Christiansen v. Silverbrand ( 2021 )

No. 122,928
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
ANITA CHRISTIANSEN,
Appellant,
v.
HOWARD SILVERBRAND, Individually and as Trustee of the HOWARD SILVERBRAND
LIVING TRUST, and LISA FAITH SILVERBRAND, Individually and as Trustee of the
HOWARD SILVERBRAND LIVING TRUST,
Appellees.
SYLLABUS BY THE COURT
1.
We review a district court's decision to strike what it deems to be a contradictory
affidavit for an abuse of discretion.
2.
A party may not avoid summary judgment by presenting an affidavit that
contradicts prior sworn deposition testimony. This has been called the "sham affidavit
doctrine."
3.
Finding an affidavit is a sham and striking its consideration requires a two-part
inquiry. First, the court determines whether a contradiction exists. Second, the court
determines whether the contradiction is justified. The court must consider the contents
and the context of the prior testimony.
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4.
When a movant demonstrates the lack of facts to support an essential element of
the nonmovant's claim, the nonmovant has the affirmative duty to come forward with
facts to support its claim, although it is not required to prove its case.
5.
Not every discrepancy in an affidavit justifies a district court's refusal to give
credence to such evidence.
6.
An affidavit submitted along with a response to a motion for summary judgment
does not contradict prior testimony when offered to provide clarification or expand on a
previous sworn statement.
Appeal from Barton District Court; STEVEN E. JOHNSON, judge. Opinion filed September 3, 2021.
Reversed and remanded with directions.
Melinda G. Young, of Bretz & Young, LLC, of Hutchinson, for appellant.
Thomas J. Berscheidt, of Berscheidt Law Office, of Great Bend, for appellees.
Before ARNOLD-BURGER, C.J., ATCHESON and HURST, JJ.
ARNOLD-BURGER, C.J.: The defendants in this case, Howard Silverbrand,
individually and as trustee of the Howard Silverbrand Living Trust, and Lisa Faith
Silverbrand, individually and as trustee of the Howard Silverbrand Living Trust
(Silverbrand), moved for summary judgment in a slip and fall case brought by Anita
Christiansen. Christiansen asserted that her injury was due to Silverbrand's poorly
maintained parking lot. Silverbrand moved for summary judgment, asserting that
Christiansen only admitted to slipping on ice in the parking lot, which was purportedly
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not its responsibility. Along with her response in opposition to the motion, Christiansen
submitted an affidavit stating that she slipped on the ice before breaking her ankle on a
crack/pothole in the parking lot. The district court struck the affidavit, holding that it
contradicted Christiansen's prior statements attributing her injury to slipping on the ice.
The court granted the motion for summary judgment. Because we find that Christiansen's
affidavit was supplementary, not contradictory, we reverse the district court's decision
granting summary judgment to Silverbrand.
FACTUAL AND PROCEDURAL HISTORY
In the winter of 2016, Christiansen was working as a mail carrier for the United
States Postal Service (USPS) in Great Bend. The parking lot where her work vehicle
needed to be parked was owned by Silverbrand. Silverbrand was responsible for all
maintenance of the parking lot. Clearing ice from the parking lot was the responsibility of
USPS.
As she exited her vehicle in the parking lot, Christiansen slipped and fell, breaking
her ankle. She felt immediate and severe pain and yelled out for help, prompting a co-
worker nearby to call an ambulance. Christiansen told the emergency medical technician
(EMT) who arrived to treat her that she slipped on ice.
Christiansen filed a personal injury lawsuit against Silverbrand, alleging that their
negligence in maintaining the parking lot was the direct and proximate cause of her
injuries. In the petition, she alleged that "[her] shoe got caught in a large pothole causing
her to fall to the ground" and sustain injuries.
Silverbrand ultimately moved for summary judgment. In the motion, Silverbrand
generally asserted the uncontroverted facts showed that Christiansen slipped on ice in the
parking lot. Because Silverbrand was not responsible for removal of ice from the parking
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lot, Silverbrand argued that "[a]llowing this case to go forward to a jury trial will not
change the facts as they currently exist. At this stage, summary judgment is warranted."
Silverbrand attached several exhibits to their motion, which all contained statements by
Christiansen that she either slipped or slid on the ice. In particular, she told the EMT and
a treating physician she had slipped on black ice in the parking lot. In a response to
Interrogatory No. 5 asking to "[p]lease describe in detail how the injury occurred," she
stated, "As I stepped out of my [long-life vehicle (LLV)] after moving it forward, my
right foot slid on ice and I fell down." Likewise, at a deposition, the following exchange
occurred:
"Q: Okay. The slickness was where your vehicles was parked, is that correct?
"A: No.
"Q: Where was it?
"A: The slickness?
"Q: Yeah.
"A: The only place I experienced is when I stepped out of that LLV.
"Q: Okay. You don't deny what you've said, you slipped on the ice when you
stepped out, do you?
"A: No.
"Q: You don't deny that you told the ambulance attendant EMT—let's see.
His name is Reifsynder. No. Yes. Pardon Me. Yes, it is Reifsynder.
You don't deny telling the EMT attendant when he asked you
what happened that you slipped on the ice, isn't that–
"A: Do I deny it? No."
Christiansen responded to Silverbrand's motion, asserting genuine factual disputes
existed about whether the "parking lot created a dangerous condition, and whether
[Silverbrand] acted reasonably in maintaining, inspecting and repairing their parking lot."
She also generally argued that Silverbrand was not entitled to judgment as a matter of law
because the lease agreement with the USPS required them to maintain and repair the
parking lot, on top of a duty of reasonable care as the owners of the parking lot.
