See TEX.R. CIV. P. 166a(f) (affidavit filed in support of motion for summary judgment "shall be made on personal knowledge . . . and shall show affirmatively that the affiant is competent to testify to the matters stated therein."). The Kyles cite Brans v. Office Building Managers, Inc., 593 S.W.2d 414 (Tex.Civ.App.-Dallas 1980, no writ), in support of their position. In Brans, the court concluded that a company's business records constituted inadmissible hearsay because the witness who testified about those records did not testify that he was "`a custodian of records' in order to dispense with the personal knowledge requirement" of the business-records exception to the hearsay rule.

Some courts have held that a verified denial is necessary, some have held it is not, and some have held both. We agree with Brans v. Office Building Managers, Inc., 593 S.W.2d 414, 415 (Tex.Civ.App. — Dallas 1980, no writ), and similarly reasoned cases: E.g., Van Voorhies v. Hudson, 683 S.W.2d 809, 810-811 (Tex.App. — Houston [14th Dist.] 1984, writ ref'd n.r.e.) (failure to file verified denial of capacity waived complaint on appeal that defendant dealt with plaintiff's corporation, not plaintiff individually); Biggs v. Garrett, 651 S.W.2d 342, 343 (Tex.App. — El Paso 1983, no writ) (same holding as Van Voorhies ); Sam Kane Beef Processors, Inc. v. Manning, 601 S.W.2d 93, 94-95 (Tex.Civ.App. — Corpus Christi 1980, no writ) (failure to file verified denial of capacity waived complaint on appeal that owner of cause of action was a corporation and not individual plaintiff).

Only if a plaintiff is seeking recovery in a representative capacity, however, does it become necessary for a defendant to deny plaintiff's capacity under rule 93. Brans v. Office Building Managers, Inc., 593 S.W.2d 414, 415 (Tex.Civ.App. — Dallas 1980, no writ). We have concluded that Thorne is not suing in any capacity other than his own.

Additionally, article 3737e(2) itself provides that the records may be proven by the testimony of any qualified witness or custodian, even though he may not have personal knowledge of the various items or contents of the records. Cf. Brans v. Office Building Managers, Inc., 593 S.W.2d 414 (Tex.Civ.App.-Dallas 1980, no writ). Thus, the custodian or qualified witness need not have personal knowledge of the information contained in the records to meet the requirements of article 3737e.

First, appellee did not seek recovery in its own right, but in a representative capacity. Cf. Carr v. Galvan, 650 S.W.2d 864 (Tex.App.-San Antonio 1983, writ ref'd n.r.e.); Brans v. Office Building Managers, Inc., 593 S.W.2d 414 (Tex.Civ.App.-Dallas 1980, no writ). Tex.R.Civ.Pro. 93(c) requires that an allegation that the plaintiff is not entitled to recover in the capacity in which it sues shall be verified by affidavit. Appellant's first amended original answer and counterclaim does not affirmatively dispute appellee's right to sue, and the accompanying oath contains no jurat. An unattested oath is not an affidavit.

Appellees correctly state the court's holding and respond that the court correctly granted the summary judgment because the pleadings did not establish Appellant's representative capacity. Appellant's second point of error alleges Appellees waived their right to challenge his capacity to sue by not filing a verified pleading under TEX.R.CIV.P. 93(b). Appellees contend that they did not need to file a verified pleading under TEX.R.CIV.P. 93(b), denying Appellant's capacity to sue because Appellant did not initially seek recovery in a representative capacity, See Brans v. Office Building Managers, Inc., 593 S.W.2d 414, 415 (Tex.Civ.App.-Dallas 1980, no writ). Appellees further claim that they did not need to file a verified pleading because Appellant's pleading, on its face, established that Appellant could not recover in the capacity in which he sued, citing Rector v. Metropolitan Life Insurance Co., 506 S.W.2d 696 (Tex.Civ.App. — Houston [1st Dist.] 1974, writ ref'd n.r.e.). Appellees have correctly stated the holdings of these cases, but they set forth rules to be applied to cases which had been tried on their merits.

However, it would only become necessary for appellant to deny appellee's capacity under Rule 93(c) if appellee were seeking recovery in a representative capacity. See Brans v. Office Building Managers, Inc. 593 S.W.2d 414, 415 (Tex.Civ.App. — Dallas 1980, no writ). We have reviewed the pleadings on file, and find that appellee went to trial on his First Amended Original Petition. This pleading shows appellee as the only named plaintiff. It does not reflect that appellee is suing in any representative capacity.