Jurat | affidavits |
JURAT | AFFIDAVIT SUFFICIENCY |
PROPER NOTARIZATION OF SWORN STATEMENT
Appellees first complain that the affidavit was not competent summary judgment evidence because, although it
contained an acknowledgment, it did not contain a jurat.[2]
To constitute competent summary judgment proof, an affidavit must be made on personal knowledge, set forth
the facts that would be admissible in evidence, and show affirmatively that the affiant is competent to testify to
the stated matters. Tex. R. Civ. P. 166a(f).
An affidavit is a "statement in writing of a fact or facts signed by the party making it, sworn to before an officer
authorized to administer oaths, and officially certified to by the officer under his seal of office." Tex. Gov't Code
Ann. §312.011(1) (Vernon 2005).
The jurat of an affidavit is a "certificate by a competent officer that the writing was sworn to by the person
who signed it." Huckin v. Connor, 928 S.W.2d 180, 183 (Tex. App.- Houston [14th Dist.] 1996, writ denied)
(quoting Acme Brick v. Temple Assocs., Inc., 816 S.W.2d 440, 441 (Tex. App.- Waco 1991, writ denied)).
2-05-306-CV
http://www.2ndcoa.courts.state.tx.us/opinions/HTMLOpinion.asp?OpinionID=17301
Appellees contend that without a jurat, McCauley's affidavit is not actually an affidavit; thus, it does not
constitute proper summary judgment evidence. They direct our attention to several cases, which we find to be
distinguishable from the present case. In two of the cases, the purported affidavits were not signed by a
notary. See Medford v. Medford, 68 S.W.3d 242, 247 (Tex. App.- Fort Worth 2002, no pet.) (stating that the
purported affidavit clearly did not constitute an affidavit because it did not contain a notarization); Clendennen
v. Williams, 896 S.W.2d 257, 260 (Tex. App.- Texarkana 1995, no writ) (determining that the statement did not
constitute an affidavit because the notary's certificate was left blank, it was not signed by a notary, and it bore
no seal). In two other cases, the summary judgment "proof" was insufficient because it was not supported by
an affidavit. See Moran v. Heredia, 133 S.W.3d 668, 671 (Tex. App.- Corpus Christi 2003, no pet.) (concluding
that a report did not constitute proper summary judgment proof because it was neither verified nor
accompanied by an affidavit); Coastal Cement Sand, Inc. v. First Interstate Credit Alliance, Inc., 956 S.W.2d
562, 567 (Tex. App.- Houston [14th Dist.] 1997, writ denied) (explaining that without a notarization or jurat, an
unsworn statement is not an affidavit and is not proper summary judgment evidence).
The two final cases cited by Appellees do not appear to be current Texas law based on the facts before us.
See Perkins v. Crittenden, 462 S.W.2d 565, 567-68 (Tex. 1970) (holding that because the purported affidavit
contained only an acknowledgment, it was not an affidavit at all); Totman v. Control Data Corp., 707 S.W.2d
739, 741 (Tex. App.- Fort Worth 1986, no writ) (op. on reh'g) (concluding that because the purported affidavit
contained no jurat, it was not proper summary judgment evidence). These cases were decided prior to the
most recent Texas Supreme Court case that is directly on point with the present case. See Ford Motor Co. v.
Leggat, 904 S.W.2d 643, 645-46 (Tex. 1995) (org. proceeding).
In Ford Motor Co., the supreme court rejected the argument that an affidavit was invalid due to a defective
jurat, because the affidavit met the Texas statutory requirements for affidavits. Id. at 645. The supreme court
noted that the affidavit was proper, even without the jurat, because it contained an acknowledgment and recited
that the affiant "was 'first duly sworn," and 'on his oath' stated what followed." Id.
In the present case, the affidavit contained an acknowledgment and it further stated that McCauley personally
appeared before the notary, "duly swore upon his oath, deposed and stated" the information that followed.
Then, in the affidavit, McCauley stated that he was authorized to make the affidavit and that he had personal
knowledge of the facts stated therein. We conclude, therefore, that even without a jurat, the affidavit
constitutes proper summary judgment proof because it meets Texas' statutory requirements for affidavits. See
id.