Greenway v. Greenway
| Decision Date | 18 April 1985 |
| Docket Number | No. C14-84-602-CV,C14-84-602-CV |
| Parties | Patsy Taylor GREENWAY, Appellant, v. Constance E. GREENWAY, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Stephen A. Doggett, Richmond, for appellant.
Mark Vela, Vela & Prashner, Houston, for appellee.
Before JUNELL, MURPHY and SEARS, JJ.
Patsy Taylor Greenway, plaintiff below, appeals a summary judgment granted in favor of the defendant below, Constance E. Greenway, in an alienation of affections suit. The single point of error is that the trial court erred in granting the summary judgment because a fact issue was raised by the plaintiff. We reverse and remand.
Patsy Greenway's petition alleges that she and J. Milton Greenway were married and lived together as husband and wife until Constance Greenway intentionally pursued a course of conduct that led Milton Greenway to transfer his affection to Constance, alienated his affections toward Patsy and caused the ruin of their marriage. Patsy Greenway also alleged $500,000 in actual damages and sought $500,000 in punitive damages.
The motion for summary judgment and the judgment itself indicate that the court considered depositions of Patsy Greenway and Constance Greenway, one affidavit from J. Milton Greenway, one affidavit from Greg Greenway, Patsy and Milton's son, and three affidavits of Patsy Greenway. The record on appeal originally contained only the affidavits. We granted appellant leave to supplement the record with the two depositions, which are now before us.
Appellee contends that she is entitled to summary judgment as a matter of law because her summary judgment proof established that J. Milton Greenway did not "become involved" with Constance until after all affection for Patsy had died and he had already moved out of the marital home. J. Milton's affidavit states as much. Constance Greenway's deposition testimony is that she did not date Milton until he was separated from his wife. Still, we cannot affirm the summary judgment because the appellant's affidavits do present some facts and raise inferences contrary to appellee's proof.
We have reached this decision with some difficulty because appellant's affidavits contain many statements that are not competent summary judgment proof because they are either hearsay, conclusions or obviously not made from personal knowledge. We do glean from the affidavits the following facts that would be admissible at trial and do raise a fact issue.
Patsy Greenway's affidavits allege that her marriage with Milton was on the whole harmonious, happy and satisfying until he moved himself and furnishings from their home the week of June 15, 1980. Until the breakup of the marriage, there had been nothing in Milton's actions to lead her to believe the relationship was not one of a normal loving couple. In July 1980 Milton Greenway showed her a picture of Constance and told her that "sex with Connie was exciting" and that he wanted to marry her. Prior to the time her divorce became final on October 20, 1980, Milton Greenway told Patsy that he had bought Constance a necklace. These statements by Milton to his estranged wife would be admissible at least to show that his affections were indeed alienated from Patsy and had been turned to Constance before the divorce became final. Lisle v. Lynch, 318 S.W.2d 763, 766-67 (Tex.Civ.App.--Fort Worth 1958, writ ref'd n.r.e.). Under the common law of many states it is not a defense that the defendant accused of alienating a spouse did not have relations with that spouse until after the plaintiff's marriage was in trouble. See Annot., 19 A.L.R.2d 471, 496-500 (1951); Peters v. Pursley, 278 S.W. 229 (Tex.Civ.App.--Amarillo 1925, no writ).
Greg Greenway's affidavit stated that when his father left home he told Greg first that he would be staying in a motel and then with friends. Greg followed his father June 17, 1980, to Constance Greenway's home. Later, Milton told Greg that he had rented an apartment. Greg visited that apartment three times between 11 p.m. and 1 a.m. but no one was home. A reasonable inference that arises from affidavits, combined with the fact that Milton married Constance one month and a day after his divorce was final, is that Milton Greenway was "involved" with Constance Greenway prior to leaving his wife.
In deciding whether there is a disputed material fact issue precluding summary judgment, we must take as true evidence favorable to the non-movant. Every reasonable inference from the evidence must be indulged in favor of the non-movant and any doubts resolved in her favor. Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Applying these rules, we must reverse the trial court and remand for further proceedings.
I respectfully dissent from the majority opinion.
The evidence offered by Appellant in opposition to Appellee's Motion for Summary Judgment consists of affidavits of Appellant and her son and depositions of Appellant and Appellee.
Appellant's affidavits do not comply with Tex.R.Civ.P. 166-A(e) which requires that "[O]pposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Appellant's affidavits do not show that they were made on personal knowledge and they do not set forth admissible facts, but instead consist of conclusions and hearsay. For this reason, they are insufficient and we must assume that the judgment of the trial court is correct.
The rule is clear that affidavits must be based on personal knowledge and not on hearsay. Jackson T. Fulgham Co. v. Stewart Title Guaranty Co., 649 S.W.2d 128 (Tex.App.--Dallas 1983, writ ref'd n.r.e.); Wells Fargo Construction Co. v. Bank of Woodlake, 645 S.W.2d 913 (Tex.App.--Tyler 1983, no writ); City of San Antonio's Firemen's and Policemen's Civil Service Commission v. Villanueva, 630 S.W.2d 661 (Tex.App.--San Antonio 1981, no writ).
Appellant's affidavits are full of conclusions about facts that if true could easily have been proven by physical evidence. The affidavits are therefore insufficient for their failure to set forth facts instead of conclusions. Hidalgo v. Surety Savings & Loan Association, 462 S.W.2d 540 (Tex.1971); Manges v. Astra Bar, Inc., 596 S.W.2d 605 (Tex.Civ.App.--Corpus Christi 1980, no writ); Inwood Forest Community Improvement Association v. R.J.S. Development Co., 630 S.W.2d 751 (Tex.App.--Houston [1st Dist.] 1982, no writ). Other opinions holding that affidavits may not be based on hearsay are A & S Electrical Contractors, Inc. v. Fischer, 622 S.W.2d 601 (Tex.App.--Tyler 1981, no writ); and Stotler v. Fetzer, 630 S.W.2d 782 (Tex.App.--Houston [1st Dist.] 1982, writ dism'd).
The affidavits of Appellant have not been prepared in compliance with Rule 166-A(e). Although the majority opinion claims that the affidavits of Appellant raise some facts and raise inferences contrary to Appellee's proof, I do not believe there are any facts...
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