iS ‘ totheBeStofmyknoWLedge ’ goodenough ?
Construction law Section Chairs : DebbieCrockett-CheffyPassidomo , P . A . & KatherineHeckert , CarltonFields
Bewary ; personalknowledge isnotenough . anaffidavit basedonunsupportedopinions andconclusionsoffactand lawwillbeinsufficient .
The year is 2021 . The world has been turned on its head , but you are ready to move forward . You submit your Rule 1.510 ( e ) expert affidavit in support of your Opposition to Defendant ’ s Motion for Summary Judgment detailing facts in question and noting that the affiant ’ s testimony was made “ to the best of his knowledge .”
You arrive ( virtually or in person ) at the Motion for Summary Judgment hearing ready to explain your case but , to your surprise , the judge refuses to consider the affidavit attached to your pleading . This has become an all too familiar scene poised to demolish your defense . What did you do wrong and how can you be sure this never happens again ?
Under Florida law , affidavits , oaths , and acknowledgments administered by a notary public of the State of Florida are governed by section 92.50 ( 1 ), Florida Statutes . Section 92.50 ( 1 ) requires the signature and official seal of the officer or person taking or administering the oath . However , the notary ’ s signature and seal are properly placed on the expert affidavit . You have passed this test .
Florida Rule of Civil Procedure 1.510 ( e ) further provides requirements for supporting or opposing affidavits . Specifically , Rule 1.510 ( e ) states that affidavits
must be based on personal knowledge , set forth facts admissible in evidence , show that the affiant is competent to testify in the matters stated therein , and include sworn or certified copies of documents referred therein .
Importantly , an affidavit must be based on personal knowledge . Affidavits not made on personal knowledge mean that the affiant is not competent to testify to the matters set forth therein . 1 Qualifying verifications using the words “ to the best of his / her knowledge ” are insufficient . 2 Further , affidavits based on information and belief are insufficient because it is not made on personal knowledge . 3 You have determined the error of your ways , the simple acknowledgement that the information provided was to the best of the expert ’ s knowledge was not enough .
How can you be certain this will not happen to you again ? A helpful example of verification based on personal knowledge that was approved by the supreme court for filing motions for post-conviction relief states that : “ Before me , the undersigned authority , this day personally appeared _________, who first being duly sworn , says that he is the Defendant in the above-styled cause , that he has read the foregoing Motion for
Post-Conviction Relief and has personal knowledge of the facts and matters therein set forth and alleged ; and that each and all of these facts and matters are true and correct . _________________________ ( your signature ) 4 ”
Be wary ; personal knowledge is not enough . An affidavit based on unsupported opinions and conclusions of fact and law will be insufficient . 5 Recently the Second District Court of Appeal held that a corporate representative ’ s affidavit was insufficient because it lacked details of the affiant ’ s title and specific corporate duties , the relevant skill sets or experiences that the affiant possessed to testify competently , and an acknowledge - ment of the affiant ’ s personal knowledge of the testimony . 6
The moral of this tale is when you are relying on an affidavit to support or oppose a motion for summary judgment , you must be sure the affidavit is based on personal knowledge , competency , and admissible facts . n
1
Elser v . Law Offices of James M . Russ , P . A ., 69 So . 2d 309 , 312 ( Fla . 5th DCA 1996 ).
2
See Scott v . State , 464 So . 2d 1171 , 1172 ( Fla . 1985 ) ( holding that a motion
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