is inconsistent with Farroux. It is not. Larson does not reject Farroux; it merely makes the point that not any and every inconsistency dooms the affiant.4 There are other reasons to reject a finding of circuit conflict based on this case--the opinion does not recite the supposedly contradictory statements, and the entire discussion on this issue is dicta.5

Farroux, like other cases recognizing the " sham affidavit" theory, expressly recognizes that an apparent conflict may nonetheless be explained, thus precluding a finding that the affiant is engaged in a sham. See 962 S.W.2d at 111, and other authorities cited below.

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The court in Larson states: " However, we conclude any inconsistency or conflict between a party'deposition and affidavit is not a reason to exclude that evidence in a summary judgment s proceeding."64 S.W.3d at 513.

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The Larson court states that the affidavit should not have been excluded because of the alleged inconsistency (whatever that was), but it upheld the trial court'exclusion of the affidavit s anyway, because there was no showing that the trial court struck the affidavit because of any inconsistency, and there were myriad other defects in it. 64 S.W.3d at 513. 3

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The other case the City cites, Thompson v. City of Corsicana Hous. Auth., 57 S.W.3d 547, 556­ (Tex. App.­ 557 Waco 2001, no pet.), contains statements that are perhaps more difficult to explain. At the very least, though, its holding on the issue is consistent with the Randall/Farroux framework described above. According to the court, the " correct rule" is this--when it is " arguable" whether or not a party made an affidavit in bad faith simply to avoid summary judgment, " goes directly to her credibility, which is not an issue on that which a court can grant a summary judgment."Thompson, supra, 57 S.W.3d at 557. There is nothing conflicting in that. The Thompson court also indicated that it would " adhere" its precedent in Sosebee to to the effect that " inconsistent or conflicting summary judgment proof" may create a fact issue. A review of Sosebee v. Hillcrest Baptist Medical Center, 8 S.W.3d 427 (Tex. App.­ Waco 1999, rev. denied), further shows the Waco court'fundamental consistency. s In Sosebee, the plaintiff'expert testified on the issue of the hospital'alleged negligence s s in caring for a mother during childbirth. That testimony is set out at some length. Id. at 433­ 435. The court found that some of the inferences that could be drawn from that testimony supported a finding of negligence; other inferences did not. The court merely held that in such circumstances, any inconsistencies went to the weight of the testimony (and thus could not support summary judgment), and did not mandate its outright exclusion. Id. at 435­ 436. Again, that result is fully consistent with both Randall and Farroux.

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III. UNDER ANY ANALYSIS, THE TRIAL COURT WAS JUSTIFIED IN ACCEPTING DAVIS' AFFIDAVIT S Having explained the proper analysis--one that harmonizes the case law--it only remains to determine if the trial court erred in failing to strike the affidavit in this case, or if the court of appeals erred in upholding that result. Neither court erred in this regard. A. The Relevant Facts Do Not Reflect A " Sham" The supposed " conflicting"testimony in this case below is based on the City' s comparing a single, cherry-picked, four-word deposition statement--which is itself subject to multiple interpretations and taken out of context, and about which the City attempted no further examination or follow-up--with a subsequent, more specific statement in Davis' s affidavit. This does not result in a " sham affidavit."Instead, this is a situation, like that in Randall, in which (at most) conflicting inferences can be drawn. This will not support summary judgment, and the trial court did not err in failing to strike the affidavit. In the deposition examination of Davis by the City'attorney, the attorney stated: s " Your walking was okay at the period of time. At least the doctors note that you did that without difficulty." Davis then stated: " walking is okay." Yes, [Davis Depo. p. 30, lines 4­ 7, R. at 53.] That is the entirety of the exchange that the City claims directly contradicts Davis'affidavit statement that when he walks fast, he falls down. [Davis Affid. p. 2, R. at s 133.] In fact, the City must show that the contradiction is so clear and so unexplained that as a matter of law the affidavit was merely a " sham," that any contrary holding by the and trial court was an abuse of discretion. The City cannot make such a showing.

