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Wolfe v. C.S.P.H.6/19/2000
ewing the affidavit, we find it is not conclusory but rather was made by a competent witness with personal knowledge and set forth facts that would be admissible in evidence.
Wolfe's complaints about defects in Wilson's original affidavit are immaterial to the disposition of this case. After Wolfe objected to the original affidavit, CSPH filed an amended affidavit that clearly supplanted the original affidavit. Therefore, any defects in the original affidavit are irrelevant and do not present reversible error.
Wolfe also complains about hearsay in Wilson's amended affidavit and CSPH's failure to incorporate the affidavit into the motion for summary judgment. Wolfe does not point us to any specific inadmissible hearsay and we find none. In addition, while Wolfe contends the affidavit was not properly incorporated as evidence, CSPH referred to the affidavit in its motion for summary judgment and attached the affidavit as evidence. Therefore, the affidavit was sufficiently incorporated as summary judgment evidence. ñSee Tex. R. Civ. P. 166a(c). As a result, the trial court did not abuse its discretion in admitting the affidavit.
Wolfe also makes general references to the trial court's improperly admitting the CSPH Injury Benefit Plan, a copy of Wolfe's waiver, copies of canceled checks from the Injury Benefit Plan, and copies of various court opinions. Wolfe presents no authorities or record references to support his assertion that the trial court erred in considering these documents. Wolfe has therefore waived any error on this issue. See Tex. R. App. P. 38.1(h) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."). Further, Wolfe generally asserts the trial court refused to rule on his objections to these items. However, he has not pointed us to any part of the record where he objected to this evidence and the trial court refused to rule after an objection to the refusal to rule. See Tex. R. App. P. 33.1(a)(2)(B). Therefore, Wolfe has waived any error in the trial court's admission of this evidence. We overrule Wolfe's third point of error regarding evidentiary issues.
5. Proper Standard of Review
Also in his third point of error, Wolfe contends the trial court improperly used the federal summary judgment standard of review rather than appropriate state law. Wolfe's appellate brief does not contain a clear and concise argument to explain his reasons for this assertion. See Tex. R. App. P. 38.1(h). Further, he does not cite any authorities or record references to support this contention and we find none. Therefore, Wolfe has waived any error in this regard. See id. We overrule Wolfe's third point of error regarding the appropriate standard of review.
Accordingly, we affirm the trial court's judgment.
KERRY P. FITZGERALD, JUSTICE
Do Not Publish
Tex. R. App. P. 47
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