Affirmed and En Banc Opinion and Dissenting Opinion filed June 27, 2013.




                                  In The


                  Fourteenth Court of Appeals

                           NO. 14-12-00303-CV



WASHINGTON DC PARTY SHUTTLE, LLC, PARTY SHUTTLE TOURS,
    LLC AND CREATIVERSE INTERNET SYSTEMS, LLC, Appellants

                                    V.

 IGUIDE TOURS, LLC, TYREE COOK, AND ABISE ESHETU, Appellees


                 On Appeal from the 165th District Court
                         Harris County, Texas
                   Trial Court Cause No. 2012-12924



              EN BANC DISSENTING OPINION
      This court should follow recent precedent from the Supreme Court of Texas
and conclude that an affidavit’s failure to affirmatively show how the affiant has
personal knowledge of the statements contained therein is a defect of substance
and that the appellants’ failure to obtain a ruling from the trial court regarding this
defect does not preclude them from raising this issue on appeal. The evidence in
the case under review, a single affidavit, is legally insufficient to support the trial
court’s ruling on the special appearance, and the Supreme Court of Texas has held
that this legal insufficiency can be raised for the first time on appeal.1 Therefore,
this court should reverse the trial court’s special-appearance order and remand to
the trial court for rendition of an order that IGuide Tours, LLC’s special
appearance be denied.

Under recent Supreme Court of Texas precedent, the failure of an affidavit to
affirmatively show the affiant has personal knowledge is a defect of substance.
      Appellants/plaintiffs Washington DC Party Shuttle, LLC, Party Shuttle
Tours, LLC, and Creativerse Internet Systems, LLC (collectively “the Shuttle
Parties”) filed suit against appellees/defendants IGuide Tours, LLC, Tyree Cook,
and Abise Eshetu (collectively “the IGuide Parties”).            IGuide filed a special
appearance challenging the trial court’s personal jurisdiction. In support of the
special appearance, IGuide proffered as its only evidence a very brief affidavit
from Sewunet Habte, an IGuide employee. In response, the Shuttle Parties argued,
among other things, that the trial court should deny the special appearance because
the only evidence IGuide submitted, the Habte affidavit, is insufficient and not
competent because the affidavit does not show how Habte has personal knowledge

1
 See Office of Atty. Gen. of Texas v. Burton, 369 S.W.3d 173, 175 (Tex. 2012); BMC Software
Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).


                                            2
of the statements contained in it.            The trial court granted IGuide’s special
appearance.

          Under Texas Rule of Civil Procedure 120a, special-appearance affidavits
“shall be made on personal knowledge, shall set forth specific facts as would be
admissible in evidence, and shall show affirmatively that the affiant is competent
to testify.”2 This language is substantially similar to the language in the rule
regarding summary-judgment affidavits, and this court has applied the same
analysis in both contexts.3 Thus, a special-appearance affidavit must affirmatively
show how the affiant has personal knowledge of the statements contained in the
affidavit.4

          In response to IGuide’s special appearance, the Shuttle Parties argued that
the trial court should deny the special appearance because the Habte affidavit does
not show how Habte has personal knowledge of the factual matters set forth in the
affidavit. If this alleged defect is a defect in the form of the affidavit, then the
Shuttle Parties failed to preserve error because they did not obtain a ruling from the
trial court on this issue. For purposes of preservation of error, an appellate court
treats a party’s objections to defects in the form and defects in the substance of an


2
    Tex. R. Civ. P. 120a(3).
3
  See Tex. R. Civ. P. 166a(f) (stating that “[s]upporting and opposing 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”); Urban
v. Barker, No. 14-06-00387-CV, 2007 WL 665118, at *2–3 (Tex. App.—Houston [14th Dist.]
Mar. 6, 2007, no pet.) (relying on cases regarding summary-judgment affidavits in determining
that special appearance affidavit was insufficient under Texas Rule of Civil Procedure 120a(3))
(mem. op.).
4
  See Urban, 2007 WL 665118, at *2; Boston Medical Group v. Ellis, No. 14-06-00801-CV,
2007 WL 2447360, at *8 (Tex. App.—Houston [14th Dist.] Aug. 30, 2007, no pet.) (mem. op.).


