THE TRUTH ABOUT By Fred A Simpson and Deborah J

THE TRUTH ABOUT AFFIDAVITS1 By Fred A. Simpson and Deborah J. Selden 2 3 Introduction Affidavits are efficient, economical devices employed to offer evidence in judicial proceedings. Extensive use of affidavits to introduce evidence, especially in summary judgment actions, relieves the parties of the time and expense of producing live witnesses and lessens the burden of formal discovery without sacrificing the reliability of live testimony. We will examine the criteria for valid affidavits in Texas civil jurisprudence. Affidavits also apply to criminal law, e.g., affidavits in support of probable cause as the basis for a search warrant. See Mayfield v. State, 800 S.W.2d 932, 934 (Tex. App. — San Antonio 1990, no pet.). What is an affidavit? In Texas, an affidavit is a written factual statement signed by the testifying party, sworn to before an officer authorized to administer oaths, and officially certified by the officer under his seal of office. See Perkins v. Crittendon, 462 S.W. 2d 565, 567-568 (Tex. 1970); TEX. GOVT. CODE ANN. §312.011(1). A valid affidavit must include “a certificate by a competent officer that the writing was sworn to by the person who signed it,” known as a jurat. Acme Brick v. Temple Associates, Inc., 816 S.W. 2d 440, 441 (Tex. App. — Waco 1991, writ denied). If the affiant makes a false statement under a jurat, he is liable for perjury, just as if he had lied on the stand before the judge and jury. Simply stated, a statement not containing a jurat is not an affidavit in Texas. 1 2 And perhaps more than you will ever need or want to know about affidavits. Mr. Simpson is a partner of Jackson Walker L.L.P. in the Houston Litigation Section, who gives special thanks for research efforts to Jeffrey S. Edwards, 1997 Summer clerk at Jackson Walker, and a second-year law student at the University of Texas. 3 Ms. Selden is Senior Staff Attorney at the Fourteenth Court of Appeals, Houston. Accordingly, a document bearing a simple “acknowledgment” is not an affidavit. An acknowledgment is merely an admission that the parties signed the documents in question, and does not prove the document contains true and correct Id. factual statements. Perkins v. Crittendon, 462 S.W. 2d at 567-568. Likewise, a document bearing a notary’s attestation that “certifies” that the person who signed the document stated that it is true and correct is also defective because the document lacks the requisite swearing or affirmation. LeBlanc, Inc., 399 S.W. 2d 919, 922 (Tex. Civ. App. — Houston 1966, no writ). When Is An Affidavit Proper Evidence? While the most common use of affidavits is in summary judgment proceedings, Texas courts may, absent an objection, allow evidence in affidavit form at any point in a trial. Naficy v. Braker, 642 S.W. 2d 282, 285, (Tex. App. — Houston [14th Dist.] 1982, writ ref’d n.r.e.). For procedural purposes, summary judgment proceedings are considered trials. Metropolitan Sav. & Loan, 751 S.W.2d 487 (Tex. 1988). To constitute competent summary judgment proof, an affidavit must present facts in a form that would be admissible as evidence in a courtroom trial. Brownlee v. Brownlee, 665 S.W. 2d 111, 112 (Tex. 1984). The affidavit may not assert legal conclusions. See Goode v. Mazy, 923 S.W. 2d 746, 749 (Tex. App. — Tyler 1996, no writ). If an affiant testifies to facts outside of his personal knowledge, his affidavit may be challenged as incompetent or as being based on hearsay. TEX. R. CIV. EVID. 602. As long as an affidavit establishes it was made on an affiant’s personal knowledge, it satisfies the requirements of Rule 166a of the Texas Rules of Civil Procedure, and may need not recite that the facts in it are true. Huckin v. Connor, 928 S.W. 2D 180, 183 (Tex. App. — Houston [14th Dist.] 1996, writ ref’d); citing to Brownlee v. Brownlee, 665 S.W. 2d 111, 112 (Tex. 1984). However, there is supreme court authority that an affidavit Goswami v. See State v. -2- based on an affiant’s “own personal knowledge and/or knowledge which he has been able to acquire upon inquiry” is fatally defective on grounds that it fails to unequivocally show that it is based on personal knowledge and because it makes no representation that the facts disclosed are true. