Summary Judgment Affidavits: Form vs. Substance

Posted on March 1, 2011 by Mike Northrup

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.

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Demonstration of Personal Knowledge in Affidavits

Posted on July 29, 2010 by Mike Northrup

Beware of using "form" language in an affidavit to establish the affiant's personal knowledge of the facts.  A statement such as "I have personal knowledge of the facts in this affidavit," may not be adequate.  And the danger of getting it wrong is that the affidavit is legally insufficient.  

A good discussion of how far an affiant must go to establish personal knowledge is found in the Houston Fourteenth Court of Appeals' opinion in Valenzuela v. State & County Mutual Fire Insurance Co.   The court of appeals held that a "mere recitation that the affidavit is based on personal knowledge is inadequate if the affidavit does not positively show a basis for the knowledge."  "The affidavit must explain how the affiant has personal knowledge." (emphasis added).

 

The court goes on to point out that in some cases an affiant's position or job responsibilities can qualify him to have personal knowledge and show how he learned of the facts.   However, it may also be important to show that the affiant was employed during the particular time in question in order to show how the affiant has personal knowledge. The affiant in Valenzuela simply stated that she was currently a claims manager for State and County Mutual Fire Insurance Company and that she had personal knowledge of the facts. The court of appeals held that this affidavit failed to establish personal knowledge because the affiant did not state that she was the claims manager during the relevant time period, how her job duties as claims manager caused her to have knowledge of the claim in question, or how she was familiar with the particular claim.

Practice tip:  Next time you are drafting an affidavit, consider what questions you would ask the affiant on voir dire to establish lack of personal knowledge if you had the affiant on the stand at trial.

The court distinguished another, prior case in which the affiant stated that he was the company president and proceeded to discuss a debt in a claim on a sworn account. The court pointed out that an officer of the company would logically have knowledge of the company's debts. The court's opinion in Valenzuela may be found here.

 
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