Opinion
No. 05-02-00983-CV.
Opinion issued April 18, 2003
On Appeal from the 14th District Court, Dallas County, Texas, Trial Court Cause No. 01-02317-A.
Affirmed.
Before Justices JAMES, BRIDGES, and RICHTER.
MEMORANDUM OPINION
Wilbert Lee Clewis appeals the trial court's summary judgment entered in favor of Karl A. Kuchenbacker. In two points of error, Clewis argues the trial court erred in granting Kuchenbacker's no-evidence motion for summary judgment and in striking Clewis' affidavit and exhibits. We affirm the trial court's judgment.
On February 15, 2002, Clewis filed his first amended original petition asserting a health care liability claim against Kuchenbacker. Kuchenbacker filed a no-evidence motion for summary judgment asserting Clewis had failed to present any evidence of the applicable standard of care, a breach of that standard of care by Kuchenbacker, or any causal relationship between Kuchenbacker's conduct and any occurrence or injury to Clewis. Clewis filed a response to which he attached his affidavit and various exhibits consisting of, among other things, a worker's compensation commission form for requesting a change of treating doctors, a blank disclosure and consent form, Kuchenbacker's responses to Clewis' request for admissions, and a copy of Clewis' first amended petition. Kuchenbacker moved to strike Clewis' affidavit and exhibits. The trial court granted Kuchenbacker's motion, struck Clewis' exhibits and affidavit except for the first line stating there was a doctor-patient relationship between Clewis and Kuchenbacker, and granted Kuchenbacker's no-evidence summary judgment motion. This appeal followed.
In his first issue, Clewis argues the trial court erred in granting Kuchenbacker's no evidence motion for summary judgment. Specifically, Clewis asserts Kuchenbacker's motion for summary judgment does not state the elements of Clewis' causes of action as to which there is no evidence; therefore, Kuchenbacker's motion is insufficient as a matter of law. In his response to Kuchenbacker's motion for summary judgment, however, Clewis argued Kuchenbacker had presented "no evidence to negate" one of the essential elements of Clewis' cause of action. Because Clewis did not present to the trial court the issue he raises on appeal, he has failed to preserve the issue for our review. See Tex.R.App.P. 33.1(a); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 675 (Tex. 1979). We overrule Clewis' first issue.
In his second issue, Clewis argues the trial court erred in striking his affidavit and exhibits. When no facts are stated to support conclusions in affidavits, the affidavits are not proper summary judgment proof. Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex.App.-Houston [1st Dist.] 1997, no writ). A conclusory statement is one that provides no underlying facts to support its conclusion. Id. Additionally, testimony is objectionable as conclusory if it is comprised "only of legal conclusions," Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) (op. on reh'g) (per curiam), or when it is "nothing more than a legal conclusion." Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); see Rizkallah, 952 S.W.2d at 587. Clewis' affidavit contains conclusory statements that Kuchenbacker did not disclose risks and hazards associated with "the musculoskeletal systems treatment and procedures" or obtain informed consent; Kuchenbacker admitted there was no written informed consent; Clewis developed "the undisclosed risk;" Clewis would not have consented to treatment if he had known of "the inherent risk;" Kuchenbacker acted intentionally, knowingly or recklessly; Kuchenbacker made contact with Clewis' person and caused injury; and Kuchenbacker's counsel had no personal knowledge of the facts stated in the affidavit. The assertions in Clewis' affidavit are not supported by any underlying facts, and we conclude the affidavit was therefore not proper summary judgment proof. See Rizkallah, 952 S.W.2d at 587. Although oral testimony is not to be received at a hearing on a motion for summary judgment, see Tex.R.Civ.P. 166a(c), at the hearing Clewis stated his affidavit was untrue in stating that Kuchenbacker admitted there was no written informed consent.
As to the exhibits attached to Clewis' response to Kuchenbacker's motion for summary judgment, unauthenticated or unsworn documents, or documents not supported by any affidavit, are not entitled to consideration as summary judgment evidence. Llopa, Inc. v. Nagel, 956 S.W.2d 82, 87 (Tex.App.-San Antonio 1997, pet. denied). We have reviewed the exhibits, and we conclude they were unauthenticated, unsworn documents properly excluded from the summary judgment evidence. See id. Finally, though Clewis argues he made an oral request for a continuance "to cure [his] defects points," the record contains no such request. Accordingly, we overrule Clewis' second issue.
We affirm the trial court's judgment.