Mai N. Lam and Prohibition Theatre LLC v. PNR Investments, Inc. D/B/A Tony K's Home of Fine Spirits

Affirmed and Opinion filed May 30, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00005-CV

MAI N. LAM AND PROHIBITION THEATRE, LLC, Appellants
V.
PNR INVESTMENTS, INC. D/B/A TONY K’S HOME OF FINE SPIRITS,
Appellee

On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2021-55342

OPINION
Two defendants challenge on appeal the trial court’s award of reasonable
and necessary attorney’s fees against them in a final summary judgment,
complaining of two defects in the attorney’s fees affidavit submitted by the
plaintiff. Concluding that each of these defects is a defect in form and that the
nonmovants waived their complaints as to these defects by failing to timely object
in the trial court, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND

Appellee/plaintiff PNR Investments, Inc. d/b/a Tony K’s Home of Fine
Spirits (“PNR”) filed suit against appellants/defendants Mai N. Lam and
Prohibition Theatre, LLC (the “Lam Parties”) asserting claims for breach of
contract and seeking to recover the balance allegedly due on a sworn account, as
well as reasonable and necessary attorney’s fees. The Lam Parties answered,
asserting a general denial but not a sworn denial.

PNR filed a traditional motion for summary judgment, seeking judgment
against the Lam Parties for the amount of the account, reasonable and necessary
attorney’s fees, expenses, court costs, and prejudgment and postjudgment interest.
In support of its request for attorney’s fees, PNR submitted a four-page document
that purported to be an affidavit from its attorney (the “Affidavit”). The Affidavit
contained statements proving up the reasonable and necessary attorney’s fees and
expenses sought by PNR. The last page had a signature block for the attorney to
sign, but there was no signature. There also was a place for a notary to certify that
the affiant had sworn to the statements in the Affidavit and to affix the notarial
seal. But this part was not filled out, and there was no certification or seal of a
notary.

The Lam Parties did not file a response to the summary-judgment motion or
assert an objection to any of the summary-judgment evidence. The trial court
signed a final summary judgment awarding PNR $12,690.52 in actual damages,
$5,000 in reasonable and necessary attorney’s fees, $1,715.34 in reasonable and
necessary expenses, court costs, and postjudgment interest. The amounts of
attorney’s fees and expenses awarded were the same as the amounts stated in the
Affidavit.

The Lam Parties timely filed a motion for reconsideration asserting that the

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trial court should set aside and vacate its award of attorney’s fees on the ground
that there was no evidence of attorney’s fees because the Affidavit was not signed
and thus has no evidentiary value. PNR responded in opposition asserting that it
had inadvertently filed the unsigned Affidavit, and PNR submitted a version of the
Affidavit with the same text that was signed and notarized on the date that PNR
filed its summary-judgment motion (the “Signed Affidavit”). PNR argued that the
Lam Parties’ objection that the Affidavit was not signed was an objection to form
that the Lam Parties waived by failing to timely raise the objection. The trial court
denied the Lam Parties’ motion for reconsideration without stating that it was
considering the Signed Affidavit or granting PNR leave to supplement the
Affidavit or the summary-judgment evidence. The Lam Parties timely perfected
this appeal.

II. ISSUES AND ANALYSIS

In their sole issue the Lam Parties assert that the trial court erred in granting
a summary judgment awarding attorney’s fees based on the Affidavit because it
was unsigned and unsworn. The Lam Parties correctly note that the Affidavit was
the only evidence of reasonable and necessary attorney’s fees submitted by PNR in
support of its summary-judgment motion.
If PNR’s traditional summary-judgment motion and evidence facially
established its right to judgment as a matter of law as to the amount of PNR’s
reasonable and necessary attorney’s fees, then the burden shifted to the Lam
Parties to raise a genuine, material fact issue sufficient to defeat summary
judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.
2000). If this burden shifted, then PNR was entitled to summary judgment because
the Lam Parties did not respond to the summary-judgment motion. See id. But the
Lam Parties contend that the summary-judgment evidence did not establish PNR’s