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First of all, the meaning of the term " okay" this context is far from clear. For in example, the word can variously mean " acceptable,"" adequate,"" fair,"" passable,"or " tolerable." See, e.g., Roget' II: The New Thesaurus (3d. ed. 1995), online at s http://www.bartleby.com/62/81/O1058100.html. But not only is the term fundamentally imprecise in common parlance, it also is impossible to relate it to the legal standards at issue.6 Yet the City made absolutely no effort to clarify this statement. It did not ask how far Davis could walk, nor how fast he could walk, nor whether he walked with a limp, nor whether he had balance problems or fell on occasion. In fact, the City asked no follow-up questions at all.7 The City simply cannot claim any surprise when the matter was subsequently clarified by Davis, as even the " sham affidavit" case law recognizes. See III.B.3 below. Moreover, the City already had in its possession8 various statements from Davis' s doctor that described his condition at the time, and that are fully consistent with Davis' s

" person need not be totally unable to walk to be " A disab[led]" under section 12102(2)(A) of the ADA; she need only be significantly restricted as to the condition, manner, or duration of her walking as compared to that of the average person in the general population. See, e.g., Bragdon v. Abbott, 524 U.S. 624, 641, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) (The ADA ` addresses substantial limitations on major life activities, not utter inabilities.' Little v. Texas Dept. of )." Criminal Justice, 148 S.W.3d 374, 383 (Tex. 2004).

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Indeed, the City never asked any question, because the original exchange was in response to a statement rather than a question. For example, the City admitted receiving Exhibits 4 and 5 (as numbered in Dr. Blue' s deposition) in the spring of 2002. Anderson Depo., pp. 11­ R. at 300­ 12, 301; pp. 15­ R. at 16, 304­ 305. [These same documents were appended to Anderson'deposition as Exhibits 3 and 5.] s 6

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subsequent clarification in his affidavit.9 Among other things, these documents stated that Davis had problems with balance and coordination, and episodic numbness in his legs;10 had numbness over the entire right side of his body since the spring of 2001, as well as tingling in his legs;11 had an acute loss of muscular coordination in July of 2001;12 had dizzy spells;13 had numbness and tingling in his extremities that his doctor noted might be limiting;14 had some balance problems;15 had limitations in his rapid response ability and coordination;16 had weakness and a limp on his right side in February of 2002 (which started the previous September);17 at that time had a somewhat slapping gait, difficulty in putting one foot in front of the other, and inability to stand straight up with his eyes closed without wavering.18 Moreover, in Davis'conversation with his supervisors in April of 2002, they discussed the s

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This fact also negates a " sham affidavit" finding. See III.B.5 below. Dr. Blue Depo., Exhibits 4 & 5, R. at 514, 515, 517. Dr. Blue Depo., Exhibit 1, R. at 504. Dr. Blue Depo., Exhibit 1, R. at 504 (referencing " ataxia" ). Dr. Blue Depo., Exhibit 2, R. at 508. Dr. Blue Depo., Exhibits 3 & 4, R. at 511 & 515. Dr. Blue Depo., Exhibit 4, R. at 514 and 515. Dr. Blue Depo., Exhibit 5, R. at 517. Dr. Blue Depo. Exh. 3, R. at 511.

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Dr. Blue Depo. Exhs. 1 & 3, R. at 505, 511. Dr. Blue explained these test results in her deposition at p. 15, R. at 491. 7

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19 doctor' letters, and he also specifically mentioned his " s balance problems." In fact, his

doctor expressly supported Davis' assertion that he could not walk fast without falling s down, finding that limitation consistent with his diagnosis.20 In addition, the City knew that his early symptoms were only going to get worse.21 Not only was the City fully aware of this medical evidence, but the deposition exchange upon which the City places so much weight itself references the doctor' s statements. There is certainly no conflict between Davis expressing agreement with his doctor' statements (described above) during his deposition, and then later clarifying the s actual manifestations of his limitations in walking, which are themselves fully consistent with, and supported by, the doctor'statements and testimony. s B. The Proper Limits Of The " Sham Affidavit" Rule Even those cases adopting the " sham affidavit" rule also recognize its limitations. 1. The Rule Must Be Applied With Caution

According to the single case relied on in Farroux, 962 S.W.2d at 111, " rule ought this to be applied with great caution."Bank of Illinois v. Allied Signal Safety Restraint Systems, 75 F.3d 1162, 1169 (7th Cir. 1996) (collecting authorities).22 The reason for this is obvious:

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R. at 141, lines 18­ 19. Dr. Blue Depo., pp. 23­ R. at 491. 24, Dr. Blue Depo., Exhibit 5, R. at 517 (noting his multiple sclerosis is " progressive" ).

