On Friday, the Supreme Court of Texas issued its opinion in The Mansions in the Forest L.P. v. Montgomery County, No. 10-0969. Download the opinion here. The court decided that if a party does not object to a summary-judgment affidavit that lacks a jurat, the defect is waived.
Defects in summary-judgment affidavits come in two flavors: substantive and procedural. Substantive objections can be raised for the first time on appeal. Procedural objections must be raised in the trial court or they are waived. One way to think about the difference between substantive and procedural objections is that procedural objections relate to the admissibility of the evidence and substantive objections relate to competence of the evidence. Another way to think about the difference is that procedural defects are those that could be corrected if pointed out, but substantive defects could not be. But courts of appeals have not always agreed about which defects are procedural and which are substantive.
A jurat is a statement by an officer (usually a notary) stating that the writing was sworn before the officer. The Texas Supreme Court had held that a defective jurat was a procedural defect that must be raised or waived. Ford Motor Co. v. Leggat, 904 S.W.2d 643, 645-46 (Tex. 1995). But several courts of appeals had held that the complete absence of a jurat was a substantive defect that could be raised for the first time on appeal. See Laman v. Big Spring State Hosp., 970 S.W.2d 670, 672 (Tex. App.—Eastland 1998, pet. denied); Clendennen v. Williams, 896 S.W.2d 257, 260 (Tex. App.—Texarkana 1995, no writ); Tucker v. Atl. Richfield Co., 787 S.W.2d 555, 557 (Tex. App.—Corpus Christi 1990, writ denied); Elam v. Yale Clinic, 783 S.W.2d 638, 643 (Tex. App.—Houston [14th Dist.] 1989, no writ); Trimble v. Gulf Paint & Battery, Inc., 728 S.W.2d 887, 889 (Tex. App.—Houston [1st Dist.] 1987, no writ); Sturm Jewelry, Inc. v. First Nat'l Bank, 593 S.W.2d 813, 814 (Tex. Civ. App.—Waco 1980, no writ).
The Supreme Court has now addressed the issue of the complete absence of a jurat. In a per curiam opinion, the Court noted that neither the government code nor summary-judgment rule requires that an affidavit contain a jurat. They simply require that the affidavit be sworn to. While a jurat is one way to prove that the statement is sworn, it is not the only way.
The Court noted that the affidavit at issue did not contain a jurat or any other indication that it was sworn to. But the court held that any complaint about the affidavit was waived because it was not raised in the trial court. Although the result overruled opinions from several courts of appeals, it makes sense under either test to distinguish between substantive and procedural errors. The fact that the testimony is not sworn to affects its admissibility, not its competence. Moreover, the lack of a jurat (or other evidence that the statement is sworn) can be corrected if the defect is pointed out.
The Supreme Court's opinion specifically stated that the sponsoring party should have been given an opportunity to correct the defect. This may be an indication about how the Court would address preservation of error on other defects. The opinion also contains a nice summary of some key guiding principles behind preservation of error. I intend to cover those at more length in a future post.
-- Rich Phillips, Thompson & Knight
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