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right to judgment as a matter of law as to reasonable and necessary attorney’s fees
because the Affidavit was unsigned and unsworn and therefore without evidentiary
value and incompetent to support a summary judgment. If this contention is
correct, then the summary-judgment evidence does not facially establish this right,
and the trial court erred in granting summary judgment as to the amount of
reasonable and necessary attorney’s fees. Though the Lam Parties did not file a
response to PNR’s summary-judgment motion they still may challenge on appeal
the sufficiency of PNR’s proof as to attorney’s fees. See id.; Butt v. Ali, No. 14-15-
01096-CV, 2017 WL 1015583, at *3 (Tex. App.—Houston [14th Dist.] Mar. 14,
2017, no pet.) (mem. op.).
If the failure of the Affidavit to be sworn or signed is a defect in form, then
the Lam Parties waived their objection to the Affidavit by failing to raise it before
the trial court granted summary judgment. See Seim v. Allstate Texas Lloyds, 551
S.W.3d 161, 164 (Tex. 2018); Life Ins. Co. of Va. v. Gar-Dal, Inc., 570 S.W.2d
378, 381 (Tex. 1978); Adi v. Prudential Prop. & Cas. Ins. Co., No. 14-01-01001-
CV, 2003 WL 22908129, at *3 (Tex. App.—Houston [14th Dist.] Dec. 11, 2003,
pet. denied) (mem. op.). On the other hand, if such a failure is a defect in
substance, then the Lam Parties did not waive their objection and may raise it after
judgment in the trial court and on appeal. See Seim, 551 S.W.3d at 164.
A. Did the trial court err in granting summary judgment as to attorney’s
fees because the Affidavit was unsworn?
The Lam Parties assert that under Government Code section 312.011(1) an
affidavit must be sworn to before an officer authorized to administer oaths, and
officially certified to by the officer under the officer’s seal of office. See Tex.
Gov’t Code Ann. § 312.011(1) (West, Westlaw through 2023 4th C.S.). The Lam
Parties assert that an unsworn statement that purports to be an affidavit is
incompetent summary-judgment evidence and will not support a summary

4
judgment. Liberally construing the Lam Parties’ brief, they assert that the absence
of some evidence that the Affidavit was sworn to by PNR’s attorney before an
authorized officer is a defect in substance, and thus no objection from the Lam
Parties was required before the trial court granted summary judgment. See Seim,
551 S.W.3d at 164. PNR asserts that this defect is a defect in form and that the
Lam Parties waived any objection to the defect by their failure to timely object.
The Supreme Court of Texas addressed these issues in its opinion in Mansions in
the Forest, L.P. v. Montgomery County. See 365 S.W.3d 314, 316–18 (Tex. 2012).

The Government Code defines “affidavit” as “a statement in writing of a fact
or facts signed by the party making it, sworn to before an officer authorized to
administer oaths, and officially certified to by the officer under his seal of office.”
Tex. Gov’t Code Ann. § 312.011(1). When an affidavit meets the Government
Code’s requirements, it may be presented as summary judgment evidence if it
complies with Texas Rule of Civil Procedure 166a(f). See Tex. R. Civ. P. 166a(f);
Mansions in the Forest, 365 S.W.3d at 316. The Mansions court concluded that if a
written statement does not meet this basic definition, it is “no affidavit at all.”
Mansions in the Forest, 365 S.W.3d at 316 (quoting Hardy v. Beaty, 19 S.W. 778,
779 (Tex. 1892)).
The Mansions court proceeded to address whether an affidavit must contain
a jurat. See id. at 316–17. A jurat is a certification by an authorized officer, stating
that the writing was sworn to before the officer. d. at 316. While the Government
Code requires that an affidavit be sworn to, it does not require a jurat or clause
stating that the writing was sworn to before the officer. Tex. Gov’t Code Ann. §
312.011(1); see Mansions in the Forest, 365 S.W.3d at 316. Similarly, Texas Rule
of Civil Procedure 166a(f) does not require that an affidavit used as evidence in a
summary-judgment proceeding contain an officer’s attestation to the affiant’s oath.

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See Tex. R. Civ. P. 166a(f); see Mansions in the Forest, 365 S.W.3d at 316.
Normally, an affidavit includes a jurat to prove that the written statement was
made under oath before an authorized officer. See Mansions in the Forest, 365
S.W.3d at 316–17. The Mansions court determined that if a purported affidavit
lacks a jurat, other evidence must show that it was sworn to before an authorized
officer and thus satisfies the Government Code’s definition of “affidavit.” See id.
at 317.