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According to Christiansen, she slipped on ice as she exited her vehicle but "her foot
caught the inside edge of a large crack/pothole in the parking lot," which caused her
ankle to snap. As support, Christiansen attached to her response an affidavit stating, in
relevant part:
"8. As I was stepping out of my vehicle, my right foot started sliding on ice.
"9. My right foot slid a couple of feet and then my foot caught the edge of a large
crack/pothole in the parking lot. Sec photo of the location of my fall attached as
Ex. A.
"10. When my shoe caught the edge of the large crack/pothole, I heard and felt a snap
in my ankle and then saw a white impression under the skin where the bone had
broken and was pressing against the skin as if it would pop out.
"11. I slid due to the ice.
"12. My ankle broke due to my foot hitting the crack/pothole in the parking lot."
The district court held a pretrial hearing in February 2020 and heard argument
from counsel at the outset on the motion for summary judgment. The district court took
the matter under advisement and asked the parties to submit supplemental briefs on the
issue of whether the court should consider Christiansen's "self-serving" affidavit as
creating a controverted fact.
Silverbrand's supplemental brief argued that Kansas Supreme Court held in Mays
v. Ciba-Geigy Corp., 233 Kan. 38, Syl. ¶ 1, 661 P.2d 348 (1983), that "[g]enerally a party
may not defeat summary judgment by filing a subsequent affidavit impeaching his
previous testimony upon deposition." Thus, Silverbrand asked the district court to sustain
the motion for summary judgment because Christiansen had not submitted evidence to
create an issue of fact.
Christiansen argued in her supplemental brief that Mays did not support striking
her affidavit because the facts of the cases were "vastly different." She asserted that her
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affidavit was not inconsistent or contrary to her prior statements because she has never
denied that she slipped and fell on ice, and the affidavit "clarifies" and supports her
allegation that her ankle broke as a result of hitting the crack/pothole in the parking lot.
Christiansen also argued the deposition was inadequate because it only lasted 25 minutes
and counsel never asked her to fully explain the facts supporting her allegations.
The district court ultimately granted Silverbrand's motion for summary judgment.
The court noted Christiansen's affidavit was "the only evidence presented by the
defendant to controvert the material fact in question" and that the affidavit "was at the
very least [inconsistent] with prior statements that she gave to outside witnesses and to
prior statements that she gave under oath." The court explained that Mays accurately
stated the law but also mentioned more recent decisions citing Mays that addressed a
similar issue. Deters v. Nemaha-Marshall Electric Cooperative Ass'n, 56 Kan. App. 2d
1170, 443 P.3d 1086 (2019); Smith v. Kansas Orthopedic Center, 49 Kan. App. 2d 812,
316 P.3d 790 (2013).
The district court then explained that Christiansen had two "full" opportunities to
describe the cause of the accident, yet both times she clearly stated she slipped on the ice
and fell, injuring her ankle. The court also found that Christiansen's affidavit "tries to
change that statement entirely by indicating that the ice was involved but it was the defect
in the parking lot that caused her fall and injury." As a result, the court concluded the
affidavit "is not a mere inconsistency but completely changes the liability of the
defendant." In conclusion, the court decided to strike the affidavit and grant the motion
for summary judgment.
Christiansen timely appealed.
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ANALYSIS
Christiansen argues on appeal the district court erred in granting summary
judgment because genuine disputes of material fact existed to preclude judgment as a
matter of law. Her argument on appeal and against summary judgment turns on the
affidavit she submitted in response to Silverbrand's motion for summary judgment. In
particular, the question is whether the district court erred in striking the affidavit because
it only created a factual dispute by contradicting her prior sworn statements. According to
Christiansen, the affidavit was not contradictory and merely clarified or supplemented her
prior incomplete testimony.
We review a district court's decision to strike an affidavit for an abuse of discretion.
Although this appeal stems from the district court's grant of summary judgment,
the issue is whether the district court erred in striking Christiansen's affidavit. We review
a district court's decision to strike what it deems to be a contradictory affidavit for an
abuse of discretion. P.W.P. v. L.S., 266 Kan. 417, 431, 969 P.2d 896 (1998). A judicial
action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable;
(2) it is based on an error of law; or (3) it is based on an error of fact. Biglow v.
Eidenberg, 308 Kan. 873, 893, 424 P.3d 515 (2018).
A party cannot avoid summary judgment with an affidavit that contradicts prior sworn
testimony.
As mentioned, the district court refused to consider the affidavit under the Kansas
Supreme Court's longstanding rule that a party may not avoid summary judgment by
presenting an affidavit that contradicts prior sworn deposition testimony. Dawson v.
Prager, 276 Kan. 373, Syl. ¶ 4, 76 P.3d 1036 (2003) ("As a general rule, a party may not
7
defeat summary judgment by filing an affidavit that contradicts prior deposition
testimony."); Mays, 233 Kan. 38, Syl. ¶ 1 (same).
This is sometimes called the "sham affidavit doctrine." See Perma Research &
Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) ("If a party who has
been examined at length on deposition could raise an issue of fact simply by submitting
an affidavit contradicting his own prior testimony, this would greatly diminish the utility
of summary judgment as a procedure for screening out sham issues of fact."). "The
concern in litigation . . . is that a party will first admit no knowledge of a fact but will
later come up with a specific recollection that would override the earlier admission."
Buckner v. Sam's Club, Inc., 75 F.3d 290, 292-93 (7th Cir. 1996) (refusing to allow the
plaintiff's offsetting affidavit to preclude summary judgment, when the plaintiff had
stated during her deposition that she "did not know" what object in the defendant's store
had caused her fall, then asserted in an offsetting affidavit that the object was a ladies'
watch, "one of the few objects that could directly link [the defendant] with the accident").
