specifically in the affidavit, sometimes courts are willing to accept a lesser express level of personal knowledge. 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 invalid. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex.1994). An affidavit that states that it is based on “personal knowledge and/or knowledge acquired upon inquiry” does not unequivocally show that it is based on personal knowledge, and therefore cannot serve as evidence. Id. at 470-71. However, where the affidavit does not specifically recite that the facts set forth there are true, but does set out that it is based on personal knowledge and is subscribed to and sworn before a notary public, it is not defective if, when considered in its entirety, its obvious effect is that the affiant is representing that the facts stated therein are true and correct. Federal Financial Co. v. Delgado 1 S.W.3d 181 (Tex.App. —Corpus Christi 1999) (emphasis added) Summary Judgment And the lesson to be learned from these cases - Use the form language recommended above every time and the issue of admissibility of any affidavit in any subsequent trial where reliance on same is important will not arise for failure of the affiant to state that the information set forth in the affidavit is based on his/her personal knowledge. 2. Competency of the affiant - How the affiant came to know the facts It is not enough that an affidavit show that the facts are within the personal knowledge of the affiant. In addition, the affiant must demonstrate how and under what circumstances he/she obtained knowledge of the facts and why he/she is qualified to make such an affidavit. For instance, many affidavits of use and occupancy reviewed by the author for curative purposes contain a metes
and bounds description of the property under examination and/or a plat of same. Nowhere in the affidavit is it stated that the affiant surveyed the property, caused the plat to be made nor how the affiant can state that both or either is accurate. Only the surveyor could swear/testify as to the accuracy of a metes and bounds description/survey plat, thus raising a substantive issue of admissibility of the entire affidavit into evidence. It should be noted that failure to object to the admissibility of an affidavit due to a lack of competency on the part of the affiant results in the waiver of the defect. Rule 166a(f) requires an affidavit to show it is made by a person who is competent to testify on the matter. Radio Station KSCS v. Jennings, 750 S.W.2d 760, 761-62 (Tex.1988); Box v. Bates, 162 Tex. 184, 346 S.W.2d 317, 319 (1961). If no objection to the competence of the witness is made, the defect is waived. Woods Exploration & Producing Co. v. Arkla Equip. Co., 528 S.W.2d 568, 570-71 (Tex.1975). Because defendant did not object to the plaintiff’s competence, he waived this defect . Rizkallah v. Conner, 952 S.W.2d 580, 586 (Tex.App. —Houston [1 Dist.] 1997) (emphasis added) Summary Judgment The above affidavit form utilizes the following statement: “Statements of fact and conclusions based on those facts personally within knowledge of affiant.” Almost all of the affidavits whose admissibility was controverted reviewed by the author contained an identical or very similar provision. The provision is an attempt to establish competency of the affiant as to the facts and conclusions recited in the affidavit by the affiant. Such statement, standing alone, will not establish competency of the affiant. This provision clearly shows that the mere statement that affiant has personal knowledge of every statement made is not sufficient because it is further provided: ‘* *
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N a t i o n a l A s s o c i a t i o n o f D i v i s i o n O r d e r A n a l y s t s
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