Under the Mansions precedent, the Affidavit in today’s case was not
required to contain a jurat to meet the requirements of the Government Code or to
satisfy Rule 166a. See Tex. Gov’t Code Ann. § 312.011(1); Tex. R. Civ. P. 166a(f).
To meet the Government Code’s requirements, however, the record must contain
some evidence that the purported affidavit was sworn to by PNR’s attorney before
an authorized officer. See Mansions in the Forest, 365 S.W.3d at 317. Here, the
summary-judgment evidence lacks any indication that the Affidavit was ever
sworn to by PNR’s attorney. Accordingly, the Affidavit does not meet the
requirements of the Government Code and is “no affidavit at all.” See id. at 316.
Nonetheless, if this defect is a defect in form, then the Lam Parties waived their
objection to the Affidavit by failing to raise it before the trial court granted
summary judgment. See Seim, 551 S.W.3d at 164; Life Ins. Co. of Va., 570 S.W.2d
at 381; Adi, 2003 WL 22908129, at *3.
The Mansions court also addressed whether the absence of any evidence that
a purported affidavit was sworn to by the affiant before an authorized officer is a
defect in form or a defect in substance. See Mansions in the Forest, 365 S.W.3d at
317–18. The high court discussed preservation-of-error principles and stated that
the court had allowed parties to deviate from the error-preservation requirement in
“certain limited circumstances.” Id. at 317. Nonetheless, the high court noted that it

6
had never held that an affidavit’s alleged failure under Texas Government Code
section 312.011 is excepted from the general requirement of error preservation. See
id. Even though the defect in question made the document “no affidavit at all,” and
even though six courts of appeals 1 had previously concluded that this defect was a
defect in substance, the Mansions court concluded that if a purported affidavit
lacks a jurat and a litigant fails to provide extrinsic evidence to show that it was
sworn to before an authorized officer, this is a defect in form, and an opposing
party waives its objection to this defect if it fails to timely object in the trial court.2
See id. at 317–18. When the trial court granted PNR’s summary-judgment motion,
the Lam Parties had not raised any complaint regarding PNR’s failure to provide
an executed jurat or other evidence showing that the Affidavit was sworn to before
an authorized officer. Therefore, the Lam Parties waived their objection to this
defect in form, and the trial court did not err in granting summary judgment as to
attorney’s fees because the Affidavit was unsworn. See Seim, 551 S.W.3d at 164;
Mansions in the Forest, 365 S.W.3d at 316–18; Life Ins. Co. of Va., 570 S.W.2d at
381; Adi, 2003 WL 22908129, at *3.
B. Did the trial court err in granting summary judgment as to attorney’s
fees because the Affidavit was unsigned?
The Lam Parties further argue that Government Code section 312.011(1)
requires that an affidavit must be signed by the party making it. See Tex. Gov’t

1
The Fourteenth Court of Appeals was one of these six courts. Two other courts of appeals had
effectively concluded that the absence of a jurat was a defect in substance, a conclusion similar
to the holding of the other six courts of appeals. The Mansions court cited no court decision that
agreed with its holding. See Mansions in the Forest, 365 S.W.3d at 316–18.
2
The Lam Parties cite the Second Court of Appeals’s opinion in Dixon v. Mayfield Bldg. Supp.
Co. See 543 S.W.2d 5, 7–8 (Tex. Civ. App.—Fort Worth 1976, no writ). But this case does not
address whether this defect is a defect in form or in substance, and in any event we are bound by
the Supreme Court of Texas’s holding in Mansions. See Mansions in the Forest, 365 S.W.3d at
316–18; Dixon, 543 S.W.2d at 7–8.

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Code Ann. § 312.011(1). Liberally construing the Lam Parties’ brief, they also
argue that the absence of the affiant’s signature in the Affidavit is a defect in
substance, and thus they were not required to object to this defect before the trial
court granted summary judgment. See Seim, 551 S.W.3d at 164. PNR asserts that
this defect is a defect in form and that the Lam Parties waived their objection to the
defect by failing to timely object.