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See also Baer v. Chase, 392 F.3d 609, 624 (3rd Cir. 2004) (the sham affidavit rule " not has been applied without regard for the surrounding circumstances." ).

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A definite distinction must be made between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence. . . . The purpose of summary judgment is to separate real, genuine issues from those which are formal or pretended. To allow every failure of memory or variation in a witness' testimony to be s disregarded as a sham would require far too much from lay witnesses and would deprive the trier of fact of the traditional opportunity to determine which point in time and with which words the witness (in this case, the affiant) was stating the truth. Variations in a witness'testimony and any failure of s memory throughout the course of discovery create an issue of credibility as to which part of the testimony should be given the greatest weight if credited at all. Issues concerning the credibility of witnesses and weight of the evidence are questions of fact which require resolution by the trier of fact. Bank of Illinois, supra, 75 F.3d at 1169­ 1170, quoting Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986). See also 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2726, at 452 (3d ed. 1998) (footnotes omitted): These decisions should not be interpreted too broadly, however. It seems quite clearly correct to conclude that an interested witness who has given clear answers to unambiguous questions cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, without providing a satisfactory explanation of why the testimony is changed. . . . On the other hand, if the witness' answers in the deposition are not that clear or the questions are not that unambiguous, a later-filed affidavit may indeed create a genuine issue by supplying additional facts. 2. The Rule Only Applies To Direct Contradictions

As the case relied on in Farroux also makes clear, the rule " does not apply to every instance when a later affidavit contradicts prior sworn testimony."Bank of Illinois, supra, 75 F.3d at 1169 n.10. See also Baer v. Chase, 392 F.3d 609, 624 (3rd Cir. 2004) (" is clear it that merely because there is a discrepancy between deposition testimony and the deponent' s later affidavit a district court is not required in all cases to disregard the affidavit." citing ), Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir.1980). Instead, it only applies

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to cases in which there is a direct and flat contradiction in testimony. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) (" rule, however, is limited to ` This sham' testimony that flatly contradicts earlier testimony in an attempt to ` create' issue of fact an and avoid summary judgment." Van T. Junkins & Associates, Inc. v. U.S. Industries, Inc., ); 736 F.2d 656, 657 (11th Cir. 1984) (the sham affidavit rule is designed to apply to the situation in which " party has given clear answers to unambiguous questions." Sears v. a ); PHP of Alabama, Inc., 2006 WL 932044, at *10 (M.D. Ala. April 10, 2006) (" sham affidavit" requires a showing of a " contradiction" rule flat between an affidavit and an earlier deposition), citing Tippins v. Celotex Corp., 805 F.2d 949, 951, 953 (11th Cir. 1986); Cain v. Green Tweed & Co., Inc., 832 A.2d 737, 740 (Del. 2003) (" core of the doctrine is that The . . . a witness at a deposition has previously responded to unambiguous questions with clear answers . . .." ). Only those affidavit statements which are inherently inconsistent with earlier deposition testimony should be stricken. The sham affidavit rule sets a high threshold in order to prevent courts from invading the province of the jury by deciding credibility questions and weighing the evidence. . . . Accordingly, an affidavit which merely is at odds with statements made in an early deposition should not be excluded. Similarly, an affidavit which clarifies, augments, elaborates or explains prior deposition testimony is not inherently inconsistent within the meaning of the sham affidavit rule. Sears v. PHP of Alabama, Inc., supra, 2006 WL 932044, at *10­ (citations and internal 11 quote marks omitted). Other state supreme courts have expressed similar cautions. In Shelcusky v. Garjulio, 797 A.2d 138 (2002), for example, the Supreme Court noted that the sham affidavit doctrine is:

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not applied mechanistically to reject any and all affidavits that contain a contradiction to earlier deposition testimony, [but] the doctrine requires a court to evaluate whether a true issue of material fact remains in the case notwithstanding an affiant' earlier deposition testimony. The Appellate s Division has applied the doctrine in the past, as do we for the first time here. Critical to its appropriate use are its limitations. Courts should not reject alleged sham affidavits where the contradiction is reasonably explained, where an affidavit does not contradict patently and sharply the earlier deposition testimony, or where confusion or lack of clarity existed at the time of the deposition questioning and the affidavit reasonably clarifies the affiant' s earlier statement. Id. at 149 (citation omitted). The rule should not apply unless the trial court makes a factual determination that the contradiction was actually a sham, or at least that " statements are inherently inconsistent the and in which the contradiction is not the result of an honest discrepancy or newly discovered evidence."See Bank of Illinois, supra, 75 F.3d at 1169 n.10. Of course, the trial court made no such finding of sham in the instant case, and in fact denied the motion to strike the relevant testimony. Decisions on whether or not to exclude evidence rest within the sound discretion of the trial court. E.g., Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d

35, 43 (Tex. 1998).