Some argue that the sham affidavit doctrine conflicts with the court's role in
summary judgment proceedings. In summary judgment, the moving party must show,
based on the "pleadings, the discovery and disclosure materials on file, and any affidavits
or declarations" that there are no genuine disputes of material fact and that they are
entitled to judgment as a matter of law. K.S.A. 2020 Supp. 60-256(c)(2); Montgomery v.
Saleh, 311 Kan. 649, 652, 466 P.3d 902 (2020). "The district court must resolve all facts
and reasonable inferences drawn from the evidence in favor of the party against whom
the ruling [is] sought." (Emphasis added.) GFTLenexa, LLC v. City of Lenexa, 310 Kan.
976, 982, 453 P.3d 304 (2019). When a movant establishes the lack of facts to support an
essential element of the nonmovant's claim, the nonmovant "'has the affirmative duty to
come forward with facts to support its claim, although it is not required to prove its
case.'" Drouhard-Nordhus v. Rosenquist, 301 Kan. 618, 623, 345 P.3d 281 (2015).
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"Summary judgment procedure is not a catch penny contrivance to take unwary litigants
into its toils and deprive them of a trial, it is a liberal measure, liberally designed for
arriving at the truth. Its purpose is not to cut litigants off from their right of trial by jury if
they really have evidence which they will offer on a trial, it is to carefully test this out, in
advance of trial by inquiring and determining whether such evidence exists." Whitaker v.
Coleman, 115 F.2d 305, 307 (5th Cir. 1940).
See Brunswick Corp. v. Vineberg, 370 F.2d 605, 612 (5th Cir. 1967) ("Summary
judgment is a lethal weapon, and courts must be mindful of its aims and targets and
beware of overkill in its use.").
Even in Perma Research, the case that serves as the beginning of the sham
affidavit doctrine, the court determined that trial judges cannot "'exclude the [offsetting]
affidavit[s] from consideration in the determination of the question whether there is any
genuine issue as to any material fact'" and acknowledged that "there may be some
instances where summary judgment is too blunt a procedural device." 410 F.2d at 578.
Finding an affidavit is a sham and striking its consideration requires a two-part
inquiry. First, the court determines whether a contradiction exists. Second, the court
determines whether the contradiction is justified. The court must consider the contents
and the context of the prior testimony. As a result, some courts, ours included, have been
reluctant to blindly apply the sham affidavit doctrine without reviewing the contents and
the context of the affidavit and the testimony in detail. They urge a more flexible
approach. See Webster v. Sill, 675 P.2d 1170, 1173 (Utah 1983) ("The rule that a moving
party may not rely upon his own affidavit which contradicts his deposition must be
administered with care. It is common knowledge that witnesses sometimes misstate
themselves, may not properly understand the question propounded, or give equivocal
answers.").
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We discuss the application of the sham affidavit doctrine in Kansas.
In reviewing the cases from our Supreme Court that have applied the sham
affidavit doctrine to strike an affidavit, it becomes apparent that the affidavits submitted
must flatly contradict prior testimony. There have been mainly four such Supreme Court
cases since and including Mays, the case the district court relied on here. All found the
affidavits to be contradictory and affirmed the district court's failure to consider them in
ruling on a summary judgment motion. Because they are all very fact specific it is
necessary to review them in detail.
Mays, 233 Kan. 38, involved a personal injury lawsuit brought after a gas pipeline
explosion. Mays was the only eyewitness to the movement and rupture of the pipeline
which caused his injuries. He testified during a deposition that the pipe broke within 5
feet either side of the steel-to-fiberglass connection. Five feet on the gas well side would
be the fiberglass pipe manufactured by the Ciba-Geigy Corporation, one of the
defendants in the lawsuit. But 5 feet on the separator side would be steel pipe, not
manufactured by Ciba-Geighy. The defendant Doc Dale, through his company Doc's
Backhoe Service, bought and installed materials that led to the explosion. He testified in
his deposition about his own extensive knowledge and experience in hooking up oil and
gas wells, that he did not read the package inserts related to making the bond of steel to
fiberglass connections because he knew what he was doing.
Three years later—after the defendants moved for summary judgment—Mays
submitted affidavits that directly contradicted this prior testimony. In particular, Mays'
affidavit now stated that the pipe broke 5 feet into the fiberglass side of the connection
(which would be Ciba-Geigy responsibility) and Dale's affidavit stated he would have
performed all the steps properly and the explosion could have been avoided if he had
been adequately instructed by the defendants. The trial court struck these affidavits as
contradictory. On appeal, our Supreme Court concluded that the affidavits were in direct
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response to the filing of the summary judgment motions and were intended to contradict
the prior depositions in order to defeat summary judgment. 233 Kan. at 46-47.
In Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 756 P.2d 416 (1988), the
court faced expert testimony about the cause of a newborn's post-birth oxygen
deprivation which the Bacons claimed in their medical malpractice action caused the
baby's cerebral palsy. There had also been pre-birth oxygen deprivation when the cord
was found wrapped around the baby's neck. Causation was the main issue in the case.
The Bacons had two causation experts, Dr. Judith Wood and Dr. Buck. It was undisputed
that the presentation of the case turned on the testimony of experts. During Dr. Buck's
deposition, he stated that it would require a pediatric neurologist to determine the actual
cause of the baby's cerebral palsy and he was simply an obstetrician. Dr. Wood testified
that she had never attended a child with cerebral palsy, had never been asked to diagnose
it, and was not an expert in its etiology. She could not state within a reasonable degree of
probability that the care and treatment of the defendant doctor caused cerebral palsy in
the child.