In Mansions, the Supreme Court of Texas concluded that the absence of
evidence showing that an affidavit was sworn to before an authorized officer is a
defect in form and not substance. The question now is whether the rationale in
Mansions should also apply to an unsigned affidavit. The parties have not cited and
research has not revealed any precedent from the Supreme Court or this court
addressing whether an affiant’s failure to sign a purported affidavit is a defect in
form or a defect in substance. We conclude that the same rationale expressed in
Mansions with respect to error preservation concerning an unsworn affidavit
applies equally to an unsigned affidavit.

In Mansions, the summary-judgment movant waited until the case was on
appeal before it objected to the nonmovants’ failure to submit evidence showing
that their affidavit was sworn to before an authorized officer. See Mansions in the
Forest, 365 S.W.3d at 315–16. The Mansions court noted that such a failure meant
the instrument was “no affidavit at all,” but rather than conclude that the defect
was a defect in substance on this basis, the court proceeded to analyze whether this
defect should be subject to the error-preservation requirement. See id. at 317–18.
The high court stated that it had previously allowed parties to deviate from the
error-preservation requirement in “certain limited circumstances.” Id. at 317. The
Mansions court recognized the “important prudential considerations” supporting
Texas’s longstanding error-preservation requirement. See id. A timely and specific

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complaint alerts the trial court and the adversary to the purported error, giving both
a chance to remedy the problem and thus avert the need to raise the issue on
appeal. See id. Requiring error preservation avoids unfairness, gives deference to
the trial court, and encourages the proper administration of justice by having the
parties and the trial court tackle the issues before they reach the court of appeals.
See id. In this way, the error-preservation rule spurs efficiency, prevents
unnecessary expense, and safeguards judicial resources. See id. It also deters the
gamesmanship that sometimes accompanies the exceptions to the error-
preservation requirement. See id. The Mansions court observed that if a purported
affidavit lacks a jurat and a litigant fails to provide extrinsic evidence to show that
it was sworn to before an authorized officer, requiring the opposing party to timely
object to this error gives the litigant a chance to correct the error. See id. After
considering the prudential considerations supporting the error-preservation
requirement, the high court determined that even such an obvious and substantial
defect was a defect in form and thus still subject to the error-preservation rule. See
Seim, 551 S.W.3d at 166; Mansions in the Forest, 365 S.W.3d at 317–18.
If the affidavit in Mansions presented a defect in form, then the unsworn
Affidavit in today’s case does too. See Seim, 551 S.W.3d at 166; Mansions in the
Forest, 365 S.W.3d at 317–18; Grady v. Nationstar Mortgage, LLC, No. 02-19-
00006-CV, 2020 WL 5242418, at *5 (Tex. App.—Fort Worth Sep. 3, 2020, pet.
denied) (mem. op.). The Second Court of Appeals reached the same conclusion in
Grady v. Nationstar Mortgage. See 2020 WL 5142418, at *5. There, the signature
block for the affiant contained “/s/” followed by the affiant’s typed name, and the
signature block for the notary contained “/s/” followed by the notary’s typed name.
The Grady court presumed for the purposes of its analysis that under Texas Rule of
Civil Procedure 21, “/s/” followed by a typed name did not constitute an affiant’s
or a notary’s signature. See Tex. R. Civ. P. 21(f)(7)(A) (stating that an
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electronically filed document is considered signed if the document includes “a ‘/s/’
and name typed in the space where the signature would otherwise appear, unless
the document is notarized or sworn” (emphasis added)); Grady, 2020 WL
5242418, at *5, n.4. Under this presumption, the summary-judgment affidavit
lacked the affiant’s signature and the notary’s signature. See Grady, 2020 WL
5242418, at *5, n.4. The Second Court of Appeals applied the Mansions
preservation-of-error analysis and concluded that the failure of an affiant to sign a
purported affidavit is a defect in form and that the opposing party waived any
objection to this defect by failing to object in the trial court. See Grady, 2020 WL
5242418, at *5. The parties have not cited and research has not revealed any case
in which a court applies the Mansions preservation-of-error analysis and
determines that an affiant’s failure to sign a purported affidavit is a defect in
substance.
The Lam Parties rely on Nevarez Law Firm, PC v. Investor Land Services,
LLC. See 645 S.W.3d 870, 884 (Tex. App.—El Paso 2022, no pet.). In that case,
the court of appeals does not expressly address whether the failure of an affiant to
sign a purported affidavit is a defect in form or a defect in substance. See id.
Nonetheless, the court effectively treats this defect as one of substance. See id. The
Nevarez case is not on point because the court of appeals did not cite or apply the
Mansions precedent. See id. The Lam Parties also cite Hatcher v. TDCJ–
Institutional Division. See 232 S.W.3d 921, 925 (Tex. App.—Texarkana 2007, pet.
denied). The Hatcher opinion is not on point because it does not address whether
the failure of an affiant to sign a purported affidavit is a defect in form or a defect
in substance and it does not apply the Mansions precedent, which issued after the
Hatcher case was decided. See id. For the same reasons, the Second Court of
Appeals’s opinion in Dixon v. Mayfield Building Supply Company, cited by the
Lam Parties, is also not on point. See 543 S.W.2d 5, 7–8 (Tex. Civ. App.—Fort
10
Worth 1976, no writ).
After considering the prudential considerations supporting the error-
preservation requirement under the Mansions analysis, we conclude that that even
though the affiant’s failure to sign the purported affidavit makes the document “no
affidavit at all,” this too is a defect in form and that an opposing party waives its
objection to this defect if it fails to timely object in the trial court. See Mansions in
the Forest, 365 S.W.3d at 317–18; Seim, 551 S.W.3d at 166; Grady, 2020 WL
5242418, at *5. When the trial court granted PNR’s summary-judgment motion,
the Lam Parties had not raised any complaint regarding PNR’s attorney’s failure
sign the Affidavit. Therefore, the Lam Parties waived their objection to this defect
in form, and the trial court did not err in granting summary judgment as to
attorney’s fees because the Affidavit was unsigned. See Seim, 551 S.W.3d at 164;
Mansions in the Forest, 365 S.W.3d at 316–18; Life Ins. Co. of Va., 570 S.W.2d at
381; Grady, 2020 WL 5242418, at *5; Adi, 2003 WL 22908129, at *3.
C. Did the trial court err in denying the Lam Parties’ motion for
reconsideration?
We presume for the sake of argument that the Lam Parties challenge the trial
court’s denial of their motion for reconsideration. In their motion for
reconsideration the Lam Parties did not cite any evidence not available to them
when PNR’s summary-judgment motion was granted, and as to the complaints
raise by the Lam Parties on appeal, we have concluded that the trial court did not
err in granting the summary-judgment motion. Therefore, the Lam Parties have not
shown that the trial court erred in denying their motion for reconsideration. See
Balciunas v. Herman, No. 14-22-00029-CV, 2023 WL 4732823, at *2 (Tex.
App.—Houston [14th Dist.] Jul. 25, 2023, no pet.) (mem. op.).