3.

Subsequent Clarifications Are Permitted

The authority cited in Farroux also agreed with the Fifth Circuit that a subsequent clarification should be permitted if the prior statement is ambiguous. Bank of Illinois, supra, 75 F.3d at 1170 n.11, citing Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir. 1980) (" party submitted an affidavit conflicting with that party' earlier deposition The s testimony, but only because the affidavit explained certain aspects of the deposition by

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clarifying ambiguities created by confusing questioning." See also Selenke v. Medical ). Imaging of Colorado, 248 F.3d 1249, 1258 (10th Cir. 2001) (" Unlike the district court, we are not convinced that Ms. Selenke'failure to mention these problems at her deposition s precludes consideration of her affidavit. Although an affidavit that contradicts earlier sworn testimony should be disregarded if it ` constitutes an attempt to create a sham fact issue,' that principle is not applicable when the deposition testimony is ambiguous and the affidavit assists in clarifying it." (citations omitted); Messick v. Horizon Industries Inc., 62 F.3d ) 1227, 1231 (9th Cir. 1995) (" [T]he non-moving party is not precluded from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition." ). Even when a party' earlier testimony lacks " evidentiary detail"contained in later s the testimony, " incompleteness does not mean that the two sources of evidence are inherently its inconsistent."Sears, supra, 2006 WL 932044, at *12. See also Pappas v. J.S.B. Holdings, Inc., 392 F. Supp. 2d 1095, 1104 (D. Ariz. 2005) (elaboration is permissible). 4. The Rule May Not Apply If The Initial Questioning Is Confusing Or Cursory

Courts have also recognized that the nature of the deposition questioning is a factor in assessing whether there is a true " sham."For example, an ambiguity may result " because the [original deposition] question was phrased in a confusing manner," Bank of Illinois, supra, 75 F.3d at 1170 n.11,23 or because the questioner did not ask follow-up questions. Phillips v. Irvin, 2006 WL 1663677, at *5, n.13 (S.D. Ala. June 14, 2006) (" Court The

See also Choudhry v. Jenkins, 559 F.2d 1085, 1090 (7th Cir.), cert denied sub nom Indiana v. Choudhry, 434 U.S. 997 (1977) (summary judgment was improper even though party'testimony s was " a paradigm of cogency or persuasiveness," not inasmuch it was not a " transparent sham" ). 12

23

rejects this [sham affidavit] argument for two reasons. First, there is no direct contradiction between the affidavit and deposition . . . [and i]t does not appear that defense counsel asked Phillips to elaborate." Cain v. Green Tweed & Co., Inc., 832 A.2d 737, 741 (Del. 2003) ); (" Cain'affidavit did not contradict any testimony contained in his first deposition. All the s affidavit did was supplement Cain'testimony with further information that had not been s previously elicited, because interrogating defense counsel did not ask the appropriate questions." Pittman v. Atlantic Realty Co., 754 A.2d 1030, 1042 (Md. 2000) (one factor ); in the " sham affidavit" analysis is " frequency and carefulness of questions posed at the deposition concerning this fact" Owsiak v. Kimco Corp., 1997 WL 722990, at *5 n.1 (N.D. ); Ill. Nov. 13, 1997) (" While the defendant' questions can hardly be termed circuitous or s misleading, the court notes that slightly more unequivocal inquiry may have extinguished any issue of fact on this matter." See also Mauna Loa Vacation Ownership, L.P. v. Accelerated ). Assets, L.L.C., 2005 WL 2410676, at *3 (D. Ariz. Sep. 28, 2005) (" Although it is true that Stevens answered various questions about his discussions with Defendant, and that his answers do not include his affidavit-made assertion of a specific servicing agreement, it is also true that he was not directly asked if the parties reached such an agreement. . . . Stevens also noted the ambiguity of the word ` handle' during his deposition, but defense counsel did not pursue Stevens' understanding of the term." 24 Both circumstances--ambiguity, and the ). lack of clarifying questions--are present in the instant case.