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994). Form vs. Substance Case law clearly establishes an important distinction between defects in an affidavit’s form as opposed to defects in an affidavit’s substance. A defect in an affidavit’s form relates to the admissibility of its evidence. Such a defect is not grounds for reversal on appeal unless the opponent specifically objects to the defect and obtains a trial court ruling on his objection. Huckin, 928 S.W.2d at 183. The opponent to an affidavit based on hearsay must file a written response specifically challenging the affidavit’s objectionable hearsay evidence. If an affidavit used as summary judgment proof is properly amended to correct a defect in form, the defect need not be fatal. TEX. R. CIV. P. 166a (f). A defect in the substance of an affidavit relates to the legal sufficiency of its evidence, See, e.g., City of Wilmer v. Laidlaw Waste Systems, Inc. 890 S.W. 2d 459, 467 (Tex. App. — Dallas 1994), aff’d on other grnds, 904 S.W. 2d 656 (Tex. 1995); Ramirez v. Transcontinental Ins. Co., 881 S.W. 2d 818, 829 (Tex. App.-- Houston [14th Dist.] 1994, writ denied); Kotzer v. Kelly, 791 S.W. 2d 254, 256 (Tex. App.-- Corpus Christi, no writ). But see Grand Prairie I.S.D. v. Vaughn, 792 S.W.2d 944, 945 (Tex. 1990); see also City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). and a challenge to the affidavit may be raised for the first time on appeal. See, e.g., Wilmer v. Laidlow Waste Systems (Dallas), Inc., 890 S.W.2d 459, 467 (Tex. App. — Dallas 1994), aff’d on other grnds, 904 S.W.2d 656 (Tex. 1995). See also the unpublished opinion in Ishin Speedway, Inc. v. Texas Int’l. Raceway, Inc., 1996 W.L. 608362, at -3- 2, n.4 (Tex. App. — Houston [14th Dist.]). For example, an affidavit that fails to authenticate documents or expresses only legal conclusions may be challenged for the first time on appeal. Ramirez v. Transcontinental Ins. Co., 881 S.W.2d 818, 829 (Tex. App. — Houston [14th Dist.] 1994, writ denied). The question of whether an affiant’s lack of personal knowledge is a defect in an affidavit’s form Vaughan v. Grand Prairie ISD, 784 S.W.2d 474 (Tex. App. — Dallas 1989), rev’d., 792 S.W.2d 944, 945 (Tex. 1990); Accord Giao v. Smith & Lamm, P.C., 714 S.W.2d 144, 148 (Tex. App. — Houston [1st Dist.] 1986, no writ) or substance City of Wilmer v. Laidlow Waste Systems, Inc., 890 S.W.2d 459 (Tex. App. — Dallas 1994), aff’d; 904 S.W.2d 656 (Tex. 1995); accord Bauer v. Jasso, 946 S.W.2d 552, 557 (Tex. App. — Corpus Christi, May 15, 1997, n.w.h.) is still in controversy in Texas, and one may find support on both sides of the argument. See Rizkallah v. Conner, 952 S.W.2d 580 (Tex. App. — Houston [1st Dist.] 1997, n.w.h.). The more convincing authority espouses that the failure to establish an affiant’s personal knowledge is a defect in the affidavit’s form and the opponent must challenge this defect in the trial court, and may not raise his objection for the first time on appeal. The First Court’s recent opinion in Rizkallah conflicts with other opinions of that same court showing it is not necessary to object in the trial court to an affidavit’s lack of personal knowledge. See, e.g., Morin v. Helfrick, 930 S.W.2d 733, 738 (Tex. App. — Houston [1st Dist.] 1996, no writ. The Fourteenth Court likely would take the same view as the First Court in Rizkallah, given a recent unpublished opinion: Ishin Speedway, Inc. v. Texas Int’l. Raceway, Inc., 1996 W.L. 608362, at 2 (Tex. App. — Houston [14th Dist.]). Attorneys’ Affidavits -4- The rules of civil procedure allow an attorney to sign affidavits related to a case in which he is employed. TEX. R. CIV. P. 14. As a general rule, an affidavit must show the affiant is personally familiar with the facts and could testify as a witness at trial. Requipco, Inc. v. Am-Tex Tank & Equip., Inc., 738 S.W. 2d 299, 301 (Tex. App. — Houston [14th Dist.] 1987, writ ref’d n.r.e.). The facts in the affidavit must be direct, unmistakable, and unequivocal, so that perjury can be assigned upon it. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). An attorney’s affidavit stating its facts are true to the best of the affiant’s knowledge and belief does not satisfy the requirements of Rule 14. See Bray v. Miller, 397 S.W. 2d 103, 106 (Tex. Civ. App. — Dallas 1965, no writ). If a authorized by statute, however, an attorney’s affidavits may in rare cases vary from the normal rules governing affidavits. Burke v. Satterfield, 525 S. W. 2d 950,955 (Tex. 1995). The rules of civil procedure allow an attorney who lacks full and inherent personal knowledge of all the facts to file an affidavit on his client’s behalf. TEX. R. CIV. P. 14. An 1892 supreme court case, Doll v. Mundine, held that the clear purpose of this authority, then granted by means of a statute, was to confer the client’s affidavit rights on his attorney to expedite the execution of procedural affidavits necessary during the progress of a cause of action. Doll v. Mundiane, 84 Tex. 315, 318, 19 S.W. 394, 395 (1892). If the facts attested to are known to the attorney, or can be learned or discovered by the attorney or the client, the attorney’s affidavit is proper. If the subject matter of the affidavit, however, “rests peculiarly within the conscience of the client,” the attorney should state his basis for knowing the facts he sets forth in the affidavit. Doll, 84 Tex. at 318, 19 S.W. at 395. Following the logic of Doll, an attorney may make an affidavit, but he must demonstrate he has personal knowledge of the attested facts independent of and distinguished from -5- information obtained from the client. Harkness v. Harkness, 709 S.W. 2d 376, 378 (Tex. App. — Beaumont 1986, writ dism’d). In Gex v. Texas Company (1960), 337 S.W. 2d 820, 828 (Tex. Civ. App. — Amarillo 1960, no writ), the Amarillo court of appeals held that an attorney may employ a number of methods to inform himself of the facts necessary to make a valid affidavit under Rule 14. In Gex, the attorney testified that the mineral deed in controversy was executed long before oil was discovered in the region. The court held his affidavit was proper, finding that the attorney’s factual conclusions to be reasonably within his particular realm of knowledge as an oil and gas attorney. Id. In a similar vein, courts have found an affidavit based on an attorney’s personal awareness of the procedural history of a lawsuit, other than the one before the court, to be valid testimonial evidence. See, e.g., Estate of Pollack v. McMurrey, 858 S.W.2d 388, 392-93 (Tex. 1993); Owens v. Neely, 866 S.W.2d 716, 719 (Tex. App. — Houston [14th Dist.] 1993, writ denied). Even though not listed as the attorney of record, an attorney may establish his representation of a party to a lawsuit by affidavit. Francis v. Wakefield, 646 S.W.2d 325, 326 (Tex. Civ. App. — Dallas 1983, no writ). An attorney’s affidavit that a client’s denials of admissions are correct, is competent evidence and will prevent the request for admissions from being deemed admitted. H.E. Butt Food Stores, Inc. v. Vera, 516 S.W.2d 287, 290 (Tex. Civ. App. — San Antonio 1974, no writ). An affidavit must set out the authority by which it is made, Kern v. Treeline Golf Club, Inc., 433 S.W.2d 215, 216 (Tex. Civ. App. — Houston [14th Dist.] 1968, no writ). See generally TEX. R. CIV. P. 14, and the attorney making the affidavit should habitually detail how he has personal knowledge of the facts attested to, as distinguished from information obtained from the client. Landscape Design & Constr., Inc. v. Warren, 566 S.W.2d 66, 67 (Tex. Civ. App. — Dallas 1978, no writ). Some courts have found an attorney’s affidavit -6- to be defective if it does not recite that the affidavit was made on behalf of the party filing the related pleadings. Kern v. Treeline Golf Club, Inc., 433 S.W.2d 215, 216 (Tex. Civ. App. — Houston [14th Dist.] 1968, no writ). To play it safe and satisfy the substantive and procedural requirements of Rule 14, an attorney’s affidavit should show the attorney 1) is qualified and authorized to file pleading on behalf of his client; 2) is authorized to make affidavits for the purpose of filing pleadings; 3) either has full knowledge of the facts in the document, or learned of the attested facts from the client; 4) can aver that the accompanying pleadings are true and correct; and 5) give a complete and precise basis for his knowledge of the related facts. Cardinal Petroleum Corp. v. Robinson, 394 S.W.2d 556, 558 (Tex. Civ. App.