From Casetext: Smarter Legal Research

Brownlee v. Brownlee

Supreme Court of Texas
Feb 29, 1984
665 S.W.2d 111 (Tex. 1984)

Summary

holding affidavits stating legal conclusions, not facts, are incompetent summary-judgment proof

Summary of this case from EM Bldg. Contractors Servs. v. Byrd Bldg. Servs.

Opinion

No. C-2313.

February 29, 1984.

Appeal from the District Court No. 95, Dallas County, Hecht, J.

Steinberg Meer, Carl A. Generes, John Alan Goren, Dallas, for petitioner.

Warren Zimmerman, Dallas, for respondent.


This is a summary judgment case. The trial court granted summary judgment for Barbara Ann Brownlee against her former spouse, Michael Graves Brownlee, in Barbara's suit based on breach of a written settlement agreement contained in an agreed judgment of divorce. The court of appeals affirmed. Michael Brownlee contends there was a genuine issue of material fact raised in his response to the motion for summary judgment and in his affidavit in opposition to the motion. We disagree with Mr. Brownlee and affirm the judgments of the trial court and the court of appeals.

The court of appeals opinion was not published, pursuant to Rule 452, TEX.R.CIV.P.

In February of 1974, Barbara and Michael Brownlee were divorced and entered into a support and settlement agreement which was approved and rendered as an agreed judgment. The agreement provided for contractual alimony of $1200 per month and for child support of $200 per month. Michael failed to make any payments from May 1979 to July 1980, and Barbara filed suit to collect these missed payments in the amount of $18,000 plus interest and attorney's fees.

At the time she filed suit, Barbara also filed a motion for summary judgment. In support of that motion, Barbara filed a copy of the agreement along with her affidavit which pointed out the nonpayment. In his response to the motion and in his affidavit opposing it, Michael did not contest the validity of the agreement or the fact of nonpayment; rather, he stated that the agreed judgment had been "amended and modified since the date of their execution and entry, respectively, in many respects, including but not limited to, modification of my obligation to make either support and/or periodic payments as set forth therein." Michael contends that this allegation raises a genuine issue of material fact. We disagree.

Michael Brownlee's allegation of modification is clearly an affirmative defense. He admits the existence of the alimony/child support agreement and his failure to make payments thereunder, but he attempts to avoid liability by alleging modification of the agreement. If the party opposing a summary judgment relies on an affirmative defense, he must come forward with summary judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-9 (Tex. 1979); Life Ins. Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d 378, 381 (Tex. 1978); see generally Dorsaneo, Texas Litigation Guide Sec. 101.05 (1983). Affidavits consisting only of conclusions are insufficient to raise an issue of fact. Life Ins. Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d at 381. By stating that his contractual obligation had been modified, Michael asserted nothing more than a legal conclusion. His affidavit did not set forth such facts as would be admissible in evidence, as required by Rule 166-A(e), TEX.R.CIV.P. If this had been a trial on the merits and the only thing to which Michael testified was that his obligation had been modified, the trial court would have been required to instruct a verdict against him. Michael's affidavit opposing Barbara's motion for summary judgment should have gone further and specified factual matters such as the time, place, and exact nature of the alleged modification.

Michael Brownlee's affidavit in opposition to the motion for summary judgment was also insufficient for a second reason. Unless authorized by statute, an affidavit is insufficient unless the allegations contained therein are direct and unequivocal and perjury can be assigned upon it. Burke v. Satterfield, 525 S.W.2d 950 (Tex. 1975). Michael's affidavit, however, does not positively and unqualifiedly represent the "facts" as disclosed in the affidavit to be true and within his personal knowledge. The statements made in the affidavit lack the necessary factual specificity.

The judgments of the trial court and the court of appeals are therefore affirmed.


