Summary Judgment Practice: When The Deposition Clashes With The Affidavit



A summary judgment motion axiom posits that you can’t contradict prior sworn deposition testimony with a later affidavit in order to create a triable fact dispute. 

A crude example: if in a deposition you say “I didn’t suffer any monetary damages”, you can’t file an affidavit later in the lawsuit where you say “actually, come to think of it, I lost a million dollars” in order to defeat a summary judgment motion.  You’ll be bound to your earlier deposition testimony. 

Otherwise, anyone could contradict his earlier sworn testimony with impunity and undermine summary judgment’s entire evidence testing system.

Kuvedina, LLC v. Pai, 2013 WL 6499696 (N.D.Ill. 2013) examines summary judgment in the context of a conversion suit.

Facts:  Plaintiff management company hired defendant to provide consulting services to one of plaintiff’s clients.  The relationship between plaintiff and defendant soured and plaintiff fired defendant.  When defendant failed to return a company laptop, plaintiff sued in Federal court for conversion, asserting that defendant’s actions caused plaintiff to lose a large corporate client. 

Defendant moved for summary judgment and attached plaintiff’s owner’s deposition testimony as a supporting exhibit.  In the deposition, the owner gave vague, non-responsive answers and couldn’t pinpoint any evidence to support plaintiff’s money damages claim.

Result: Summary judgment entered for defendant on plaintiff’s conversion count. 


Conversion is the wrongful possession of another’s property or any act that permanently or indefinitely deprives someone of the use and possession of his property.

To prove civil conversion in Illinois, a plaintiff must establish (1) a right to the property; (2) an absolute and unconditional right to the immediate possession of the property; (3) a demand for possession of the property; and (4) defendant’s wrongful and unauthorized assumed control, dominion or ownership over the property. *4. 

Money can be converted – but it must be a specific, identifiable fund (e.g. the $876 contained in defendant’s checking account at XYZ bank).  It can’t be a general obligation (“you didn’t paint my house like you promised, so you stole that $500 I gave you.)

Siding with defendant on the conversion count, the Court applied Illinois conversion case law which holds that voluntarily paid funds won’t support a conversion claim. 

The Court found that since plaintiff freely paid defendant almost $40,000 without protest,  plaintiff couldn’t show conversion as to those funds. *4.

The court did side with the plaintiff on its breach of contract, tortious interference, and fraud claims. In its summary judgment motion, defendant pointed to a factual clash between plaintiff’s owner’s earlier deposition and later affidavit testimony.

In his deposition, the plaintiff’s owner couldn’t substantiate any money damages when asked.  Yet, in his later affidavit – filed in response to defendant’s summary judgment motion – he calculated damages of over $500,000 based on defendant’s conduct.

In sustaining plaintiff’s claims, the court stated that all summary judgment evidence – be it interrogatories, depositions, or affidavits – is to some extent self-serving.  The question is a matter of degree.  

Here, the Court found that while plaintiff’s affidavit was self-serving, there were still too many factual disputes in connection with plaintiff’s contract, tortious interference and fraud claims that couldn’t be resolved on a summary judgment motion.   *5.

Take-away: Kuvedina presents a good discussion of how differing deposition versus affidavit testimony impacts the court’s summary judgment calculus and that voluntary payments by a plaintiff are unlikely to support a conversion claim.  

The case also clarifies that summary judgment movant must argue and show more than that the opponent’s evidence is self-serving to win the motion.  The moving party must show that the self-serving evidence fails to raise a genuine issue of disputed material fact. 





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Litigation attorney at Bielski Chapman, Ltd. representing businesses and individuals in business litigation, post-judgment enforcement, collections and real estate litigation.