                                                3
affidavit differently.5 Unlike a defect in form, a defect in the substance of an
affidavit is not waived by failure to obtain a ruling on the defect from the trial
court and may be raised for the first time on appeal.6 Substantive defects are those
that make the evidence legally insufficient.7 If the alleged defect in the Habte
affidavit is a defect in substance, then the Shuttle Parties’ failure to obtain a ruling
from the trial court does not bar them from raising this issue on appeal.8

          IGuide asserts that the Shuttle Parties waived the issue of whether the
affidavit affirmatively shows how Habte has personal knowledge because this is a
defect of form and the Shuttle Parties did not obtain an adverse ruling in the trial
court. Notably, in its most recent pronouncements in this regard, the Supreme
Court of Texas has treated this defect as a substantive one that renders the affidavit
legally insufficient.9

          In Marks, decided in 2010, the high court held that as to an issue of mistake
or accident, an affidavit was legally insufficient because it did not show that the

5
  See Harley-Davidson Motor Co., Inc. v. Young, 720 S.W.2d 211, 213 (Tex. App.—Houston
[14th Dist.] 1986, no writ).
6
    See id.
7
 See Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991); Harley-Davidson Motor Co., Inc., 720
S.W.2d at 213.
8
 See Burton, 369 S.W.3d at 175; Anderson v. Snider, 808 S.W.2d at 55; Harley-Davidson Motor
Co., Inc., 720 S.W.2d at 213.
9
  See Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 666 (Tex. 2010); Kerlin v. Arias,
274 S.W.3d 666, 668 (Tex. 2008). These cases were not special-appearance cases. But there is
no valid reason to apply a different analysis to affidavits in the special-appearance context. The
rule regarding special-appearance affidavits is substantially similar to the rule regarding
summary-judgment affidavits. See Tex. R. Civ. P. 120a(3); Tex. R. Civ. P. 166a(f). This court
has relied upon summary-judgment cases in reviewing the sufficiency of special-appearance
affidavits. See Urban, 2007 WL 665118, at *2–3 (relying on cases regarding summary-judgment
affidavits in determining that special appearance affidavit was insufficient under Texas Rule of
Civil Procedure 120a(3)).
                                                4
affiant had personal knowledge regarding this issue, without mentioning any
objection in the trial court.10 Similarly, in Kerlin, the high court determined that an
affidavit that did not affirmatively show any basis for the affiant’s personal
knowledge was legally insufficient and thus could not raise a fact issue precluding
summary judgment.11           These recent pronouncements conflict with a statement
contained in the high court’s 1990 opinion in Grand Prairie Indep. Sch. Dist. v.
Vaughan.12 But, when, as today, we are faced with conflicting statements from the
Supreme Court of Texas, this court is bound to follow the most recent statement
from the high court.13

          In prior cases this court has held that an affidavit’s failure to show how the
affiant has personal knowledge is a defect of form, but these cases either pre-date
or do not address the high court’s pronouncements in Marks and Kerlin.14 This

