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."