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 , Appellant s V. PNR INVESTMENTS, INC. D/B/A TONY K ’ S HOME OF FINE SPIRITS , Appellee
On Appeal from th e 61st Dis tr ict Court Harris County, Texas Trial Court Cause No. 2021

- 55342


### O P I N I O N
Two defendants challenge on appeal the trial c o urt ’s award of reasonable and necessary attorney ’s fees against them in a final summary judgment , c omp lain ing of two defects in th e attorne y’ s fees affidavit submitted by the plaintiff . Concluding that each of these defects is a defect in form and that the nonmovants waived their comp laints as to these defects by faili ng to timely object in the trial court, we affirm.2 I
. F ACTUAL AN D P ROCE DU RAL B ACKGROUND Appellee/plaintiff PNR Investments, Inc. d/b/a Tony K ’ s H ome o f Fine Spirits ( “ PNR ” ) filed suit aga inst appellants/defendants Mai N. Lam and Prohibition Theatre, LLC (the “ Lam Parties ” ) as serting claims for breach of

con tract an d s eeking t o recover the balance allegedly due on a sworn account , as well as reasonable a nd necessary attorney ’ s fees. The Lam Parties answered , asser tin g a general denial but not a sworn denial.
PNR file d a traditional motion for summar y judgment, seeki ng judgme nt against the Lam Parties for the amount of the account, reas onable and n ecessary attorney ’ s fees, expense s, co u r t costs , and prej udgment and po st judgment interest. In support of its request for atto rney ’ s fees, PNR su bmitted a four

- page do cument th at pur ported to be an affidavit from its att orney (the “ Affida vit ” )

. The A ffidavit

con tain ed statements proving up the r easonable and necessary att orne y ’ s fees and expenses sought by PNR. The last page had a signature b lock f or the atto rney to sig n, but th ere wa s no signature. There also was a place for a n otary to certify that the affiant had sw orn to the statements in the A f fi davit and to affix the no tarial

sea l . But this part was not filled out, and there was no certification or seal of a notar y.

The La m Par ti es did not file a resp onse to the summary

- judg ment motion or assert an objection to any of the summary

- judgment evidence

. The trial court signe d a final summary judgment awar ding PNR $12,690.52 in actual damages, $5,000 in reasonable and n ecessar y a ttorn ey ’ s fees, $1,715.34 in reasonable and

n ecessary expenses , court costs, and p ostjudgment interest. The amounts of attorney ’ s fees and expenses aw arded were th e same as the amounts stated in the A ffidavit

. The Lam Part ies t imely filed a mot ion for re consi deration asserting that the3 trial court should set aside and vacate it s award of attorney ’s fees on the grou nd that the re was no evidence of att o rney ’s fees beca use the Affi davit was not signed and thus has no evi dentiar y value. PNR responde d in op pos ition as s erting that it had inadvertent ly filed the unsigned Affi d avi t, and PNR submitted a version of the Affidavit with the same text th at was signed an d notarized o n the date that PNR filed its summary

- judgment motion (the “Signed Affidavit ”)

. PNR ar gue d that the Lam Parties ’ objection that the Affidavit was not sig ned was an objection to form that the Lam Parties waived by failing to timely ra ise the objection. The tri al court denied the Lam Par ties ’ motion for reconsideration without stating th at it wa s consi d ering the Signed Affidavit or granting PNR leave to supplement the Affidavit or the summary - judgment evidence

. The Lam Par ties timely perfected this appeal.
I I. I SSUES AND A NALYS I S In their sole issue the Lam Parties asse rt that the trial c ourt e rr ed in g ranting a summary judgment awarding attorney’s fees based on the Affidavit because it

was unsigned and unsworn

. The Lam Parti es correctly note t hat the Affidavit w as the only evidence of reasonable and ne cessary attorne y ’s fees submitted by PNR i n
s upport of its summary

- judgment motion

. If PNR ’s traditional summary - judgment motio n and evidence facially establish ed 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 shift ed t o t he Lam P arties to raise a genuine, material fact issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor In st. v. Willrich , 28 S.W.3d 2 2, 23 (Tex. 2000). If th is burden s hifted, then PNR was ent it led to summary judgment because the Lam Pa r ties did not respond to the s ummar y - judgment mot ion. See id

. But the Lam Part ies con tend that the summar y - judgment evidence did not esta blish PNR ’s4 righ t to judgment as a ma tter of law as to reasonable and necessary attorney ’s fees because the Affidavit w a s unsigned and u nswor n and therefore without evident iar y value and incompeten t to support a summary judgmen t

. If th is contention is correct, then the summary - judgment evidence does not facially establish th is right, and the trial court erred in g ran ting su mmary 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 sti ll ma y challenge on appeal the sufficiency of PN R ’s proo f as to attorne y ’s fees

. See id .; B utt v. A l i , No. 14

- 15

- 0109 6

- CV, 20 17 WL 1015583, at *3 (Tex. App.