10
     See Marks, 319 S.W.3d at 666.
11
  See Kerlin, 274 S.W.3d at 668. See also Valenzuela v. State & County Mutual Fire Ins. Co.,
317 S.W.3d 550, 552, 553–55 (Tex. App.—Houston [14th Dist.] July 22, 2010, no pet) (citing
Kerlin and treating affidavit that did not affirmatively show how affiant had personal knowledge
of the statements therein as containing a substantive defect that rendered the affidavit legally
insufficient, though indicating in the factual-background section of the opinion that the trial court
overruled an objection asserting this argument).
12
     See 792 S.W.2d 944, 945 (Tex. 1990).
13
  See Hopkins v. Spring Indep. Sch. Dist., 706 S.W.2d 325, 329 (Tex. App.—Houston [14th
Dist.] 1986), aff’d, 736 S.W.2d 617 (Tex. 1987).
14
   See Hill v. Tootsies, Inc., No. 14-11-00260-CV, 2012 WL 1694372, at *2 (Tex. App.—
Houston [14th Dist.] May 15, 2012, no pet.) (mem. op.); Butler v. Hudson & Keyse, L.L.C., No.
14-07-00534-CV, 2009 WL 402329, at *2 (Tex. App.—Houston [14th Dist.] Feb. 19, 2009, no
pet.) (mem. op.); Chan v. Montebello Development Co., No. 14-06-00936-CV, 2008 WL
2986379, at *11, n.12 (Tex. App.—Houston [14th Dist.] July 31, 2008, pet. denied) (mem. op.);
Progressive County Mut. Ins. Co. v. Carway, 951 S.W.2d 108, 117 (Tex. App.—Houston [14th
Dist.] 1997, pet. denied). The en banc majority lists additional cases that do not hold that an
affidavit’s failure to affirmatively show how the affiant has personal knowledge of the
statements therein was a defect of form. See, e.g., Commint Tech. Servs., Inc. v. Quickel, 314
S.W.3d 646, 650 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (failing to address such an
objection); Mallory v. Mallory, No. 14-06-01009-CV, 2009 WL 1886110, at *1 (Tex. App.—
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court should follow these recent pronouncements and conclude that an affidavit’s
failure to affirmatively demonstrate how the affiant has personal knowledge of the
statements made therein is a defect of substance and that the Shuttle Parties’ failure
to obtain a ruling from the trial court does not preclude them from raising this issue
on appeal.15

The trial court erred in concluding that IGuide satisfied its burden to negate
personal jurisdiction.
          Simply stating that the affiant has personal knowledge of the statements in
the affidavit is inadequate unless the affidavit contains other statements that
affirmatively reveal how the affiant has personal knowledge.16 The affidavit must
disclose the basis on which the affiant has personal knowledge of the statements in
the affidavit.17 An affiant’s position or job responsibilities can qualify her to have
personal knowledge of facts and establish how she learned of the facts.18 Likewise,
affidavits demonstrating personal knowledge may describe the affiant’s position as


Houston [14th Dist.] July 2, 2009, no pet.) (addressing allegedly defective verification of motion
rather than affidavit’s failure to affirmatively show how affiant had personal knowledge);
Peterson Homebuilders, Inc. v. Timmons, No. 14-03-00400-CV, 2004 WL 1660936, at *4 n.2
(Tex. App.—Houston [14th Dist.] July 27, 2004, no pet.) (addressing objection that affidavits
failed to contain a statement that the facts set forth therein were true and correct and based on the
affiant's personal knowledge) (mem. op.). An objection that the affidavit lacks an express
statement that the affiant has personal knowledge is different from an objection that the affidavit
fails to affirmatively show that the affiant has personal knowledge of the statements contained
therein. See Krueger v. Gol, 787 S.W.2d 138, 141 (Tex. App.—Houston [14th Dist.] 1990, writ
denied). Another opinion contains a statement that whether an affiant has personal knowledge is
an objection to form, but that statement is an obiter dictum. See Hou-Tex, Inc. v. Landmark
Graphics, 26 S.W.3d 103, 112 & n.9 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
15
     See Marks, 319 S.W.3d at 666; Kerlin, 274 S.W.3d at 668.
16
     See Urban, 2007 WL 665118, at *2; Boston Medical Group, 2007 WL 2447360, at *8.
17
 See Southtex 66 Pipeline Co., Ltd. v. Spoor, 238 S.W.3d 538, 543 (Tex. App.—Houston [14th
Dist.] Oct. 23, 2007, pet. denied); Urban, 2007 WL 665118, at *2.
18
     See Valenzuela, 317 S.W.3d at 553; Southtex 66 Pipeline Co, 238 S.W.3d at 543.
                                                 6
well as the specific job duties through which she acquired personal knowledge
regarding the statements in the affidavit.19 The Habte affidavit does neither.

