Mechanism 07
Striking opposing counsel's own declaration
Can a declaration signed by opposing counsel be struck as summary judgment evidence in Texas?
Yes, where it is conclusory or contradicts the client's sworn discovery responses. In Aramcor v. Tri Marsh Retail LLC, the court struck the declaration of the defendant's principal as contradicting the company's own initial disclosures and interrogatory answers, and struck counsel's fee declaration as conclusory for providing “no underlying facts with respect to billing entries or the reasonableness or necessity of attorney fees.”
By John P. Henry · Tex. R. Civ. P. 166a(f); Tex. R. Evid. 602 · Reviewed 2026-08-02
The authority
The Court finds that the declaration of Bo Avery contradicts the discovery responses previously provided by Tri Marsh … Further, the Avery declaration is conclusory and does not provide any underlying facts with respect to any alleged breach by Aramcor. For both reasons, the statements … are struck and inadmissible.Order Granting Plaintiff's Objection to Defendant's Summary Judgment Evidence, Cause No. 24-0702-CC5, March 7, 2025
Tex. R. Civ. P. 166a(f); Tex. R. Evid. 602
When it applies
Any response propped up by a declaration that asserts rather than shows. Two recurring varieties: the party declaration that contradicts what the party swore to in discovery, and the fee declaration that states a total without the underlying entries.
How it is proved up
- Put the discovery response and the declaration side by side in the objection, quoted, so the contradiction is visible without argument.
- Attach the verified interrogatory answers and initial disclosures as exhibits to the objection.
- Name the defect precisely — conclusory, no underlying facts, no personal knowledge, sham affidavit — rather than objecting generally.
- Set the objections for the same hearing as the motion and obtain a separate written order.
What defeats it
- A declaration that supplies underlying facts. Conclusory is a defect of content, and a competent declarant can usually cure it if given the chance.
- Timely amendment or supplementation of the discovery responses before the hearing.
- Objections not ruled on, which waive the complaint as to form.
Where I have used it
Aramcor v. Tri Marsh — struck on the record at the hearing, which removed the response's only evidentiary support before the merits were argued.
The order
Exhibit — as signed
Order Granting Plaintiff's Objection to Defendant's Summary Judgment Evidence · March 7, 2025
CAUSE NO. 24-0702-CC5 ARAMCOR, INC., Plaintiff v. TRI MARSH RETAIL LLC, Defendant IN THE COUNTY COURT AT LAW NO. 5 WILLIAMSON COUNTY, TEXAS ORDER GRANTING PLAINTIFF'S OBJECTION TO DEFENDANT'S SUMMARY JUDGMENT EVIDENCE On this day, the Court heard Aramcor, Inc.'s objection to the summary judgment evidence submitted by Tri Marsh Retail LLC with its summary judgment response. The Court finds that the declaration of Bo Avery contradicts the discovery responses previously provided by Tri Marsh, including in its initial disclosures and interrogatory responses. Further, the Avery declaration is conclusory and does not provide any underlying facts with respect to any alleged breach by Aramcor. For both reasons, the statements in the Avery declaration concerning any breach by Aramcor are struck and inadmissible. The Court also finds that the declaration of Kevin Wiley is conclusory and does not provide any underlying facts with respect to billing entries or the reasonableness or necessity of attorney fees. The statements in the Wiley declaration concerning the reasonableness or necessity of attorney fees are struck and inadmissible. SIGNED on March 7, 2025. _______________________________ PRESIDING JUDGE
Transcribed verbatim from the file-stamped copy. Public record. Reproduced because a result a reader can verify is worth more than a result described.
Questions
What makes a declaration 'conclusory' under Texas law?
A statement that offers a conclusion without the underlying facts that support it, so that it cannot be effectively controverted. Conclusory statements are not competent summary judgment evidence, and the defect is one of substance that may be raised for the first time on appeal.
Can a declaration contradict the party's own discovery responses?
It can be struck when it does. A declaration that conflicts with the party's verified discovery answers, without explanation, is subject to exclusion — and the contradiction itself is usually the more persuasive argument at the hearing.
What is required to prove attorney's fees in Texas?
Rohrmoos Venture v. UTSW DVA Healthcare requires evidence of the particular services performed, who performed them, when, the reasonable hours, and the reasonable hourly rate — the lodestar. A declaration reciting only a total is conclusory.