                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-12-00320-CV


                     PIONEER LAND & CATTLE CO., APPELLANT

                                            V.

                       LEANNE FARRELL COLLIER, APPELLEE

                           On Appeal from the 72nd District Court
                                   Lubbock County, Texas
              Trial Court No. 2009-547,798, Honorable Don Emerson, Presiding

                                     MAY 15, 2013

                             CONCURRING OPINION

               Before CAMPBELL and HANCOCK and PIRTLE, JJ.

      The majority’s opinion is premised, in large part, on the conclusion that the trial

court did not err in finding that Pioneer Land & Cattle Co. failed to present any

competent summary judgment evidence of its ownership of four horses awarded to

Leanne Farrell Collier in a prior divorce proceeding. Specifically, the majority finds that

the affidavit of Greg Collier, offered by Pioneer in response to Leanne’s traditional and

no-evidence motions for summary judgment, is conclusory and, therefore, does not

raise a material question of fact concerning whether Pioneer owned those horses. See
Pioneer Land & Cattle Co. v. Collier, No. 07-12-00320-CV, slip op. at 10-11,

(Tex.App.—Amarillo             May           15,          2013,           available          at

http://www.search.txcourts.gov/DocketSrch.aspx?coa=coa07).            See also Rizkallah v.

Conner, 952 S.W.2d 580, 587 (Tex.App.—Houston [1st Dist.] 1997, no pet.) (holding that

an affidavit that states only legal or factual conclusions is conclusory and not proper

summary judgment evidence). While I concur in the ultimate disposition of this appeal, I

write separately to express my opinion that Greg’s affidavit is not conclusory as to this

issue.


         Greg’s affidavit states that, as President and Custodian of Records of Pioneer,

he has personal knowledge of the facts set forth in that affidavit. He further states that

“Pioneer purchased, in its name and with its funds . . . the registered Quarter Horses

known as Sea (nickname “Johnny Cash”), S I Ripcord . . . , V L M Imadriftertoo

(nickname “nugget”) . . . [and that] Pioneer never sold or transferred in any way any [of

the horses] stated above.”1


         Conclusory statements contained in affidavits are not proper summary judgment

evidence. See TEX R. CIV. P. 166a(f) (supporting affidavit must set forth such facts as

would be admissible in evidence). See also Ryland Group, Inc. v. Hood, 924 S.W.2d

120, 122 (Tex. 1996) (holding that a conclusory statement is not sufficient to raise a fact

issue). To avoid being conclusory, the affidavit of an interested party must be “clear,

positive, direct, credible, free from contradiction, and susceptible of being readily




1
 The affidavit makes no mention of Ciderwood Whiskey, the fourth horse awarded to Leanne in the
divorce proceeding.

                                               2
controverted.” Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex.App.—Texarkana

2000, no pet.).


      Here, Greg’s affidavit is clear, positive, and direct - Pioneer acquired ownership

of the horses in question by purchase and never transferred them. It is based on the

personal knowledge of Pioneer’s President and records custodian; and, it is susceptible

of being readily controverted.   In fact, Leanne controverts the issue of transfer by

contending that Pioneer was in privity with Greg throughout the divorce proceeding and

is therefore bound by the trial court’s award of those horses to her. While Greg’s

affidavit could have been more detailed, it was not conclusory.


      Otherwise, agreeing with the majority’s decision to affirm, I concur.




                                                       Patrick A. Pirtle
                                                            Justice




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