The term “to the best of my knowledge and belief” is used in affidavits and court documents to indicate that statements being made are not knowingly false. Assuming your client signs a document under “knowledge and belief”, does he have a duty to verify the truth or accuracy of his statements? Is your knowledge and belief of the facts and law imputed to your client? Can a fiduciary avoid liability by signing under “knowledge and belief”?
“Knowledge” and “belief” and are not synonymous. Knowledge is a “justified true belief” (Plato) – i.e., you believe it and there is sufficient evidence or justification to support it. A belief can be true or false, knowledge is neither, but belief is a necessary condition for knowledge. Bencivegna, 1999.
Sec. 92.525, F.S. reads in relevant part:
92.525 Verification of documents; perjury by false written declaration, penalty.—
(1) If authorized or required by law, by rule of an administrative agency, or by rule or order of court that a document be verified by a person, the verification may be accomplished in the following manner:
* * * *
(c) By the signing of the written declaration prescribed in subsection (2).
(2) A written declaration means the following statement: “Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true,” followed by the signature of the person making the declaration, except when a verification on information or belief is permitted by law, in which case the words “to the best of my knowledge and belief” may be added. The written declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration.
(3) A person who knowingly makes a false declaration under subsection (2) is guilty of the crime of perjury by false written declaration, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084….[Emphasis added]
In addition, Fla. Prob. R. 5.020(e) reads: “Verification. –When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: “Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief.” [Emphasis added]
PERSONAL KNOWLEDGE IS NOT SYNONYMOUS WITH “MY KNOWLEDGE AND BELIEF”.
“Personal knowledge” is defined by Black’s Law Dictionary (10th ed. 2014) as “[k]nowledge gained through firsthand observation or experience, as distinguished from a belief based on what someone else has said.”
If a verification of a complaint is based on knowledge and belief and fails to show that the affiant had personal knowledge of the matters stated in the complaint, the trial court cannot consider the verified complaint as a basis for the entry of summary judgment. See Houk v. PennyMac Corp., 210 So. 3d 726 (Fla. 2nd DCA 2017), citing Ballinger v. Bay Gulf Credit Union, 51 So. 3d 528 (Fla. 2d DCA 2010); Colon v. JP Morgan Chase Bank, N.A., 162 So. 3d 195 (Fla. 5th DCA 2015); Lindgren v. Deutsche Bank Nat’l Trust Co., 115 So. 3d 1076 (Fla. 4th DCA 2013) (finding a verification based on “information and belief” to be insufficient for purposes of summary judgment), accord Morales v. ICI Paints (Puerto Rico), Inc., 383 F. Supp. 2d 304 (D.P.R. 2005) (the phrase “to the best of his knowledge” is not sufficient to represent personal knowledge as required by Fed. R. Civ. Proc. 56(e).)
A number of cases have held that the phrase “to the best of my knowledge” when used in affidavits suggests a level of uncertainty. See Pelayo v. J.J. Lee Mgmt Co., Inc., 94 Cal. Rptr. 3d 502 (Ct. App. 2009); Katelaris v. County of Orange, 112 Cal. Rptr. 2d 556 (Ct. App. 2001). The Supreme Court of Alabama stated in Board of Water and Sewer Commissioners v. Spriggs, 146 So. 2d 872 (Ala. 1962), that when an affiant uses the phrase “true to the best of his knowledge, information and belief,” the statement “means nothing ‘more than the affiant believes the allegations of the bill to be true, though he has neither knowledge nor information of their truth,’ and ‘an affidavit of belief in their truth simply amounts to nothing.’”
The words “within my knowledge,”…imply that the affiant has sufficient knowledge of the facts to verify his statement as to the truth and justness of the account. On the other hand, the words “to the best of my knowledge” do not necessarily connote a knowledge of the facts by the affiant sufficient to support the verity of such a statement. As appellant’s counter-affidavit is based upon the “best of his knowledge” only, it is equivocal and inadequate.
Gayne v. Dual-Air, Inc., 600 S.W.2d 373 (Tex. Civ. App. 1980).