          In the affidavit, Habte states that she is competent to make the affidavit and
that she is employed by IGuide. Habte also states that “[t]he facts stated herein are
of my personal knowledge, and I know them to be true and correct.”                 But,
critically, Habte makes no other statements that arguably could be relevant to
whether the affidavit affirmatively shows how Habte has personal knowledge of
the statements contained in it. The affidavit submitted by the Shuttle Parties
contained evidence that Habte is a former employee of Washington DC Party
Shuttle, LLC.        At the hearing on the special appearance, the Shuttle Parties’
counsel indicated that the Shuttle Parties knew Habte through her former
employment and that Habte is “a $12-an-hour employee,” who is not an officer of
IGuide. Counsel for IGuide responded by asserting that “[t]he fact that the affiant
is only paid $12 an hour is irrelevant to the issue.”

          In some contexts, an affiant’s position with a company, by itself, could be
sufficient proof of the affiant’s personal knowledge. For example, this court has
held that a statement that the affiant is president of the company asserting a claim
on an account is sufficient to affirmatively show how the affiant has personal
knowledge of the affidavit statements regarding the account.20 In another case, the
Thirteenth Court of Appeals held that a statement that the affiant is senior vice-
president and secretary of a corporation asserting a special appearance is sufficient
to affirmatively show how the affiant has personal knowledge of the affidavit


19
     See Valenzuela, 317 S.W.3d at 553.
20
  See Requipco v. Am-Tex Tank & Equipment, Inc., 738 S.W.2d 299, 301 (Tex. App.—Houston
[14th Dist.] 1987, writ ref’d n.r.e.).
                                             7
statements regarding the corporation’s contacts with Texas.21             The Thirteenth
Court concluded that facts regarding a corporation’s contacts with another state
ordinarily would be within the personal knowledge of the senior vice-president and
secretary of that corporation.22

           By contrast, Habte does not state that she is an officer, director, or manager
of IGuide. Habte simply states she is an IGuide employee, without identifying her
position, describing her job duties, or providing any indication of the nature of her
work or responsibilities at IGuide. Habte does not explain how she has personal
knowledge regarding IGuide’s formation, members, contractual relationships, bank
accounts, advertising, or any contacts IGuide might have with Texas. Affidavits
with more information have been rejected as incompetent.

           For example, in Lawrence Marshall Dealerships v. Meltzer, a car dealership
sued one of its customers for breach of contract, and an issue in the case was the
amount of the “payoff” on a vehicle that the customer had “traded in” to the
dealership.23            In a summary-judgment affidavit regarding the amount of the
“payoff,” the affiant stated that he was the general manager of the car dealership
and that he had personal knowledge of the statements in the affidavit. 24 Though
the affiant stated his job title, he did not identify his responsibilities or any other
basis for personal knowledge of the statements in the affidavit.25             This court
concluded that the general manager’s affidavit did not affirmatively show how he
21
  See M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403, 407 (Tex. App.—Corpus Christi 1999,
no pet.).
22
     See id.
23
  See No. 14-07-00920-CV, 2009 WL 136908, at *1–4 (Tex. App.—Houston [14th Dist.] Jan.
20, 2009, no pet) (mem. op.).
24
     See id. at *1, 4.
25
     See id. at *4.
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had personal knowledge of the statements in the affidavit and that the affidavit did
not constitute competent evidence.26

          In another case, this court held that the affidavit of a claims manager of an
insurance company did not affirmatively show how the affiant had personal
knowledge of the statements in the affidavit.27 Though the affiant stated that she
was currently the claims manager for the insurance company and that she had
personal knowledge of the facts stated in the affidavit, this court noted that the
affidavit did not address whether the affiant was the claims manager when the
events discussed in the affidavit occurred and that the affidavit did not address how
the affiant’s job duties as claims manager gave her knowledge about the claim at
issue.28 This court held that the affidavit was incompetent and legally insufficient
because it did not affirmatively show how the affiant had personal knowledge of
the statements in the affidavit.29

