Opinion
No. 04-07-00648-CV
Delivered and Filed: June 4, 2008.
Appeal from the 365th Judicial District Court, Dimmit County, Texas Trial Court No. 04-11-10107-DCVAJA, Honorable Ron Carr, Judge Presiding.
AFFIRMED.
Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice.
MEMORANDUM OPINION
Appellant Cuatro Petro Corp. ("Cuatro") holds mineral leasehold estates in several tracts of land in Dimmit County, Texas, including the property owned by appellee McGill Real Estate, LLC ("McGill"). A dispute developed between Cuatro and McGill when, against McGill's wishes, Cuatro began using McGill's property to access one of its other leases. The trial court resolved this disagreement in favor of McGill through a series of partial summary judgments, culminating in a final judgment granting McGill declaratory and injunctive relief as well as attorney's fees. On appeal, Cuatro contends the trial court erred by granting McGill's motion for partial summary judgment on its claim for attorney's fees because the affidavit McGill provided in support of its motion fails to meet the personal knowledge requirement of Texas Rule of Civil Procedure 166a(f). See Tex. R. Civ. P. 166a(f) (requiring that "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."). We affirm.
McGill attached the affidavit of attorney John Petry in support of its traditional summary judgment motion, affirming that the reasonable and necessary attorney's fees in this case totaled $53,679.40. Cuatro filed a response to McGill's motion, noting that Petry's affidavit conditioned its assertion of the truth of its statements on affiant's "best knowledge and belief." Cuatro argued that an affidavit based on an affiant's "best knowledge and belief" is insufficient as an affidavit and thus could not support McGill's summary judgment motion. See Lightfoot v. Weissgarber, 763 S.W.2d 624, 628 (Tex.App.-San Antonio 1989, writ denied) ("It is a long established rule in Texas that affidavits, in order to constitute summary judgment proof, must be sworn to on personal knowledge and that those sworn to on best knowledge and belief are insufficient.").
When a summary judgment affidavit does not rest on personal knowledge, but rather rests on the "best knowledge and belief" of the affiant, such deficiency is considered a defect in the form of the affidavit. Wynne v. Citibank (S. D.) N.A., No. 07-06-0162-CV, 2008 WL 1848286, *4 (Tex.App.-Amarillo Apr. 25, 2008, no pet. h.) (mem. op.); Walkoviak v. Hilton Hotels Corp., 580 S.W.2d 623, 626-27 (Tex.Civ.App.-Houston [14th Dist.] 1979, writ ref'd n.r.e.). If a party fails to object to a defect in the form of an affidavit or fails to secure an adverse ruling on such an objection, then any complaint the party may have had to the form of the affidavit is waived. Seidner v. Citibank (S.D.) N.A., 201 S.W.3d 332, 335 (Tex.App.-Houston [14th Dist.] 2006, pet. denied); Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 316-17 (Tex.App.-San Antonio 2000, no pet.). Although Cuatro objected to the form of Petry's affidavit, its objection was not ruled upon by the trial court. By failing to obtain a ruling on its objection from the trial court, we must conclude Cuatro waived its objection to the form of McGill's summary judgment evidence. See Wynne, 2008 WL 1848286 at *4; Well Solutions, 32 S.W.3d at 317. Cuatro's sole appellate complaint is therefore overruled.
The judgment of the trial court is affirmed.