IS THERE A DUTY TO VERIFY THE TRUTH OR ACCURACY OF YOUR STATEMENTS?
In Applefield v. Commercial Standard Ins. Co., 176 So. 2d 366 (Fla. 2nd DCA 1965), the court held: “It is the rule of this jurisdiction that whatever is sufficient to put a person on inquiry amounts in point of law to notice, provided there is a duty to make the inquiry and such inquiry could lead to a knowledge of facts which, under the circumstances of the particular case, calls for application of the rule in order to do equity….Means of knowledge, with the duty of using them, are in equity equivalent to knowledge itself….Where there is a duty of finding out and knowing, ignorance resulting from a negligent failure to perform the duty has the same effect in law as actual knowledge…. “A person has no right to shut his eyes or ears to information, and then say that he has no notice. The law will not permit him to remain wilfully ignorant of a thing readily ascertainable by whatever party puts him on inquiry, when the means of knowledge is at hand. If he has either actual or constructive information and notice sufficient to put him on inquiry, he is bound, for his own protection, to make that inquiry which such information or notice appears to direct should be made. If he disregards that information or notice which is sufficient to put him on inquiry and fails to inquire and to learn that which he might reasonably be expected to learn upon making such inquiry, then he must suffer the consequence of his neglect.”… [citations omitted]; followed Sutton Enters. Ltd. v. Santa Clara Constr. Co., 767 So. 2d 547 (Fla. 3rd DCA 2000); See also In re Estate of Donner, 364 So. 2d 742 (Fla. 3rd DCA 1978).
Insurance Applications: Under §627.409, F.S., an insurer can void a policy for misstatements or omissions on an application without regard to whether they are intentional or accidental. However, an insurer who includes the modifier “to the best of his knowledge and belief” in an insurance application has agreed to a lesser knowledge standard. See Green v. Life & Health of America, 704 So. 2d 1386 (Fla. 1998) (an application based on “to the best of his knowledge and belief” is not a basis to void an insurance policy so long as there were no knowing misstatements on the application); Casamassina v. United States Life Ins. Co., 958 So. 2d 1093 (Fla. 4th DCA 2007) (an omission or misrepresentation in an insurance application, when the application is completed to the best of the applicant’s knowledge and belief, is not a basis for rescission of a policy); Accord Ocean’s 11 Bar & Grill, Inc. v. Indemnity Insurance Corp. of DC, 522 F. App’x 696 (11th Cir. 2013). See also Sterling Insurance Co. v. Dansey, 81 S.E.2d 446 (Va. 1954), where the insured sued an insurance company for denial of disability benefits. The Supreme Court of Appeals of Virginia determined that the “best knowledge” language on the application excused any prevailing duty (statutory or otherwise) to investigate the accuracy of the warranty and that an incorrect statement, innocently made, will not void the policy.
Foreclosures: Fla. R. Civ. P. 1.115 contains a verification requirement for residential mortgage foreclosures. The complaint must include an oath, affirmation, or the following statement: “Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.” One of the primary purposes of this amendment was to “provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and insure that the allegations in the complaint are accurate”. [Emphasis added] See In re Amendments to the Fla. Rules of Civil Procedure, 44 So.3d 555 (Fla. 2010).
IMPUTED/CONSTRUCTIVE KNOWLEDGE: Black’s Law Dictionary (10th Ed. 2014) defines “constructive knowledge” as “[k]nowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person.” “Imputed knowledge” means knowledge of one person attributed to another person. Knowledge may be imputed from one person to another based on their legal relationship.
The knowledge of an employee or officer in an organization may be imputed to the person making a representation or rendering an opinion on behalf of the organization. For example, in Specialized Tours, Inc. v. Hagen, 392 N.W.2d 520 (Minn. 1986), the sole shareholder of a corporation warranted “[t]hat to the best of Seller’s knowledge, the Corporation has complied with all applicable laws, rules, and regulations of the city, county, state, and federal governments,” the Supreme Court of Minnesota held that the warranty was not breached even though the corporation was in violation of Civil Aeronautics Board regulations regarding escrow accounts and the office manager of the corporation knew of this. The court reached this conclusion because the “best knowledge” warranty only extended to the shareholder’s personal knowledge, and although the knowledge of the agent may be imputed to the corporation, it may not be imputed to the individual shareholder.