--San Antonio 1965, no writ), citing to Smith v. Crockett Production Credit Union, 372 S.W.2d 954 (Tex. Civ. App. — Houston 1963, no writ). See also Nunneley v. Weiler, 244 S.W.2d 707, 708-709 (Tex. Civ. App. — Fort Worth 1951, no writ) It is proper for a trial court to accept facts sworn to by an attorney at face value unless it is obvious to the court the attorney lacks the knowledge he claims. See Brown v. Nelms, 374 S.W.2d 917, 920 (Tex. Civ. App. — Fort Worth 1964, no writ), see also Utz v. Michael, 227 S.W.2d 597, 600 (Tex. Civ. App. — Austin 1950, no writ); Maucini v. Haymes, 231 S.W.2d 757, 759 (Tex. Civ. App. — Fort Worth 1950, no writ). If the attorney recognizes that the court might find it improbable that he possesses the personal knowledge on which his affidavit is based, he would be well advised to support his affidavit by including in it specific, detailed information which would be admissible in evidence at trial. State v. LeBlanc, Inc., 399 S.W.2d 919, 922 (Tex. Civ. App. — Houston 1996, no writ). When the short phrase “within my knowledge,” appears in an attorney’s affidavit, Texas courts have construed it under Rule 14 to indicate the affiant has personal knowledge of the truth -7- and accuracy of allegations and factual statements in the accompanying pleadings. Rice v. Tucson Credit Union, 413 S.W.2d 833, 835 (Tex. Civ. App. — Texarkana 1967, no writ). Rule 14, however, does not authorize nor dignify an affidavit obviously based on hearsay. Decor Dimensionals, Inc. v. Smith, 494 S.W.2d 266, 267 (Tex. Civ. App. — Dallas 1973, no writ). Appellate jurisdiction may be established in an affidavit signed by an attorney, Governing Board v. Pannill, 561 S.W.2d 517, 521 (Tex. Civ. App. — Texarkana 1977, writ ref’d n.r.e.), and the appellate rules require attorney affidavits accompany motions based on (1) facts not in the record; (2) not within the court’s knowledge; or (3) not within the personal knowledge of the attorney signing the motion. TEX. R. APP. P. 10.2. Interested Witnesses Evidence in an interested witness’s affidavit is considered competent summary judgment proof if it is clear, positive and direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted. TEX. R. CIV. P. 166a (c). The term “could have been readily controverted” means that the testimony at issue is of a nature which can be effectively countered by opposing evidence. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). If an affiant’s credibility is likely to be a dispositive factor in the resolution of the case, summary judgment is inappropriate. Id. Likewise, unsubstantiated opinions or unilateral subjective determinations of facts are also incompetent as summary judgment evidence. Querner Truck Lines, Inc. v. Alta Verde Indus., 747 S.W.2d 464, 468 (Tex. App. — San Antonio 1988, no writ). Affidavits of corporate officers offering testimony as to corporate affairs frequently come under attack for a variety of reasons. See, e.g., Jenkins v. Kemlon Products & Development Co., 923 S.W.2d 224, 228 (Tex. App. Houston [14th Dist.] 1996, no writ). An individual’s high- -8- ranking corporate status, standing alone, will not overcome a hearsay objection if the affiant testifies to facts not within his personal knowledge. The affidavit of a corporate officer must, just like any other affidavit, establish the foundation for the affiant’s testimony by detailing how he learned the specific facts offered in the affidavit. For example, the affiant may be custodian of records, supervisor of accounting, or in a job that would allow him to possess the facts to which he testifies. See Jenkins v. Kemlon, 923 S.W.2d at 228. There is a body of case law indicating