Error preservation with respect to affidavits has, over the years, become something of a sticky wicket in Texas. Appellate courts agree that defects in the form of an affidavit must be raised in the trial court and ruled on to preserve error and that defects in the substance of an affidavit can be raised for the first time on appeal. The difficulty arises when trying to determine whether a particular defect is one of form or one of substance.
Last week, the Fourteenth Court of Appeals issued an opinion in a case that the court, on its own motion, considered en banc for the express purpose of deciding whether error related to an affidavit had been properly preserved. The opinion is Washington DC Party Shuttle, LLC v. IGuide Tours, LLC, No. 14-12-00303-CV, 2013 WL 3226768 (Tex. App.—Houston [14th Dist.] June 27, 2013, no pet. h.). The court held that an objection that an affidavit fails to show that the witness has personal knowledge is a defect in form that must be raised in the trial court or waived.
Last year, the Supreme Court decided in The Mansions in the Forest L.P. v. Montgomery County, 365 S.W.3d 314 (Tex. 2012) (per curiam) that the absence of a jurat is a defect of form that must be raised in the trial court or it is waived. A key part of the Supreme Court's analysis is that the lack of the jurat could be cured if the defect was pointed out. We wrote about the decision here. Scott Stolley and I have also predicted that the rationale in the case could lead to more defects being held to be defects of form on the basis that they are correctable.
In Washington DC Party Shuttle, LLC, the en banc Fourteenth Court of Appeals first noted that there is a split among the courts of appeals (and even within the Fourteenth Court, which is why the court took the case en banc). The Second, Fourth, Fifth, Sixth, Seventh, Tenth, and Eleventh courts had all held that an objection to lack of personal knowledge had to be raised in the trial court or it would be waived. The Third and the Eighth courts, while acknowledging contrary views, held that it was a substantive objection that could be waived at any time.
The en banc court relied on two key arguments to decide that the defect is one of form. First, the court pointed to the Texas Supreme Court's decision in Grand Prairie Independent School District v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990). There, the Supreme Court had held that the failure to demonstrate personal knowledge was a defect in form. Although the Supreme Court has not been consistent since Vaughan, it has never been overruled.
Second, the en banc court noted that requiring an objection is consistent with the overall policies of error preservation that the trial court should be given the first opportunity to correct errors before appeal and that a litigant should not be able to surprise his opponent on appeal. These policy reasons are similar to those that underlie the Supreme Court's decision in The Mansions in the Forest. Therefore, Washington DC Party Shuttle is likely just the next in what may be a long line of cases holding that a particular defect is one of form that must be raised or waived.
In short, when in doubt, go ahead and object, particularly when your opponent could correct the defect if it were to be pointed out. It is increasingly likely that such defects will be held to be defects of form that may be waived.
-- Rich Phillips, Thompson & Knight
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