It is well settled law in this state that a controverting affidavit containing such words as ‘on information and belief’, ‘knowledge and belief’, ‘verily believes’, ‘good reason to believe’ and ‘believes to be true’ are fatally defective . However, no court has ever condemned the use of the term ‘to his best knowledge’. The term ‘within my knowledge’ was approved in Coker v. Audas, Inc., 385 S.W.2d 862 (Tex.Civ.App., Texarkana, 1964, no writ). See also Knipe v. Rector, 463 S.W.2d 769 (Tex.Civ.App., Fort Worth, 1971, no writ) and Rice v. Tucson Credit Union, 413 S.W.2d 833 (Tex.Civ.App., Texarkana, 1967, no writ). It is the use of the word ‘believe’ which is found to be objectionable by our appellate courts. The words ‘believe’ and ‘knowledge’ or ‘best knowledge’ do not have the same meaning. ..... Industrial State Bank of Houston v. Wylie, 493 S.W.2d 293, 295 (Tex. Civ.App. —Beaumont 1973) Plea of Privilege Magic words indeed. Apparently, for an affidavit to be admitted into evidence, the test for its admissibility is whether it is based on the personal knowledge of the affiant such that, if the facts have been deliberately misrepresented, the affiant could be liable for perjury. Unless authorized by statute, an affidavit is insufficient unless the allegations contained therein are direct and unequivocal and perjury can be assigned upon it. Burke v. Satterfield, 525 S.W.2d 950 (Tex.1975). Michael’s affidavit, however, does not positively and unqualifiedly represent the “facts” as disclosed in the affidavit to be true and within his personal knowledge. The statements made in the affidavit lack the necessary factual specificity. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) Summary Judgment However, the courts seem to waiver in the use of magic words in some cases. Even though the personal knowledge of the affiant is not shown
strict requirements of Rule 166a-they must state facts, not belief..... Thus, such affidavits are held to constitute no evidence. Teixeira v. Hall , 107 S.W.3d 805, 809 (Tex.App.— Texarkana 2003) Dismissal of suit An affidavit which does not positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant’s personal knowledge is legally insufficient. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984); Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex.1975). The affidavits before us state that the affiant’s statements are based on his “own personal knowledge and/or knowledge which he has been able to acquire upon inquiry” and, hence, fail to unequivocally show that they are based on personal knowledge. Additionally, the affidavits provide no representation whatsoever that the facts disclosed therein are true. Because of these defects, the affidavits are legally invalid and cannot serve as evidence in support of State Farm’s claims of privilege. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) The trial court also sustained Mayo’s objection that Evelyn did not swear that the statements in the affidavit were “true and correct.” An affidavit that does not state that the facts recited are true, but is based on personal knowledge and is subscribed to and sworn before a notary public, is not defective. Fed. Fin. Co. v. Delgado, 1 S.W.3d 181, 184 (Tex. App.—Corpus Christi 1999, no pet.); Goggin v. Grimes, 969 S.W.2d 135, 138 (Tex. App.—Houston [14th Dist.] 1998, no pet.). Here, the affidavit meets these requirements, and the trial court abused its discretion in ruling to the contrary. Churchill v. Mayo , 080306 TXCA1, 01-04-00787 Summary Judgment
And finally,
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G r o w t h T h r o u g h E d u c a t i o n - A p r i l / M a y / J u n e 2 0 2 1
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