          In today’s case, the Habte affidavit does not even rise to the level of the
general manager’s affidavit found incompetent in Meltzer or the claims manager’s
affidavit found incompetent in Valenzuela. Habte states only that she is an
employee of IGuide and that she has personal knowledge of the facts stated in her
affidavit. But, Habte does not so much as specify her position at IGuide. Though
employment as an officer of a corporation might inherently provide the basis for
personal knowledge regarding the corporation’s contacts with another state,
employment in an unspecified position is not enough to affirmatively show how
the affiant has personal knowledge regarding the company’s contacts with another
26
     See id.
27
     See Valenzuela, 317 S.W.3d at 552–55.
28
     See id. at 554.
29
     See id. at 554–55.
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state. Nothing in the affidavit discloses any basis upon which Habte could have
personal knowledge of the statements in the affidavit. Because Habte’s affidavit
does not affirmatively show how she has personal knowledge of the affidavit
statements, the affidavit is incompetent and legally insufficient to negate any basis
for personal jurisdiction.30 And, because the Habte affidavit is the only evidence
IGuide submitted, the evidence is legally insufficient to support the trial court’s
implied finding that IGuide satisfied its burden to negate personal jurisdiction. The
trial court erred in sustaining IGuide’s special appearance.31 Accordingly, this
court should sustain the first issue, reverse the trial court’s special-appearance
order, and remand to the trial court for rendition of an order that IGuide’s special
appearance be denied.

                                        CONCLUSION

       This court should follow recent precedent from the Supreme Court of Texas
and conclude that an affidavit’s failure to affirmatively show how the affiant has
personal knowledge of the statements contained therein is a defect of substance
and that the Shuttle Parties’ failure to obtain a ruling from the trial court regarding
this defect does not preclude them from raising this issue on appeal. Because the
complaint regarding personal knowledge that the Shuttle Parties asserted in the
30
  See Marks, 319 S.W.3d at 666 (holding, in part of opinion that was majority opinion, that as to
issue of mistake or accident, affidavit was legally insufficient because it did not show that the
affiant had personal knowledge regarding this issue); Kerlin, 274 S.W.3d at 668 (holding that
affidavit that did not affirmatively show any basis for the affiant’s personal knowledge was
legally insufficient and thus could not raise a fact issue precluding summary judgment);
Valenzuela, 317 S.W.3d at 552–55 (holding affidavit did not affirmatively show how affiant had
personal knowledge of the statements contained therein); Meltzer, 2009 WL 136908, at *1–4
(same as Valenzuela); Urban, 2007 WL 665118, at *2–3 (holding special-appearance affidavit
did not affirmatively show how affiant had personal knowledge of the statements contained
therein).
31
  See Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 555 (Tex. App.—Houston
[14th Dist.] 2003, no pet.).
                                               10
trial court and on appeal is valid, the Habte affidavit—the only evidence proffered
by IGuide—is legally insufficient. Thus, the evidence is legally insufficient to
support the trial court’s ruling on the special appearance, and this court should
reverse the trial court’s order and remand to the trial court for rendition of an order
that IGuide’s special appearance be denied. Because the en banc majority does not
do so, I respectfully dissent.




                                        /s/    Kem Thompson Frost
                                               Justice



The En Banc Court consists of Chief Justice Hedges and Justices Frost, Brown,
Boyce, Christopher, Jamison, McCally, and Busby. Justice Donovan is not
participating.

Justices Brown, Boyce, McCally, and Busby join the En Banc Opinion authored by
Justice Christopher. Justice Frost issues an En Banc Dissenting Opinion in which
Chief Justice Hedges and Justice Jamison join.




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