# William L. Tippens, Deceased, Nell P. Tippens, Individually and as Widow of William L. Tippens v. The Celotex Corporation

> Court of Appeals for the Eleventh Circuit · December 9, 1986 · 805 F.2d 949

URL: https://www.frixlaw.com/law-library/cases/9475573

## Case

- **Full name:** William L. TIPPENS, Deceased, Nell P. Tippens, Individually and as Widow of William L. Tippens, Plaintiff-Appellant, v. the CELOTEX CORPORATION, Et Al., Defendant-Appellees
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** December 9, 1986
- **Citations:** 805 F.2d 949; 6 Fed. R. Serv. 3d 641; 1986 U.S. App. LEXIS 34583
- **Precedential status:** Published
- **Opinion:** Concurrence by Hill
- **Judges:** Hill, Vance, Brown
- **Cited by:** 395 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9475573

## How later opinions describe it (automated extraction)

- concluding that when an affiant indicated at three places in the deposition testimony that an agreement contained no requirement to purchase a building in order to obtain a contract, the affiant's affidavit that stated there was an agreement to purchase a building in order to …
- stating that in making the determination whether an affidavit may be stricken as a sham, the court "must be careful to distinguish ‘between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence’ ”
- finding that affidavit stating that affiant could generally remember occurrence of certain events did not contradict prior deposition testimony where affiant was unable to recall specific occurrences of same events
- reversing a sham affidavit ruling where discrepancies in an affiant’s testimony affected his credibility and persuasiveness, but were not so inherently inconsistent that his affidavit had to be disregarded as a matter of law

## Opinion text

HILL, Circuit Judge,
specially concurring:
I agree with the majority’s conclusion that this appeal is controlled by this court’s decision in Lane v. Celotex Corp., 782 F.2d 1526 (11th Cir.1985). Faced with this binding precedent, I agree that the district court’s grant of summary judgment should be reversed. I concur specially to reiterate my dissatisfaction with the Lane holding. See Lane v. Celotex Corp., 782 F.2d 1526, 1533 (11th Cir.1985) (Hill, J., dissenting).
The Lane decision drastically limits this court’s holding in Van T. Junkins & Associates v. U.S. Industries, 736 F.2d 656 (11th Cir.1984). In Van T. Junkins, this court declared: “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Id. at 657 . The purpose of this rule is to spare the party requesting summary judgment the needless pain and costs of a law suit when a party’s prior statements show no factual dispute exists. This rule further assures that frivolous law suits will not deluge the federal court system, otherwise consuming scarce judicial resources which would best be allocated to meritorious claims. The life of a frivolous suit should not be extended merely by a last minute affidavit which is contrary to a party’s or an interested witness’ admissions, unless there is some tangible basis for explaining the blatant inconsistencies.
If I were writing on a clean slate, I would conclude that Frank McIntyre was an interested witness due to the fact that, like William Tippens, he filed a similar suit seeking recovery for his exposure to asbestos and is represented by the same counsel that represents Mrs. Tippens. I would also conclude that McIntyre’s affidavit was inherently inconsistent with his later disposition. The facts of this case, however, cannot be meaningfully distinguished from those in Lane v. Celotex Corp. Therefore, I concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9475573. Public record. Not legal advice.