After the district court granted summary judgment for the defendants for failure to
establish causation, the Bacons moved to alter or amend the judgment. This time, the
Bacons presented affidavits from both doctors. Dr. Buck's affidavit swore he believed
that the lack of oxygen after delivery caused the newborn's cerebral palsy. Dr. Wood's
affidavit swore that the stress inflicted on the baby after birth increased the severity of her
cerebral palsy. The court refused to consider the affidavits and the Bacons appealed. The
Supreme Court found the district court's decision was correct because a party may not
remain silent in the face of a motion for summary judgment and later claim there is more
evidence to support its claims. It then cited Mays for the proposition that an affidavit
cannot be used to controvert a prior sworn statement in order to create an issue of
material fact and defeat a motion for summary judgment. 243 Kan. at 314.
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P.W.P., 266 Kan. 417, involved a patient who sued her therapist and the Johnson
County Mental Health Center claiming that the therapist negligently entered into a sexual
relationship with her beginning in 1985 that caused her substantial emotional damage.
The case ended up being dismissed on the statute of limitations. The issue was when
P.W.P. could have first reasonably learned about her injury to begin the statute of
limitations clock. She testified in her deposition that she knew of her cause of action and
her injury by 1985 and 1986 based on deposition testimony and letters she had written.
She did not sue until 1995, well beyond the two-year statute of limitations. See K.S.A.
60-513(a)(4), (7). But in response to the defendants' motion for summary judgment,
P.W.P. submitted an affidavit that, contrary to her testimony, for the first time claimed
that because of flashbacks she experienced she may not have written the letters until 1993
or 1994. The Supreme Court affirmed the district court's decision to disregard the
affidavit citing both Bacon and Mays and the doctrine that "'[a]n affidavit cannot be used
to controvert a prior sworn statement in order to create an issue of material fact and
defeat a motion for summary judgment.'" 266 Kan. at 431. We note that her petition
alleged the harm began in 1985 as well.
In Dawson, 276 Kan. 373, a patient sued a resident psychiatrist at the Menninger
Clinic, Dr. Sandra Prager, alleging negligence and other wrongs in her psychiatric care.
She also claimed that Menninger failed to adequately supervise Dr. Prager. Dawson
designated an expert witness, Dr. Robert Simon. The applicable statute requires that a
person cannot be qualified as an expert unless the expert has devoted at least 50% of such
person's professional time within the previous two years to the actual clinical practice in
the same profession which the defendant is licensed. K.S.A. 60-3412. Dr. Simon testified
in his deposition that he spent less than half his time in actual clinical practice. When
Prager moved for summary judgment because Dawson's only expert witness was not
qualified and thus Dawson could not prove deviation from the standard of care, Dawson
filed an affidavit from Dr. Simon stating, in contradiction to his extensive deposition
testimony, that his clinical practice for the preceding two years exceeded 50%. He then
12
sought to explain the discrepancy by arguing that his testimony during his deposition was
only in response to the time he spent in clinical practice as defined by defense counsel.
But as the court analyzed the new information in the affidavit it determined that the
estimations in his affidavit only amounted to another quarter of an hour a week, which
did not put him over the 50% minimum. So even if the court considered the affidavit, it
still did not support his 50% claim. Our Supreme Court affirmed the striking of the
affidavit and the issuance of summary judgment for Prager. 276 Kan. at 385-86.
As cited by the district court here, our court has also recognized the sham affidavit
doctrine, although we did not identify it as such.
Lana Smith, an at-will employee, had a dispute with the medical practice she
worked for over whether they promised her a $10,000 bonus. The primary issue in the
case was whether the bonus was just for the first year of Smith's employment or for later
years as well. Smith, 49 Kan. App. 2d 812. In her deposition testimony, Smith said that
she recalled no one telling her that the bonus was limited to her first year of employment.
The medical practice presented testimony from its business manager, Liz Tolberd, that
she told Smith the bonus was limited to the first year. In response to a motion for
summary judgment, Smith filed an affidavit contending that Tolberd falsely stated that "I
agreed to 'a bonus guarantee of $10,000 for the first year.'" 49 Kan. App. 2d at 818-19.
The district court refused to consider the affidavit, in essence relying on the sham
affidavit doctrine. We affirmed holding that "[t]o go from saying that she didn't recall
Tolberd limiting the bonus guarantee to the first year, to saying that Tolberd had testified
falsely was more than a subtle shift, and the new position came only in response to a
summary-judgment motion." 49 Kan. App. 2d at 819. We noted all Smith had was a
subjective expectation that her bonus would continue and under the facts that was not
enough to avoid summary judgment. 49 Kan. App. 2d at 819.
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Likewise, the plaintiffs' claims in Deters, 56 Kan. App. 2d 1170, were dismissed
on summary judgment. The Deters' underlying claim was whether the negligence of the
electric company in negligently wiring their generator causing the failure of their heat
pumps. But the decision rested on whether the statute of repose had expired, defeating the
Deters' claim. Stephen Deters testified in his deposition that electric company workers
were at his home in the mid-2000s to address blinking lights, but he had no memory of a
service call to his house when the electric company employees would have worked on his
generator (the devise that he claims malfunctioned to cause his heat pumps to fail). The
electric company claimed it last worked on the generator in 1997, more than 15 years
before the Deters' lawsuit was filed in 2015. But in his affidavit in response to the electric
company's summary judgment motion, Stephen claimed that he watched electric
company employees work on the generator in 2007 and that they checked the connections
in 2007, which he understood to mean they worked on the generator. We affirmed the
district court's grant of summary judgment finding that Stephen's affidavit was not only
self-serving and contradictory to his prior testimony, but was conclusory, flimsy,
transparent, and was based on an inference or speculation. 56 Kan. App. 2d at 1185. So
the fact that the affidavit was more than just contradictory provides limited support for
the district court to rely on it for any rule regarding sham affidavits applicable rule in this
case.
