One of the most striking differences between summary judgment evidence and evidence at trial is in the use of interested witness testimony. While the evidence at most trials includes interested witness testimony – often riddled with contradictions and inconsistencies – the use of this type of evidence in the summary judgment context is quite restricted.
Rule 166a(c) of the Texas Rules of Civil Procedure provides that interested witness testimony used to support a summary judgment must be:
- positive and direct,
- otherwise credible and free from contradictions and inconsistencies, and
- capable of being readily controverted.
Whether interested witness testimony must be excluded pursuant to Rule 166a(c) often depends upon the answers to two questions:
Whose evidence is it?
Which party is offering the evidence should always be the threshold inquiry because the rule is entirely one-sided in application. While the rule is quite clear that a summary judgment cannot be based on the testimony of an interested witness [unless it complies with 166a(c)], the 166a(c) restrictions do not apply to the use of interested witness testimony by a non-movant to overcome a summary judgment motion. In other words, the same type of interested witness testimony that may be objectionable as against a movant seeking summary judgment could actually be used to raise a fact issue on behalf of a non-movant seeking to defeat one. Tabor v. Medical Center Bank, 534 S.W.2d 199 (Tex. App. — Houston [14th Dist.] 1976) (testimony of interested witness is sufficient to raise a fact issue precluding summary judgment).
Is the witness “interested”?
Another important area of inquiry is whether the witness is actually “interested,” within the meaning of the rule. Clearly, parties in a case are interested witnesses, as are expert witnesses. Not so clear is what other types of witnesses are considered “interested” for the purposes of Rule 166a(c).
Generally speaking, an “interested witness” is one who has a stake in the outcome of the pending litigation. Brooks v. Sherry Lane National Bank, 788 S.W.2d 874, 877 (Tex. App. – Dallas 1990). The rule has also been extended to include a witness who has a stake in other litigation involving the same subject matter. Hayes v. E.T.S. Enter, Inc., 809 S.W.2d 652 (Tex. App. – Amarillo 1991). While employees of parties are considered “interested witnesses,” Castaneda v. Texas Dept. of Agriculture, 831 S.W.2d 501 (Tex. App. – Corpus Christi 1992), former employees are not. Nicholson v. Smith, 986 S.W.2d 54 (Tex. App. – San Antonio 1999). One court has extended the interested witness rule to include witnesses who have no stake in the litigation and who are not associated with either litigant, but who may have a pecuniary interest in the outcome. Martin v. Cloth World of Texas, Inc., 692 S.W.2d 134 (Tex. App. – Dallas 1985) [a real estate agent who could potentially earn income based on a particular outcome of the suit would have a “partisan feeling” about the case sufficient to subject the testimony to the requirements of 166a(c)].
When interested witness testimony is offered to support a motion for summary judgment, the most frequent objections lodged are that the testimony is:
- not free from contradictions or inconsistencies, and
- not readily controverted.
Because each of these objections is problematic in its own way, attorneys should take care in making and responding to these types of objections.
Self-serving: When dealing with interested witness testimony, this is perhaps the most common objection raised. Ironically, the term “self-serving” doesn’t even appear in Rule 166a(c) (or any other rule of evidence, for that matter). While interested witness testimony does tend to be self-serving, the mere fact that it is self-serving does not necessarily make the evidence improper in the summary judgment context. Trico Tech Corporation v. Montiel, 949 S.W.2d 308 (Tex. 1997). Assuming the interested witness testimony otherwise complies with Rule 166a(c), the fact that it is self-serving forms no basis for objection.
Contraditions and Inconsistencies: Most often this objection is raised in the context of a “sham affidavit.” When raised in this context, this objection is also improper, because the 166a(c) “interested witness” rules apply only to the movant’s evidence. However, when a movant offers contradictory or inconsistent interested witness testimony, then this objection is properly raised.
Not Readily Controverted: “Could have been readily controverted” generally describes a particular type of evidence that can be effectively countered by opposing evidence. It is not a rule of convenience, it is a rule of possibility. Just because obtaining controverting evidence may be a difficult task does not mean that testimony is not readily controvertible. Casso v. Brand, 776 S.W.2d 551 (Tex. 1989). “Not easily controverted” most often applies to testimony regarding mental state, such as what an affiant knew or intended. When it involves the mental workings of an individual’s mind, the opponent could have no knowledge or ready means of confirming or disputing, and it would be considered not readily controvertible. Lukasik v. San Antonio Blue Haven Pools, Inc., 21 S.W.3d 394 (Tex. App. – San Antonio 2000). Likewise, when the credibility of the affiant may be essential to the resolution of the case, then the testimony is not considered readily controvertible. One court held that since a deponent was not an eye-witness and he based his knowledge only on what others told him, the testimony was not readily controvertible. CEBI Metal v. Garcia, 108 S.W.3d 464 (Tex. App. – Houston [14th Dist.] 2003) (opponent could not readily controvert the deponent’s testimony by cross-examination at the deposition, since one cannot cross-examine a declarant who is not present). Finally, in a spoliation situation, when a critical piece of evidence has been discarded, testimony regarding the missing evidence may not be readily controverted. Id.
The importance of recognizing incompetent interested witness testimony cannot be overstated. If a proper objection is not raised in a timely manner, it is waived, and a summary judgment based on improper evidence may be affirmed on appeal. Some summary judgment evidence objections cannot be waived, however. But that’s a blog for another day.
 A “sham affidavit” is an affidavit that contradicts the witness’ earlier testimony in order to create a fact issue to avoid summary judgment.
 There is a split in authority as to whether sham affidavits can be stricken in the summary judgment context. However, rather than striking the affidavit at the summary judgment stage, many courts believe that the safer approach is to impose sanctions for filing an affidavit in bad faith after trial on the merits has been concluded.
 This was a novel and seemingly unnecessary use of the rule, since it appears that a simple hearsay objection may have sufficed.