that a person’s position or job responsibilities can peculiarly qualify him as having personal knowledge of the facts in a supporting affidavit. See Sparks v. Cameron Employees Credit Union, 678 S.W.2d 600, 603 (Tex. App. — Houston [14th Dist.] 1984, no writ); Fulgham Co. v. Stewart Tile Co., 649 S.W.2d 128, 130 (Tex. App. — Dallas 1983, writ ref’d n.r.e.); Barham v. Sugar Creek Nat’l Bank, 612 S.W.2d 78, 80 Tex. App. — Houston [14th Dist] 1981, no writ). These cases make it abundantly clear that personal knowledge of facts contained in the affidavit must be a direct result of one’s work responsibilities or area of expertise. A management position alone does not qualify the affiant to claim personal knowledge of facts outside his realm of expertise. Barham, 612 S.W.2d at 80. Although a bank vice-president was found to have personal knowledge of the bank’s business, his knowledge did not infer personal knowledge of the marital status of another bank employee. Because the vice-president’s affidavit failed to show how his work enabled him to acquire the information in his affidavit, the appellate court found the affidavit to be incompetent and reversed the summary judgment. Expert Witnesses An expert’s affidavit may testify as to his opinion on a mixed question of law and fact, but does not allow opinion testimony on a pure question of law. Lyondell Petrochem Co. v. -9- Fleur Daniel, Inc., 888 S.W.2d 547, 554 (Tex. App. — Houston [1st Dist.] 1994, writ denied). Before an expert’s opinion affidavit can be admissible, it must articulate the underlying factual basis of his conclusion. Id. See also Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). The expert’s affidavit must also be supported by proof of his qualifications, United Blood Services v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997), to allow the trial court to determine if the putative expert has “knowledge, skill, experience, training or education” that would “assist the trier of fact.” TEX. R. CIV. EVID. 702. The party offering the affidavit carries the burden of proving the expert’s qualifications. See Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996). Because the trial court has broad discretion to qualify an expert, uncontested omissions of the expert’s qualifications is considered a defect in form, not substance. Id. Self-Serving Statements The affidavit of interested party containing self-serving statements about the affiant’s knowledge or intent is not susceptible of being readily controverted, and generally, is not appropriate. McKnight v. Riddle & Brown, P.C., 877 S.W.2d 59 (Tex. App. — Tyler 1994, writ denied); Garcia v. C.F. Jordan, Inc., 881 S.W.2d 155 (Tex. App. — Tyler 1994, writ denied). However, in Casso v. Brand (1989), (Casso v. Brand, 776 S.W.2d 551 (Tex. 1989). The Supreme Court followed the same reasoning in another case with the same date: Carr v. Brasher, 776 S.W.2d 567 (Tex. 1989). Defamation defendants may now file affidavits claiming that, at the time of publication, they did not believe allegations or facts in their story were false; they may also testify that they did not act with reckless disregard as to the truth or falsity of their published statements) a case involving the defamation of a public figure, the Texas Supreme Court recognized competent evidentiary value in affidavits that would have been disregarded as self-serving. Earlier case law characterized the “actual malice” element of defamation as being - 10 - so entirely subjective that self-serving affidavits were incompetent evidence because they could not be readily controverted by opposing parties. Bessent v. Times-Herald Printing Co., 709 S.W.2d 635 (Tex. 1986); and Enterprise & Journal v. Smith, 687 S.W.2d 729 (Tex. 1985). After Casso, defendants in defamation cases may now use affidavits as competent evidence to establish their state of mind or intent. Casso v. Brand, 776 S.W.2d at 559. The rationale behind this change in the law is that the defamation defendant’s affidavit concerning his state of mind or intent may be effectively contested by the non-movant with opposing affidavits