Each case represents affidavits that contradicted the plaintiffs' initial claims and
testimony. But this does not mean that the court will automatically classify every
affidavit presented that varies at all from deposition testimony a sham affidavit and
exclude it from consideration. Our court, as well as others, have recognized that the court
can consider an affidavit if the litigant did not submit it to create a dispute of fact but
merely supplements, clarifies, or amplifies prior testimony.
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Even in Mays, our Supreme Court recognized that a court is not required to strike
all affidavits that vary from deposition testimony by citing—but distinguishing—
Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir. 1980). Mays, 233 Kan. at 45.
In Kennett-Murray, an employer sued a former employee to recover on a
promissory note and an employment contract. One of the main issues was whether
Kennett-Murray personnel had made fraudulent representations to induce Bone into
signing a new employment contract when his prior contract expired. During his
deposition Bone admitted that he never read the contract because he thought it was the
same as his prior contract. At one point he testified that the Kennett-Murray employee
who asked him to sign the new contract said nothing about the promissory note the
company claimed was due or the new contract, thus negating any potential claims for
fraudulent misrepresentation. But Bone later testified that he was led to believe it was the
same contract because the employee said it was and he was led to believe certain things
about the carryover of the promissory note. In response to Kennett-Murray's summary
judgment motion, Bone submitted an affidavit that said the Kennett-Murray employee
told him "'something to the effect that this contract would serve to renew my first contract
and that they were just alike or that they were the same contract.'" 622 F.2d at 891.
The Fifth Circuit reversed the district court's decision striking the affidavit as
inconsistent with his deposition testimony. The court recognized first that the defendant's
answer to the petition alleged that personnel at Kennett-Murray told him that the money
represented by his promissory note "'would go back into the Linden operation'" and not
be Bone's obligation. He also asserted that this representation was false and material. 622
F.2d at 890-91. As for to the employment contract, he alleged in his answer that Kennett-
Murray personnel advised him that it was the same as his earlier agreement. So even
though he did not read it Kennett-Murray induced him by this false and material
representation.
15
Moreover, although the Fifth Circuit recognized the sham affidavit doctrine set out
in Perma Research, it held that not every discrepancy in an affidavit justifies a district
court's refusal to give credence to such evidence. "Bone's affidavit did not purport to raise
a new matter, but rather to explain certain aspects of his deposition testimony." Kennett-
Murray, 622 F.2d at 894. It found Bone's assertion plausible and not inherently
inconsistent. The court noted that in context, Bone's statement in his deposition could not
be taken literally. It also noted that Bone's affidavit did not undermine his general theory
of defense, nor was it a reformulation of it. 622 F.2d at 894-95. "While some statements
in Bone's deposition differ with those in his affidavit, these conflicts present questions of
credibility which require jury resolution." 622 F.2d at 895.
This court has recognized the same limits to the sham affidavit doctrine as
Kennett-Murray.
A legal malpractice claim was at issue in Zimmerman v. Brown, 49 Kan. App. 2d
143, 306 P.3d 306 (2013). Daniel and Sara Zimmerman brought a claim against their
attorney, Richard Brown, related to the sale of their business to him. There was a concern
that by selling the business and buying a competing business the Zimmermans would
violate a noncompete agreement. Brown was also involved in the Zimmermans' business
and likewise wanted to buy into the new business, and likewise feared the ramifications
on his income from the old business as a result of a noncompete agreement. So he
recommended the Zimmermans sell the business to him to avoid detection. Eventually
the whole sham unraveled, Brown stopped paying the Zimmermans as they had agreed
and the Zimmermans sued. Although the facts are significantly more complicated than
that, for our purposes it is safe to conclude that Brown argued he was not responsible for
legal malpractice based on his defense of in pari delicto—the principle that a plaintiff
who participated in equal wrongdoing with the defendant may not recover damages from
the defendant resulting from the wrongdoing. 49 Kan. App. 2d at 150. Brown argued that
this was a complete defense and entitled him to summary judgment. But the Zimmermans
16
contended in an affidavit in opposition to summary judgment that they never believed
they were doing anything morally or ethically wrong when they sold their business "on
paper only" to Brown. 49 Kan. App. 2d at 152-53. Brown argued that in Daniel's
deposition he admitted his involvement in this scheme. So the court should strike any
affidavit to the contrary as a sham affidavit. The district court granted summary judgment
necessarily disregarding the Zimmermans' affidavit.
Our court, citing Mays and Bacon reversed the district court and held that Daniel's
statements were "not the sort of contradictory sworn statements that Kansas courts have
held insufficient to avoid summary judgment." 49 Kan. App. 2d at 153. In finding that
this was not sham testimony the court held that there was no contradiction between a
claim that they were trying to avoid detection by their existing business to avoid being
charged with violation of the noncompete agreement and a belief—based on the advice of
their attorney—that they were in fact violating the agreement. They were avoiding
detection to avoid disputes, not conceding they were in violation. 49 Kan. App. 2d at
153-54.
