The difference between defects in the form of an affidavit versus defects in substance is not always clear and the appellate courts have not always agreed on what is substantive and what is not. But the difference can be important. As the Dallas Court of Appeals points out in Stone v. Midland Multifamily Equity Reit, A defect in the form of an affidavit requires an objection to the defect and a ruling on the objection in order to preserve the complaint for appellate review. However, a defect in the substance of an affidavit may be raised for the first time on appeal. In Stone, the court holds that a hearsay objection is a defect in the form of an affidavit that requires an objection and a ruling. However, the Court holds that lack of personal knowledge is a defect in substance and may be raised for the first time on appeal.
The Stone opinion goes on to point out that mere rote recitals that an affiant "has personal knowledge" may not cut the mustard. The affiant must disclose the basis upon which he acquired personal knowledge. The affiant in Stone attested to his position with the company but the Court holds that the testimony was inadequate because it failed to state how the affiant’s job duties and responsibilities would have afforded him knowledge about the execution of the documents that were in issue in the case. Stone is an important reminder that it’s important to focus upon the basics. The court’s opinion in Stone may be found here.