— Houston [14th Dist.] Mar. 14, 201 7, no pet.) (mem. op.). If the failure of the Affidavit to be sworn or signed is a def ect in form, then the Lam Parties w aiv ed their obj ect ion t o the Affida vit by failing to raise it before the trial court granted summary judgment. See Seim v . Allstate T exas Ll oyds , 551 S.W.3d 16 1 , 164 (Tex. 201 8) ; Life Ins. Co. of Va

. v
. Gar

- Dal, Inc ., 570 S.W.2 d 378, 381 (Tex. 1978) ; Adi v

. P rudential Pr op
. & Ca s. Ins. Co

. , No. 14

- 01

- 01001

- CV , 2003 WL 2290 8129 , at *3 (Tex. App.

— Houston [14th Dist.] Dec. 11, 200 3, pet. de nied ) (mem. op.). On the other hand, i f such a failure is a defe ct in substance , then the Lam P arties did not waive their objection and may r ais e it after j u dgment in the trial court and on appeal. See Seim , 551 S.W.3d at 164. A
. Did the trial court err in grant ing summary judgment as to a t t orney ’ s fees because the Affidavit was unsworn ? The Lam Parties assert that under Government Code sectio n 3 1 2.011(1) an affidavit must be sworn to bef ore an officer authorized to administer oaths, and officially certified to by the officer und er the officer ’s sea l of office

. See Tex. G ov ’t Code Ann. § 3 12.011(1) (West , Westlaw through 2 023 4 th C.S.)

. The Lam Pa r ties assert that an unswor n statement that purports to be an affidavit is incompe tent summary - judgment ev idence and will not support a summary5 judgm e nt. Li berally construing the Lam Parties’ brief, they asser t that the absence of some evidence that the Af f

idav it was s worn to by PNR ’s attorney before an authorized officer is a defect in su bstance , 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 def ect is a defect in form and that the Lam Part ies waived any objection to the defect by thei r failure to timely object. The Supreme Court of Texas addressed th ese issues in its opinion in Mans ions in the Forest, L.P. v. Montgomer y County

. See 365 S.W.3d 314, 316– 18 (Tex. 2 012).

T he Government Code defin es “affidavit” as “ a statem ent 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 o ffice .” Tex. G ov ’t Code Ann. § 3 12.011(1)

. When an affidavit meets the Gove rnment Code’ s requirements, it may be presented as summary judgment evidence if it complies with Texas R ule 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 con cluded that if a wri tten statement does not meet this basic definition, it is “no affidavit at all.” Mansion s in the Forest , 365 S.W.3d at 316 (quoting Hardy v. Bea ty , 19 S.W. 778, 779 ( Tex. 1892) ). Th e Mans ions cou rt proce eded to address whether an affidavit must contain a jurat

. See id. at 316 –17

. A j urat 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 affidavi t be sworn to, it does not require a jurat or cl ause stating that the w riting was swor n to before the officer

. Tex. G ov ’t Code Ann. § 3 12.011(1) ; see Mansions in the Forest , 365 S.W.3d at 316

. Similar ly , Texas Rule of Civ il Proced ure 166a(f) does not requi re that an affidavit used as evid ence in a

summa ry - judgment proceeding contain an offi cer’s attestation to the affia nt’s oath.6 See Tex . R. Civ. P. 166a(f) ; see Mansions in the Forest , 365 S.W.3d at 31 6

. Normally, an affi davit includ es a jurat to prove that the written statement was made under oath before an authorized officer. S ee Mansions in the Forest , 365 S.W.3d at 316

– 17. The Mansions court determined tha t if a purported affidavit lacks a jurat, othe r evidence must show that it w as sworn to before an au thorized officer and thus sa tisfies the Government Code’s definition of “ affidavit.” See id

. at 317. Under the Mansions precedent , t he Affidavit in today ’ s case was not required to contain a jurat to m eet the requirements of the Go vernment Code or to sat isfy Rule 166a

. See Tex. G ov ’t Code Ann. § 3 12.011(1) ; Tex . R. Ci v. P. 166a(f)