In Bird v. Kansas Dept. of Transportation, 23 Kan. App. 2d 164, 928 P.2d 915(1996), the court faced a summary judgment motion in a wrongful death case. Judy Bird
was killed in a one-vehicle collision with a guardrail. The Kansas Department of
Transportation (KDOT) argued it was immune from prosecution under the Kansas Tort
Claims Act. KDOT argued that no prevailing engineering standards existed for designing
and installing guardrails when it installed this particular guardrail. Without those
standards, their design and installation were a discretionary function and KDOT was
immune from liability.
The Birds submitted several affidavits in response to KDOT's motion for summary
judgment. Those included portions of expert witness depositions establishing that even
under 1972 standards guardrails had to be a certain height. The guardrails here were
17
above the height allowing them to penetrate the passenger compartment of the car. They
also presented depositions from a KDOT official regarding department policy to install
rumble strips on the shoulder, which were not present in this case. But the district court
disregarded the affidavits finding that they "'controvert, contradict, add to, and attempt to
further explain'" the deposition testimony of the expert witnesses and granted summary
judgment. 23 Kan. App. 2d at 169. This court reversed, finding that the Birds' affidavits
did not "show such contradictions or inconsistencies as would warrant disregarding the
affidavits" under Mays and Bacon. 23 Kan. App. 2d at 169. The opinion does not set out
the exact way the depositions were contradictory. But again, our court recognized that the
application of Mays and Bacon are not automatic and are fact and context dependent.
Two individuals involuntarily committed to the Kansas Sexually Violent Predator
Treatment Program brought a civil rights action against the Secretary of Kansas Social
and Rehabilitation Services in Brull v. Jordan, No. 101,755, 2011 WL 420700 (Kan.
App. 2011) (unpublished opinion). As here, the question in the case was whether the
district court properly granted a summary judgment motion, but the panel also briefly
discussed whether affidavits submitted by the plaintiffs were so-called "sham affidavits"
that could not be used to avoid summary judgment. 2011 WL 420700, at *8. Relying in
part on Mays, the panel concluded that the plaintiffs' prior responses to interrogatories
"merely summarized the alleged violations [and] did not purport to provide every fact
that might be relevant." 2011 WL 420700, at *8. Thus, even though the affidavits
provided more specific information, the panel "[found] nothing in the affidavits that so
conflicts with a prior response that the affidavits should be considered sham affidavits for
summary-judgment purposes." 2011 WL 420700, at *8. We are at a bit of a loss because
the opinion does not specifically explain how the affidavits varied from the answers to
interrogatories, but the case recognizes that the supplementing or amplifying of prior
answers does not necessarily a sham affidavit make.
18
And finally, in K.F.B. Ins. Co. v. Caswell, No. 62,155, unpublished opinion filed
April 14, 1989 (Kan. App.), the defendant made a sworn statement to the insurance
company that he was acting outside the scope of his employment when the fatal collision
which was the subject of the litigation occurred. Later, after the insurance company
moved for summary judgment, the defendant submitted an affidavit recanting that prior
statement. The trial court ruled that the plaintiff's motion for summary judgment could
not be supported by a statement made before litigation and considered the affidavit. The
panel agreed that the district court could consider the affidavit since the defendant did not
submit the affidavit to create a dispute of fact or defeat summary judgment, but because
his answer to the initial petition placed permissive use of the vehicle in dispute.
Christiansen also relies on at least six cases from outside of the Kansas appellate
system. We will not discuss each of them, but they do support Christiansen's position that
affidavits can clarify or amplify facts and courts should not consider them sham
affidavits. See Pambianchi v. Arkansas Tech. Univ., 95 F. Supp. 3d 1101, 1113-14 (E.D.
Ark. 2015) (affidavit can generate an issue of fact if it does not propose to raise a new
matter, but rather to explain certain aspects of previous testimony or if confusion
contributed to the inconsistency); In re Independent Service Organizations Antitrust
Litigation, 85 F. Supp. 2d 1130, 1156-57 (D. Kan. 2000) (finding that the expert's
declaration was not contradictory and "[a]t best" reflected "speculation" on the expert's
part); Fairchild v. All-American Check Cashing, Inc., No. 2:13-CV-92-KS-MTP (S.D.
Miss. 2014) (unpublished opinion) (allowed an affidavit to clarify or amplify facts "'by
giving greater detail or additional facts not previously provided in the deposition'");
Jimenez v. Flagstar Bank, F.S.B., No. SA-13-CV-186-XR, 2013 WL 6332128, at *4
(W.D. Tex. 2013) (unpublished opinion) (while the affidavit "paraphras[ed] conversation
and stat[ed] facts with ambiguity, this conflict raises an issue of credibility rather than
admissibility"); C.R. Pittman Const. Co. v. National Fire Ins. Co. of Hartford, 453 Fed.
Appx. 439, 443 (5th Cir. 2011) (unpublished opinion) (just because an affidavit is "self-
serving" the court cannot exclude it as incompetent for that reason alone).
19
We note that Silverbrand has not addressed any of the cases cited by Christiansen.
They have presented no argument distinguishing them from the case before us to support
their position. A party has a duty to show why their position is sound despite contrary
authority. Failure to do so results in abandonment of the argument. State v. Dunham, 58
Kan. App. 2d 519, 527, 472 P.3d 604 (2020). Their stated reason for not addressing the
cases is a misguided belief that Christiansen improperly included copies of the opinions
in the appendix to her brief. But Supreme Court Rule 7.04(g)(2)(C) (2021 Kan. S. Ct. R.
46) requires Christiansen to attach any unpublished memorandum opinions "to any
document, pleading, or brief that cites the opinion." Christiansen acted appropriately by
attaching copies of the unpublished decisions cited in her brief in the appendix. Contrary
to Silverbrand's assertion, Christiansen did not attach any published opinions. They
ignore Christiansen's arguments at their own peril.
