law-affidavit-best-knowledge-and-belief
Summary Judgment on Attorney's Fees
As noted, Wynne filed a response to Citibank's initial motion for summary judgment, controverting the
reasonableness and necessity of its claimed $7883.54 in attorney's fees. Citibank later filed an affidavit of
Allen Adkins, its attorney, dated June 1, 2005, and stating reasonable attorney's fees in the case totaled
$915. It then filed a motion for summary judgment on attorney's fees, giving notice of hearing on the
motion for December 15, 2005. Wynne filed a response to the motion, pointing out Adkins's affidavit
conditioned its assertion of the truth of its statements on "the best of [affiant's] knowledge and belief." (7)
Wynne's response asserted such an affidavit is no evidence, and asked that Citibank's motion be denied.
On the day of the hearing, December 15, Citibank filed an amended affidavit, the contents of which are
substantively identical to the June affidavit but omitted the "best of knowledge and belief" statement.
Wynne v. Citibank South Dakota N.A. (Tex.App.- Amarillo, Apr. 25, 2008)(Campbell)
Wynne contends on appeal the trial court erred by granting Citibank summary judgment for $915 in
attorney's fees. We will overrule the contention.
Wynne is correct that Adkins's June 1 affidavit was defective. The defect, however, was one of form, not
substance. As Wynne's objection at trial and her brief on appeal point out, the defect caused by the
improper inclusion of the "best of knowledge and belief" statement in the June 1 affidavit closely
resembles that in International Turbine Serv., Inc. v. Lovitt, 881 S.W.2d 805, 808 (Tex.App.-Fort Worth
1994, writ denied), in which the court found defective an affidavit by counsel based on best knowledge.
But the court also found that the right to complain of the defect on appeal was subject to waiver. Id.
Wynne filed an objection in the trial court to Adkins's June 1 affidavit, but the record does not reflect a
ruling on the objection. Cf. Martinez v. IBP, Inc., 961 S.W.2d 678, 685 (Tex.App.-Amarillo 1998, pet.
denied) (trial court overruled objection to summary judgment affidavit). Accordingly, no objection to the
trial court's reliance on Adkins's June 1 affidavit may be asserted now. (8) McConnell v. Southside Indep.
Sch. Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993); Youngblood v. U.S. Silica Co., 130 S.W.3d 461, 468-69
(Tex.App.-Texarkana 2004, pet. denied). The trial court did not err by granting summary judgment on
attorney's fees.
Concluding the trial court did not err by its grant of summary judgment, we overrule Wynne's issue and
affirm the judgment.
James T. Campbell