. To meet the G overnment Code’s requirements, however, the record must contain some evidence that the purported aff i davit was sworn to by PNR ’s at torney before

a n author ized officer. S ee Mansions in the Forest , 365 S.W .3 d at 31 7. Here, the

sum mary - judg ment e vidence lacks any indication that the A ffidavit was ever sworn to by PNR ’s attorney

. Ac cordingly, the Affidavit d o es not meet the requirements o f the Government Code a nd is “no affidavit at all.” See id. at 31 6

. Nonetheless, if th is defect is a defect in form , then the Lam Parties waived their object ion to the Affidavit by failing to raise it before the trial court g r anted summary judgment. See Seim , 551 S.W.3d at 164 ; Life Ins. Co. o f Va

. , 570 S.W.2 d at 381 ; Ad i , 2003 WL 2290 8129 , at *3

. The Mansions court also addressed whether the absence o f any evidence that

a purported affidavit was sworn to by the affiant befor e an authorized officer is a defe ct in form or a defec t in substance

. See Mansions in t he Forest , 365 S.W.3d at 31 7

– 18. The high court discussed preservation

- of

- error principles and stated that the cou r t ha d allowed parties to deviate from the err or - preser v ation require me nt in

“ certain limi ted circumstances

. ” Id

. at 317. Noneth eless, the high court not ed that it7 had never held that an affidavit’s alleged failure under Texas Government Code section 312.011 is excepted from the general requirement of erro r preservation. See id

. Even though the def ect i n question ma de the docum ent “no affidavit at all ,” and even though six courts of appeals 1 had pre viously conc luded that this defect wa s a defect i n substance, the Mansions court concluded that if a pur p orted affidavit lack s a jurat and a litigant fails to provide extrinsic eviden ce to show that it was sworn to before an authorized officer, th is is a defect in form, and an opposing party waive s its objection t o th is defect if it fails to timely object in the trial court

. 2 See id . at 317

– 18

. When the tria l c ourt granted PNR ’ s summary- judgment motion, the Lam Parties had n ot raised any complaint regar ding PN R’ s failure to provide an executed jurat or other evidence show ing that the Affidavit was sworn to be f ore an authorized officer . Therefor e, the Lam Par t ies wa ived their objection to this defect in form , and the trial court did not err in granting summary judgment as to att orney ’ s fees because the Affidavit was unsworn
. Se e Seim , 551 S.W.3d at 164 ; Mansion s in the Forest , 365 S.W.3d at 316 –1 8; Lif e Ins. Co. o f V a. , 570 S.W.2 d at 381 ; Adi , 2003 WL 2290 8129 , at *3

. B
. Did t he trial court err in granting summary judgment as to at t orney ’ s fees because the Affidavit was uns ign ed ? The Lam Parties further argue t hat Government Code section3 12.011(1)

r equires that an affidavit m ust be signed by the party makin g i t. See Tex. G ov ’ t

1 The Fourteenth Court of Appeals was o ne of these six courts. Two other courts of appeals had effect ively conclud ed that the a bsen ce of a ju ra t was a defect in substanc e, a conclusion similar to the holding of the other six courts of appeals. The Mansions court c ited no court d ecision that agreed with its holding. See Mansions in t he Forest , 365 S.W.3d at 316 –18.
2 The Lam Parties cite the Sec ond Court of Ap peals ’s opini on in Dixon v. Mayfi eld Bldg. Supp. Co

. See 543 S.W.2d 5 , 7 –8 (Tex. Civ. App.

— Fort Worth 1976, no writ). But this case does not add ress whether this defect is a defect in fo rm or in substance, and in any event we are bound by t he Suprem e Cou r t o f Texas ’ s h olding in Mansions

. S ee Mansions in the Forest , 365 S.W.3d at 316–18 ; Dixon , 543 S.W.2d at 7–8.8 Code Ann. § 3 12.011(1)

. Liberally construin g the Lam Parties ’ brief, they also argue that the absence of the affiant ’s signature in the Affidav it is a defect in

su bstance , and thus they wer e no t required to object to this defect before the trial

cour t granted summary judgment. See Seim , 551 S.W.3d at 16 4. PNR asserts that this defect is a defect in form and that the Lam Part ies waived the i r objection to th e defect by failing to timely object

. I n Mansions , the Supreme Co urt of Texas concluded that the absence of evidence sh o w ing that an affidavit w as sworn to before an authorized officer is a def ect in form and not su bstance