Summaries of

Brownlee v. Brownlee

Supreme Court of Texas
Feb 29, 1984
665 S.W.2d 111 (Tex. 1984)

holding affidavits stating legal conclusions, not facts, are incompetent summary-judgment proof

Summary of this case from EM Bldg. Contractors Servs. v. Byrd Bldg. Servs.

holding affidavits stating legal conclusions, not facts, incompetent summary judgment proof

Summary of this case from Janai v. Sanford Rose Assocs.

holding that affidavits containing conclusory statements unsupported by facts are not competent summary judgment proof

Summary of this case from Pulte Homes of Tex., L.P. v. Tex. Tealstone Resale, L.P.

holding affidavit must set forth facts that would be admissible in evidence, not simply assert legal conclusions

Summary of this case from Atom Nanoelectronics, Inc. v. Applied Nanofluorescence, LLC

holding that affidavits consisting only of conclusions are insufficient to raise issue of fact

Summary of this case from Aranda v. Willie Ltd.

holding that affidavits consisting only of conclusions are insufficient to raise issue of fact

Summary of this case from Anthony v. State

holding that party opposing summary judgment by relying on affirmative defense “must come forward with summary judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment”

Summary of this case from Lujan v. Navistar Fin. Corp.

holding that statement in affidavit that "his contractual obligation had been modified" was nothing more than legal conclusion

Summary of this case from Dee v. Crosswater Yacht Club, LP

holding that affidavit must set forth facts, not mere legal conclusions

Summary of this case from Hale v. Richey

holding that defendant's asserting legal conclusion that original agreement "was modified" was insufficient to defeat plaintiff's summary judgment motion

Summary of this case from Johnson v. Johnson

holding that conclusory affidavit was insufficient to create fact issue and defeat summary judgment

Summary of this case from Lewis v. Dollar

holding statements in affidavit were insufficient to raise fact issue and "should have gone further and specified factual matters such as the time, place, and exact nature of the alleged [occurrence]"

Summary of this case from Brown v. Green

holding that a statement in an affidavit that "his contractual obligation had been modified" was nothing more than a legal conclusion and the affidavit should have gone further to specify factual matters such as the "time, place, and exact nature of the alleged modification"

Summary of this case from Fraga v. Drake

holding affidavits stating legal conclusions, not facts, incompetent summary judgment proof

Summary of this case from Cooper v. Circle

holding that a statement in an affidavit that "his contractual obligation had been modified" was nothing more than a legal conclusion and the affidavit should have gone further to specify factual matters such as the "time, place, and exact nature of the alleged modification"

Summary of this case from Souder v. Cannon

holding that a statement in affidavit that "his contractual obligation had been modified" was nothing more than legal conclusion and affidavit should have gone further to specify factual matters such as the "time, place, and exact nature of the alleged modification"

Summary of this case from McKnight v. Brown

holding affidavits stating legal conclusions, not facts, incompetent summary judgment proof

Summary of this case from Blanton v. Vesta Lloyds Ins. Co.

holding that a statement in an affidavit that "his contractual obligation had been modified" was nothing more than a legal conclusion and the affidavit should have gone further to specify factual matters such as the "time, place, and exact nature of the alleged modification"

Summary of this case from Residential Dynam v. Loveless

holding that affidavits that merely state a legal conclusion are insufficient to raise a fact issue

Summary of this case from Residential Dynam v. Loveless

holding that affidavit must set forth facts, not mere legal conclusions

Summary of this case from Wright v. Sage Engineering

holding that affidavits consisting only of conclusions are insufficient to raise an issue of fact

Summary of this case from Lefton v. Griffith

holding that contractual modification is affirmative defense

Summary of this case from City of Pasadena v. Gennedy

holding that, unless authorized by statute, an oath is insufficient unless its allegations are direct and unequivocal and perjury can be assigned upon it

Summary of this case from Ellen v. Brazos Co Bail Bond Bd.

holding that affidavits containing conclusory statements unsupported by facts are not competent summary judgment proof

Summary of this case from Garner v. Long

holding that recitations of legal conclusions in summary judgment affidavit unsupported by facts will not support a summary judgment

Summary of this case from Alamo Wf. D. v. Vann
Case details for

Brownlee v. Brownlee

Case Details

Full title:Michael Graves BROWNLEE, Petitioner, v. Barbara Ann BROWNLEE, Respondent

Court:Supreme Court of Texas

Date published: Feb 29, 1984

Citations

665 S.W.2d 111 (Tex. 1984)

Citing Cases

Wilson v. Thomason Funeral Home

An affidavit must set forth such facts as would be admissible at a conventional trial on the merits, see…

Lunsford Consulting Group, Inc. v. Crescent Real Estate Funding VIII, L.P.

The nonmovant must present summary judgment evidence that raises that defense. Brownlee v. Brownlee, 665…