The district court abused its discretion in striking the affidavit, and Christiansen shows a
genuine dispute of material fact to preclude summary judgment.
We conclude that the district court made an error of fact and law and therefore
abused its discretion in striking the affidavits in this case. The law is clear, an affidavit
submitted along with a response to a motion for summary judgment does not contradict
prior testimony when offered to provide clarification or expand on a previous sworn
statement. Christiansen's previous statements about slipping on the ice and falling were
fairly nondescriptive. Her affidavit sought to clarify that she slipped on the ice when
exiting the vehicle but that a crack/pothole in the parking lot was a major contributing
factor in causing her to fall and break her ankle. It also bears mentioning that
Christiansen has never denied slipping on the ice, suggesting that she was not trying to
contradict her prior testimony since the mere fact of having slipped on ice weakens her
claim against Silverbrand. And likewise, Christiansen has never claimed that she was not
injured as a result of her foot landing in the pothole. At most her answers were
incomplete, not contradictory. As a result, we find that Christiansen's affidavit did not
20
contradict her prior testimony but merely explained the facts surrounding the accident in
more detail.
We recognize, as the district court noted, that Christiansen had at least two
opportunities to expound upon the cause of the accident. First, in Interrogatory No. 5,
Silverbrand directly asked her to "[p]lease describe in detail how the injury occurred."
Yet Christiansen's response mentioned only her actions preceding the accident and
simply that "my right foot slid on ice and I fell down." But in her subsequent deposition,
Christiansen was only asked whether she agreed with the statement that she slipped on
the ice. She did. Neither response contradicted her claim in her affidavit that she slipped
on the ice but the existence of the pothole caused her to break her ankle. Christiansen has
always alleged from her initial petition that "[her] shoe got caught in a large pothole
causing her to fall to the ground" and sustain injuries. She alleged that due to lack of
maintenance the parking lot was "uneven, deteriorated, pock marked with holes, and
rough" and "[d]ue to years of neglect and lack of maintenance, the surface was
unreasonably dangerous." She provided pictures of the condition of the parking lot to
Silverbrand as part of discovery. She also has always alleged that "[t]he direct and
proximate cause of [her] injuries and damages" was the negligence of Silverbrand. The
clarification in her affidavit would have come as no surprise.
The nonmoving party is not required to prove their case at the summary judgment
stage but must come forward with specific facts supporting their claim. Drouhard-
Nordhus, 301 Kan. at 623. Likewise, this court must resolve facts and reasonable
inferences in Christiansen's favor as the nonmovant. GFTLenexa, LLC, 310 Kan. at 982.
Unlike in Bacon and Mays, Christiansen's photos and statement about the cause of her
injury are more than mere speculation and raise a genuine dispute of material fact. As a
result, we find that the district court erred in granting Silverbrand's motion for summary
judgment and reverse that ruling and remand for further proceedings.
21
Reversed and remanded with directions.
***
ATCHESON, J., concurring: The sham affidavit doctrine has been a cog in civil
procedure machinery across state and federal courts for decades. Kansas is no exception,
having recognized a form of the rule more than 50 years ago. Basically, the rule
precludes a party from defeating a motion for summary judgment by submitting an
affidavit from a witness that contradicts facts in testimony or a sworn statement of the
witness submitted in support of the motion. The later conflicting affidavit typically will
be treated as a "sham" ginned up solely to create a phony dispute about a material fact
and will be disregarded as such. See Mays v. Ciba-Geigy Corp., 233 Kan. 38, 46-47, 661
P.2d 348 (1983). The rule, however, doesn't bar an affidavit that legitimately explains or
elaborates on the earlier representations or offers a bona fide explanation for an apparent
contradiction. 233 Kan. at 44 (evidence discovered after first statement may prompt
legitimate revision in later affidavit); at 45 (confusing or incomplete questioning in
deposition generating first statement permits later clarification); at 46 (second more
expansive statement does not create actual conflict).
In a common scenario, plaintiffs opposing defendants' summary judgment motions
will offer their own affidavits that differ on a relevant factual point from their deposition
testimony used to support the motions. Summary judgment, of course, ought not be
granted if there is a genuine dispute about one or more material facts. See Siruta v.
Siruta, 301 Kan. 757, 766, 348 P.3d 549 (2015); Doe H.B. v. M.J., 59 Kan. App. 2d 273,
294, 482 P.3d 596 (2021). So the district court faces a threshold issue: Should the
plaintiff's affidavit be considered at all in ruling on the summary judgment motion. Here,
the Barton County District Court refused to consider Plaintiff Anita Christiansen's
affidavit explaining the mechanics of her slip-and-fall injury in the parking lot of the
United States Postal Service building where she worked as a letter carrier. She sustained
22
a severe break of her right ankle. As the parties have framed the governing legal issue for
us, if the proximate cause of Christiansen's injury was the ice in the parking lot, then the
Postal Service is liable. But if the proximate cause was a negligent failure to repair
obvious defects in the parking lot, then the Silverbrand defendants would be liable.
In her petition, Christiansen alleged the parking lot was in poor repair and that
"[her] shoe got caught in a large pothole causing her to fall to the ground" and she
"sustained personal injuries and damages" as a result. The defendants served
interrogatories on Christiansen asking, among other things, for her to "describe in detail
how the injury occurred." In her written answer, Christiansen responded, in part, "[M]y
right foot slid on ice[,] and I fell down." She did not mention a pothole or any other
defect in the surface of the parking lot. The defendants' lawyer took what could be
characterized as a terse (or, perhaps, perfunctory) deposition of Christiansen. He asked
her to confirm that she told the ambulance personnel and the physician who treated her at
the emergency room that she slipped on the ice. Christiansen agreed both that she,
indeed, slipped on the ice and told medical providers as much. But the lawyer never
asked Christiansen to describe the actual mechanics of her injury, to elaborate on the
allegation in the petition, or to explain the ostensible discrepancy between that allegation
and her interrogatory response.
