I recently presented a continuing education seminar focusing on current issues in state summary judgment practice. As a result of that presentation, the Dallas Court of Appeals‘ holding in Bastida v. Abel’s Mobile Home Service, Inc., came to my attention. In that case, the trial court granted a summary judgment in favor of Richard Aznaran. Bastida sued Aznaran for personal injuries he sustained on Aznaran’s property while delivering a mobile home Aznaran had purchased.
After the trial court granted summary judgment in favor of Aznaran, Bastida appealed and challenged Aznaran’s affidavit evidence on grounds that it failed to show the basis of Aznaran’s personal knowledge as to the matters on which Aznaran testified. The court of appeals observes that summary judgment objections fall into two categories: (1) objections to form, and (2) objections to substance. Form objections are preserved only if they are raised and ruled on by the trial court, while substance objections can be raised for the first time on appeal. Citing the Texas Supreme Court‘s per curiam opinion in Grand Prairie ISD v. Vaughan, 702 S.W.2d 944, 945 (Tex. 1990), the court of appeals holds that an objection to lack of personal knowledge is an objection to form that must be raised and ruled on by the trial court in order to preserve it for appeal. The citation to Vaughan is accurate, but it is notable that there is a split in the courts of appeals on this question and there are opinions from the Texas Supreme Court that reach the opposite result. In fact, for example, in City of Wilmer v. Laidlaw Waste Sys., 890 S.W.2d 459 (Tex. App.–Dallas 1994), aff’d, 904 S.W.2d 656 (Tex. 1995), the Dallas Court of Appeals held that the failure to specify how the affiant had personal knowledge was a defect of substance, not form. This opinion was later affirmed by the Texas Supreme Court. Practitioners should be aware that this is an unsettled issue, making the safest practice to object.
The court’s opinion in Bastida may be found here.