Kerlin v. Soto Arias, No. 06-0097 (Tex. Nov. 14, 2008)(sufficiency of affidavit, personal knowledge,
GILBERT KERLIN, INDIVIDUALLY, GILBERT KERLIN, TRUSTEE, WINDWARD OIL & GAS CORP., AND PI
CORP v. GLORIA SOTO ARIAS, ET AL.; from Cameron County; 13th district
(13-03-00364-CV, ___ SW3d ___, 01‑05‑06)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Per Curiam Opinion
Kerlin v. Arias (Tex. 2008) (per curiam) (orig. proc.)
This is another suit claiming title to a substantial part of Padre Island. Unlike our recent case
concerning heirs of Juan Jose Balli, see Kerlin v. Sauceda, 263 S.W.3d 920 (Tex. 2008), this one
was brought by heirs of his nephew, Jesus Balli. The heirs seek to set aside an 1847 deed (and thus
all sales in the ensuing 161 years) on the basis of fraud. The trial court granted summary judgment
against the heirs, but the court of appeals reversed. ___ S.W.3d ___. As the only evidence of fraud
in 1847 is an affidavit by one of the current heirs — who could not possibly have personal knowledge
of those events — we reverse.
The 72 alleged heirs asserted in their petition that the 1847 deed was fraudulent because it was
signed by Jesus Balli’s father, even though Jesus was not a minor under either Texas or Mexican law
at the time. They sued Gilbert Kerlin, who apparently had no contact with them or their ancestors, but
owned substantial acreage in South Padre Island from 1942 until 1961. But cf. Strong v. Garrett, 224
S.W.2d 471, 476 (Tex. 1949) (holding judgment for title could not be entered against nonparties in
Kerlin moved for summary judgment on several grounds, including that the deed was valid. In
support, Kerlin tendered the deed — not the original in Spanish signed in Matamoros in 1847, but a
certified English translation filed in the Nueces County deed records later that same year. The
translated deed affirmatively states that:
* Jesus Balli was a minor at the time the deed was signed;
* his lawful guardian was his father, who had the power to administer and convey his son’s
* it was in his son’s best interest to sell the land because the war between the United States
and Mexico made it uncertain whether his title would be recognized; and
* his father accordingly sold the Padre Island property to Nicolas Grisanti on his son’s behalf.
The heirs did not contest this document’s authenticity. See Tex. R. Evid. 901(b)(7)–(8), 902(3)–(4)
(authenticating ancient documents, public records, and foreign public documents). Nor did they
challenge the accuracy of the translation. The statements in the translated deed are competent to
prove the facts stated therein under the rules of evidence. See Tex. R. Evid. 803(14), (16).
The heirs’ only responsive summary judgment evidence was a 2003 affidavit by Eva Castillo, in
which she avers that Jesus Balli was not a minor in 1847 because he was 22 years old and had
married. Kerlin objected to the affidavit on several grounds, including lack of personal knowledge
We agree with Kerlin that this affidavit creates no fact issue on fraud. Summary judgment affidavits
“shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Tex.
R. Civ. P. 166a(f). This affidavit fails on each count.
First, the only representation Castillo makes about the truth of her affidavit is that “[a]ll statements
contained herein are true and correct to the best of my personal knowledge and belief.” To have
probative value, an affiant “must swear that the facts presented in the affidavit reflect his personal
knowledge.” In re E.I. DuPont de Nemours and Co., 136 S.W.3d 218, 224 (Tex. 2004). An affiant’s
belief about the facts is legally insufficient. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.
1996); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).
Second, Castillo says she is competent to make the affidavit because she “heard testimony” in the
Juan Jose Balli case, “reviewed documents” related to the heirs’ claims, and “read historical
accounts about Padre Island.” Her testimony about these out-of-court sources was hearsay and
carries no probative weight over Kerlin’s objection. See Tex. R. Evid. 802; Gracey v. West, 422 S.W.
2d 913, 916 (Tex. 1968).
Third, nothing in the affidavit affirmatively shows how Castillo could possibly have personal
knowledge about events occurring in the 1840s. An affidavit showing no basis for personal
knowledge is legally insufficient. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994); Radio
Station KSCS v. Jennings, 750 S.W.2d 760, 762 (Tex. 1988). Accordingly, Castillo’s affidavit does
not raise a fact issue about whether Jesus Balli was a minor at the time his father sold his interest in
The court of appeals held otherwise, noting first that Kerlin attached only a copy of a translation of the
original deed rather than the original itself. ___ S.W.3d at ___. But the heirs did not challenge the
authenticity of this copy from the Nueces County deed records, and the best evidence rule does not
apply to originals located outside Texas. See Tex. R. Evid. 1004(c).
The court of appeals also faulted Kerlin for not responding to the heirs’ assertions by providing
“evidence of Jesus’ age or marital status at the time of the deed signing.” ___ S.W.3d at ___. But
Kerlin presented prima facie evidence that the 1847 deed was valid; he did not have any duty to
prove these additional details unless the heirs could raise a fact question regarding them. See
Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995) (“Once the defendant produces
sufficient evidence to establish the right to summary judgment, the plaintiff must present evidence
sufficient to raise a fact issue.”). This they did not do.
The summary judgment record here raises no fact question that the 1847 deed was fraudulent.
Accordingly, we grant Kerlin’s petition for review, and without hearing oral argument, we reverse the
court of appeals’ judgment and render judgment that the heirs take nothing. Tex. R. Civ. P. 59.1.
OPINION DELIVERED: November 14, 2008