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Trial lawyers often file summary judgment motions. Most motions
for summary judgment require supporting evidence. That evidence
often takes the form of affidavit. 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 312.011(1). A "jurat" is a
certification by an authorized officer stating that the writing was
sworn to before the officer. Perkins v. Crittenden, 462
S.W.2d 565, 568 (Tex. 1970). This is a jurat:
That is what happened in The Mansions in the Forest, L.P. v.
Montgomery County, 365 S.W. 3d 314 (Tex.2012). In an
affidavit in opposition to a summary judgment motion, the notary
certification stated that the affiant acknowledged, rather than
swore to, his statements. The opponent objected to the affidavit
but not because it lacked a jurat. The trial court sustained the
objections, excluded the affidavit, and granted summary judgment.
The loser appealed, challenging the exclusion of the
affidavit.
On appeal, the prevailing party raised a new objection to the
affidavit, namely, that it lacked a jurat and was not sworn to or
given under oath. The court of appeals affirmed the trial
court's ruling based on the newly-raised "jurat"
argument, holding that the lack of a jurat was a defense of
substance, not of form, and, therefore, could be raised for the
first time on appeal.
The Supreme Court reversed, holding that neither the Government
Code nor Rule 166a requires an affidavit to contain a jurat but
when the record lacks any indication that the purported affidavit
was sworn to by the affiant, a witness statement is not an
affidavit. Such defect is waived if not raised in the trial
court.
Another issue trial lawyers sometimes confront in obtaining
affidavits is that the witness does not have access to a notary.
For example, this may occur when a witness is outside the United
States. Federal law has long permitted unsworn declarations under
penalty of perjury. 28 U.S.C. § 1746. Effective September
1, 2011, for cases filed on or after January 1, 2012, Texas law
also permits an unsworn declaration under penalty of perjury to be
used in place of a written, sworn declaration, verification,
certification, oath or affidavit required by law. TEX. CIV. PRAC.
& REM. CODE § 132.001. To read Jadd Masso's blog
on unsworn declarations, please
click here.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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