Obviously, courts assess whether the earlier statement was subject to further examination by opposing counsel because such examination can serve to eliminate any confusion. Compare Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986). 13

24

5.

The Rule Does Not Apply If The Later Testimony Is Consistent With Other Evidence

Still another factor weighing against a sham finding in the instant case is the fact that Davis' affidavit testimony was fully consistent with the documentary evidence from his s physician, which predates even his deposition. " When there is independent evidence in the record to bolster an otherwise questionable affidavit, courts generally have refused to disregard the affidavit. . . . [Plaintiff' ability to point to evidence in the record that s] corroborates his later affidavit alleviates the concern that he merely filed an erroneous certification out of desperation to avoid summary judgment."Baer v. Chase, 392 F.3d 609, 625­ (3rd Cir. 2004) (citations omitted). 626 6. The Rule Should Not Apply If The Affidavit Is Plausible

An additional factor is whether " affidavit assertion was plausible." Pittman v. the Atlantic Realty Co., 754 A.2d 1030, 1042 (Md. 2000) (internal quotes and ellipses omitted). It clearly was in this case, supported as it was by the medical evidence. C. The Court Need Not Decide The Applicability Of The " Sham Affidavit"Rule Because Under Any View, The Court Below Did Not Err The sham affidavit doctrine has been adopted in some form by the federal circuit courts and by many state courts. See Shelcusky v. Garjulio, 172 N.J. 185, 797 A.2d 138 (2002) (collecting cases). See also Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) (acknowledging without endorsing the case law). Some state courts have expressed reluctance to accept the doctrine in whole, however, finding that it must be squared with earlier state law precedent. Compare Pittman v. Atlantic Realty Co., 754 A.2d 1030 (Md.

14

2000) (" declin[ing] to change present Maryland law and adopt the sham affidavit rule," although recognizing that trial courts may already strike affidavits that are irrational or incredible); Shelcusky v. Garjulio, 797 A.2d 138 (N.J. 2002) (adopting the rule in a way that is consistent with earlier precedent). In the end, this Court is presented with the same situation faced by the Delaware Supreme Court in Cain v. Green Tweed & Co., Inc., 832 A.2d 737 (Del. 2003). That court rejected judicial activism and refused to reach an issue not squarely presented by the facts: In Delaware, the doctrine was first adopted by the [lower courts] in Nutt v. A.C. & S. Co., Inc. This Court has yet to pronounce on the issue. We need not address the validity or scope of the doctrine, because we find it to be inapplicable in this case. . . . Cain'affidavit did not contradict any testimony s contained in his first deposition. All the affidavit did was supplement Cain's testimony with further information that had not been previously elicited, because interrogating defense counsel did not ask the appropriate questions. Thus, the " sham affidavit" doctrine does not apply in this case because Cain' s affidavit did not attempt to, nor did it, create a sham factual issue. Id. at 741 (footnote omitted). At summary judgment, the trial court must indulge every reasonable inference in favor of the nonmovant, Little v. Texas Dept. of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004), and view the evidence in the light most favorable to the nonmoving party. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006). The trial court did no more than that in the instant case.

15

CONCLUSION For the reason stated above, this Court should dismiss the Point of Error to the extent it relies on the " sham affidavit" rule, or in the alternative, it should affirm the portion of the opinion below to the extent it upheld the trial court' discretionary decision to deny the s City'motion to strike Davis'affidavit. s s

Respectfully submitted,

By: LAURANCE L. PRIDDY SBN 16323000 Advocacy, Incorporated 1420 W. Mockingbird, Suite 450 Dallas, Texas 75247 (214) 630-0916 (Phone) (214) 630-3472 (Fax)

_________________________________

BRIAN EAST SBN 063609800 Advocacy, Incorporated 7800 Shoal Creek Blvd., Suite 171-E Austin, Texas 78757 (512) 454-4816 (Phone) (512) 454-3999 (Fax) ATTORNEYS FOR RESPONDENT

16

CERTIFICATE OF SERVICE I hereby certify that on this 27th day of November, 2006, I sent a true and correct copy of the foregoing by U.S. Postal Service, certified mail, return receipt requested to: W. Andrew Messer Attorney at Law 6947 Main Street Frisco, TX 75034 CMRRR No. 7005 2570 0002 2377 0478

_____________________________ Brian East

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