Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

When is an affidavit necessary rather than a verification?

In Wimmer v. Hanna Prime, Inc., Hanna Prime brought suit against Wimmer on a sworn account.   Wimmer answered with a verification in which he asserted that he did not contract for the debt in his personal capacity and was not liable.   His verification stated that the facts were true "to the best of [his] knowledge."   Hanna Prime moved for summary judgment.  Wimmer responded with an affidavit wherein he asserted he did not contract with Hanna Prime in his individual capacity.  The trial court rendered summary judgment against Wimmer and Wimmer appealed.  On appeal, Wimmer assered that his affidavit raised a material issue of fact.

Citing Texas Rule of Civil Procedure 93(2), the Dallas Court of Appeals observes Wimmer was required to verify by affidavit his defensive plea asserting no liability in the capacity in which he was sued.  Because Wimmer's answer did not unqualifiedly state that the facts were true and within his personal knowledge and instead stated that they were true "to the best of his knowledge," the court of appeals holds that the verification was "not legally effective as a verification" and the court affirms the judgment.  The court's opinion may be found here.

Practitioners will want to note two things about this case.  First, Rule 93 does require verification by affidavit.  There is case law that draws a distinction between a mere verification and an affidavit.  Affidavits require more than a verification.  Second, it appears that even if your verification is defective, you cannot cure the defect at the time of summary judgment by filing an affidavit as part of your response to the motion.  You will need to amend your answer to include a proper verification "by affidavit."

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a case of first impression the Texas Supreme Court  recently held that the issue of whether a party has the mental capacity to contract is an issue for courts, not arbitrators.  The Court traced the history of the so-called "separability" spawned by the United States Supreme Court's decision in Prima Paint Corp. v. Conklin Manufacturing Co., 388 U.S. 395, 404 (1967), that held that challenges to an entire contract should be decided by arbitrators and challenges to an arbitration agreement itself should be decided by courts.

The separability doctrine proved problematic in a third category of cases; those in which a party challenged the very existence of a contract in the first place, so-called "contract formation" issues.  Relying on dicta in Buckeye Check Cashing, Inc. v Cardegna, 546 U.S. 440, 444 n.1 (2006), and numerous other state and federal decisions, the Texas Supreme Court held that contract formation issues, specifically mental capacity, are for courts, not arbitrators.  Accordingly, the Court denied Morgan Stanley's attempt to compel arbitration by mandamus.  Justice Hecht dissented and would have treated lack of capacity as "closer to fraudulent inducement than to lack of signature."  The Court's opinion in In re Morgan Stanley & Co., Inc. can be found at this link.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

In a 6-3 opinion, the Texas Supreme Court held that requests for admissions sent to an insurance carrier in one capacity cannot be used against it in different capacity. USF&G appeared in two capacities represented by two different law firms--as a defendant to the insured's claim under the underinsured motorist policy and as subrogee to recover funds from the plaintiff. Plaintiff served requests for admission on the firm representing USF&G as subrogee, not as defendant. The Court stated:

Requests for admission are a tool, not a trapdoor. [Plaintiff's] attorneys knew perfectly well that defendant USF&G was denying underinsured coverage. Accordingly, they are not entitled to use a response against it when they sent it to the law firm representing it in a different capacity.

The majority opinion in United States Fidelity and Guaranty Co. v. Goudeau can be found at this link. The dissent can be found at this link.

• Email This
• Print
• Comments
• Trackbacks
• Share Link