and documentary evidence to create a fact issue. Casso v. Brand, 776 S.W.2d at 558. The Casso court reasoned that, in defamation cases, it was not enough for juries to merely disbelieve defendant’s witness stand testimony. Id. The plaintiff must produce clear and convincing affirmative proof to support any theory of recovery. Id. The plaintiff in a defamation suit bears a heavy burden of proof and must meet very high evidentiary standards. It is, therefore, illogical to reject a defendant’s affidavits and force the parties into trial for receipt of testimony that could be more efficiently presented in affidavit form. To prevail at trial, a plaintiff would be required to bring sufficient evidence to refute the defendants’ testimony; therefore, it would be a no more onerous burden for the plaintiff to respond to a motion for summary judgment based on defendant’s affidavits concerning his subjective knowledge or intent. Finally, before the affidavit of an interested witness can be admissible as competent evidence, the affidavit must be susceptible to attack by contradictory evidence sufficient to raise a fact question. In a recent employment case involving a claim of retaliatory discharge, the supreme court reiterated its reasoning about self-serving statements in affidavits. Trico Tech. Corp. v Montiel, 40 Sup. Ct. J. 922 (July 9, 1997). After dismissing the employee, the employer discovered the - 11 - employee had lied on his employment application about undergoing treatment for alcoholism. The employer’s human resources manager filed an affidavit stating that he would have fired the employee had he been aware of the employee’s dishonesty. Trico Tech. Corp. v Montiel, 40 Sup. Ct. J. 922 (July 9, 1997). The court of appeals invalidated the manager’s affidavit because it was self-serving, inconclusive, and not readily controvertible. Montiel v. Trico Technologies Corp., 941 S.W.2d 263, 265 (Tex. App. — Corpus Christi 1996). The supreme court disagreed, finding that merely because an affidavit may be self-serving does not necessarily render it incompetent to support a summary judgment. Trico Tech. Corp. v Montiel, 40 Sup. Ct. J. 922 (July 9, 1997). Citing Casso v. Brand, And also citing Republic Nat’l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986), and TEX. R. CIV. P. 166(c), the supreme court found that the manager’s affidavit could have been controverted had the former employee made the effort in discovery to identify and locate other employees who also falsified their employment applications. Trico Tech. Corp. v Montiel, 40 Sup. Ct. J. 922 (July 9, 1997). Whether a self-serving affidavit constitutes competent evidence on which party has the burden of proof depends on whether the affidavit can be challenged to create a fact issue. If self-serving affidavits are capable of being contradicted or disproven, courts will continue to find them competent summary judgment evidence. Conclusion The purpose of an affidavit is to ensure the efficient admission of truthful evidence of personally known facts. Whether a jurat is still a necessary element of a competent affidavit, or is it merely a nostalgic artifact of the past is probably an academic question. But see the federal system’s use of a statute which allows unsworn “declarations” to have the weight of affidavits. 28 U.S.C.A. §1746. The substantive criteria setting forth the standards under which an affidavit - 12 - may be received as competent evidence is, like so many areas of the common law, vital and evolving. In deciding cases, the finder of fact listens to facts as presented by both sides. Acceptance of evidence presented by affidavit has been slow in gaining acceptance because an affiant cannot be cross-examined. However, affidavits can adequately be challenged as to form or substance, or be subjected to contravening affidavits or other competent evidence. The growing acceptance of the affidavit by Texas courts as a competent, efficient, economical vehicle for offering proof in legal proceedings is a visible sign that efforts to streamline and simplify the judicial process are working. - 13 -