law-affidavit-on-best-knowledge-and-belief | what is an affidavit? | affidavit sufficiency | personal knowledge
requirement | affidavit by interested party | objection to affidavits | defects in affidavits | admission of evidence
BEST KNOWLEDGE QUALIFICATION IN SWORN AFFIDAVIT
As a preliminary matter, the attorney general contends that Mallory's verification was insufficient to support his
motion for new trial because Mallory attests in the affidavit that the facts in his motion are true and correct only
“to the best of his knowledge and belief," and not within his personal knowledge. But the attorney general
waived this objection when he failed to raise it in the trial court. See, e.g., Grand Prairie Indep. Sch. Dist. v.
Vaughan, 792 S.W.2d 944, 945 (Tex. 1990) (per curiam); Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103,
112 & n.9 (Tex. App.- Houston [14th Dist.] 2000, no pet.).
On rehearing, the attorney general argues that Mallory's recitation is “inconsistent with personal knowledge" and
cites Dailey v. Albertson's, Inc., 83 S.W.3d 222 (Tex. App.- El Paso 2002, no pet.), for the proposition that the
defect is one of substance and so may be raised for the first time on appeal. In Dailey, the affiant recited that
the facts in his affidavit were based on his personal knowledge, but the content of the affidavit affirmatively
showed that he lacked personal knowledge. See id. at 227. Here, Mallory stated in his motion that he received
the attached notice of hearing from the attorney general, a matter clearly within his personal knowledge.
Further, the attorney general does not dispute that the attached notice was the notice he sent, and he does not
contend that he sent any other notices to Mallory. Although the attorney general cites additional authorities,
none of them hold that a complaint about the recitation of personal knowledge in a verification may be made for
the first time on appeal. For this reason, we overrule the attorney general's motion for rehearing.
Mallory v. Mallory (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(Substituted Opinion by Brown)
(post-judgment default judgment in child support case without proper notice to defendant was reversible error)
(objection to affidavit based on best knowledge and belief not preserved for appellate review)
REVERSED AND REMANDED: Opinion by Justice Jeff Brown
Before Chief Justice Hedges, Justices Guzman and Brown
14-06-01009-CV Joel Mallory v. Sharon W. Mallory and The Office of the Attorney General of Texas Appeal
from 310th District Court of Harris County
Trial Court Judge: LISA A. MILLARD
CAUSES OF ACTION ELEMENTS | HOUSTON CASE LAW | TEXAS COURT OF APPEALS OPINIONS
HOUSTON OPINIONS HOME PAGE