It is well established that the attorney-client relationship is an agent-principal relationship. Accordingly, information an attorney receives during the scope of his representation of a client will be imputed onto his client even if the client does not have actual knowledge of that information. See Gordon C. Brydger, P.A. v. Wolfe, 847 So. 2d 1074 (Fla. 4th DCA 2003), citing In re Brugh’s Estate, 306 So. 2d 599, 600 (Fla. 2d DCA 1975); Applefield, supra; State v. C.R.S., 584 So. 2d 172 (Fla. 3rd DCA 1991); State v. White, 794 So. 2d 682 (Fla. 2nd DCA 2001); Starling v. State, 799 So. 2d 425 (Fla. 5th DCA 2001); State v. Martinez, 790 So. 2d 520 (Fla. 2nd DCA 2001). But see Stueve Bros. Farms, LLC v. Berger Kahn, 166 Cal. Rptr. 3d 116, 222 Cal.App.4th 303 (Cal. App. 2013) (a client’s imputed knowledge may not apply where the standard is “knew or should have known”).
Interrogatories: Interrogatories must be answered under oath. Fla. R. Civ. P. 1.340. A party cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of his or her attorney. See Surf Drugs, Inc. v. Vermette, 236 So. 2d 108 (Fla. 1970), citing Hickman v. Taylor, 329 U.S. 495 (U.S. Supreme Ct. 1947). See also Comments to Fla. R. Civ. P. 1.340 which read in relevant part: “The fact that the information needed to answer an interrogatory is within the sole knowledge of the attorney for the party is not a valid objection….”
The attorney is the conduit of the internal inquiry which assembles the corporate knowledge, but that knowledge is not immunized by its passage through an attorney’s briefcase. If the rule were otherwise, a party operating through an attorney would never have it provide discovery; by leaving the gathering of the party’s knowledge to the attorney, the party would preclude discovery of the facts evermore.
United States v. Kramer, 1992 U.S. Dist. LEXIS 7651 (US Dist. Ct. NJ 1992).
FIDUCIARY LIABILITY: A fiduciary may not be able to absolve himself from liability based on reliance on a professional irrespective of whether the document at issue was signed on “knowledge and belief”. See Harrell v. Badger, 171 So. 3d 764 (Fla. 5th DCA 2015) (Reliance on counsel did not absolve a trustee from liability as his misconduct resulted from his failure to comply with clear and unambiguous statutory requirements); Laramore et al. v. Laramore et al., 64 So. 2d 662 (Fla. 1953) (A trustee may not surrender or delegate to the attorney all the functions and duties of the trust, or acquiesce in the complete management and control of the trust by the attorney without becoming liable for losses sustained thereby.) In Gurdschinsky v. Hartill, 815 P.2d 851 (Alaska 1991), the personal representative was surcharged for penalties and interest incurred by the estate for filing the estate tax return late. On appeal, the personal representative defended on the basis that she reasonably relied on the advice of her accountant who, she claims, informed her that the returns had been timely filed. The Alaska Supreme Court, in affirming the judgment of surcharge against the PR, reasoned in part: “Gudschinsky makes several arguments to escape all or part of this surcharge. First, she argues that she reasonably relied on the advice of her accountant who, she claims, informed her that the returns had been timely filed. We have found no cases which absolve from liability a personal representative who took no steps to assure that the estate’s tax return had been filed on time…. In Gudschinsky’s case, she apparently left all tax matters to the accountant. Gudschinsky does not point to any evidence in the record which shows that she tried to find out when the taxes were due. She merely claims that she interpreted a conversation with her accountant to mean that the estate’s tax returns had been filed on time. We find that Gudschinsky’s mere passive acceptance of an interpretation of a conversation with her accountant does not relieve her of liability for penalties and interest.”