Thursday, August 19, 2010

If the affidavit weren't self-serving, why would I attach it to my motion?

Plaintiffs' lawyer Dennis Sweet was a plaintiff himself when a company allegedly breached its contract to buy a building from him. After losing in the trial court, Sweet appealed and prevailed.

The chancery court ruled on the basis of an affidavit from the company's president, saying that hsi company had “attempted to obtain financing satisfactory to it from numerous financial institutions prior to the ... closing date ... [but] was unable to do so."

The MSSC took a dim view of this affidavit:
¶19. This Court has expressed disdain for conclusory, self-serving affidavits used to support summary judgment. Dalton v. Cellular South, Inc., 20 So. 3d 1227, 1234 (Miss. 2009). Such affidavits, unsupported by material facts relevant to the issue at hand, are not a sufficient basis for granting summary judgment. Id. at 1233-34 (citing Burton v. Choctaw County, 730 So. 2d 1, 9 (Miss. 1997)); see also Hubbard v. Wansley, 954 So. 2d 951, 965-66 (Miss. 2007); Lovett v. Anderson, 573 So. 2d 758, 760 (Miss. 1990); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996). * * *

¶21. We find Small’s affidavit analogous to the affidavit in Dalton. Small’s affidavit does not show when or how TCI attempted to obtain financing, or why TCI’s available options were unsatisfactory. With a conclusory, self-serving affidavit as its only support for summary judgment, TCI failed to meet its burden of production and persuasion. Accordingly, we find that the chancery court erred in granting summary judgment.
Justice Dickinson, joined by Randolph, J., dissented:
The majority says TCI’s affidavit amounted to a conclusory, self-serving statement. A statement is conclusory if it “[e]xpress[es] a factual inference without stating the underlying facts on which the inference is based.” Paragraph 4 of Small’s affidavit reads “[TCI] attempted to obtain financing satisfactory to it from numerous financial institutions . . . [and was] unable to do so.” That is a statement of fact, not a conclusion. “Peas don’t taste good” is a conclusory statement. But “I have eaten peas and I don’t like peas” is a statement of fact. TCI’s sworn statement that it unsuccessfully had attempted to obtain satisfactory financing from numerous financial institutions is a statement of fact – uncontradicted in the record. Accordingly, I would affirm the chancellor.
TBA reluctantly disagrees with Dickinson, right though he is about peas. The case hinged upon the company's obtaining satisfactory financing; it was not enough for the defendant simply to recite that he tried to obtain satisfactory financing, and failed. Details were needed to show *why* the financing was unsatisfactory.

Chances are, that would've been pretty easy (and Sweet may lose on remand) -- but TBA has noticed that lawyers tend to be a little lazy about drafting affidavits for their clients to sign, focusing too much on the legal result of the affidavit and not enough on the underlying facts.

UPDATE: TBA clarifies that we endorse Justice Dickinson's logic about peas, not the aesthetic sentiment expressed in his example. TBA yields to no one in our hunger for purple-hulled peas, crowder peas, field peas, black-eyed peas, and even those little green ones in the silver can.

... As regards NMC's doubts about the cogency of the MSSC opinion, we must admit it compares poorly with the radiant justice of this Fifth Circuit op.


  1. I glanced at the opinion and it's really a good indicator of how shallow the levels of analysis is at the court.

    Here's the correct analysis: The statement is conclusory with regard to the correct legal standard, because the correct legal standard (from cases about contracts with "financing" conditions, a subject I happen to have litigated) is that the buyer made reasonable efforts to obtain financing, which means showing (in the affidavit) some efforts and not just making the conclusory statement one has tried. I'm pretty sure I've seen cases hold that the buyer saying "gee, I tried," isn't enough proof to survive a directed verdict.

    Does that make sense? The opinion (which I say again I've only glanced at) seems to float way above the actual issues.

    Here's another question: If an affidavit is conclusory but not self-serving ("I was negligent") is it ok?

    Oh, and what's your problem with peas? And are you some sort of Yankee who thinks "peas" means only the green things-- not including lady peas, blackeyed peas, purple hull peas, crowder peas... I'm sure you can guess that I could go on. But if you've deprived yourself of peas, you have sentenced yourself to a diminished existence.

  2. Re: the merits, I think we're saying the same thing, or you're saying better what I thought I was saying.

    Re: peas, post updated.

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