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

O P I N I O N 

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. 
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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 
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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 
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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 appeals1 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 errorpreservation 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 
11 

Worth 1976, no writ).

After considering the prudential considerations supporting the errorpreservation 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.