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David McDavid Nissan11/30/1999
David McDavid Nissan, Inc. ("McDavid") sued Subaru of America, Inc. ("Subaru") alleging Subaru refused to allow McDavid to relocate its Subaru dealership after orally consenting to the relocation. The trial court granted summary judgment in favor of Subaru on all of McDavid's claims. For the reasons set forth below, we affirm the trial court's judgment in part and reverse and remand in part.
SUBARU'S CROSSPOINT
Before reviewing the summary judgment evidence in conjunction with McDavid's points of error, we must first decide what evidence was properly before the trial court. In a crosspoint, Subaru asserts the trial court erred in not sustaining its objections and striking the two affidavits of McDavid's president, David McDavid, filed in support of its responses to Subaru's motions for summary judgment. Subaru first asserts the David McDavid affidavit dated June 26, 1996 is not competent summary judgment evidence because it:
(1) did not state it was based upon David McDavid's personal knowledge and that the facts stated therein were true and correct; (2) did not set forth how David McDavid was competent to testify; and (3) merely stated legal Conclusions. Subaru also asserts that the exhibits attached to the affidavit were not in admissible form.
To be competent summary judgment evidence, an affidavit must show affirmatively that it is based on personal knowledge and that the affiant is competent to testify to the matters stated therein. See Tex. R. Civ. P. 166a(f). An affidavit that does not positively and unequivocally represent the facts as disclosed in the affidavit to be true and within the affiant's personal knowledge is legally insufficient. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994). Here, David McDavid's June 26, 1996 affidavit does not state that the facts contained in it are true or within his personal knowledge; therefore, perjury cannot be assigned to it. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Gerstacker v. Blum Consulting Eng'rs, 884 S.W.2d 845, 848 (Tex. App._Dallas 1994, writ denied). Accordingly, we conclude this affidavit is insufficient, and we will not consider it for any purpose. We sustain Subaru's crosspoint of error to the extent it complains of the June 26, 1996 David McDavid affidavit.
Subaru also contends the David McDavid affidavit dated April 15, 1996 should not have been considered "for the same reasons." This statement in Subaru's brief mirrors the objection to the April 15, 1996 affidavit presented in its reply to McDavid's response to Subaru's fourth motion for summary judgment. Defects in the form of affidavits or attachments are not grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend. See Tex. R. Civ. P. 166a(f). Our review of the April 15, 1996 affidavit shows that, contrary to Subaru's assertion, many of the objections specific to the June 26, 1996 affidavit do not apply to the April 15, 1996 affidavit. Accordingly, Subaru's general objection to the April 15, 1996 affidavit incorporating all of the objections to the June 26, 1996 affidavit was insufficient to notify the trial court of any deficiencies specific to the April 15, 1996 affidavit. By failing to present a specific objection, Subaru failed to preserve any error for our review. See id. We overrule Subaru's crosspoint to the extent it complains of David McDavid's April 15, 1996 affidavit.
BACKGROUND
Having decided what evidence was properly before the trial court, we review this evidence in light of McDavid's points of error attacking the summary judgment entered below. In doing so, we take evidence favorable to the
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