. T he question n ow is whether the rationale in Mansions should also a pply to a n unsigned affi davit. The part ies have not ci ted and research has not revealed any prece dent from t he Sup re me Cou rt or this c ourt addressing whether an affiant ’s failur e to sign a pur ported aff i davit is a defect in form or a defect in substance. W e conclude that the same r ational e expressed in Mansions with respect to error preservation concerning an unsworn affidavit appli es eq ua lly to an unsigned affi davit.
I n Mansions , the summary

- judgment mo v ant wai ted until the case w as on appeal be fore it obj ected to the nonmovants ’ failure to submi t evidence sh o w ing that their affidavit w as sworn to before an authorized officer

. See Mansions in the Forest , 365 S. W.3d at 31 5

– 16

. T he Ma nsions court noted tha t such a failure mea nt the instrument wa s “ no affidavi t at all , ” but rather than co nclude that the defect

was a defect in substance on this basis, the court proceeded to analyze whet her this defect should be subject to the error - pre servat ion r equirement

. S e e id. at 317

– 18

. The high c ourt stated that it ha d previous ly allowed parties to deviate from the

err or - preservation require ment in “ certain limited circumstances

. ” Id

. at 317. The Mansions court recognized the “important pruden tial consid erations” supportin g Texas ’s longst anding error - preservation requirement

. See id

. A timely and specific9 complaint alerts the trial court and the adversary to the purported error, giving both a chance to remedy the problem a n d thus avert the need to raise t he issue on appeal. S ee id

. Requiri ng error preservation avoids unfairness, gives deferenc e 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 a ppeals. See id

. In t h is way, the er ror - preservation rule spurs efficiency, prevents unnecessary expense, and safeguards judicial resources. See id

. It also deters the gamesmanship that sometimes accompanies the exceptions t o the error preservation requirem ent. See id

. The Mans ions c ourt o bs erved 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 o fficer, requiring the opposing party to timely object to this error gives the li tigant a chance to correct the error. See id

. After considering the p rudential considerations supportin g the error - preservation requirement , the high court determ ined that e ven such an obvious and substantial de f e ct was a defect in form and thu s still subject to th e error - preservation ru le

. See Seim , 551 S.W.3d at 1 6 6 ; M ansions in the Forest , 3 65 S.W.3d at 31 7

– 1 8

. If the affidavit in Mansions presented a defect in form , then the unsworn Affidavit in to d ay ’s case does too. See Seim , 551 S.W.3d at 1 6 6 ; M ans ions in the Forest , 3 65 S.W.3d at 31 7

– 1 8 ; Grady v. Nationstar Mortgage, LLC , No. 02

- 19

- 00006

- CV, 2020 WL 524241 8, at *5 (Tex. App.

— Fort Worth Sep. 3, 2020, pet. denied ) (m em. op.)

. The Second Court of A p peals reached the same conclusion in Grady v. Nations tar Mortgage

. See 2020 WL 5142418 , at *5. There, the signature block for the affiant contain ed “/s/” followed by the affiant ’s typed name , and the signature block for the notary contain ed “/s/” followed by the notary ’ s typed name

. The Grady court presume d for the purposes of its analysis that under Texas Rule of Civil Procedure 2 1 , “/s/” followed by a typed name d id not constitute an affiant’s or a notary’s s ignature. See Tex. R. Civ. P. 21(f)(7)(A) (sta t ing that an10 electronically filed document is consider ed 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 524241 8, a t *5 , n.4 . Under this presump tion, the summary - judgme nt a ffidavit lacked the affiant ’s signature and the notary ’ s signature. See G rady , 2020 WL 524241 8, at *5, n.4. The Second Court of A ppeals applied the Mansions preservat ion

- of -error analysis and conclu d ed that the failure of an affia nt to sign a purported af fidavit i s a de fect in form and that the opposing party waived any object ion to this defect by failing to object in the trial court

. See G rady , 2020 WL 524241 8, at *5

. The parties have not cited and r esearch has not revealed any case in which a cou rt ap pl i es the Mansions pre servat ion

- of -error analysis and determine s 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. Inv est or Land Services , LLC

. Se e 645 S.W.3d 870, 884 (Tex. A p p.

— El Paso 2022, no pe t.). In that case, the court of appeal s does not e xpressly a ddress whether the failure of an affia nt to sign a purported affidavit i s a defect in form or a defect in subst ance. Se e id

. Nonetheless, the court effectively treats th is d efec t as o ne of sub sta n ce
. See id

. T he Nevarez case is n ot on point b eca use the court of appeals did not cite or a pply the Mansions precedent

. See id

. The Lam Parties also cite Hatcher v. TDCJ

– Instituti o nal Division

. See 2 32 S.W.3d 921, 925 (Tex. App.