Defendants filed a motion for summary judgment, relying on Christiansen's
interrogatory answer and deposition testimony to demonstrate that the ice was the sole
proximate cause of her broken ankle. In support of her memorandum in opposition to
summary judgment, Christiansen signed an affidavit stating that "[m]y right foot started
sliding on ice. . . . and then my foot caught the edge of a large crack/pothole in the
parking lot." In the affidavit, Christiansen explained that she heard and felt her ankle
"snap" when her shoe caught in the pothole. The district court cited the sham affidavit
rule and refused to consider the affidavit and granted the defendants' motion for summary
judgment.
23
We review the district court's ruling disregarding Christiansen's affidavit for an
abuse of discretion. A district court exceeds that discretion if it rules in a way no
reasonable judicial officer would under the circumstances, if it ignores controlling facts
or relies on unproven factual representations, or if it acts outside the legal framework
appropriate to the issue. See Biglow v. Eidenberg, 308 Kan. 873, 894, 424 P.3d 515(2018); Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296
P.3d 1106 (2013).
Although now almost 40 years old, the detailed discussion of the sham affidavit
rule in Mays remains the governing pronouncement of the rule in Kansas and continues to
reflect generally accepted contours of the doctrine. See Boykin v. Family Dollar Stores of
Michigan, LLC, 3 F.4th 832, 842-43 (6th Cir. 2021); James v. Hale, 959 F.3d 307, 315-
17 (7th Cir. 2020); 73 Am. Jur. 2d Summary Judgment § 57. In Mays, the court identified
Powell v. City of Haysville, 203 Kan. 543, 549, 455 P.2d 528 (1969), as the rule's
fountainhead in Kansas. 233 Kan. at 44-45. The doctrine extends beyond deposition
testimony and covers interrogatory answers given under oath, too. See Robles v.
Agreserves, Inc., 158 F. Supp. 3d 952, 981 (E.D. Cal. 2016); Estrada v. US Bank, N.A.,
No. 2:18-cv-01361-RGK-AMF, 2018 WL 8785205, at *2-3 (C.D. Cal. 2018)
(unpublished opinion); Dunavant v. Frito Lay, No. 1:11-0028, 2013 WL 816673, at *4
(M.D. Tenn. 2013) (unpublished opinion).
There is no fully predictive test to determine in the abstract when an affidavit
submitted in opposition to summary judgment should be considered an impermissible
attempt to defeat the motion by contradicting the affiant's earlier sworn statements. The
determination is inevitably contextual and depends upon the substantive issue asserted as
the basis for summary judgment, the factual content of the original statement offered in
support of the motion, the scope of the conflict or discrepancy between that statement and
the challenged affidavit, and any reasons given for the ostensible change. The conclusion
effectively depends upon the overall circumstances of the particular case. 10A Wright,
24
Miller & Kane, Fed. Prac. & Proc. Civil § 2726.1 (4th ed. 2021). As such, the assessment
has much in common with Justice Potter Stewart's analytical model for hardcore
pornography: "I know it when I see it." Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S. Ct.
1676, 12 L. Ed. 2d 793 (1964) (Stewart, J., concurring).
Here, we are in as good a position as the district court to assess the
inconsistencies, such as they are, between Christiansen's interrogatory answer and
deposition transcript, on the one hand, and her later affidavit, on the other, since they are
immutable documents. And we may then determine their legal effect for summary
judgment purposes. See Thoroughbred Assocs., L.L.C. v. Kansas City Royalty Co., 297
Kan. 1193, 1207, 308 P.3d 1238 (2013).
Here, the district court misapplied the governing legal framework of the sham
affidavit rule. Christiansen's affidavit did not contradict her deposition testimony. In both,
she acknowledged slipping on the ice. The affidavit expanded on the cause of her fall to
explain how in an immediate and continuous sequence she broke her ankle when her foot
met the pothole. During the deposition, defendants' lawyer never asked Christiansen to
describe how she injured her foot. Had he examined her in detail on that point,
Christiansen's omission of any mention of catching her shoe in a pothole likely would
have rendered her later affidavit a sham submission.
In the deposition, the lawyer merely confirmed that Christiansen told the
ambulance and emergency room medical personnel she slipped on the ice. Christiansen
provided that description just after the incident, while she was in considerable pain, to
generically explain her injury as a slip-and-fall. That she didn't describe each sequential
step leading to her broken ankle seems unremarkable in context. But more to the point, it
doesn't create a conflict of the kind the sham affidavit rule is intended to reach.
Christiansen's explanation for medical personnel could, of course, be juxtaposed with her
affidavit for the fact-finder's consideration at trial.
25
In isolation, Christiansen's answer to the interrogatory poses a closer question. The
question sought a detailed explanation of how she injured her ankle. The response doesn't
mention Christiansen catching her shoe in the pothole—something fairly considered more
than an incidental aspect of the injury. But the defendants' lawyer did not question
Christiansen about the answer during her deposition. And he shouldn't have been
surprised by the affidavit in light of the allegations in the petition. On balance and in the
context of the pretrial discovery as a whole, I don't see a sufficient discrepancy to bar the
affidavit as a sham.
We need say no more, and I do not. I concur in the result reversing the summary
judgment for the defendants and remanding for further proceedings.
26