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The Mansions in the Forest L.P. v. Montgomery County

The court of appeals held that omission of a jurat was a substantive defect under both the Texas Government Code and Texas Rule of Civil Procedure 166a, and that such a defect could be raised for the first time on appeal. Neither the Texas Government Code nor Texas Rule of Civil Procedure 166a requires such an affidavit to contain a jurat. When the record lacks any indication that a purported affidavit was sworn to by the affiant, however, the written statement is not an affidavit under the Government Code, but such a defect is waived if not raised in the trial court. The court of appeals' judgment is reversed and remanded. Texas Supreme Court, No. 10-0969, 04-20-2012.

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In this case, we consider whether the lack of a jurat-a clause stating that a writing was sworn to before an authorized officer-in an affidavit opposing a motion for summary judgment is a defect that must have been objected to before the trial court ruled on the motion in order to preserve error. The court of appeals held that omission of a jurat was a substantive defect under both the Texas Government Code and Texas Rule of Civil Procedure 166a, and that such a defect could be raised for the first time on appeal. ___ S.W.3d ___, ___ (Tex. App.-Beaumont 2010). We disagree. We hold that neither the Government Code nor Rule 166a requires such an affidavit to contain a jurat. When the record lacks any indication that a purported affidavit was sworn to by the affiant, however, the written statement is not an affidavit under the Government Code, but such a defect is waived if not raised in the trial court. Accordingly, we reverse the court of appeals’ judgment and remand the case to that court for further proceedings.

The Mansions in the Forest, L.P. and The Estates–Woodland, L.P. (collectively, Landowners) own property in Montgomery County, Texas. To widen Farm to Market Road 1488, Montgomery County exercised its eminent–domain power to seize portions of three properties owned by Landowners. To ensure Landowners were properly compensated,the County requested the appointment of special commissioners to assess the fair market value of the seized land and determine the diminution in value of Landowners’ remaining property. See TEX. PROP. CODE § 21.014.

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