— Tex a rkana 2007, pe t. denied ). T he Hatcher opinion is not on po int because it does not address whether the failure of an a ffiant to sign a purported affidavit i s a defect in form or a defect in subst ance and it does not apply the Mansions precedent, which issu e d after the Hatche r cas e was decided

. S ee id

. For the same reasons, the Second Court of Appeals ’s op inion in Dixon v. Mayfi eld B u ilding Supply Company , cited by the Lam Parties, is a lso not on point

. Se e 543 S.W.2d 5 , 7

– 8 (Tex. Civ. App.

— Fort11 Worth 1976, n o writ). A fter consi der ing the p rud ential considerations supporting the errorpreservation requirement under the Mansions analysis , we conclude that that e ven though the affiant ’s failure to sign the pu r ported affid avit makes the document “no affidavit at all ,” this too is a defect in fo rm and that an opposing party waives its objection to this defect if it fails to timely object in the trial court

. See M ansions in the Forest , 3 65 S.W.3d at 31 7–18 ; Seim , 551 S.W.3d at 166; Grady , 2020 WL 524241 8, at *5

. Whe n the trial court gr anted PNR ’ s summary- judgment mo tion, the Lam P arties had n ot raised any complaint regar ding PN R’ s attorney ’ s failure si gn the Affidavit . Therefor e, the Lam Par t ies waived their objec t ion to this defect in form , and the trial court did n ot err in grant ing s ummary judgment as to att orney ’ s fees because the Affidavit was uns igned

. Se e Seim , 551 S.W.3d at 164 ; Mansions in the Forest , 365 S.W.3d at 316 –1 8; Life Ins. Co. o f Va

. , 570 S.W.2 d a t 381 ; Grady , 2020 WL 524241 8, at *5 ; Adi , 2003 WL 22 90 8129 , at *3

. C
. D id t he trial court err in denyi ng the Lam Parties ’ motion for reconsideration? We p r esum e f or the sake of argument that the Lam Parties challenge the trial court ’ s denial of their mo t ion for reconsideration

. In their motion for reconsid eration the Lam Part ies did not cite any evidence not available to the m when PNR ’s sum mary- judgment moti on was granted, and as to the complaints raise by the Lam Parties on appeal, we have concluded tha t the trial cour t did not

err in granting the summary- judgment motion. The refore, the Lam Parties have not shown that th e trial court erred in denying their motion for reconsideration. See Balciunas v. Herman , No. 14

- 22

- 00029

- CV, 2023 WL 4732823, at *2 (Te x
. App.

— Houston [14th Dist.] Jul. 25, 2023, no pet.) ( mem. op.).
II I. C ONC L USION Under binding precedent f rom the Supreme Court of Texas , if a purported12 affidavit lacks a jurat and a litigant fails to provide extrinsic evidence to show that it was sworn to b efore an authorized officer, th is is a defect in for m , and an opposing party waive s its objection to this defe ct if it fails to timely object in the tri al court

. When the trial court granted PNR ’ s summary- judgment motion, the Lam Parties had n ot raised an y com plaint regar ding PN R’ s failure to provide an
exe cu ted jurat or other eviden ce show ing that the Affidavit was sworn to before an authoriz ed officer . The refor e, the Lam Par t ies waived their objection to this defect in form , and the trial court did not e r r in grant ing summary judgment as to att orney ’ s fees because the Affidavit was unsworn
. After considering the p rudential considerations supp orting the error- preservation requirement under the Mansions analysis , we conclude that that e ven though the affian t ’s failure to sign the purported affid avit makes the document “no affidavit at all ,” this defe ct is a defect in form and that a n opposing pa rty waives its objection to this defect if it fails to timely object in the trial court

. When the trial court gran t ed PNR ’ s summary- judgment motion, the Lam Parties ha d not raised any complaint regar ding PN R’ s attorney ’s failure si gn the Affidavit . Therefor e, the Lam Par t ies waived their objection to thi s defect in form , and the trial court did not err in grant ing sum m ary judgment as to att orney ’ s fees because the Affidavit was
uns igned

. 3 The Lam Parties have not shown that the trial court erred in denying their m otion for reconsideration. We overrule the Lam Parties ’ sole is s ue and affirm the trial court ’ s judgment.

/s/ Randy Wils on Justic e Panel co nsists of Just ic es Hassan , Poissant , and Wilson

.

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