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Click here for the full text of this decision FACTS:The appellant, Evelyn Churchill, appeals from a summary judgment rendered by the trial court in favor of appellee, Donna Mayo, as administratrix of the estate of the decedent, Kenneth David Churchill. Evelyn and Kenneth married in 1984. In 1989, Kenneth died intestate. The trial court appointed Mayo, one of Kenneth’s nieces, to be the administratrix of Kenneth’s estate. In 1990, the trial court ordered Mayo to set aside real property located in Fort Bend County for Evelyn’s use as a homestead. Mayo immediately challenged the trial court’s order declaring the property as Evelyn’s homestead by filing an application for partition of real property by sale and partial distribution. Evelyn responded by affidavit dated May 30, 1990 that stated that Evelyn was in France to care for her ill father, that she had traveled to the house four times in 1989, that she intended to return to the house, and that she had not abandoned it. Fourteen years later, in 2004, Mayo and the other heirs filed a first amended application for partition of real property by sale and partial distribution. In that application, it was alleged that Evelyn had never attempted to occupy the property, that she had rented or leased the property to tenants, and that she had resided in France prior to and after Kenneth’s death. The first amended application requested that the court 1. find that Evelyn had never occupied the property as her homestead, 2. find that Evelyn had abandoned the property, and 3. order the sale of the property and distribution of the proceeds. Mayo later filed a no-evidence motion for summary judgment asserting that there was no evidence that Evelyn had established homestead rights or, alternatively, that there was no evidence that Evelyn had not abandoned those rights. Evelyn filed a response to Mayo’s no-evidence motion, which response included copies of four tax statements as its evidence. Evelyn’s response stated, “Not only has [Evelyn] returned to the property on many occasions, she has also maintained the tax payments on said property from 1989 until 2003. (See as an example attached Tax documents of year 2002).” The four tax statements are entitled “Tax Statement Fort Bend County L.I.D. #2,” “Fort Bend County 2002 Tax Statement,” “2002 Fort Bend ISD Tax Statement,” and “City of Sugar Land Tax Statement.” Evelyn also filed an affidavit that stated that she was entitled to the homestead and had not abandoned it. Although the affidavit was not attached to her response to the no-evidence motion for summary judgment, the affidavit was entitled “Affidavit in Support of Evelyn T. Churchill’s Traverse, Response to Administratrix Donna Kathleen Mayo’s”No Evidence’ Motion for Interlocutory Summary Judgment” and was thus clearly identified as part of Evelyn’s summary judgment evidence. Mayo filed written objections to Evelyn’s affidavit on the grounds that: 1. The affidavit did not comport with Texas Rule of Civil Procedure 166a in that it does not clearly state that it is made of Evelyn’s personal knowledge; 2. Evelyn did not swear that the statements in the affidavit were true and correct; 3.The affidavit did not affirmatively show how Evelyn is competent to the matters stated; and 4. The affidavit does not set forth facts that would be admissible in evidence. The trial court sustained these objections, in writing, on July 7, 2004, and ordered that the affidavit was “inadmissible for all purposes.” The trial court found that Evelyn had established homestead rights, but that she had abandoned the property “at least as early as March 16, 1990, and that she has leased/rented the property to third parties possibly commencing as early as March 16, 1990.” The court thus rendered summary judgment because Evelyn had failed to produce competent summary judgment evidence that she had not abandoned the property. HOLDING:Reversed and remanded. The judgment is styled as an “interlocutory” summary judgment. The record shows that the administration of the estate remains pending in the probate court and has not been closed. The trial court’s judgment recited that Evelyn did have homestead rights, but had abandoned them. The judgment further ordered Evelyn to account for all rental proceeds received. Finally, the judgment ordered that the property be sold and that the proceeds be distributed to Kenneth’s heirs. The trial court’s judgment disposes of all issues and parties in this portion of the probate proceedings, therefore, the court concludes that it has jurisdiction. By stating that she is “personally acquainted with the facts herein stated,” Evelyn’s affidavit plainly represents that it is made from Evelyn’s personal knowledge. The trial court also sustained Mayo’s objection that Evelyn did not swear that the statements in the affidavit were “true and correct.” An affidavit that does not state that the facts recited are true, but is based on personal knowledge and is subscribed to and sworn before a notary public, is not defective. Here, the affidavit meets these requirements, and the trial court abused its discretion in ruling to the contrary. Evelyn’s affidavit states that she is “personally acquainted with the facts herein stated.” It also states that she was married to the decedent and had lived in the house in dispute. The affidavit stated that she had paid the insurance and taxes on the house from the time of the 1990 order until the time of her affidavit. The affidavit then describes her personal state of mind and intent concerning the homestead. It is clear that all of these matters were within Evelyn’s personal knowledge. Thus, the statements concerning these matters are proper summary judgment evidence. We conclude that the trial court erred by sustaining Mayo’s objections to Evelyn’s affidavit and by striking the affidavit from consideration as part of Evelyn’s summary judgment proof. The affidavit should have been considered as part of her summary judgment evidence, in addition to the four tax statements that she supplied. Evelyn’s affidavit states that she had lived in the house with Kenneth when they were married, that the house is her homestead, that she did not abandon it, that she did not have any intent to abandon it, that she was living temporarily at in her son’s homestead, and that she rented the property temporarily. Evelyn further asserts in the affidavit that she has supported and maintained the homestead by paying taxes on the property, paying for its “upkeep,” and maintaining insurance on the property. Consistent with that last statement, Evelyn’s summary judgment proof includes four tax statements for 2002, made billable to her. The court concludes that Evelyn presented more than a scintilla of evidence that she had not abandoned homestead rights in the property in response to Mayo’s motion for summary judgment. OPINION:Elsa Alcala, J.; Keyes, Alcala and Bland, J.J.

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