III. CONCLUSION

Under binding precedent from the Supreme Court of Texas, if a purported
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affidavit lacks a jurat and a litigant fails to provide extrinsic evidence to show that
it was sworn to before an authorized officer, this is a defect in form, and an
opposing party waives its objection to this defect if it fails to timely object in the
trial court. When the trial court granted PNR’s summary-judgment motion, the
Lam Parties had not raised any complaint regarding PNR’s failure to provide an
executed jurat or other evidence showing that the Affidavit was sworn to before an
authorized officer. Therefore, the Lam Parties waived their objection to this defect
in form, and the trial court did not err in granting summary judgment as to
attorney’s fees because the Affidavit was unsworn. After considering the
prudential considerations supporting the error-preservation requirement under the
Mansions analysis, we conclude that that even though the affiant’s failure to sign
the purported affidavit makes the document “no affidavit at all,” this defect is a
defect in form and that an opposing party waives its objection to this defect if it
fails to timely object in the trial court. When the trial court granted PNR’s
summary-judgment motion, the Lam Parties had not raised any complaint
regarding PNR’s attorney’s failure sign the Affidavit. Therefore, the Lam Parties
waived their objection to this defect in form, and the trial court did not err in
granting summary judgment as to attorney’s fees because the Affidavit was
unsigned. 3 The Lam Parties have not shown that the trial court erred in denying
their motion for reconsideration. We overrule the Lam Parties’ sole issue and
affirm the trial court’s judgment.

/s/ Randy Wilson
Justice

Panel consists of Justices Hassan, Poissant, and Wilson.

3
We need not and do not address PNR’s other arguments on appeal as to why the trial court’s
judgment should be affirmed.

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